All or part of what is known as Proposal 2, a constitutional amendment approved by Michigan voters last Nov. 6, still must withstand ongoing legal challenges in federal court. Assuming it does, what will the maps produced by the new 13-member “independent” commission created by the initiative look like?
According to one national apportionment expert, the oddly configured Congressional and legislative “gerrymanders” drawn by Republicans in 2001 and 2011 that have been ridiculed by Democrats and redistricting “reformers” will be supplanted by maps that are even more grotesquely shaped and will sow confusion among local governments.
That’s what the commission is bound to produce if it follows the plain wording of Prop 2, says Rick Pildes, who is part of an online “symposium” on “Partisan Gerrymandering after Rucho” put together by Rick Hasen on his well-known “Election Law Blog.”
Pildes, a University of Michigan Law School graduate who once clerked for U.S. Supreme Court Justice Thurgood Marshall and is now a professor at New York University, was the only one of the 18 who focused on Michigan as one of four states that adopted ballot measures in 2018 to create Independent Redistricting Commissions (IRCs) “or other non-partisan processes to draw districts.”
Good fences makes good neighbors, so the Robert Frost poem goes. Borders, boundaries and city limits are legal fences, and most communities like them. But the Congressional and legislative district maps created for Michigan by the 1964 Austin-Kleiner and 1972 Hatcher-Kleiner reapportionment plans didn’t honor or respect local governments’ borders.
Indeed, those two plans, drafted by the Michigan Democratic Party and approved by a Democratic majority state Supreme Court, were attempts to conform at all costs to the edict of “one person, one vote” as defined by the U.S. high bench in two famous cases, Baker v. Carr (1962) and Reynolds v. Sims (1964). The plans “broke” hundreds of village, city, township and county lines in pursuit of the “one person, one vote” principle, producing consternation and anger throughout Michigan.
Hardy anyone nowadays seems to remember those times. Among those who do, few seem motivated to bring up the issue of shattered local boundaries.
It wasn’t until 1982, when the Michigan Supreme Court (still controlled by Democrats) appointed a special master, former state elections director Bernie Apol, to draw up new maps for the succeeding decade that Michigan got a different result.
Apol applied standards of compactness, contiguity and the breaking of as few local government lines as possible to come up with three maps. The Supreme Court upheld the Apol standards unanimously. The Apol standards were later codified by the Michigan Legislature in 1996.
Pildes entitles his article “What Do Voters Think Independent Redistricting Commissions Should Do?” Excerpted below is how he answers that question generally, and how he thinks two states, Utah and Michigan, will approach the implementation of their initiatives:
“Now that the Supreme Court’s decision means that limits on partisan gerrymandering will have to come from venues such as Independent Redistricting Commissions (IRC) created by voter initiatives in states that permit such initiatives, it is worth keeping in mind that merely moving districting to IRCs does not resolve the underlying substantive questions that must be confronted about what makes a districting system “fair” or appropriate. Indeed, in the four states that in 2o18 adopted ballot-measures to create IRCs or other non-partisan processes to draw districts, we actually see four different approaches.
“In light of Rucho, it’s worth paying more attention to the specific differences between how voter initiatives define the constraints and obligations of an IRC. I’ll summarize here the differences just in the four measures approved last year. Conceptually, the biggest difference is between what I call more “process-oriented” approaches and more “outcome-oriented” ones. The basic difference is between a focus on “fair criteria” that do not define those in terms of some measure of seats/votes outcomes, and ones that do. Here is a brief description of the differences in recent voter initiatives, from a piece I did on this for the Harvard Law Review blog (The Ballenger Report is exorcizing the states of Missouri and Colorado as largely irrelevant to Michigan’s situation):
“The Utah initiative appears to take a process-oriented approach, or perhaps to try to merge process and outcome approaches, but in a way likely to foster confusion. Thus, the commission is told that it must meet, to the greatest extent practical and in a specific order of priority, seven process-oriented criteria, which include the usual factors, along with ones such as “following natural and geographic features, boundaries, and barriers.” But then, after this specific list of rank-ordered priorities that must be followed to the greatest extent practical, the next provision tells the commission not to “divide districts in a manner that purposefully or unduly favors or disfavors … any political party.” Utah’s commission would be only advisory. The legislature can reject the commission’s map and enact its own plan. However, it would be bound by the same criteria as the commission and would have to issue a report explaining why its plan did better at satisfying these criteria.
“To tell the commission to follow process-based criteria and not engage in purposeful partisan gerrymandering is one thing. Both of those objectives can be accomplished together. But what does it mean to tell it both to follow these criteria and also not to “unduly favor or disfavor” a political party? The “unduly favor” standard sounds like an effects-based or outcomes-based measure that applies even if the commission acts without any partisan intent. So if the commission first follows all the process-based criteria, but the map that results would then favor one party or the other -– in terms of how many seats that party gets compared to its statewide vote -– what is the commission supposed to do? Sacrifice some of the process criteria? Or not pay attention to the outcomes after all? If the process-oriented criteria are supposed to have priority, how much room does that leave to adjust the map to avoid “unduly” favoring or disfavoring a political party?
“Michigan’s initiative, which applies to both Congress and state districts, is similar to Utah’s in trying to blend process and outcome criteria, but with a different set of priorities. Thus, Michigan’s proposal first requires compliance with federal law, contiguity, and then respect for communities of interest. But the next requirement, in order of priority, is that the “districts shall not provide a disproportionate advantage to any political party,” using “accepted measures of partisan fairness.” Only after that requirement is met is the commission then required to reflect pre-existing boundaries of towns, cities, and counties and to be reasonably compact.
“Because the commission’s plans cannot provide a disproportionate advantage to a party, this requirement goes beyond ensuring that the commission not act with partisan intent. The effects of its plan must still not advantage any party. In addition, since this requirement is given priority over drawing compact districts or keeping towns and the like together, the Michigan initiative might be read to require that districters use bizarrely shaped districts and break up towns, cities, and counties whenever necessary to ensure that the map produces fair partisan outcomes, in the sense that a party’s proportion of seats corresponds to its proportion of statewide votes …”
In sum, the takeaway from Pildes’s article is this: Michigan’s Apol standards have been knocked so far down the list of criteria that this state’s mapmakers must consider that it almost guarantees the days of Austin-Kleiner and Hatcher-Kleiner are here again.