It’s hard to ‘fix’ a law that a hefty majority of Michiganders like, even when it needs some ‘fixing.’
Two prime examples are the 1976 “Throwaway Bottle Law” and the 2018 “Voters Not Politicians” (VNP) constitutional amendment creating an independent commission to redistrict the state’s Congressional and legislative seats every 10 years. The former passed with nearly 64% of the vote, the latter with over 61%.
Let’s consider the bottle law first. It’s been a part of life for consumers, retailers and beverage distributors for nearly a half-century. In the early 1970s, throwaway bottles and cans composed 80% of Michigan’s roadside litter. Environmental groups like the Ecology Center in Ann Arbor hoped to protect Michigan’s natural beauty by advocating for a return to returnable containers to change the “throwaway mentality” that has dominated American culture.
Environmental forces yoked together support groups like the ‘Michigan Returnables Coalition,’ which collected the necessary petition signatures to get Proposal A on the 1976 statewide ballot, where it was approved overwhelmingly. What did the new initiated law do? It meant that Michigan became the second state in the country (after Oregon) with such a ‘bottle’ statute. Since then, we can claim we have, at 10 cents a pop, the highest rate-of-return bottle deposit law in the country — and it promotes recycling. In 2019, before the disruption of the COVID pandemic, Michiganders brought back about 89% of returnable containers. Though Michigan’s rate-of-return has been in a slight decline, it’s still higher than any of the other nine states that have deposit laws.
But does this popular law need updating? Most everyone agrees that high bottle and can return rates are an indicator that the incentive works, so why not include other beverage containers in the mix of what consumers can take back? Michigan’s 1976 bottle deposit law does not include bottles and cans of non-carbonated beverages such as water and sports drinks. Such drink containers were not even on the scene back in the 1976. When the bottle law was first approved, few of us drank water from bottles, but now bottled water accounts for anywhere between 40% and 50% of the beverage marketplace. Back then, we also didn’t have sports drinks, but now we do.
State Senator Sean McCann (D-Kalamazoo) has been calling for an expansion of the state’s bottle law for years. He and state Rep. Christine Morse (also D-Kalamazoo) have introduced bills that would expand the state’s 10-cent deposit to include all non-carbonated beverages except milk containers.
Some environmentalists would go even further than that. They contend that the way the law reimburses retailers can be improved. They argue that the statute is essentially an excise tax of a penny or two pennies on every can or bottle that allows retailers to be reimbursed for the services they provide in helping the citizenry return those bottles. These critics posit that such a “handling fee” could be used to make the bottle bill more effective and reliable. They point out that in some other states and countries an excise tax is used by retailers, bottlers, and distributors to set up an independent nonprofit to make sure the system works. Then, the businesses would have a vested interest in its success. The system would be funded, but it could also be marketed. Some of the current problems with consumers, such as returning dirty bottles and thereby creating an unhealthy space inside the retailers (which is against the current law) might be mitigated.
There is one factor that significantly complicates any major changes to Michigan’s current bottle deposit law. Because it was approved by voters via ballot initiative, any changes to the policy would need a 3/4 majority in both chambers of the Legislature to take effect. That means any updates would need bipartisan buy-in, which is tough to achieve in today’s hyper-polarized political environment.
HAS THE 2018 VNP AMENDMENT LEFT MICHIGAN IN A STATE OF ELECTORAL APARTHEID?
Then there is the VNP constitutional amendment. When Michigan voters approved it in 2018, they may not have realized they were scrapping the so-called Apol Standards, named after Bernie Apol, a retired director of the bureau of elections selected by a Democrat-controlled Michigan Supreme Court in 1982 to serve as a special master in drawing districts in accord with the court’s order that emphasized drawing districts along county, city and township boundary lines.
