U.S. District Court Rules that Michigan Gerrymandering Scheme was Unconstitutional

In League of Women Voters of Michigan v. Benson, the U.S. District Court of the Eastern District of Michigan held that the Congressional maps drawn by Republican map-makers were unconstitutionally gerrymandered in violation of the First Amendment right of association, as well as the Equal Protection clause of the Fourteenth Amendment. Docket No. 14148, 04/25/2019.

Background Facts

According to the Michigan Constitution, congressional districts must be redrawn every ten years based on the state census results and by using what is called “Apol criteria”. Apol is a set of hierarchical requirements including such things as the districts being contiguous, districts must contain a population within 5% of the ideal district size, and that county and municipal breaks are minimized. Importantly, Apol criteria does not provide that legislatures may take political considerations into account when drawing congressional maps. In 2011, Republican map-drawers within the Michigan State Legislature were not using Apol criteria to draw their maps, rather they were drawing their maps in accordance with Project REDMAP, a nationwide campaign with the goal of aiding Republican candidates in historically Democratic populations to victory using the redistricting process.

While Project REDMAP was occurring all over the country, the effects of this Project were very noticeable in Michigan. After the “Enacted Plan” went into effect in Michigan in 2012, the Republican candidates won 64% of the Michigan Congressional seats even though they never earned more than 50.5% of the state-wide vote. The same was true in the races for Michigan House and Senate districts, with Republicans winning 53.6% of the House seats and 71.1% of the Senate seats while only getting 50.3% and 50.4% of the vote, respectively. The Democratic candidates had a sizeable majority at the polls but they actually polled evenly with the Republican candidates in terms of seats won. This occurred because of the process taken by the Republican map-drawers during the redistricting time period.

Beginning in early 2011, the Republican map-drawers purchased political data such as historical voter and election data, as well as citing such concerns as “incumbency considerations” and “achieving support sufficient for passage” while discussing the redistricting process. Weekly redistricting meetings were held at the Lansing offices of Dickinson Wright by the leadership of the Michigan congressional Republicans. Coincidentally, this law firm was also the location of clandestine map-drawer meetings. Michigan congressional Democrats were not invited to either of such meetings until after the maps had been voted out of committee in the legislature. The map-drawers often sought the advice of the Republican leadership and Republican incumbents when making decisions about where district lines should fall, even going as far as to fly to Washington D.C. in order to get approval and advice on boundary lines from the Michigan legislators in Congress. Once again, the map-drawers never met with the Democrats of the State, and only showed them the maps once they had already been approved.

The League of Women Voters became involved after their president attended a public hearing on redistricting held in June 2011, after the proposed district maps were introduced. During this meeting, there was no explanation given for why the district lines fell where they did and attendees were only given two lines of census data that made it virtually impossible to discern where a person’s new district fell. Things were only made worse after copies of the proposed maps were brought into the room; the maps themselves were very small and showed the entire state, thus making it very difficult to tell where the new districts were. Despite the obvious lack of transparency and public involvement, the bill was voted out of committee and, after just two weeks of hearings, the bill was passed and signed into law by August 2011.

The Lawsuit

The League of Women Voters of Michigan, as well as several individual plaintiffs, brought suit in U.S. District Court under 42 U.S.C. Section 1983 and Section 1988 against Jocelyn Benson, the Michigan Secretary of State, for violation of the First Amendment rights of freedom of speech and freedom of association, as well as the Equal Protection Clause of the Fourteenth Amendment. In their claim, the plaintiffs asserted that because the Republican map-drawers subjected them to “disfavored treatment by reason of their [political] views”, the Enacted Plan was unconstitutional and requested that use of the plan be enjoined.

At trial, there were several experts who testified as to the fact of partisan gerrymandering in the drawing of the maps. These experts ran statistics and data to determine partisanship of the Enacted Plan, including the number of districts per each political party. In all of the statistical tests, the experts could not replicate the map-drawers decisions using only the Apol criteria. Based on this evidence, the Court found that the Enacted Plan discriminated against Democratic voters such that it constituted a durable partisan gerrymander. Of the 34 districts challenged in the litigation, the Court found that 27 of those violated the plaintiffs’ First and Fourteenth Amendment rights by diluting the weight of their votes. Additionally, every single challenged district violated the plaintiffs’ First Amendment rights of association. These harms, the Court went on, would reoccur every election cycle so long as the constitutionally impermissible Enacted Plan was in place.

The Remedy

After finding that the Plan was constitutionally impermissible, the District Court enjoined use of the Enacted Plan. The Court also ordered that a special Senate election in 2020 was justified as the Plan had such an overwhelming impact on the Michigan Senate Race. Additionally, the legislature needs to make a redistricting plan that must be signed into law by August 1, 2019. If the plan is not signed into law by that date, the U.S. District Court will be required to step in and create the plan. Defendant Republicans are looking to file an appeal, hoping to eventually reach the Supreme Court. There are currently two other partisan redistricting cases pending on the Supreme Court’s Docket, both set to be decided in the coming months.