Republicans in Michigan filed a second federal lawsuit Thursday challenging a newly created independent redistricting commission, arguing that the panel’s restrictions limiting the partisan affiliation of commissioners violate the U.S. Constitution.
Michigan voters overwhelmingly approved a constitutional amendment last fall that gives a 13-person commission the power to draw congressional and state legislative districts. The panel has four Republicans, four Democrats and five members unaffiliated with either party. In an effort to limit partisanship on the panel, there are restrictions on who can serve. For example, a commissioner can’t have run or held elected office within the last six years or served as an officer or member of a political party. A commissioner also can’t be a parent, child or spouse of anyone who would be ineligible to sit on the panel.
In the new lawsuit, filed in Grand Rapids, the state Republican Party, its chairwoman and four other people affiliated with the GOP say those restrictions violate the First and 14th Amendments and infringe on their guarantee of freedom of speech and freedom of association.
“The proposal usurps the role of political parties in selecting their nominees for partisan public office, and in the case of the Michigan Republican Party, places that responsibility instead in the hands of a highly partisan elected official of the opposite political party,” lawyers wrote in the filing. “At the same time, the proposal penalizes applicants who affiliate with one of the two major political parties by allocating a minority of seats on the commission to each of those pools of applicants.”
The U.S. Supreme Court handed Republicans a significant victory in June when it said federal courts can’t strike down gerrymandered districts on partisan grounds. In his opinion for a five-justice majority, Chief Justice John Roberts wrote that states could still act on their own to restrict excessive partisan gerrymandering. Roberts specifically pointed to Michigan as an example where this was possible.
The grassroots effort to create the commission started with a Facebook post after the 2016 election by Katie Fahey, a Michigan woman who had never worked on a political campaign. Republicans unsuccessfully tried to keep the measure from going on the ballot in 2018, but it ultimately passed with more than 61% of the statewide vote. Activists have hailed the effort as an example of how to rein in partisan gerrymandering.
“Today’s new lawsuit by the Republican Party ― which orchestrated a gerrymander ‘of historical proportions’ in 2011 to rig the next decade of elections in our state ― is not surprising, but it is a reminder of what’s at stake,” Nancy Wang, executive director of Voters Not Politicians, the main group that pushed the proposal, said Thursday.
The Republicans argue the commission restricts their freedom of association because the party can’t choose the people who will represent it. The amendment that voters approved instructs Michigan’s secretary of state, currently a Democrat, to randomly chose 60 self-identified Republicans and Democrats and 80 independents who apply for the commission, and to submit their names to the legislative leaders of both parties. Those politicians can eliminate up to 20 people from consideration. Then, the secretary of state chooses 13 commissioners in a random draw from the pool of Democrats, Republicans and independents.
The Republicans in the suit also argue that the panel discriminates based on viewpoint because Republicans and Democrats are treated differently ― they receive fewer seats ― than people unaffiliated with either party. They also say the commission violates the First Amendment because the people who serve on it are prohibited from discussing redistricting outside of an open meeting, and from accepting gifts worth more than $20.
A separate Republican group filed a similar federal lawsuit in Michigan last month.
In 2011, the last time districts were drawn, Michigan Republicans controlled the state legislature and drew districts that gave them a significant political advantage. Behind the scenes, the efforts were nakedly partisan. One Republican wrote a gleeful email about cramming “Dem garbage” into four of the state’s congressional districts.
“It’s particularly rich that Republicans are claiming that the commission discriminates on the basis of partisan affiliation,” said Michael Li, a redistricting expert at the Brennan Center for Justice who helped advise Voters Not Politicians. “Actually, that’s what gerrymandering does.”