In contrast, in the VNP Amendment the Apol standards have been short-circuited. Now, Article IV, Section 6 (13) (a-g) of the constitution sets out the criteria to be followed in order of priority in the drawing of districts. #1 in the VNP Amendment is compliance with the federal Voting Rights Act (VRA) and federal law. Under the Apol Standards, compliance with VRA was also #1. Accordingly, the 2001 and 2011 redistricting maps using Apol criteria created TWO Congressional districts that had an African-American majority.
However, legal counsel to the newly created Michigan Independent Citizens Redistricting Commission (MICRC) surprisingly advised commissioners that it was not necessary to draw districts that had an African-American majority. Therefore, the commission drew up a 2021 Congressional map with ZERO majority-minority Congressional districts.
The Michigan Supreme Court on February 3, 2022, voted 4-3 to dismiss a VRA lawsuit, Detroit Caucus, et al v MICRC, challenging the redistricting plans adopted by the MICRC. That dismissal was just 37 days after the MICRC adopted redistricting plans on December 28, 2021, six months before the results of the 2022 primary elections and nine months before the general election. It was also 16 months before the U.S. Supreme Court in June of this year upheld the validity of Section 2 of the VRA in lawsuits (Allen v Milligan) from Alabama and Louisiana, which had drawn maps using similar criteria to Michigan’s.
The dissenters in Detroit Caucus (Zahra, Viviano and Bernstein) had argued that the court’s dismissal of the plaintiffs’ claims was premature and unjust without allowing the plaintiffs an opportunity for the full factual development of their claims. The dissent would have had the Court appoint an independent expert to assist the Court in assessing the evidence and factual assertions in the case.
On January 1, 2023, Gov. Gretchen Whitmer appointed Kyra Harris Bolden to fill a vacancy on the high bench. Bolden became the first African-American female to serve on the Michigan Supreme Court. As a former two-term state Representative, Bolden might have been persuaded to join the dissenters to create a working majority to revisit a VRA challenge that can be drafted to survive a Res Judicata defense (bar relitigation of a claim by same parties).
Retired attorney and court watcher Bob LaBrant points out that such a defense has already been raised in a pending federal lawsuit, Agee v Benson, challenging the Michigan state legislative maps adopted by the MICRC before a three-judge federal panel (consisting of Circuit Court Judge Raymond Kethledge and District Court Judges Paul Maloney and Janet Neff). Motions for summary judgment filed by both parties are still pending.
Was the MICRC legal counsel wrong in her advice to the Commission in light of the June, 2023, U.S. Supreme Court decision in Allen v Milligan? Her advice was that majority-minority districts — those with 50% or more Black voting age population (BVAP) — were unnecessary in general elections; she recommended to the MICRC that, to be in compliance with the VRA, they could create only Black “influence” or “opportunity” districts instead. Political observers were shocked that the MICRC legal counsel used GENERAL ELECTION data to recommend lowering the BVAP to 35-40%. She did not analyze what BVAP % would be needed for Blacks to win PRIMARIES. The end result was a 20% reduction in the size of the Legislative Black Caucus in 2023.
In its June decision on Milligan, the U.S. Supremes ordered Alabama to draw two African-American majority districts instead of just one, to be in compliance with Section 2 of the VRA. Accordingly, the Alabama legislature met this month in special session to adopt a new map; however, the map the legislature passed does not create a second majority-minority district. U.S. House Speaker Kevin McCarthy and U. S. Senator Tommy Tuberville (R-AL) must agree with the MICRC’s legal counsel, because they encouraged Alabama state legislative leaders to not comply with the Court’s order, evidently hoping to have the U.S. Supreme Court go back and reverse its 5-4 decision.
This reaction to the Milligan decision brings to mind President Andrew Jackson’s remark following the U.S. Supreme Court verdict in Worchester v Georgia (1832): “(Chief Justice) John Marshall has made his decision; now let him enforce it.” Jackson later sent troops to evict the Cherokees, beginning their trek from Georgia to Oklahoma in the infamous “Trail of Tears.”
