LANSING, Mich. (CN) --- In a special session Monday morning, the Michigan Supreme Court heard arguments over whether the state's Independent Citizens Redistricting Commission is allowed to work with amended deadlines requested because of delays caused by the Covid-19 pandemic.
The commission -- established after the 2018 election when voters approved a plan to amend the state constitution and reassign the responsibility of drawing legislative and congressional district boundaries from the Legislature -- filed its petition with the Michigan Supreme Court in April, joined by Michigan Secretary of State Jocelyn Benson, a Democrat.
The work at issue might not be ready by the statutory deadlines since the pandemic created a delay for 2020 census information that will be used to draw the new districts. The Michigan Constitution mandates that the commission adopt a redistricting plan by Nov., 1, 2021 but before that plan can move forward it has to be made available for public comment for 45 days.
Normally, the U.S. Census Bureau would provide the needed data by the end of March. But due to a delay in collection caused by the coronavirus crisis, states are now expected to receive the census data by mid-August.
Michigan Deputy Solicitor General Ann Sherman argued Monday the state high court’s jurisdiction is broad enough to direct the commission on how to handle the deadlines. She said the November deadline was simply an “administrative tool.”
Justice David F. Viviano was not convinced there was any controversy since the deadlines were not passed yet and expressed skepticism about the request.
“You want advanced permission to disregard deadlines,” he told Sherman.
Sherman said it did not make sense to wait until the commission missed deadlines to act and argued the state constitution allowed the question.
“You are asking us that you don’t have to do your duties within the deadlines,” the judge countered.
Julianne Pastula, staff lawyer for the state attorney general's office, said that the legacy census data that would be used by the commission does not meet constitutional guidelines, is not formatted for a user-friendly experience and could be considered inaccurate.
Chief Justice Bridget M. McCormack wondered why the court intervention was necessary since there are no penalties for missing the deadlines.
Pastula said the dates are a mechanism to move the process along and that if the commission used the truncated schedule, their plans would be more susceptible to a court challenge over validity.
Justice Viviano still had doubts.
“If voters wanted courts to set the schedule, they would have voted for it,” he said.
Pastula said it was a question of getting it right.
She responded, “What’s more important? The November date or the work?”
Heather Meingast, chief of the attorney general's civil litigation, employment and elections division, was questioned by an unconvinced Justice Bryan K. Zahra when she said the relief was warranted and members of the commission were trying to be proactive since they already knew they would miss the deadlines.
“To me, there’s no controversy,” Zahra said.
He added: “If we have a problem, we can tell you to go back and fix it.”
Asked by the court to argue against the need for judicial intervention, Assistant Attorney General Kyla Barranco said the case was outside the court’s jurisdiction since there were no adversarial parties.
Justice Richard H. Bernstein, who cheerily remarked several times he was happy to physically be in a courtroom again, wondered if the commission was in a Catch-22 if they miss the deadline or get approval for an extension.
He asked, “Will they get in trouble either way?”
Barranco said there was enough of a chance that the commission could use the legacy census data, which would be identical to the processed data they would receive later.
“Try your best and maybe on Sept. 17 we will have a real controversy,” she suggested.
Former Michigan Solicitor General John Bursch agreed with Barranco and shared how he would tackle the issue when asked by Justice Megan K. Cavanaugh.
“Your data expert said it could be done,” he theorized.
He added: “Let’s get to work and try and meet that deadline. You don’t have a controversy until the deadline has passed.”
The commission and Benson sought approval for a schedule where they could have 72 days to process the census data once it is provided by the federal agency, which would mean the redistricting proposal would be due on Dec. 11, 2021, and ready for approval on Jan. 25, 2022.
However, the Republican-led Michigan Senate is not on board. In an amicus brief filed with the court, the GOP senators empathized with the commission’s predicament but said it would have access to the legacy format census data in August and argued the Michigan Supreme Court did not have the jurisdiction to amend the state constitution anyway.
The Senate conceded in the brief that the state constitution does vest the high court with the original jurisdiction to “direct the secretary of state or commission to perform their respective duties” regarding redistricting, but argued the commission and Benson are instead asking the court to change how the duties are performed.
“If judges could rewrite constitutions and statutes based on their personal assessments of changed circumstances or expedience, the separation of judicial and legislative functions would collapse,” the filing said.
The League of Women Voters and the voting advocacy group Count MI Vote, also known as Voters Not Politicians, submitted amicus briefs in support of the commission’s petition.
Follow Andy Olesko on Twitter.
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