The Michigan Republican Party has just lost three straight HUGE court decisions on straight-ticket voting (STV), and it’s primed to lose a fourth next week in the U.S. Supreme Court.
Should straight-ticket voting be allowed to continue in Michigan, where it’s been in place for the past 125 years? No, says the Republican-controlled Michigan Legislature (with Republican Gov. Rick Snyder’s consent), according to a new law passed in late 2015. Yes, for the time being at least, say federal judges on two different courts — we’ll decide later whether maybe it can be abolished come 2018.
Why is this important? Because the Michigan GOP is convinced it’s been victimized by STV over a number of elections in so-called “down-ballot” races as a result of a large percentage of Democratic voters casting robotic “one party fits all” votes by checking a single box at the top of the ballot, meaning that that their votes go to ALL the candidates of the political party whose nominee is at the top (Barack Obama? Hillary Clinton?).
This year, that would include not just candidates for, say, the University of Michigan Board of Regents but also countywide and county commissioner offices and township offices as well. Republicans, on the other hand, believe voters should be intelligent and informed enough to make decisions on each and every office individually on the ballot and should be willing to work their way down the bedsheet, checking off their preferences for each and every partisan office. Forty other states agree with the Republican perspective, but that doesn’t seem to be what’s at issue here.
Instead, what really counts is whether a Hillary Clinton blowout win in Michigan on Nov. 8 might drag down GOP candidates in “down-ballot” races as well, even in districts gerrymandered to favor Republicans. That’s much more likely to happen if STV is in place than if it isn’t, so the thinking goes.
Which brings us to the next thing Republicans have to worry about — those gerrymandered districts. Are they guaranteed to last through the end of this decade, if not beyond? Maybe not, if federal courts make certain decisions. In fact, that’s what Democrats, in Michigan as well as nationally, seem to be banking on. They believe that events are converging in their favor for a political breakthrough that could put them back in charge of Congressional and state legislative reapportionment in 2021.
Let’s put this discussion in some perspective:
Former U.S. Rep. Mark Schauer (D-Battle Creek), the Dems’ 2014 gubernatorial nominee, spoke recently (on a MIRSNEWS podcast) about the “Advantage 2020” program he’s directing for the Democratic Legislative Campaign Committee, a national group whose goal is to win state House and Senate seats and governorships nationally so that Democrats are positioned to control “drawing the lines” for new Congressional and legislative district maps in 2021-22 following the 2020 census. Absent total control of the governor’s office, state House and Senate in each state, Schauer wants Dems to at least be able to deadlock the process by controlling a minimum of one chamber or the governorship in order to throw 2021 redistricting in a particular state into the courts.
Schauer was asked whether he expected a ballot question to create an Independent Redistricting Commission (IRC) to be on the Michigan ballot in 2018 or 2020. He punted, claiming that all he was responsible for was trying to win as many legislative seats as he could over the next three election cycles. Schauer pointed out that, outside of Michigan, only about half the states allow initiatives to amend state constitutions by collecting petition signatures to place an IRC proposal on the ballot.
What has never been adequately explained is why prominent Democrats or organized labor or the non-profits of the professional “reform” industry (Common Cause, the Joyce Foundation, the Michigan Campaign Finance Network and others) simply walked away from funding a petition drive to place an IRC proposal on the Michigan ballot in 2016, a high voter turnout presidential year when such a proposal might have fared well with voters. In fact, one of the Dems’ allies — the League of Women Voters — held redistricting reform workshops all across the state a year ago. The left-leaning Detroit Free Press and Michigan Public Radio’s Jack Lessenberry could barely contain their enthusiasm for such an amendment. Public opinion on the issue of redistricting and gerrymandering is at a peak in 2016 because of last year’s U.S. Supreme Court decision (on a 5-4 vote) in Arizona State Legislature v. Arizona IRC.
The answer may be that Democrats and labor may be gun shy about putting all their eggs into a “one ballot question” basket. After all, they devoted over a million dollars to try to get “Reform Michigan Government Now!” on the ballot in 2008, only to see their thinly-disguised rewrite of Michigan’s Constitution, including changes in the redistricting process, blocked from the ballot by state courts. Then, Big Labor qualified two proposals for the 2012 ballot, one enshrining collective bargaining rights in the Constitution, the other giving public employee status to home healthcare workers by allowing the SEIU to organize them as dues-paying union members. Despite spending several million dollars, the effort backfired when both proposals were soundly defeated by the voters and, in retribution, the GOP-controlled Legislature enacted Right to Work statutes in the 2012 lame duck session (with Republican Gov. Snyder signing the bills).