So are McCarthy and Tuberville right? What will be ultimate impact of the June 2023 U.S. Supreme Court decision in Allen v Milligan on not only Alabama and Louisiana, but also Michigan? .
Most likely, the three-judge appellate panel to which the Milligan case was remanded by the Supremes will name a special master to draw a remedial map, by-passing the Alabama legislature. This new map will be ordered into effect for the 2024 election. Louisiana has also been ordered by the U.S. Supreme Court to draw two African-American majority Congressional districts instead of its current one. It’s very likely any new special master’s map will find that, to be in full compliance with the VRA, majority-minority districts must be drawn that do more than give merely “influence” or “opportunity” to Blacks. They must be shown to exhibit majority status.
The 2011 Apol state Senate map had FIVE majority-minority districts. The 2021 MICRC state Senate map has ZERO majority-minority districts. The 2011 Apol state House map had 10 majority-minority districts. The MICRC state House map has only five majority-minority districts.
In other words, Michigan’s three maps in 2021 had 17 majority-minority districts, but that number has now shrunk to five after the 2022 elections. For the first time in 70 years, no portion of the City of Detroit is represented by a Black member of Congress.
The reason Black representation is so low is because of MICRC criterion #2, which calls for “districts to reflect the state’s diverse population and communities of interest.” Communities of interest are at best a subjective criterion. In reality, it means whenever you can get a majority of commissioners to say something is a community of interest, it is.
It may include taking lakeshore cities and townships abutting Lake Michigan in two or more counties and combining that territory into a single district called a “community of interest.” It may include keeping the Bengali population in Southeast Michigan contained within a single district as a “community of interest.” However, creating districts that protrude out from Detroit like spokes-on-a-wheel into suburban communities in adjacent Oakland and Macomb Counties achieves primarily one thing — the dilution of African-American representation. What are the shared historical, cultural, or economic interests that warrant combining portions of Detroit by crossing county boundaries to add suburban population to a district?
Another reason Black representation has fallen is that the MICRC chose to ignore criterion#3, “Districts shall not favor or disfavor an incumbent elected official.” Tell that to Marshall Bullock II, a Black incumbent state senator from Detroit who chaired Michigan’s Legislative Black Caucus. Or to Mallory McMorrow, a white incumbent state senator from Royal Oak in a district that is substantially white in its demographics. These two incumbents were forced to run against each other in the 8th Senate District Democratic primary in a district that starts in Detroit, stretches across 8 Mile Road into Oakland County and up to Royal Oak. That district also violates criterion #4 — districts shall reflect consideration of county, city, and township boundaries. Given an overwhelming geographical advantage in the creation of this new MICRC district, McMorrow easily defeated Bullock in August 2022. His loss resulted in another reduction in Black representation in the state senate.
Buried in the details of the 2018 VNP Amendment is the fact that 13 Redistricting commissioners, chosen entirely by a random draw, were empowered to be paid not only a minimum of 25% of the salary of the governor ($159,300) but that they were free to vote themselves an approximately 10% pay increase, raising their annual salary to over $55,770.
Those commissioners also had the chutzpa to vote themselves another 7% “cost of living” adjustment but were so shamed in the media that they rescinded the pay hike at their very next meeting. After adopting maps for Congressional, state Senate, and state House districts back on December 28, 2021, the 13 commissioners pretty much limit themselves to monthly Zoom meetings. The Commission has not adjourned nor gone dormant, and the MICRC budget continues to pay their salaries. Commissioners justify their continued pay by saying they are waiting at the ready to draw new maps, if ordered to do so, by some court.
