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Michigan: The Latest Victory in Ending Gerrymandering

May 2, 2019

The Michigan Republican legislature's 2011 gerrymandering scheme has been ruled unconstitutional by the U.S. District Court. What will the impact of this latest case of biased redistricting mean to voters?

The Michigan Republican legislature's 2011 gerrymandering scheme has been ruled unconstitutional by the U.S. District Court. What will the impact of this latest case of biased redistricting mean to voters?


Michigan: The Latest Victory in Ending Gerrymandering

Story Transcript

JACQUELINE LUQMAN Hi, I’m Jacqueline Luqman with The Real News Network. Another gerrymandering scheme has been ruled unconstitutional by the U.S. District Court. This time, it was done by Michigan’s Republican-controlled legislature. Even though the court ruled that the 2011 gerrymandering by the Republican Party constituted “an extremely grave” constitutional violation, Republicans are already appealing the court’s decision. Here to talk with me about this latest case of biased redistricting is Dan Vicuna, the National Redistricting Manager for Common Cause. Dan, thank you for joining me today.

DAN VICUNA Hey, thanks for having me.

JACQUELINE LUQMAN So gerrymandering has gotten a lot of attention in the media, in the corporate and independent media, over the past few years as more and more court decisions have basically invalidated partisan-drawn legislative districts that were drawn to give one party or the other the advantage in state and local elections. Common Cause has done some research and according to that research, nearly 90 percent of the districting maps drawn by what are considered independent commissions, are actually upheld by the courts when they’re challenged, which translates to about 11 percent of the maps drawn by those commissions. Only 11 percent were struck down, but 40 percent of the maps drawn by politicians were struck down by the courts. Dan, why do more legislative district maps drawn by independent committees get upheld as valid or legal by the courts, than the ones drawn by politicians?

DAN VICUNA Well I think that can be explained primarily by the very purpose and setup of these independent commissions. They’re designed to ensure that you’ve got a balance of partisanship— an equal number of Democrats and Republicans— and also, usually representation by some unaffiliated voter. They’re screened very tightly for potential conflicts of interest, including people who were recently-elected officials or candidates, in some cases big donors, party officials— a whole host of restrictions depending on the state. In addition, they have clear criteria, nonpartisan criteria for drawing districts in a fair way and generally, an explicit ban on partisan gerrymandering. And what comes out of that process is generally a transparent map-drawing process that’s done in full view of the public, and with primarily the interests of fair representation at the forefront. Contrast that with when politicians draw districts. In most states around the country, politicians draw their own districts. They also draw their state’s congressional map. And really, that’s like the fox guarding the henhouse. It is a clear conflict of interest in which they cannot help themselves from taking advantage of that opportunity to draw districts, to secure their own re-election, to ensure partisan advantage for their party. And so, you see constitutional violations as a result. The courts have been getting involved in an increasing number of states because of racial gerrymandering and also partisan gerrymandering. So really the difference in the goals and the process, in terms of independent commissions versus legislatures, can really explain why courts are starting to take a stand.

JACQUELINE LUQMAN It sounds like independent commissions are what we would want for how legislative districts are drawn. But it’s interesting because it seems that independent commissions are actually not common. Am I reading this graph correctly from again your organization, Common Cause? Independent commissions only exist in five states, is that right?

DAN VICUNA That’s right. So that was for the 2010 cycle, the redistricting done after the 2010 elections. You’ve seen an increasing number of states actually create independent commissions since the 2010 redistrict cycle. So those independent commissions in Colorado and Michigan that are fully independent, the legislature has no say in the drawing of districts. They’ll draw new maps starting after 2020, after we take the census. In addition, the state of Utah created a citizen commission with a great deal of independence and the legislature gets a vote, but they don’t really get a say in the front-end drawing of the maps. And a couple of other states, Missouri and Ohio, you saw some different, other creative ways to curb gerrymandering and make it harder for one party to dominate the process. So there’s a huge amount of momentum in the states to change the process. Unfortunately, in basically all the places where you’ve seen the creation of a truly independent model, these are states that have a ballot initiative option, which not all states do. You’re only looking at less than half the country that has a robust opportunity for citizens to collect signatures and put something on the ballot without the interference of the legislature. Although we want to continue on this path of reform, we also are really calling on the courts to curb these constitutional violations as well.