Or it could be that Democrats/Big Labor/Reformers think there now may be a cheaper and easier way to achieve their goals — in the federal courts.
It’s easy to see why Michigan Democrats are frustrated. Despite their success in statewide presidential and U.S. Senate elections, where they have won 14 of 15 contests since 1988, Dems have generally been in the political wilderness in Michigan for more than three decades.
Democrats have held total control over both chambers of the state Legislature for only one year since the 1982 election — 34 years ago. A Democrat has been in the governor’s office only 16 of the past 54 years. Republicans have won statewide Secretary of State and Attorney General elections in 10 of the last 12 elections. These are offices that Democrats had swept for four straight decades between 1954 and 1994. Supreme Court? Republican justices have controlled it for all but five months during the past 18 years.
The Democrats’ best chance to begin turning this nightmare scenario around is to win back the state House this year by picking up nine seats. All House Republicans who were elected in the 2010 GOP wave (a 20-seat gain) are being rotated out of office at the end of this year because of term limits, so there are plenty of open seats in marginal districts ripe for the picking if Dems can ride a Hillary avalanche.
Since 1960, Michigan has generally followed a pattern of the non-incumbent party winning the governor’s office when the contest is open — Democrat James Blanchard after Republicans Romney-Milliken; Democrat Jennifer Granholm after Republican John Engler; and Republican Rick Snyder after Granholm. A Democrat — whether it’s U.S. Rep. Dan Kildee or someone else — may well be the favorite in 2018 to beat whomever the Republican nominee turns out to be.
That leaves the state Senate and what to do about the Michigan Supreme Court as the next puzzle for the Democrats to solve.
In the Senate, Republicans enjoy a 27-11 super majority. Even though 19 Republican incumbents will be termed out in 2018, it’s hard to imagine that Dems could capture eight or nine of those districts in a single election in order to organize the body in 2019, especially given the map that was drawn in 2011.
But what about a NEW Senate map? The answer may be provided by another state. A potentially landmark case, Whitford v. Gill, will soon be decided. This lawsuit tests whether the 2011 Wisconsin state Assembly district map is so partisan a gerrymander that it should be thrown out for violating the 14th Amendment to the U.S. Constitution.
A four-day trial has already been held in Madison, the Wisconsin capital, before a three-judge federal panel this past May 24-27 (interestingly, two of the three judges were appointed by Republican presidents, but that hasn’t stopped them from seeming to sympathize with the Democratic plaintiffs).
This Wisconsin case attempts to establish a “manageable standard” with a measurement brought before the Court called an “efficiency gap.” A University of Chicago professor, Nicholas Stephanopoulos, helped to create the new metric. An “efficiency gap” is simply the difference between the party’s respective “wasted” votes in an election, divided by the total number of votes cast. Wasted votes are defined as ballots that don’t contribute to victory for candidates, and they come in two forms — 1) Lost votes cast for candidates who are defeated; and 2) Surplus votes cast for winning candidates but in excess of what is needed to prevail. According to Stephanopoulos’s metric, a political party can be accused of gerrymandering when it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing an “efficiency gap” that is too large.
Wisconsin Democrats believe the courts can use the “efficiency gap” calculation in the same way the courts currently look at population disparities between districts. For example, state legislative population differences under 10% are presumed to be valid. Population differences over 10%, however, shift the burden to the state or federal government to justify the reasons for the population disparity between districts.
Wisconsin Democrats are asking the three-judge panel to establish an “efficiency gap” standard. The current Wisconsin Assembly plan had a pro-Republican “efficiency gap” of 13% in 2012 and 10% in 2014. The Wisconsin plaintiffs want the judges to establish a standard wherein a wasted vote score under a certain percentage results in no finding of partisan gerrymandering. However, a wasted vote score over a certain percentage shifts the burden of justifying those wasted votes to the State, which must show that it was trying to comply with the Voting Rights Act or to draw “compact” districts. If the State cannot justify the higher wasted vote score, the Court would make a finding of an unconstitutional partisan gerrymander.