At the July 20, 2023, MICRC Zoom meeting an item was placed on the agenda to discuss the appropriateness of Commissioner Anthony Eid’s acceptance of a position as Deputy Executive Director of an interest group called ‘Michigan Voices’ with a posted salary range of $95,000-110,000. Michigan Voices had actively lobbied the MICRC but did not register under the Michigan Lobby Law. Was Eid’s employment with Michigan Voices while still serving on the MICRC an inherent conflict of interest? Rather than have that discussion proceed, Eid announced before the July 20 meeting that he had left Michigan Voice’s employment after only 20 days on the job. Did he receive a severance package from Michigan Voices like a fired football coach? The MCRC, at the urging of the commission chairman and the Commission’s executive director, removed discussion of Eid’s employment from the meeting ‘s agenda, deeming it moot.
Following the July 20 meeting, the media disclosed that Commissioner Eid earlier was hired in 2022, after maps were adopted, by a second group that had also lobbied the Commission on redistricting maps. This was an Asian/Pacific Islander group that wanted to use the “communities of interest” criteria to keep as much of their constituent population together in certain districts. Commissioner Eid said he also resigned from that brief job because it was not a ‘good fit.’
Commissioner Eid’s history of outside employment with advocacy groups also brings into question whether an applicant for commissioner selection can simply self-select his or her party, or claim no party affiliation. Should this be a selection process based entirely on the honor system?
In his application seeking selection as a redistricting commissioner, Anthony Eid, who has a history of progressive activism, sought one of five commissioner slots reserved for those without political party affiliation. Four Commissioners were selected who indicated on their application that they affiliated with Republicans and another four Commissioners were selected who indicated on their application that they affiliated with the Democrats.
The best way to reform the MICRC is not to wait for another group to launch a self-serving petition drive, but for the Legislature itself to pass a joint resolution by the required 2/3 vote. Such a resolution should place on the ballot for voter approval a clean-up amendment that addresses the flaws that surfaced during the MICRC ‘s inaugural redistricting cycle (selection, compensation, and line drawing criteria). This will require acknowledgement and consensus from both Democrats and Republicans in the Legislature that a Commission is a better way to do redistricting than returning that power to the Legislature itself BUT that the current language of the 2018 amendment creating the MICRC needs reform. That can be done only in a thoughtful, bi-partisan manner.
How likely is that?
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Bill. While enjoying your thoughtful analysis, I do wish you would disposed of the term “bi-partisan”. First, it reinforces the nonsense of a two-party system. By have two and only two parties recognized by the State for this purpose, it reinforces the tribalism that Trump and his anti-civility allies like AOC that create the Us and Them now dominate. Why not include many voices?
Mr. Gelineau,
This structure is what the people voted for. My personal preference would have been to treat the MICRC as a form of jury duty. The people get their summons. If they cannot serve, they’re stricken from the list of potential commissioners. All political parties would get a finite number of “strikes”. If juries are fine to settle guilt or innocence (or at least not guilty), it should work for redistricting.
Tossing in increased representation for Libertarians and Greens would be beneficial. Give each of them a seat on the Redistricting Commission.
It seems in 2008 that voters were so disgusted at Clifford Taylor in the MSC race that they gave 462,000 votes statewide to Libertarian Party nominee Bill Bodden. That was 11% of the overall vote for the high court.
There is speculation that the GOP in Michigan may lose disaffected members to the Libertarian Party due to lack of leadership. Same with the Dems and the Green Party.
Nice article, Bill. I’d like to make a few points.
DEPOSIT LAW: I support the law in that it has greatly reduced the presence of the woodland beer can. We can discuss the utility, or lack thereof, in recycling in other posts.
I fully expect that water bottles; cans and bottles of hard cider and seltzers; and similar non-carbonated beverages will eventually get the ten cents deposit applied to them given the present make up of state government. This will upset those who switched from beer and pop to bottled water, hard cider and hard seltzer during the COVID lockdowns BECAUSE there was no deposit, but I suspect those who support adding these other beverages to the deposit law don’t care, though water bottle drinkers might raise a stink. For the record, I kept drinking beer and pop and was very grateful when stores started taking back returnables so I could reclaim the back two rows of my minivan.
