Republicans challenge Michigan’s redistricting commission in court

By S.M. | NEW YORK

WHEN KATIE FAHEY (pictured), a Michigan resident, founded Voters Not Politicians in 2017, she took aim at gerrymandering—the increasingly potent practice whereby politicians of both parties redraw electoral lines to maximise their party’s advantage. After gathering 425,000 signatures to get a redistricting-reform amendment on Michigan’s 2018 ballot, the organisation overcame opposition from well-funded Republican groups and won two court battles that aimed to scrap the proposal. Last year, Michigan voters approved the amendment by a 61% majority. But on July 30th, on the eve of the commission’s formation, several notable Republicans have coalesced to scuttle the plan before it gets off the ground.

In a novel complaint, 15 Michigan residents—shepherded by an affiliate of the National Republican Redistricting Trust, an organisation positioning the Republican Party for district-line drawing in the coming decade—are suing to stop the commission in its tracks. By limiting who may serve as commissioners, the plaintiffs say, Michigan would be violating the free-speech, free-association and equal-protection rights of hundreds of thousands of its residents. Scott Walker, the former governor of Wisconsin and the organisation’s finance chair, says the commission’s membership rule “punish[es] the people of Michigan for exercising those rights—or for being related to someone who has”.

The amendment bars anyone who has, in the last six years, sought or held elected office or served as a lobbyist or an insider for a political party. Their parents, children and spouses are barred from service, too. Plaintiffs in Daunt v. Benson include Anthony Daunt, a Republican lobbyist who has served on the governing body of the Michigan Republican Party committee; Kathy Berden, the GOP’s national committeewoman; Patrick Meyers, a political consultant; and Mary Shinkle, once a staffer for a Republican congressman and now a county Republican Party official. These and the eleven other challengers all complain that they are ineligible to serve on Michigan’s independent redistricting commission. They want the task of redistricting returned to Michigan's legislature, where Republicans hold majorities in both houses.

Helen Norton, a law professor at the University of Colorado, explains that the First Amendment bars “unjustified interference with these sorts of political activities” and imposes a “heavy burden” of justification when the government does interfere. But she notes that in a less famous portion of the Citizens United ruling in 2010, the Supreme Court upheld, by an 8-1 vote, a rule requiring advertisers and campaign contributors to publicly disclose their identities. This condition may interfere with a donor’s freedom of speech by forcing him to declare his support, but it is, the justices held, a justified intrusion. Only Justice Clarence Thomas dissented from the court’s view that “the public has an interest in knowing who is speaking about a candidate shortly before an election”.

Will the district court in Michigan find a similarly clear justification behind the eligibility rules for the nascent redistricting commission? The crux of the matter, Ms Norton explains, is the “tightness of the fit” between the conditions and the commission’s goals. “Is there a strong relationship between the two, between Michigan’s chosen means and its chosen ends?”, she asks. Yes, she says, since “partisan leaders, officials and candidates are likely to have especially strong partisan interests”. But the fit is not “perfect”, as other people not barred by the criteria might be highly partisan, too; the lawsuit argues there is no good reason to think that the plaintiffs would make the commission less impartial than would commissioners “who hold political views that are just as strong, or even stronger, but do not happen to belong to one of the excluded groups”. The question is whether the tie between the goal of impartiality and the no-political-insiders rule is intimate enough. “That’s what all the fighting will be about”, Ms Norton says.

A closer look at the lawsuit suggests the plaintiffs may face an uphill battle. The main Supreme Court case the challengers cite in their favour—a 1990 decision called Rutan v Republican Party of Illinois—doesn’t quite match up. The question in Rutan was whether the state government in Illinois could base its hiring and promotion decisions on baldly partisan considerations: how much applicants had contributed to the Republican Party, for example, or whether local party officials supported them. By a 5-4 vote, the Supreme Court said this kind of official discrimination against individuals based on political party was a violation of the First Amendment. Patronage systems in which hiring and promotion decisions are a function of “political affiliation or support” are “an impermissible infringement on the First Amendment rights of public employees”.

But here is the problem with relying on Rutan to strike down Michigan’s independent redistricting effort: the eligibility rules for commissioners under attack in Daunt v Benson are not based on viewpoint. They are based on activity: recent Democratic candidates and party insiders are barred from participation just as their Republican counterparts are. The disqualification is even-handed and not based on a failure to swear loyalty to any particular political party. The rules are based on the rather reasonable idea that party insiders are probably not the most impartial people to draw fair electoral lines.

Rick Hasen, an election-law expert at the University of California-Irvine, says “it would take a big change in First Amendment doctrine” for the plaintiffs in Daunt to succeed. Mr Hasen says an individual judge might buy the argument, but he is “sceptical the position will ultimately prevail”. One strong piece of evidence for this view comes in section 5 of Rucho v Common Cause, the recent decision in which the Supreme Court said federal judges are unsuited to police partisan gerrymandering. Don’t despair, Chief Justice John Roberts wrote, as “the states...are actively addressing the issue on a number of fronts”, and “in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts".

Would Chief Justice Roberts and the four conservative justices who signed his opinion turn around after Rucho and strike down a commission they specifically pointed to as a viable way to address warped electoral lines? The Supreme Court has acknowledged that extreme partisan gerrymandering is “incompatible with democratic principles”. To seal shut a release valve it has hailed as a solution would be a dramatic reversal—and bode ill for attempts in other states to buttress America's electoral democracy.