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The Mitten Memo. A blog by Nick Krieger.
Michigan’s bipartisan apportionment commission had proven itself unable to effectively redistrict the Michigan Legislature. The eight commissioners had regularly split along party lines. Each time this happened, the matter had ended up before the Michigan Supreme Court for resolution. Predictably, the apportionment commission deadlocked once more after the census of 1980.
It was already settled that several of the apportionment provisions in the Michigan Constitution of 1963 were invalid under the Fourteenth Amendment to the United States Constitution. As explained in last week’s column, the United States Supreme Court had ruled in Reynolds v. Simms that both chambers of a bicameral state legislature must be apportioned on the basis of population alone. The Reynolds decision effectively voided the provisions of the 1963 state constitution that required the consideration of land area in the drawing of districts.
When the matter of redistricting reached the Michigan Supreme Court in 1981, it was apparent that the justices had grown tired of intervening in the same mess every ten years. Therefore, instead of attempting to determine which of the commission’s competing plans was most compliant with the law (as it had always done in the past) the Court took the unusual step of striking the legislative-apportionment provisions out of the Michigan Constitution altogether. This included Article 4, section 6—the section that established the bipartisan apportionment commission.
Having eliminated the apportionment commission and declared that it was no longer part of the state constitution, the Michigan Supreme Court ordered the Legislature to reapportion and redistrict its own 148 seats. Alternatively, the Court directed Bernard J. Apol, former director of the Michigan Bureau of Elections, to redistrict the House and Senate if the Legislature was unable to adopt a plan of its own before a certain cutoff date preceding the August 1982 primary.
As fate would have it, the Legislature failed to adopt a plan of redistricting before the cutoff date set by the Court. Thus, Apol submitted his plan to the Court in late April 1982. The Court ultimately adopted the Apol plan, with certain modifications. As finally adopted, it allowed for a population divergence of 39,626 between the largest and smallest Senate district and a population divergence of 13,774 between the largest and smallest House district. The elections of 1982 went forward under the revised Apol plan.
Following the 1990 federal census, the Michigan Supreme Court again directed the Legislature to enact a redistricting plan before a certain date. The Legislature again failed to do so. This time, the Court appointed a special panel of three judges to redistrict the Legislature prior to the 1992 election. On April 1, 1992, the Michigan Supreme Court adopted the plan drawn by the judges, with certain minor alterations. Although the plan drawn by the three-judge panel included moderate population divergences among the districts, the Court issued an opinion on June 15, 1992, unanimously holding that these divergences were within constitutionally acceptable limits.
Today, Michigan’s bipartisan apportionment commission is a distant memory. It remains in the body of the Michigan Constitution, suspended in time as of March 25, 1982—the day that seven frustrated justices struck it from our fundamental charter of state government. But it is no longer used and, at least according to the Michigan Supreme Court, cannot be used.
After the federal censuses of 2000 and 2010, the Governor’s office and both houses of the Legislature were controlled by Republicans. As a result, the Legislature did not deadlock and quickly adopted its own redistricting plans in 2001 and 2011. Now most people don’t remember a time when any institution other than the Legislature, itself, was charged with the task of redistricting.
The election of November 4, 2014, marked the first time that all 148 seats in the Michigan Legislature were up for election since the most recent redistricting plan was adopted in 2011. The final numbers show why the process of redistricting should not be left to the Legislature and should alarm everyone, regardless of party or political ideology.
At the general election of November 2014, 3,039,377 Michigan residents cast a vote for the office of state senator and 3,026,423 Michigan residents cast a vote for the office of state representative.
Of the electors who cast votes for the office of state senator, 1,530,712 (50.4%) voted for the Republican candidate, 1,486,205 (48.9%) voted for the Democratic candidate, and 22,460 (0.7%) voted for a third-party candidate. Yet of the 38 members of the Michigan Senate elected in 2014, 27 (71%) are Republicans and 11 (29%) are Democrats. In other words, even though 48.9% of Michiganians voted for a Democrat for the office of state senator, only 29% of the individuals elected to the Michigan Senate are Democrats.
The House of Representatives election results tell a similar story. Of the electors who cast votes for the office of state representative, 1,467,591 (48.5%) voted for the Republican candidate, 1,541,018 (50.9%) voted for the Democratic candidate, and 17,814 (0.6%) voted for a third-party candidate. But of the 110 members of the Michigan House of Representatives elected in November 2014, 63 (57%) are Republicans and 47 (43%) are Democrats. Hence, although a majority of Michigan electors voted for a Democrat for the office of state representative, only 43% of the individuals elected to the Michigan House are actually Democrats.
What does it all mean? Some readers will undoubtedly conclude that this article is motivated by partisan politics. It isn’t. Irrespective of which party is in control, I firmly believe that every vote should count equally. If half of the voters choose a Republican for the office of state senator, for instance, roughly half of the people elected to the Senate should be Republicans. This just makes sense.
Instead, the numbers indicate that Democratic votes were diluted through the process of gerrymandering—diluted to the point, in fact, where a majority of voters statewide were only able to elect 43% of the state representatives. This type of vote dilution violates the United States Constitution.
Gerrymandering—the process by which one party draws legislative district boundaries to benefit its own candidates—can no longer be denied in Michigan. As the numbers establish, the party that controls the redistricting process can effectively guarantee that it wins a majority of the seats in the Michigan Legislature—even if it does not receive a majority of the votes statewide.
All across Michigan, there is a renewed interest in the process of redistricting. Should the voters be choosing their legislators or should the legislators be choosing their voters? This is a question of central importance to our representative democracy. Some have called for the reestablishment of the defunct bipartisan apportionment commission. Others have called for the creation of some other body—perhaps a board of retired judges or elections officials—which would draw Michigan’s legislative districts every ten years in a fair and independent manner. There is much more debate to come and it is not yet clear which of the many options would be best. However, as long as the partisan politicians in the Legislature remain in charge of drawing their own districts, we will never realize the true equality among all voters that our constitution demands.
Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School. Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press. Contact Nick via e-mail at nickkrieger77@gmail.com or follow him on Twitter at @nckrieger.
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