Michigan Political Map Axed in ‘Seismic’ Blow to Commissions (1)

Michigan’s state House and Senate maps were tossed as racial gerrymanders, a first-of-its-kind loss for a state redistricting commission and a major blow to Democrats’ chances to maintain control of the state legislature.

In a groundbreaking opinion that focused on primary—not general election data—a three-judge federal panel ruled Thursday evening that Michigan’s Independent Citizens Redistricting Commission illegally drew 13 districts’ lines. They violated the US Constitution by predominantly focusing on race, minimizing Black voting age population in various Detroit-area districts in a way that denied Black voters the ability to select minority candidates in primaries.

“The record here is almost oceanic in its direct evidence of intent,” Judge Raymond Kethledge wrote in the majority opinion. “We therefore find, as to the Commission’s mapping process for Detroit-area districts generally, that the Commission adopted ‘an announced racial target’ to which it ‘subordinated other districting criteria[.]’”

The case will rock Lansing, where Democrats hold the governor’s mansion and both chambers of the legislature. With new maps, Gov. Gretchen Whitmer (D) could be blocked from enacting further abortion, environment, and labor legislation.

With recent departures from the state’s redistricting commission, and a push to expel the group’s leader for assisting with the lawsuit against the maps, it’s unclear how lines will change before the 2024 elections. However, the decision will also reverberate nationwide across election law litigation, said Michael Pattwell, an attorney for the Black voters who challenged the maps.

“This is one of the first racial gerrymandering wins in the north, and the first against a citizens commission,” said Pattwell, a member at Clark Hill. “What also makes this case seismic is that the commissioners, through experts and lawyers, tried to mislead the public and the court as to the racial targets, and the court found their testimony was overwrought, rehearsed, and lacked both credibility in substance and demeanor.”

The decision is a proof-of-concept for a new litigation strategy for conservative litigators. Election law experts said that a win in this case could help Republicans challenge similar maps drawn by Democratic politicians or citizen commissions around cities and large suburbs where cross-over voting benefits liberal candidates.

‘Racial Targets’

The court cited advice from election lawyers and researchers encouraging the commissioners to reduce Black voting age population to under 50% in districts. It’s something the commissioners struggled with over 10,000 pages of transcript of their meetings as they worked to draw lines through Detroit, America’s largest majority Black city with roughly an 80% Black population.

The commission was an attempt to un-gerrymander districts drawn by Republicans to their advantage, which helped conservatives hold Lansing despite Michigan’s purple electorate. The Michigan voters in 2018 adopted a constitutional amendment changing to a commission-based system, which was praised by election lawyers and mentioned by US Supreme Court Chief Justice John Roberts as an example for what states can do to combat partisan gerrymandering.

But when commissions seek to reduce partisan bias, they can’t do so in a way that uses racial targets and interferes with Black voters’ ability to select candidates in primaries.

The “racial targets limited these plaintiffs to a political minority in their districts,” the court said. “Yet these experts told the commissioners again and again—based on general-election data alone—that black-preferred candidates would ‘perform well’ in these districts. That was a grave disservice to everyone involved with this case, above all the voters themselves.”

Critics said the decision misapplies the law and may not lead to large changes in the districts because the commission is required to seek partisan fairness and that’s what these lines accomplished. Harvard Law School professor and election law expert Nicholas Stephanopoulos called the decision “troubling” because the commissioners were relying on sophisticated data and analysis from experts in drawing the lines with the intent of avoiding both racial gerrymandering and Voting Rights Act liability.

“If jurisdictions aren’t safe from racial gerrymandering challenges when they draw districts the ‘right’ way,” he said in an email, “it’s hard to see how they can simultaneously satisfy their constitutional and VRA responsibilities.”

The case is Agee v. Benson, W.D. Mich., No. 1:22-cv-00272, 12/22/23.