By Bob LaBrant, Senior Counsel at the Sterling Corporation
(Posted April 20) April 1, 2020 is the next census day in the United States. We are now less than four years away from the 24th decennial head count in our nation’s history. Data from the 2020 census will be used to redraw Congressional, state senate, state house, county commissioner, city council and court of appeals districts across Michigan.
2015 census estimates indicate that Michigan has experienced very modest population growth. That’s in contrast to the 2010 census, which showed Michigan to be the only state to actually lose population over the previous decade. Michigan was estimated in 2015 to have 9,922,576 residents. Wayne County experienced the second greatest population loss for a county in the nation last year (only Cook County in Illinois had a greater loss). Most of the population growth in Michigan this decade has been in west Michigan. In 2014 the U.S. Census Bureau said North Carolina surpassed Michigan in population making the “Tar Heel” state the ninth largest. Michigan has slipped to tenth.
Michigan, Illinois, Pennsylvania and Minnesota are now projected to each lose one congressional district in 2022. Florida, Texas, Oregon and North Carolina are expected to each gain a congressional seat next decade.
HISTORY OF CONGRESSIONAL DISTRICTING IN MICHIGAN
The high water mark for Michigan’s Congressional delegation came after the 1970 census when the state was awarded 19 Congressional districts, beginning in 1972; that lasted 10 years. After the 1980 census,Michigan lost one seat (18 total). After the 1990 census, Michigan lost two seats (16 total). After the 2000 census, Michigan lost one seat (15 total). After the 2010 census, Michigan lost still another seat (14 total). With Michigan’s Congressional delegation expected to slip to 13 in 2020, that will be the lowest number of Congressional districts in Michigan since 1912. During the 1920s Michigan’s Congressional delegation size stayed at 13, because the Congress failed to reapportion the 435 Congressional districts following the 1920 census. The 1920 census showed for the first time more people living in urban areas than rural.
On June 29, 2015 the U.S. Supreme Court in Arizona State Legislature v Arizona Independent Redistricting Commission by a 5-4 decision upheld Arizona’s use of an Independent Redistricting Commission to draw Congressional district boundaries instead of done by the state legislature as provided for in Article 1, Section 4 of the U.S. Constitution.
REDISTRICTING REFORM IN MICHIGAN: CAN IT HAPPEN?
After that decision, the League of Women Voters of Michigan embarked last fall on a series of local educational forums where attendees were schooled on the evils of gerrymandering and alternatives to having the Michigan legislature draw Congressional and state legislative districts. The League focused on the model of an Independent Redistricting Commission (IRC). A consistent feature of the IRCs found in California, Colorado and Arizona is that districts are drawn following a series of regional public hearings to identify “communities of interest” that needed to be incorporated into district boundaries. What the League didn’t tell their attendees was the investigative reporting done by Pro Publica in 2012, which told the story of how Democrats in California and Colorado gamed the IRC system by “reverse-engineering” the map they wanted to see adopted. Democrats and their progressive non-profit allies then packed the regional public hearings, giving individuals and groups talking points for testimony before the Independent Redistricting Commission and demanding that district lines be drawn in a specific way in order to protect their “community of interest.”
The Detroit Free Press editorialized aggressively for the League to lead a petition drive to amend the Michigan Constitution providing for redistricting “reform”.
However, early in April 2016 the League of Women Voters of Michigan announced that while “there was a lot of interest, there was not a lot agreement on how to move forward.” Evidentially the Democratic Party, the unions, progressive non-profits and Mark Schauer, 2014 Democratic gubernatorial nominee, who is today leading Advantage 2020, the Democrats’ national effort on redistricting, did not come through with any financial commitment.
What does this mean? A redistricting constitutional amendment would ordinarily have its best chance of success in a presidential election year like 2016 when Democratic voter turnout is historically at it’s highest. Those same potential redistricting funders who took a pass on 2016 will likely concentrate their financial resources in 2018 on the open governor’s race, the state senate and the state house contests when all 148 legislative seats will be on the ballot instead of a statewide redistricting ballot question.
Next presidential election after that will be in 2020 when the next governor and state senate, who will have a say on redistricting legislation in 2021, will be half-way through their term of office. If the state senate and governor’s office stay Republican after 2018, the Democrats’ only alternative may be a “Hail Mary” constitutional amendment in 2020. Otherwise, they’ll need control of the state house in 2021 just to deadlock the legislative process and shift the redistricting decision out of the legislature to the state supreme court.
REDISTRICTING REFORM IN OTHER STATES
Democrats, the unions, and progressive non-profits like the League may be looking at the redistricting lawsuit in Wisconsin that will be going to trial May 24-27, 2016 before a three-judge federal panel in Madison. That lawsuit has already survived two motions, one to dismiss and the second to grant summary judgment to the State.
The plaintiffs in Whitford v Nichols are challenging the 2011 99-seat Wisconsin Assembly map as an unconstitutional gerrymander. No redistricting plan in the nation has ever been struck down on a partisan gerrymandering claim. True, the U.S. Supreme Court as far back as 1986 in Davis v Bandemer held that a partisan gerrymandering claim is judiciable. However, the Court in that case failed to agree on a clear standard for judicial review. Again, in 2004 in Vieth v Jubelirer the U. S. Supreme Court held (5-4) that there are no judicially manageable standards available to resolve partisan gerrymandering questions. Justice Kennedy in his concurring opinion left the door open in the future to entertain such a standard.
The Wisconsin case attempts to establish a manageable standard with a measurement they are bringing to the Court called the “efficiency gap”. University of Chicago Law School professor Nicholas Stephanopolous helped to create this new metric. The “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 ballots that don’t contribute to victory for candidates, and they come in two forms: lost votes cast for candidates who are defeated, and surplus votes cast for winning candidates, but in excess of what they needed to prevail. A party gerrymanders when it tries to maximize the wasted votes for the opposing party while minimizing its own, thus producing a large “efficiency gap”.
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 presumptively valid. Population differences over 10% shifts the burden to the State to justify the reasons for the population disparity between districts. Wisconsin Democrats are asking the Court 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 Court to establish a standard where 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 to the State to justify those wasted votes (i.e., compliance with the Voting Rights Act, drawing compact districts, etc.). If the State cannot justify the higher wasted vote score, the Court would make a finding of an unconstitutional partisan gerrymander.
Win or lose at trial in May, Wisconsin Democrats believe this case is destined to be reviewed by the U.S. Supreme Court before the 2018 elections. The Whitford case would by-pass the 7th Circuit Court of Appeals. Federal law allows direct appeal of a 3-judge panel decision in a statewide redistricting case to the U.S. Supreme Court (28 U.S.C. Section 1253). This case may bring Justice Kennedy the manageable standard he requested in Vieth. Even if he doesn’t get that, if a fifth liberal justice joins the Court in 2017 and finds this standard workable, the number of partisan gerrymandering cases across the nation could explode.