Tweaking the law towards changing the excise tax nature of the deposit law would be infinitely more difficult in that any change would probably be viewed as a backdoor way for the State to take in more tax money.
MICRC: One quibble. The MICRC gave themselves a 40% wage hike, raising their pay from 25% to 35% by adding an extra 10% to their pay (10/25 is 40%, unless my math is off). The extra 7% was the MICRC giving all of us a two-fisted middle finger. Rejecting it showed that at least some of them had a residual sense of shame.
Nice analysis on the ongoing MICRC redistricting fuster cluck. (Yes, FUSTER CLUCK. Must keep it PG). They should have selected me. At least my dissents would have memorable.
The MICRC work product is “interesting” to say the least. The absence of black representation in the state legislature is appalling. If the GOP had done this after the 2000 and 2010 censuses, all sorts of holy and unholy Hell would have been raised. And properly so. It should be now. Using “communities of interest” – interestingly not defined – to eliminate minority districts is atrocious. And the legal counsel – Julianne Pastula at the time, I believe – said this was fine? And given recent SCOTUS decisions, this looks even more appalling. Where are the VNP folks on this outcome? Does silence still give assent?
For the $55,770+ you’d think they’d at least show up in person. If they showed up in person, they might have had in person conversations on the ongoing embarrassment that is Commissioner Eid. He is a walking and breathing embarrassment to the MICRC and the selection process that put him on the MICRC. His presence reminds me of the 2011 ProPublica article about California’s version of the CRC and how the Democrats packed it while officially being “non-partisan”.
If the MICRC is unwilling to remove him, the legislature should do as you noted in your second-to-last paragraph and let the people see if they are willing to fix this thing. The legislature won’t, but they should. It would be interesting if the few remaining black members of the state house and senate introduced the legislation and how long it takes them to get co-sponsors. The only real question is why they haven’t? I would have.
What is amazing about the Anthony Eid brouhaha on July 20th was that it was Chairman Douglas Clark – who affiliates with the GOP – who was the most staunch defender of Eid when conflict of interest arguments were raised against Eid by Rebecca Szetela, an Ann Arbor lawyer, and independent member of the Commission.
And believe me, nobody understands what the heck “community of interest” means as it relates to Redistricting Commission deliberations. Some saw whites or Roman Catholics as community of interest entities when they had to deliver public commentary to the Redistricting Commission.
The Redistricting Commission is an abject failure – but a huge political victory for Michigan Democrats.
It seems a shame that the purpose of the redistricting commission was to creat districts where the legislator represents about 60% of the people, at best. And that interest was reduced to Dem vs Republican. Isn’t it the purpose of districts to have representation of their district in Lansing and have the different legislators duke it out so that everyone is heard? Suburbanites, farmers, educators, miners, urban residents, etc.
Bill Ballenger brilliantly sheds light on the ramifications of the forgotten bottle bill, and also does a superb exposing the abuses of the Redistricting Commission, which ought to have gone out of business once the final maps were adopted (They could always be recalled and paid again if the courts ruled they had to draw new maps.)
But there is something I think he and most other people who write about redistricting miss: In 1970 or even 1980, it was very easy to draw majority-minority districts because of de facto segregation. But Black populations are far more diverse now, which is an indicator of the success of non-discrimination policies. There’s also a patronizing attitude on the part of those who say there have to be majority minority congressional districts, as if African-Americans have to be represented by other Black Americans. What is also seldom mentioned is that there would be Black congressmen in both Rashida Tlaib and Shri Thanedar’s district today, if the primaries hadn’t featured one or two white candidates against about five Black ones. Coleman Young Jr. handed Tlaib her seat; Portia Robseon handed Thanedar his. Blacks don’t vote as a bloc anymore.
Agreed.
Possibly the best examples of the decline in racism in elections would be the fact that Michael Duggan is white and elected in the City of Detroit where approximately 90% of the population is ether black or other minorities PLUS a heavily white U.S. Congressional District (the 10th in Michigan) voting to elect John James, a black man.
