Michigan judges urge Supreme Court to curb partisan gerrymandering

Lansing — The three-judge panel that ruled Michigan political districts approved by the Republican-led Legislature represent an unconstitutional gerrymander "of historical proportions" is urging the U.S. Supreme Court to help curb the practice nationwide.

The bombshell order that Michigan must draw at least 34 new legislative and congressional districts for the 2020 election will be appealed to the nation’s highest court, Republican Senate Majority Leader Mike Shirkey made clear Thursday.

And GOP attorneys will likely ask the Supreme Court to put the Michigan ruling on hold until it rules in separate gerrymandering cases out of North Carolina and Maryland. That decision isn't expected until near the end of the court's term in June and could render the Michigan decision moot. 

Justices have appeared wary of empowering courts to decide if political districts are too partisan, but judges who barred continued use of Michigan maps used part of their 146-page decision to make the case for intervention.

“Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional and pernicious practice that undermines our democracy,” wrote U.S. Circuit Judge Eric Clay, an appointee of Democratic President Bill Clinton.

“Federal courts’ failure to protect marginalized voters’ constitutional rights will only increase the citizenry’s growing disenchantment with, and disillusionment in, our democracy, further weaken our democratic institutions, and threaten the credibility of the judicial branch.”

The unanimous decision was backed by Detroit U.S. District Judge Denise Page Hood, who was also appointed by Clinton, and Grand Rapids U.S. District Judge Gordon Quist, an appointee of Republican former President George H.W. Bush.

The opinion included what appeared to be an explicit message to the conservative-led Supreme Court.

“Judges — and justices — must act in accordance with their obligation to vindicate the constitutional rights of those harmed by partisan gerrymandering,” Clay wrote.

The North Carolina case under consideration by the Supreme Court alleges a statewide gerrymander by Republicans, while the Maryland case alleges gerrymandering by Democrats to flip a specific congressional seat.

The Michigan ruling was “expansive” in striking down all challenged districts but was not specially novel, and "the real action right now is before the Supreme Court,” said Daniel Tokaji, an elections expert at Ohio State University’s Moritz College of Law.

“It wouldn’t surprise me at all if these judges realize that the main event is before the Supreme Court and have written this ruling with an eye towards influencing the Supreme Court,” Tokaji said. “At the end of the day, I don’t think it’s going to make much difference. I think the court is going to do what it’s going to do.”

In North Carolina, lawmakers openly discussed partisan intent and a legislative committee adopted a criterion holding that the new makeup of congressional maps would continue a 10-3 majority for Republicans.

The Michigan panel on Thursday ruled the state’s GOP-led Legislature drew legislative and congressional districts “with the predominant purpose of advantaging Republicans and disadvantaging Democrats.”

The plan violates the First and 14th Amendment rights of the plaintiffs who had filed the suit, judges ruled. The Michigan ruling applied the same legal tests as courts in North Carolina and Maryland, Tokaji said.

But like previous rulings in other states, the decision shows that “while the Supreme Court may be having a problem figuring out when maps go too far, lower courts and state courts really aren’t,” said Michael Li, senior redistricting counsel for the Brennan Center for Justice at the New York University School of Law.

The fact this was a unanimous decision “is a really strong signal that they didn’t want to be partisan," Li said. "And it’s a really strong message to the Supreme Court that this is not an issue about party, this is really an issue about the rule of law.”

If it stands, the Michigan order will give the Republican-led Legislature until Aug. 1 to draw new legislative and congressional maps that are approved by Democratic Gov. Gretchen Whitmer. While many other border districts would likely be impacted, the ruling requires new lines for the following districts deemed unconstitutional.

• Congressional districts: 1, 4, 5, 7–12
• State Senate districts: 8, 10–12, 14, 18, 22, 27, 32, 36
• State House districts: 24, 32, 51, 52, 55, 60, 62 63, 75, 76, 83, 91, 92, 94, 95

Shirkey, R-Clarklake, said Thursday the chamber is "reviewing the details of the ruling and will file an appeal to the U.S. Supreme Court" but "will prepare to comply with this most recent ruling while we await the outcome of the appeal."

The High Court "will be ruling in the coming months on the exact issue at play here," said attorney Charlie Spies, who is representing Republicans in the Michigan case. "We will likely seek a stay and urge caution in drawing conclusions from this opinion, which we believe is at odds with where the Supreme Court will end up.”

The Michigan order would require special elections for state Senate seats in 2020, cutting short four-year terms for current lawmakers who won election in 2018.

But the new maps would be short-lived. Michigan voters in November also approved creation of a new independent redistricting commission that will draw new maps for 2022 and beyond.

Because the 2020 elections are still more than a year away, the Supreme Court may be compelled to "stay" the Michigan ruling pending the outcome of the North Carolina and Maryland cases because there would be “no real harm to voters,” Li said.

“And I guess if it didn’t stay, that would probably be a powerful signal about what is perhaps coming down the line in North Carolina and Maryland.”

In oral arguments last month, new U.S. Supreme Court Justice Neil Gorsuch pointed to new commissions in Michigan and other states as he questioned whether the High Court should intervene to rein in partisan redistricting efforts typically governed by local legislatures.

“One of the arguments that we’ve heard is that the court must act because nobody else can as a practical matter,” Gorsuch said as attorneys presented their arguments in the North Carolina and Maryland cases.

Michigan voters chose to strip the state Legislature of its redistricting powers and hand the job over to the new citizen commission.  

But “the vast majority of the states east of the Mississippi,” including North Carolina, do not allow for citizen initiatives, attorney Emmet Bondurant told Gorsuch as he argued for court intervention.

The Michigan court made "a pretty strong case that this plan had both the intent and effect of advantaging Republicans at the expense of Democrats," Tokaji said. "Whether that makes it unconstitutional, well, the Supreme Court will have something to say about that."  

joosting@detroitnews.com