A Supreme Court challenge could be next for Michigan redistricting proposal

Update July 31: Republican Supreme Court justices have ties to gerrymandering group
Update July 6: Michigan Supreme Court will decide redistricting battle
Update: Bill Schuette asks Michigan Supreme Court to reject redistricting proposal

Supporters of a proposal to change the way Michigan draws district lines are counting on a victory Wednesday, when the state is likely to approve the group’s petition for the November ballot. (Afternoon update: The proposal was approved by the board of canvassers.) 

However, its place on the ballot is not yet certain. A legal challenge to the proposal has been made to the Michigan Supreme Court, which has yet to decide if it will hear the case.

The ballot proposal, from group Voters Not Politicians (VNP), would amend the state constitution to create an independent redistricting commission staffed by Michigan citizens. The commission would be responsible for redrawing congressional and legislative district maps after each decennial census (the next census is in 2020). Right now, state legislators are responsible for drawing district lines, leading to claims of partisanship by whichever party is in power in Lansing.

The group fighting the ballot measure, Citizens Protecting Michigan’s Constitution (CPMC), has challenged the VNP proposal in the courts. It argues that the proposal would too broadly change the state constitution to qualify as a ballot proposal. The group also argues that the petition language fails to identify all sections of the constitution that would be changed, which it says is a violation of state election law.

Three Court of Appeals judges ruled against CPMC in an unsigned opinion in early June, saying the argument is “without merit” and directing the state Board of Canvassers to certify the proposal for the ballot. CPMC appealed that decision to the state Supreme Court.

VNP lawyers say they will submit their own brief to the Supreme Court on Friday outlining why the court does not need to review the appeals court’s decision. CPMC has already submitted its brief.

What’s ahead

The Court can pursue one of several options:

It could choose not to take the appeal and reiterate the proposal’s right to be on the November ballot. This would be the end of the line for CPMC’s challenge and would be the preferred ending for VNP.

“We think we’ve received not only a favorable but a very strong opinion out of the Court of Appeals and we are very confident the Supreme Court will look at this and agree with it,” said Peter Houk, legal counsel for VNP.

If the Court decides to take the case, it could schedule oral arguments for each side to present their case in person; it could decide the case without any further legal briefs or arguments; it could request additional briefs, or re-tool the focus of the case entirely.

“The Supreme Court could look at it and say, ‘We think one of the issues is more important than the rest so we’re going to put a little extra effort into it,’ or they might say, ‘Gosh, we think you guys missed the boat all together, here’s what we’d like to you concentrate on,’” Houk said. “I don’t think that’s very likely.”

CPMC spokesman Dave Doyle said the group is confident in its argument. He would not say what its next step is if the Supreme Court chooses not to take the appeal.

“We’re only focused on this right now,” Doyle said. “We think the law is very clear, we think the Court of Appeals got it wrong and we think the arguments in front of the Court are clear and convincing.”

The court must decide the case before September 7, when constitutional amendment wording is due to the Secretary of State for printing on the November ballot.

“The Supreme Court and the Court of Appeals have been just excellent in the way they’ve been expediting all of the hearings on all of the election matters,” Houk said. “So we would expect it to be sooner than the September date, perhaps as early as late July.”

Even if the Board of State Canvassers certifies the ballot proposal on Wednesday, a Supreme Court ruling in favor of CPMC would supercede the certification and pull it off the ballot. In fact, the High Court did just that as recently as 2001, according to the Supreme Court clerk’s office.  

“There’s precedent for proposals that have been certified by the Board and then the Supreme Court has said ‘no, it’s not going to the ballot,” Doyle said. “What the Board of Canvassers is doing is an administrative function.”

Recusal unlikely

Michigan is just one of 10 states that have a system in which Supreme Court justices are nominated by political parties. Michigan’s seven-person High Court currently has five Republicans and two Democrats.

Two Republican justices, Kurtis Wilder and Elizabeth Clement, are up for reelection this year. As Bridge reported earlier in June, their campaigns have been supported by the Michigan Chamber of Commerce’s PAC, which is the largest funder of CPMC and has pledged to actively oppose the VNP proposal.

But neither VNP or CPMC’s counsel say there’s cause for Wilder or Clement to recuse themselves. Houk said he’s confident the court will issue a fair judgment.

“The Court of Appeals panel was composed of judges who have identifiable political leanings as Republicans and Democrats,” he said. “We got a favorable ruling from that court and we see no reason why we won’t in this court.”

Doyle also said there’s no reason for anyone to recuse themselves.

“Every one of the justices receives contributions from lawyers and interest groups that all the time have cases before them and rarely is there a recusal because of the fact that they are elected,” Doyle said. “That’s what our system is.”