The edict of former Philadeplhia mayor Frank Rizzo to “vote white” in the 1960s is irrelevant today.
So thanks to the fair and equal redistricting plan put in place (replacing the ghastly partisan operations that were in effect under the previous scheme), people of color now hold the positions of speaker and Senate Appropriations Chair — arguably two of the four most important positions in the Legislature. So while concern is appropriate about black members of Congress, it’s a fair argument that people of color as a group will have far more say in state policy and budget decisions that if the GOP had been able to gerrymander the state in a destructive way again. (Disclosure: I worked extensively with VNP to pass the nonpartisan redistricting system now in place. It can be improved on the edges. But the basics of the process is far superior to the past process.)
From the August 31, 2021 Washington Free Beacon article critical of Anthony Eid’s Democratic ties, especially to the Bernie Sanders movement:
“The Michigan group behind the initiative, Voters Not Politicians, received $250,000 from the National Democratic Redistricting Committee, which is chaired by former Obama administration attorney general Eric Holder. The group is directly affiliated with the Democratic Party, and former president Barack Obama is involved in its efforts.”
As the Executive Director of the Michigan Independent Citizens Redistricting Commission, I’d like to correct some inaccuracies regarding this analysis and share some resources for consideration.
The Michigan Constitution provides the specific criteria and procedures the MICRC must use when proposing and adopting a redistricting plan. The constitutional standards are listed below in order of priority:
1. Districts shall be of equal population as mandated by the United States Constitution and shall comply with the Voting Rights Act and other federal laws.
2. Districts shall be geographically contiguous. Island areas are contiguous by land to the county of which they are a part.
3. Districts shall reflect the state’s diverse population and communities of interest. Communities of interest may include, but shall not be limited to, populations that share cultural or historical characteristics or economic interests. Communities of interest do not include relationships with political parties, incumbents or political candidates.
4. Districts shall not provide a disproportionate advantage to any political party. A disproportionate advantage to a political party shall be determined using accepted measures of partisan fairness.
5. Districts shall not favor or disfavor an incumbent elected official or a candidate.
6. Districts shall reflect consideration of county, city and township boundaries.
7. Districts shall be reasonably compact.
Here is the source, https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/Legal/MICRC_Legislation.pdf?rev=175d7fd6a5df42a0b70a8a30830eabad&hash=ED96B70D32B76DD1C15A0F461C511771
Since Oct. 1, 2022, each Commissioner received the constitutional minimum of $39,825, which represents 25 percent of the Governor’s salary, per year.
Here are the sources.
https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/Legal/MICRC_Legislation.pdf?rev=175d7fd6a5df42a0b70a8a30830eabad&hash=ED96B70D32B76DD1C15A0F461C511771
https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/MISC7/DRAFT-Proposed-Meeting-Minutes-8-18-22.pdf?rev=0cb95af60d6644a5b803cf65db54f988&hash=7848961E336DEB01D00605AFEDEBD3B7
Finally, here are some additional resources you may find helpful regarding the Commission’s work.
Commission Report, https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/MISC8/Commission-Report.pdf?rev=b81719cd008241af8c4ce2b8691365ce&hash=FF6205E81C19EF40CD8285A72EDE42D4
Lessons Learned Report, https://www.michigan.gov/micrc/-/media/Project/Websites/MiCRC/MISC8/Lessons-Learned-Report-and-Appendix-Reduced-File.pdf?rev=26baa17faee24225a2bc64859971aad2&hash=1A7E20CCF6B8C8AA1E81E7CE0A7886F8
Lessons Learned Video,
https://www.youtube.com/watch?v=f7K55kgwMLg
Sincerely,
–Edward
I totally agree with Jack Lessenberry-Bill Ballenger is an excellent writer and you provide brilliant analysis. Love reading you. I look forward to your Sunday night post.