Michigan Redistricting Commission Greenlit by the Sixth Circuit

David Niven, a professor of political science at the University of Cincinnati, holds a map in 2019, demonstrating a gerrymandered Ohio district in Cincinnati. (AP Photo/John Minchillo)

CINCINNATI (CN) – A constitutional challenge to eligibility criteria for individuals who wish to serve on Michigan’s Independent Citizens Redistricting Commission was rejected by the Sixth Circuit on Wednesday when a panel affirmed a decision by a federal judge.

The commission, created by a constitutional amendment after the November 2018 election, will be composed of thirteen randomly selected voters, will convene every 10 years, and will be granted “exclusive authority to adopt district boundaries” for state representative and U.S. Congress elections.

Although the members will be selected randomly, they will include four individuals who “self-identify as affiliated” with the Republican and Democratic parties, as well as five who identify as unaffiliated.

The Michigan Republican Party and numerous individual citizens sued Secretary of State Jocelyn Benson in separate lawsuits in 2019, and claimed restrictions that deny eligibility to individuals who sought or held public office in the past six years are unconstitutional.

Paid consultants of federal, state, or local elected officials, registered lobbyists, and spouses and children of elected officials are also excluded from applying for a seat on the commission.

U.S. District Judge Janet Neff, an appointee of President George W. Bush, consolidated the cases and denied the plaintiffs’ motion for a preliminary injunction on First and Fourteenth Amendment grounds.

The Sixth Circuit held telephonic arguments in March and upheld Neff’s decision with the release of Wednesday’s opinion.

U.S. Circuit Judge Karen Moore, an appointee of President Bill Clinton, admitted the restrictions impose a burden on the affected citizens, but stopped short of calling them a violation of the prospective candidates’ First Amendment rights.

“The burden,” Moore wrote, “on the plaintiffs-appellants is relatively insignificant, given (1) their ability to serve on the commission after their six-year period of ineligibility expires, (2) the lack of any direct prohibition or regulation of pure speech … and (3) the absence of any fundamental right to be a member of the commission.”

The Republican Party also argued the restrictions violated the “unconstitutional-conditions doctrine,” which holds that a government benefit cannot be conditioned on the waiver of First Amendment rights, but Moore disagreed.

“Michigan’s interest,” she said, “in addressing the appearance of undue influence – whether or not members of the commission are ‘actively partisan’ – permits it to disqualify not only active partisans but also those whose recent partisan involvement, or whose association with active partisans, could create the appearance that the commission is staffed by political insiders.”

A separate portion of the legislation that created the commission bars its members from discussing “redistricting matters with members of the public outside of an open meeting of the commission,” a section the Republican Party also claimed was an infringement on First Amendment rights.

The party argued the ban of speech on a single topic represented a content-based regulation of speech, but both the federal and appeals courts disagreed.

Moore described the provision as a mechanism through which the state ensures the commission operates “efficiently and effectively” and prevents the spread of gossip or privileged information by its members.

“Although the provision does burden the commissioners’ freedom to speak openly about redistricting, this burden is outweighed by Michigan’s more-than-adequate justifications for limiting speech by commissioners on redistricting matters,” Moore concluded.

U.S. Circuit Judge Chad Readler, an appointee of President Donald Trump, wrote a 13-page concurring opinion, and said he was “reluctant to interfere with a state’s effort to structure its system of government … absent the infringement of a dramatic federal interest or a significant violation of constitutional rights.”

“In upholding Michigan’s decision,” he continued, “to organize its system of government through the use of a bipartisan redistricting commission, we honor our nation’s historical deference to a state’s interest in self-government.”

Senior U.S. Circuit Judge Ronald Gilman, an appointee of President Bill Clinton, also sat on the panel.

According to Secretary of State Benson’s website, the state has processed more than 4,000 applications for the commission, which will select 200 semifinalists in June.

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