Michigan Redistricting Commission Rules Fought at Sixth Circuit

Citizens excluded from serving on Michigan’s independent redistricting commission argued before an appeals panel that the state cannot draw arbitrary lines between levels of partisan activity to preclude eligibility.

An election worker helps a voter with his ballot in Lansing, Mich., on Election Day, Nov. 3, 2020 (AP Photo/Matthew Dae Smith via Lansing State Journal)

CINCINNATI (CN) — A group of Michigan citizens deemed ineligible for positions on a redistricting commission and the state’s Republican Party argued on Wednesday that eligibility criteria designed to reduce partisanship among committee members violate their constitutional rights.

The plaintiffs in the federal lawsuit came before the Sixth Circuit for a second time, after an interlocutory appeal was rejected in April 2020.

The initial suit came on the heels of the creation of Michigan’s Independent Citizens Redistricting Commission, a committee composed of 13 randomly selected voters that meets once every 10 years.

Created by a constitutional amendment following the November 2018 election cycle, the commission has “exclusive authority to adopt district boundaries” for both state legislative and U.S. congressional elections.

A group of citizens and the Michigan Republican Party filed separate lawsuits against Secretary of State Jocelyn Benson, claiming eligibility requirements for seats on the commission are unconstitutional.

Among those cited by the complaints were restrictions on individuals who held public office, as well as bans on paid consultants of elected officials and spouses or children of elected officials, all of which are subject to a six-year “looking back” period.

U.S. District Judge Janet Neff, an appointee of George W. Bush, denied the citizens’ motion for a preliminary injunction and ruled Michigan could make reasonable restrictions on eligibility to prevent the appearance of a partisan redistricting commission.

That decision led to the interlocutory appeal, and after a Sixth Circuit panel upheld Neff’s ruling, she dismissed the case in July 2020.

In their latest appeal to the Cincinnati-based appellate court, the plaintiffs argued Neff applied the wrong scrutiny standard when she dismissed their First Amendment claims.

In their brief, they argued the balancing test established in a case known as Anderson-Burdick and used by Neff “has no place being applied outside the actual administration of elections,” and cited case law from the Sixth Circuit itself.

“Indeed,” the brief said, “a panel of this circuit found that Anderson-Burdick applies only to laws impacting the administration of candidate elections … [i]n Moncier v. Haslam.”

The citizens argued for the application of strict scrutiny on the basis that “the commission’s exclusionary criteria burden the right to petition government, suppress political speech, and implicate other constitutional rights.”

In its brief to the appeals court, Michigan argued the first panel’s determination that the eligibility criteria are constitutional is binding on the court, especially in light of the fact that no factual disputes will decide the case.

“Appellants’ claims turn entirely on legal issues – legal issues that were fully briefed and considered by this court,” the brief states.

It continues, “The prior panel had the benefit of a lengthy opinion by the district court, full briefing by the parties without any undue time pressure, and oral arguments by the parties. The court’s opinion included thirty-one pages of legal analysis … [and] was precisely the type of ‘fully considered ruling on an issue of law’ that must be accorded binding effect.”

Attorney John Bursch argued Wednesday on behalf of the Michigan residents, and admitted from the outset he faced an uphill battle because of the panel’s previous ruling.

However, he emphasized that the law of the case doctrine is “not a constraint on judicial power … and can be overcome by compelling reasons.”

The attorney called the prohibitions on family members of politicians and lobbyists “unprecedented,” and said the restrictions are based on “assumed conflicts.”

U.S. Circuit Judge Ronald Gilman, an appointee of Bill Clinton, asked whether the panel could sever certain provisions from the law.

Bursch was hesitant to say such action would be within the court’s power, and noted it was passed by voters in the form of a constitutional amendment.

“I doubt if 60% [of voters] would have voted for it if you stripped out some of the provisions,” he said.

U.S. District Judge Chad Readler, a Donald Trump appointee, admitted he and the other judges have “our cards on the table a little bit” because of their previous ruling, but asked Bursch what type of evidence he would produce if the case were allowed to go to discovery.

Bursch said he would take depositions of his clients to prove the impairment of their First Amendment rights.

Assistant Michigan Attorney General Erik Grill argued on behalf of the state, and disputed the need for discovery.

Grill reminded the panel the case was decided on a motion to dismiss that accepted the plaintiffs’ allegations as true, so any further evidence would be superfluous.

“The burden they alleged is insufficient,” he said.

Like his counterpart, Grill was asked about severability, and, like Bursch before him, he told the panel a constitutional amendment passed by voters cannot have portions removed.

Attorney Mark Gaber argued on behalf of Count Michigan Vote, a nonpartisan voter advocacy organization, and echoed the other attorneys’ sentiments on severability.

He said the idea that a court could strip out certain provisions from a constitutional amendment “strains credulity,” and said the eligibility restrictions are “appropriate … to get at the appearance of a conflict of interest.”

U.S. Circuit Judge Karen Moore, another Clinton appointee, rounded out the panel. No timetable has been set for the court’s decision.

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