CINCINNATI (CN) – An attorney for Republican congressmen argued before a Sixth Circuit panel Wednesday in their attempt to intervene in a gerrymandering case brought by the League of Women Voters of Michigan.
The League, among others, sued Michigan Secretary of State Ruth Johnson in December 2017, claiming the state’s current voting map violates citizens’ constitutional rights.
Sixth Circuit Judge Eric L. Clay sat on the three-judge panel that decided the case at the district court level, and authored that panel’s opinion in May which dismissed the League’s statewide claims.
“A political gerrymandering injury is … traceable to an individual’s own district but not to the state’s apportionment plan as an ‘undifferentiated’ whole,” Clay wrote.
The plaintiffs’ claims related to individual districts, however, were allowed to proceed.
The Michigan Republican congressional delegation sought to intervene in the case earlier this year, but Judge Clay denied their motion.
Although he admitted the delegation had a legitimate interest in the case, Clay cited the likelihood of delays in the court’s decision, and also told the delegation its interests would be “adequately represented” by Secretary of State Johnson.
Attorney Jason Torchinsky argued on behalf of the congressmen Wednesday, telling the Sixth Circuit panel that the only aim of the plaintiffs’ suit is to reduce the number of Republicans in Congress.
In what would become a recurring theme throughout the hearing, U.S. Circuit Judge Richard Allen Griffin interrupted the attorney and asked how the intervention would delay proceedings.
“I don’t know, your honor,” Torchinsky answered.
Judge Griffin agreed, and said that he “didn’t see any credence to” the ruling made by Judge Clay, who did not sit on Wednesday’s panel.
Torchinsky told the panel his clients have a right to intervene because the only defendant in the case, Secretary of State Johnson, is term-limited and will be out of office in January 2019, when the case is set to go trial.
The attorney argued that if a Democrat is elected to the office, he or she could very well choose not to defend the case.
U.S. Circuit Judge Karen Nelson Moore questioned Torchinsky about the similarities between the defenses of his client and the secretary of state.
“Are your defenses going to be different?” She asked. “Because I think you can dig yourself into a hole either way you answer… If you raise different defenses, you open yourself up to delay… [but] if you don’t, then you have adequate representation.”
Torchinsky sidestepped the question and once again brought up the possibility of a Democratic secretary of state who may abandon the case.
Attorney Ryan Hurley represented the League of Women Voters, and rebutted this point in his argument.
Hurley claimed that intervention must be decided on the current set of circumstances, not on speculation of things that may or may not happen.
He also told the panel that Johnson is “vigorously defending” the case, and that Torchinsky’s clients would be making the same arguments as the secretary of state.
Hurley stressed that the case is on schedule to be completed before the 2020 election cycle, and that adding more parties could jeopardize that schedule.
Judge Griffin spoke at length during Hurley’s argument, and said he “can’t find a justifiable reason” to deny the congressmen’s motion.
He told Hurley that allowing the intervention now would be more efficient.
“I’m kind of surprised that you are opposing this,” Griffin remarked.
During Torchinsky’s rebuttal, Judge Griffin asked if discovery would have to be redone if the court were to grant the motion for intervention.
“There’s a lot of unknowns,” the attorney answered. “We would do our best to comply with the current schedule.”
Griffin told the attorneys the panel would do its best to resolve the case quickly, but no timetable has been set for a decision.
U.S. Circuit Judge Eugene Siler Jr. joined Griffin and Moore on the panel.
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