JACQUELINE LUQMAN I’m so glad you brought up the point of pushing for more ballot initiatives in more states because the outcome of independent commissions drawing legislative maps is actually very good according to— let’s go back to this graph. Of the five states that have, at the time of the study that was done, that have independent commissions and they’ve drawn nine maps. And of those nine maps, seven have been challenged, but only one map was struck down. Is that still correct?

DAN VICUNA Yeah that’s still correct, and I’ll point out that the one map that was struck down was the state of Idaho, which is a small state, a couple million people and also has, even within the independent commission models, there’s a range. On the far end of independents, you see California and Arizona in which the legislature has a very, very limited role in the selection of the commissioners who will end up as decisionmakers. Idaho has, like Washington, a slightly less independent model where although there are conflicts of interest provisions, legislators can still appoint directly. So I think it’s a little bit of an aberration. The Idaho model’s not the direction that states like Michigan and Colorado were going in. So really, what explains this great record and what I’m sure will continue to be a great record, is just a truly independent process where the needs of the public are put first.

JACQUELINE LUQMAN I think we really need to point out the difference between the outcomes of having an independent committee draw legislative maps and having political parties continue to draw those legislative maps, because political parties control the districting process in 48 states where there have been 81 maps drawn and there have been 53 challenges. And out of those challenges, according to the same chart by Common Core, 31 of those maps have been determined by the courts to be illegal. That translates to 38.3 percent of those political party-drawn maps, nearly 40 percent, being determined to be biased or illegal in some way. So nationally, gerrymandering and political parties creating an unfair advantage for themselves at the polls is a growing issue. Or, is it an issue that is really addressing this issue in the states is a growing trend among voters?

DAN VICUNA I think both are true it’s an increasingly recognizable problem because you’ve seen that the gerrymanders that took place after the 2010 census, it was clear after one election cycle that there was a significant amount of bias in the states where legislators drew districts. You saw many states, including places that have had maps struck down, where there was a huge disconnect between the number of votes won and the number of seats won. Places like Michigan and Pennsylvania and North Carolina, where you saw one party winning a majority of the votes or a near majority but having significantly fewer seats won in legislatures and congressional delegations. Just a big disconnect. And then increasingly later in the decade, as several election cycles went by where states withstood, even waved elections— in North Carolina where we are the plaintiffs in the lawsuit that the Supreme Court heard in March, although the U.S. House of Representatives went overwhelmingly for Democrats, the 10-3 split in North Carolina’s congressional delegation was untouched. So as the decade progressed, courts have recognized that this is a serious problem and that the precision with which gerrymanders are being drawn, is really playing out in a way that is harmful to democracy.

JACQUELINE LUQMAN So I’m glad you ended that last comment on that point and speaking to the issue of bias because now let’s look at Michigan. In this case, in Michigan, part of the evidence in the Michigan gerrymandering case were e-mails that showed clear bias and, in some cases, outright maliciousness toward Democratic voters by members of the Republican Party, even though they claimed for years that they did not draw the legislative district lines with any biased intent. The lawsuit references specifically some private e-mails that allegedly show one Republican aid saying that Macomb County district is shaped like “it’s giving the finger to Democratic U.S. Representative Sander Levin and I love it.” Another e-mail from a GOP staffer said that he bragged about cramming “Dem garbage” into four southeast Michigan congressional districts. And there was some other evidence from some other emails, pointing to clear bias and just nastiness from some Republican operatives who were involved in redistricting. The interesting thing about this case, here we have just a few days after the district court orders the state Republican-controlled legislature to come to an agreement with the Democratic governor to redraw the districts in a more fair fashion. The Republicans have already appealed the decision to the redistricting case, but the decision that was handed down by the courts said specifically that the constitutional violations in this case are particularly severe. Help people understand what the constitutional violations were, and what was done in Michigan.

