Will the ‘Voters Not Politicians’ Petition Effort Qualify for the Statewide Ballot?

It is by no means certain.

In a near-record short space of time, the ‘Voters Not Politicians’ (VNP) petition drive collected and filed a number of signatures far in excess of what is legally required to get on the November 6 general election ballot. However, the proposal has not yet been certified by the Board of State Canvassers, and there may be legal challenges as well.

VNP if approved by voters would remove the power to draw Congressional and state legislative district lines after every decennial census from the state Legislature and the Governor, who most recently performed the task in 2001 and 2011. Instead, the job would be given to a newly-formed, supposedly “independent” citizen-based commission.

For those who argue that ‘gerrymandering’ of district lines by partisan lawmakers is a longstanding abomination that must end, there are critics of the VNP proposal who argue that VNP is just as bad, if not worse. These critics can expect to be heard from in coming months as VNP is fly-specked by politicians, the news media and the courts while on its path to the ballot. Whether voters will ever get a chance to vote on VNP is the over-arching question.

The most consistently articulate and assertive critic of VNP has been Lansing attorney Robert S. (Bob) LaBrant, whose prowess in campaign finance litigation is legendary, i.e., Citizens United v. FEC, the State Bar of Michigan/LAWPAC conciliation agreement, B.I.N.G.O. v. Board of State Canvassers and  at least a score more cases that wound up in the LaBrant victory column. He’s a winner in court — don’t ever count him out.

LaBrant doesn’t think much of VNP, for a variety of reasons. So, because not much space and time has been given by the mainstream press to LaBrant’s side of the redistricting/gerrymandering debate, let’s let him make what will be the beginning of an attenuated intellectual argument that the Michigan electorate can expect to see play out in the coming weeks and months. Here is LaBrant’s thinking, in his own words:

Voters Not Politicians: Changing the Rules of Politics in Michigan to Help Democrats (RMGN,  PART II!)

Voters Not Politicians (VNP) is a work of fiction. It creates this fiction by calling itself a nonpartisan effort to reform redistricting.

I have read this work of fiction before. In 2008, Reform Michigan Government Now! (RMGN!) advertised itself as a comprehensive governmental reform effort led by an 80-year-old farmer and one-time band leader from Hastings named Harlan Nye. However, as you peeled back the layers on that ballot question you found all over it the finger prints of Mark Brewer, then Michigan Democratic Party chairman; Mark Gaffney, then Michigan AFL-CIO President; and the Lansing political consulting firm of Byrum Fisk, headed by a former state House Democratic Leader.

That masquerade ended when a Mackinac Center intern discovered a power point posted on UAW Region 1-C ‘s website whose title slide subtitle said it all: “Changing the Rules of Politics in Michigan to help Democrats.”

All seven leaders of the VNP campaign that are posted on their website are Democratic Party activists and Act Blue donors. VNP has trotted out a parade of septuagenarian  RINOs supporting VNP which the group claims proves it’s ‘non-partisan,’ but the names cited are suspect in every quarter of the modern Michigan Republican Party.

VNP has devised a clever strategy. The “nonpartisan” drafters have crafted a constitutional amendment that solves the Democrats electoral dilemma by creating two new dominant standards in drawing district boundaries: 1) Preserving communities of interest; and 2) Calculating political fairness.

Because Democrats have the bulk of their voting base concentrated in urban centers, they win those districts with huge ‘super’ majorities. But Democratic strategists have needed to find a way, using redistricting, to spread their concentrated majorities outside the core of urban cities into suburban and rural areas. That means abandoning traditional redistricting criteria that keep county, city and township boundary lines intact. Instead, Democrats want district lines redrawn to reflect undefined “communities of interest,” thus giving Democrats a better opportunity to win a majority of seats in a legislative chamber — not with 85% of the vote in a few ‘big city’ districts, but by still ‘safe’ margins in many more districts outside the urban core.

Now, let’s turn to the so-called “Apol Standards.” These were drawn up by former state Elections Director Bernie Apol in 1982 and were upheld by the state Supreme Court and codified into Michigan law in 1996 (and never overturned by any court, even federal) Let us consider how the Apol standards were used to draw up two current state senate districts that break no county lines and border up to each other. For instance,  the 20th  Senate District is all of Kalamazoo County. A Republican won that seat in 2014 by just 61 votes — you can’t get much more politically competitive than that. The 19^th Senate District is right next door. It is comprised of three whole counties: Calhoun, Barry and Ionia. It is reliably Republican.