In the Wisconsin litigation, the Democratic plaintiffs introduced evidence during the trial to show both “discriminatory intent” and “discriminatory effect.” Therefore, they claim, there was no reasonable justification for the 2011 state Assembly district plan. It is in proving discriminatory effect that past plaintiffs have failed to convince the U.S. Supreme Court, in all previous cases that have come before it, that the Court is being asked to review an unconstitutional partisan gerrymander.
A decision by the Wisconsin federal panel could come this month. Either way the panel rules, the case is on a fast track for review by the U.S. Supreme Court during the high bench’s upcoming 2016-2017 term beginning October 3. With a three-judge federal panel, rulings go directly to U.S. Supreme Court, bypassing the Circuit Court of Appeals.
A decision by the U.S. Supremes by late June of next year that adopts the efficiency gap analysis as a workable standard to prove a partisan gerrymander would allow Michigan plaintiffs to file a similar claim in federal court in Detroit against Michigan’s 2011 state Senate plan, where Democrats have enjoyed favorable court rulings on public body ballot question communications, union PAC payroll deduction, and straight party voting. They might even get really lucky and draw District Judge Gershwin Drain, appointed by President Barack Obama.
With a 2017 U.S.Supreme Court ruling as precedent, a lawsuit challenging the 2011 state Senate district plan could lead to a redrawing of Michigan’s 38 state Senate districts in time for 2018 elections either by the Legislature or, if it deadlocks, the court itself.
This is all dependent on the U.S. Supreme Court adopting the efficiency gap analysis used in the Wisconsin Assembly case, says Bob LaBrant, who has long been Michigan’s top political legal historian.
LaBrant points out that Justice Anthony Kennedy has been looking for a workable partisan gerrymandering standard since the Court’s (5-4) decision in Veith v. Jubelirer (in 2004). Although Kennedy did not find an unconstitutional gerrymander in that case, he did not foreclose the possibility that judicially manageable standards for gerrymandering could be developed in future cases brought to the Court. With or without Kennedy’s vote, a replacement for the late Justice Antonin Scalia (perhaps Merrick Garland, who is now closing in on Louis Brandeis’s record for number of days since nominated without a U.S. Senate confirmation vote) almost certainly would be a fifth vote for adopting the efficiency gap as a workable standard to prove a partisan gerrymander if Hillary Clinton is elected president.
Michigan’s current state Senate districts fail the efficiency gap analysis used in the Wisconsin litigation. Democrats in 2014 received just 11 seats in the Michigan Senate (29% of all seats) despite receiving 49% of all votes cast for state senator in the 38 districts across the state.
In 2012 and 2014, Michigan’s state House maps also failed the efficiency gap metric used in Wisconsin. However, it should be noted that Michigan Democrats are now saying that they can win majority control of the state House under the current House map. So, if they do gain control, do they really want the map thrown out and a new election held?
It could make for an interesting lawsuit, undoubtedly with former Michigan Democratic Party Chairman Mark Brewer at the center of it. Brewer may have lost his quest for a seat on the Macomb Co. Board of Commissioners in the August 2 Democratic primary, but he’s still a force in state politics. It was Brewer who filed the lawsuit in federal district court that led to Judge Drain’s shocking injunction against allowing Michigan’s new ban on straight ticket voting to be used this year, pending a final judgment. Brewer also spearheaded the petition drive that led to the 2002 referendum that overturned an earlier attempt by the Michigan GOP to terminate STV, a vote cited by Drain and by the U.S. Sixth Circuit Court of Appeals in allowing Drain’s injunction suspending the ban to stand.
Brewer was the longest-serving Democratic chairman in the nation (and the longest-serving of either party in Michigan history) before he was muscled aside by Hillary Clinton acolytes (and others) in 2013. He may have been a polarizing figure as chairman, but it’s difficult to argue that anyone else could have been more effective (Butch Hollowell, are you listening?), or that either of his successors have been an improvement.
In fact, Brewer has done more to help his fellow Michigan Democrats since 2013 than anyone else in his party. Republicans should be very worried that he’ll do even more in the next couple of years — at their expense.