DAN VICUNA Yeah. So there are a few constitutional provisions that plaintiffs in these gerrymandering lawsuits, including Common Cause in our own case, have challenged gerrymanders on. So two of them, the most popular ones I guess, were used in the Michigan case. What the court found was that the e-mails that you discussed where there was clear contempt and an attempt to discriminate against the Democratic Party, in addition to the testimony and statistical examination of Professor Jowei Chen— who has been an expert also in our case in Pennsylvania where he demonstrated that when you start to use a computer to simulate a thousand maps using nonpartisan criteria, you demonstrate just how far out of the mainstream the existing maps were and so, he did amazing work in Michigan as he’s done around the country— so the court found that that discrimination both violated the First Amendment and the 14th Amendment. This is similar to the case that the plaintiffs in the North Carolina case, Common Cause, The League of Women Voters in North Carolina, and also the plaintiffs in the Maryland case, we’re making. We also use 14th Amendment equal protection to state that the government owes a duty of neutrality when dealing with citizens. And certainly, discriminating against citizens based on their party affiliation is not a neutral act. Common Cause, in addition in our case, has two claims related to Article I of the Constitution. There are a couple of provisions laying out what powers states have over congressional elections. It’s a limited power basically to determine the time, place, and manner of those elections— not to dictate outcomes, which is what they’ve been doing in these gerrymanders. So those are the main constitutional provisions that plaintiffs have been succeeding on.

JACQUELINE LUQMAN So I think we need to make it clear that the Michigan Republicans appealed the decision of the lower court to the Supreme Court of the United States. Considering the makeup of the of the Supreme Court, and similar decisions from lower courts on this issue of gerrymandering in states like you’ve brought up many times— Maryland, North Carolina, and in other places— what does the outcome of this appeal look like? And then, in another twist and I’m going to let you end with this in this Michigan decision, is that the ballot initiative that you mentioned earlier actually goes into effect after the 2020 election. So I would love for you to answer before we end, what does the Republican Party gain by appealing this case right before they’re not going to be involved in the process of drawing legislative district lines anymore after the 2020 election anyway?

DAN VICUNA What the Republican Party is looking at is what’s going to happen in Rucho v. Common Cause and Lamone v. Benisek. It’s very likely that the Supreme Court will issue a stay in the Michigan case until they issue decisions in the North Carolina and Maryland cases that Common Cause and the Republican plaintiffs in Maryland are involved in. That decision is likely to set some sort of rule. Our hope is that it will prohibit partisan gerrymandering nationwide and set a rule that will apply to the Michigan case, or at the very least set some outside bound for when partisan gerrymandering goes too far. We think any of it is too far, but they may be comfortable with more reining in the extremes. That will be the main event near the end of June, which is when most of the most controversial U.S. Supreme Court decisions come down. We’re likely to hear the Supreme Court issue a ruling broadly on partisan gerrymandering in the Maryland and North Carolina cases, and that will set the stage for what happens in Michigan. Michigan is hoping that the U.S. Supreme Court is reluctant to get involved, despite the urging of both the trial court in this Michigan case and other trial courts to say this is a problem that is really devastating to democracy. The courts must act. They cannot look at constitutional violations like this and look the other way, so we’ll see what happens. I think whatever rules the Supreme Court sets in these cases out of [Maryland] and North Carolina in June, will likely determine what happens in Michigan. And Michigan Republicans are hoping for one last election where they skew the results in their favor in 2020 before the independent commission created by the citizens of Michigan gets a shot at drawing districts the right way. We’re hoping for good results in all these cases and feeling optimistic. We’ll see how it goes.

JACQUELINE LUQMAN Well we’ll certainly be watching the calendar for the Supreme Court to find out how they rule and how this will affect these kinds of cases going forward. Dan, thank you so much for joining me today to discuss this case and its implications— not just in Michigan, but nationwide.

DAN VICUNA Yeah. Thanks for having me. Appreciate it.

JACQUELINE LUQMAN And thank you for joining me today. I am Jacqueline Luqman with The Real News Network in Baltimore.