Communities of Interest

If preserving “communities of interest” replaces counties as the dominant standard, I predict interest groups will show up at Redistricting Commission public hearings advocating that the Cities of Kalamazoo and Portage in Kalamazoo County and the Cities of Battle Creek and Albion in Calhoun County and all those connecting townships become a single state senate district. Testimony will be presented that, despite breaking two Apol-standard county boundaries, this configuration is a “community of interest” that needs to be protected. Testimony will be presented that the I-94 freeway is used by commuters in all three cities to drive back and forth to work and shopping. Others will say Battle Creek and Albion residents use the Kalamazoo Regional Airport when they fly, and that Amtrak runs through all three cities. Others will point to the fact that higher educational institutions (Western Michigan University, Kalamazoo College and Albion College) bind these communities, creating a community of interest.

The bottom line is that a senate district comprised of Kalamazoo, Portage, Battle Creek and Albion will elect a Democratic senator handily. Former state Senator Joe Schwarz (R-Battle Creek) once represented a senate district made up of all of Calhoun and Eaton counties, with no county breaks, from 1986-2002. Schwarz would probably admit today that, as a Republican, he couldn’t have won in a Kalamazoo-Portage-Battle Creek–Albion senate district.

Elevating “communities of interest” over counties in drawing district lines means that a political party and their interest group allies that are good at community organizing can pack Commission public hearings to demand that a district be drawn to protect their “community of interest.” It allows Democrats to reverse-engineer a partisan redistricting plan into component “communities of interest” parts to sell to the inexperienced Redistricting Commissioners (see December 2011 Pro Publica article on “How Democrats Fooled California’s Redistricting Commission” https://www.propublica.org/article/how-democrats-fooled-californias-redistricting-commission.

Communities of interest are defined within the VNP proposal: “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 historic characteristics or economic interests.”

I have no idea what that definition means. I know what a county is. I know what a city is. I know what a township is. I have no idea, after reading that definition, what a “community of interest” is. As a standard, it is a classic case of “vague” and  “ill-defined.” It is a very “subjective” standard, meaning it is what your interpretation thinks it is. Giving novice Commissioners a subjective standard to interpret rather than have them apply a straightforward objective standard will lead to partisan mischief.

Partisan fairness

Finally, let’s examine the other new standard that would be placed by VNP, in priority, just below “communities of interest” to be used in drawing districts lines. It is called “partisan fairness.” This is a standard in the VNP proposal defined as follows: “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.”

This standard just begs for a translation into plain English.

If you are a Democratic strategist, what do you do with legislative districts in Detroit, Flint and Saginaw where Democratic legislative candidates often win elections with 85-90% of the vote? In some academic circles, any votes over 50%+1 are defined as “wasted” votes (that no winner needs). As a Democratic strategist, you want to have a constitutional standard that requires the reduction of “wasted” Democratic votes so that those urban districts are still won, but perhaps with only 65% of the vote. To achieve that result, your map must require a reconfiguration of those urban districts that IGNORES county and city boundaries, and has those districts “spoke out” of the city into surrounding suburban cities and townships.

That means having districts that would have their base in Detroit but then go north across Eight Mile Road into Macomb and Oakland Counties or west into the western Wayne County suburbs or south into southern Wayne County communities.

Winning these reconfigured districts will mean the winning percentage may be closer to only 60-65%. That means less “wasted” votes and a lower “Efficiency Gap” score, an emerging test in academia as an accepted test of political fairness. Those district configurations won’t meet anyone’s definition of a “community of interest,” but they would be justified using VNP’s disproportionate partisan advantage standard.

Michigan’s 14^th Congressional district has been ruthlessly criticized by the news media as a poster-child for a salamander-shaped enclave. That’s because the 14th was drawn from Detroit up to Pontiac in a deliberate (and commendable) effort by Republicans to comply with the federal Voting Rights Act in 2011. Well, get ready — “You ain’t seen nothing yet.” Under VNP, these strangely-shaped districts such as the 14th will be the norm in Southeast Michigan because of VNP’s new constitutional requirement to “avoid disproportionate advantage to any political party using accepted measures of political fairness.”

Try explaining that concept to the inexperienced Redistricting Commissioners who find themselves selected for their new jobs only by a statistically-weighted random draw.

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