Will Jocelyn Benson defend Michigan gerrymandering tactics she once fought?

Jan. 25, 2019: Jocelyn Benson seeks to settle gerrymandering suit by redrawing House seats
Jan. 23, 2019: Gerrymandering settlement would give Michigan Dems hope, GOP despair​
Jan. 17, 2019: Michigan secretary of state wants to settle gerrymandering lawsuit

Editor's note: This story has been updated to reflect Republicans' request Friday to delay the trial.

Nearly a decade after Republicans redrew Michigan’s political districts, a federal lawsuit is set for trial Feb. 5 to determine if they were illegally gerrymandered.

Just one hiccup. The new defendant in the case –  the one responsible for arguing that the districts are constitutional – is one of the biggest critics of the state’s legislative boundaries, and helped lead the fight against Republican redistricting in 2011.

When Democrat Jocelyn Benson was sworn in as Michigan’s secretary of state on Jan. 1, she inherited an ongoing lawsuit brought by the League of Women Voters that seeks to redraw the state’s 14 congressional districts and more than 30 state Senate districts before the 2020 election.

The suit’s only defendant was Benson’s predecessor, Ruth Johnson, a Republican whose party leaders drew the districts. Her departure leaves the state’s defense in the hands of Benson as Michigan’s chief elections officer, and she has written editorials criticizing the districts and sponsored a contest in 2011 inviting citizens to draw fairer political maps.

Related: Gerrymandering is dying in Michigan. Of old age. No joke.
Related: Michigan gerrymandering trial on for February; court cites ‘profound’ bias
Related: Proposal to end gerrymandering resonated in red and blue Michigan

The lawsuit is one of several complications from this month’s transition of power in Lansing, as Democrats assumed top offices including governor, attorney general and secretary of state from Republicans.

Making matters murkier is the lack of recent precedent: Control of the Office of the Secretary of State hasn’t changed parties since 1995, when Republican Candice Miller succeeded Richard Austin, a Democrat who took office in 1971.

Benson declined comment through her spokesman, Shawn Starkey, but legal and political experts told Bridge Magazine she has a few choices:

• Settle the gerrymandering case, which could allow a Republican-majority legislature to draw new districts
• Hold her nose and defend Republican-drawn districts she hates
• Delay until she figures out another way

All options carry political implications in a case that’s unearthed troves of emails showing Republicans worked with party consultants behind closed doors in 2011 to draw districts that explicitly favor their incumbents and weaken Democrats.

Among other emails, evidence in the case has shown Republicans discussed drawing districts to “give the finger” to former Democratic Rep. Sander Levin and “cram ALL the Dem garbage” in four districts so that Republicans could control more districts statewide.

Mark Brewer, former chairman of the Michigan Democratic Party, filed the case in December 2017, alleging new methods of analyzing the fairness of legislative maps proved Michigan’s districts are among the most skewed toward Republicans in the nation.

He represents the League of Women Voters along with several other Democrats named as plaintiffs in the suit, including U.S. Rep. Rashida Tlaib, D-Detroit.

The Secretary of State’s office is defended by a Who’s Who of Republican lawyers hired by former Attorney General Bill Schuette, a Republican, including Peter Ellsworth and Michael Carvin, who helped fight the 2000 Bush v. Gore Supreme Court case that propelled George W. Bush to the presidency.

The attorneys all now answer to Benson, a lifelong Democrat, unless she changes course weeks before a trial that is expected to last much of February in U.S. District Court in Detroit.

Adding to the uncertainty, the three-judge panel presiding over the case agreed in late December to allow new House Speaker Lee Chatfield, R-Levering, to intervene in the case as a defendant.

Benson “is under no obligation ethically to defend the case other than to evaluate it and decide whether her position is tenable,” said William Goodman, a Detroit constitutional lawyer.

“If it’s not, she can work out a settlement, which also happens to be her responsibility as a lawyer.”

That’s a familiar scenario nationally as new presidential administrations frequently direct solicitors general not to defend ongoing litigation in federal courts.

If Benson settles the case, it could allow the Legislature –  which is controlled by Republicans – a crack at drawing more districts. The new maps would have to be approved by the federal court.

“You can’t look at this question before Benson with blinders on and think she is not a political player, because no matter what she decides will be political,” said Eric Lupher, president of the Citizens Research Council, a Livonia nonprofit that has studied redistricting in Michigan.

Any new districts would be temporary, lasting only the 2020 elections. That’s because voters approved Proposal 2 in November, which will take redistricting out of the hands of politicians and appoint a 13-member citizen commission to the task. Its first maps will be in effect in the 2022 elections.

Lansing pollster Ed Sarpolus said Benson could appear partisan if she agrees to a settlement. He argues that her predecessor, Johnson, wasn’t accused of actively participating in gerrymandering but nonetheless defended the office against the lawsuit.

“(Benson) was elected to represent the Office of the Secretary of State and defend that post,” said Sarpolus, who was subpoenaed in the case because he proposed alternate districts in 2011.

“In the end, she can always just blame Republicans who created this mess.”

Among the calculations is the likelihood that the Michigan case will be influenced by the U.S. Supreme Court’s decision last week to hear arguments about gerrymandering in cases out of North Carolina and Maryland.

In both of those cases, there is little dispute the maps were drawn to help Republicans in North Carolina and Democrats in Maryland. The question, which the high court may or may not answer, is whether gerrymandering for politically partisan purposes violates the law. The court has outlawed drawing districts to discriminate by race, but has been silent on whether crafting them to help one party is constitutional.

A decision in those cases is due by June, a few months after the Michigan case would be decided if it proceeds to trial.

“There’s a real significance to having a (gerrymandering) case alive in Michigan when that decision comes down,” Lupher said. “In order to be in line for a court to direct the Legislature on this issue, there has to be a case before the court in some form.”

On Friday afternoon, Chatfield and other Republicans filed an emergency motion asking the court to delay the trial until after the Supreme Court hears the Maryland and North Carolina cases.

"The Supreme Court’s decisions ... will determine whether this lawsuit should be dismissed, thereby completely obviating the need for trial, or, alternatively, will determine the legal principles to be applied to this case and the appropriate factual questions to be resolved at trial," the motion read.

Any settlement in the Michigan case would have to be approved in court and open to a challenge by anyone who benefited from the 2011 maps, presumably every Republican in the Legislature, said Wayne State University law professor Robert Sedler.

“The federal court is not going to let this case go,” he said.

Attorneys in the case declined significant comment. Brewer, the plaintiffs’ lawyer, would only say he’s “preparing for trial,” and Ellsworth said he’s unable to comment beyond stating the trial is set to start Feb. 5 and last 17 days.

Several other issues remain before the start of the trial. Among them:

• How much evidence can be admitted from Brewer’s star witness, Jowei Chen, a University of Michigan political science professor. He analyzed the 2011 redistricting and randomly created 1,000 districts in Michigan that he says are fairer than the ones passed by the Legislature. The defense is objecting because he did not preserve the original computer coding to create his districts.
• Whether more emails can be unearthed as evidence. Most of the emails that have emerged in the case so far relate to congressional redistricting. Hundreds more related to state districts exist, but have been shielded by attorney-client privilege, preventing Brewer and plaintiffs from introducing them at trial.