The Michigan Supreme Court appeared divided Wednesday about whether to allow a gerrymandering reform measure to be removed from the November ballot. The judges pressed lawyers on both sides of the case to clarify when it is appropriate for the court to step in and prevent residents from voting on something.
The case involves a referendum set to appear on the ballot this fall. It would create an independent 13-member commission to draw state legislative and congressional districts every 10 years, a job that currently belongs to state lawmakers. The lawsuit is being closely watched because Michigan is considered one of the states with the most severe gerrymandering for partisan gain in the country. One estimate from the Brennan Center for Justice suggests there would be two or three fewer Republicans in Congress from the state if not for the gerrymandering.
A conservative group is challenging the ballot measure, saying it amounts not to amending the state constitution, but to revising it ― something that can only be done through a constitutional convention. The group says the measure should be removed from the ballot. A three-judge panel for the Michigan Court of Appeals unanimously ruled in June that the measure could appear on the November ballot.
Oral arguments were scheduled for an hour, but went on a little over 30 minutes longer on Wednesday. It was difficult to see which way the court was leaning because three of the justices on the seven-member panel either barely spoke or did not speak at all.
Justices Richard Bernstein and Bridget Mary McCormack, both Democrats, appeared strongly in favor of allowing the measure to appear on the November ballot. In a sharp line of questioning directed toward Michigan Solicitor General Aaron Lindstrom, Bernstein said he is stunned the state is supporting not having the measure on the ballot this fall. He said the state’s argument that the measure amounted to a general revision of the constitution is “startling” and “disturbing” because it would severely limit what the people of Michigan could vote on through the referendum process.
McCormack went even further, suggesting it isn’t the court’s job to determine which measures the people of Michigan are able to vote on.
Under the independent commission proposal, backed by a group called Voters Not Politicians, the members of the general public could apply for a seat on the redistricting commission. Applications would then be statistically weighted and four Democrats, four Republicans and five independents would be chosen at random from the applications. People who serve on the commission would not be allowed to have run for office in the last six years or work for a party or elected official. The amendment also explicitly says the commission would not be subject to any influence or control from the legislature or governor.
Peter Ellsworth, an attorney representing Citizens Protecting Michigan’s Constitution, told the justices on Wednesday that the measure would create a “super agency” that had no checks and balances on its power. An amendment to the state constitution, Ellsworth said, should be something simple and short.
Chief Justice Stephen Markman, a Republican, asked lawyers on both sides to explain the standard the court should use to determine when something was an amendment and when it was a revision. He seemed to reject one idea offered by Graham Crabtree, a lawyer representing Voters Not Politicians, that something was an amendment when it was related to a single purpose. Markman noted that any measure could be twisted and broadly construed to have a single, overarching purpose.
The comment prompted Republican Justice David Viviano to say that Markman may have inadvertently argued that the court shouldn’t have a role in evaluating whether a referendum amounted to a constitutional amendment or general revision because the standard was so hard to determine.