Michigan high court hears challenge to redistricting measure

By David Eggert
Associated Press

LANSING, Mich. (AP) — The Michigan Supreme Court on Wednesday heard arguments about whether voters in November should be able to pass a constitutional amendment that would change how the state’s voting maps are drawn or whether such changes could only be adopted at a rarely held constitutional convention.

The proposed ballot measure would empower an independent commission to draw congressional and legislative districts every decade instead of the Legislature, which is now controlled by the Republicans. It is a bid to stop partisan gerrymandering, which critics say hurts democracy and denies citizens fair representation.

The proposal was certified for the ballot after the state appeals court last month deemed a challenge to be without merit. But a Michigan Chamber of Commerce-affiliated group appealed to the high court, where justices nominated or appointed by Republicans hold a 5-2 edge.

The initiative would create a “superagency” and empower it with executive, legislative and, to some extent, judicial functions “with virtually no checks and balances,” Peter Ellsworth, an attorney for Citizens Protecting Michigan’s Constitution, told the court during a special session that lasted 80 minutes. He said it would make a “fundamental” constitutional revision and should be kept off the ballot.

“It is truly a radical departure from what we have had over the years in Michigan,” Ellsworth said.

A lawyer with Republican Attorney General Bill Schuette’s office made similar arguments, but Graham Crabtree — an attorney for the group behind the measure, Voters Not Politicians — said nothing in the constitution restricts the subject matter or scope of an amendment. He also said the initiative is an amendment and not a revision because it addresses the single subject of redistricting.

“When you’re talking about an effort to deny the people their right to vote on a proposed constitutional amendment, this court interprets the constitution liberally to facilitate rather than restrict the free exercise of that right,” he said.

The last constitutional convention was held in the early 1960s and led to the adoption of the 1963 constitution. Voters are automatically asked every 16 years if they want a convention.

Gerrymandering has led to seats that are drawn to guarantee as many comfortable districts as possible for the party in power. The majority party was the GOP after the 2010 and 2000 population counts.

Under the initiative, a commission of citizens who meet certain qualifications would handle redistricting. There would be four Democrats, four Republicans and five members with no affiliation with either major party. The panel would be prohibited from providing a “disproportionate advantage” to a political party.

Chief Justice Stephen Markman asked the attorneys what test the court should use in deciding if a constitutional amendment goes to a statewide vote and questioned if a “single-purpose test” could allow ballot committees to make “increasingly broad and increasingly generalized statements” to justify sweeping amendments. That prompted another GOP-nominated justice, David Viviano, to wonder aloud if the court should even have a role in the current case if it cannot fashion a legal standard.

The two Democratic-nominated justices, Bridget McCormack and Richard Bernstein, signaled their opposition to tossing the proposal, for which supporters gathered 394,000 valid signatures.

“Your position to me is quite startling and is quite concerning,” Bernstein told Solicitor General Aaron Lindstrom. “Your position and your argument really takes away the ability of voters to have a say.”

He said telling Voters Not Politicians to go the convention route “is something that for all intents and purposes is simply unattainable,” while McCormack expressed concern with giving the court too much power to “crush the will of the people.”

Lindstrom conceded that a convention “may be harder to do” but is necessary because the measure would alter “basic concepts that are fundamental to the structure of the government.”

After the hearing, more than 100 supporters of the anti-gerrymandering initiative rallied outside the Hall of Justice, where they held signs and repeated the opening line of the state constitution: “All political power is inherent in the people.”

Among those who have submitted briefs in support of Voters Not Politicians are Democratic former U.S. Sen. Carl Levin of Michigan, former California Gov. Arnold Schwarzenegger, who is a Republican, and the American Civil Liberties Union of Michigan.

A lawyer representing Secretary of State Ruth Johnson and the Board of State Canvassers urged the justices to resolve the matter by early August so there would be enough time to draft a 100-word summary and address other legal challenges if the initiative makes it on the ballot.