Sixth Circuit Upholds Rules for Michigan Redistricting Commission

The eligibility criteria for members of the Wolverine State’s independent redistricting commission, including a bar on those who have held public office, were deemed constitutional by an appellate panel.

Voters wait in line on Election Day in Southfield, Mich., on Nov. 6, 2018. (Clarence Tabb, Jr /Detroit News via AP, File)

CINCINNATI (CN) — An independent redistricting commission created by a 2018 Michigan ballot initiative can exclude individuals from serving if they have held public office or been employed as campaign consultants in the past six years, according to an appeals court ruling released Thursday.

The eligibility restrictions — which also extend to employees of the Michigan Legislature and registered lobbyists — were determined by a Sixth Circuit panel to be a legitimate effort by the state to “cleans[e] its redistricting process of partisan influence.”

The commission was created by a constitutional amendment after the November 2018 election cycle and is composed of 13 randomly selected members.

Included among the members are four voters affiliated with both the Republican and Democratic parties, as well as five voters unaffiliated with either of the major parties.

Filed by several individual citizens and the Republican Party of Michigan in July 2019, the lawsuit challenging the restrictions alleged the commission violated the constitutional rights of those excluded from membership, but the claims were summarily rejected by a federal judge.

U.S. District Judge Janet Neff, a George W. Bush appointee, first denied the citizens’ motion for a preliminary injunction and then dismissed the suit entirely in July 2020 after a ruling by the Sixth Circuit.

The case headed back to the Cincinnati-based appeals court for a second set of arguments in March, but Thursday’s opinion produced the same results as the first go-round.

U.S. Circuit Judge Karen Moore wrote the three-judge panel’s opinion, and discussed the impact of the prior appeals court ruling before she turned to the merits of the parties’ arguments.

Moore, an appointee of Bill Clinton, determined the “law-of-the-case” doctrine applied to the current case, even though the previous ruling dealt with the citizens’ request for a preliminary injunction.

She cited the fully developed record available to the panel in the previous decision, as well as the fact the current case deals with the same set of allegations, in support of her decision.

Moore brushed aside claims from the plaintiffs’ attorneys that further development of the record could change the scope of the case, and chided the lawyers for their failure to seek permission to amend their complaint.

“At this stage,” she said, “it is the factual allegations in plaintiffs’ complaint that we must consider — it is not for us to conjure up facts that plaintiffs declined to plead and then to draw inferences therefrom. Those allegations that plaintiffs did plead mirror the factual record before us in Daunt I, leaving for us the question of whether a particular set of facts admits of a constitutional violation.” (Emphasis in original)

Moore moved to the merits of the citizens’ constitutional claims, and determined under the Anderson-Burdick balancing test that the “relatively limited burden” imposed by the eligibility criteria is outweighed by the state’s interest in maintaining a nonpartisan redistricting commission.

“Michigan’s interest in cleansing its redistricting process of political conflicts of interest and the appearance thereof is ample justification for the limited burdens the amendment’s eligibility criteria impose on those who would like to be considered for the commission,” she said.

U.S. Circuit Judge Chad Readler, a Donald Trump appointee, concurred with the decision of the court in judgment only, and wrote an opinion to explain his decision.

Readler — who authored a similar opinion following the first set of arguments — remained hesitant to apply the Anderson-Burdick test, which is typically used in ballot-access cases, and said the test allows for “rampant subjectivity” by the judicial branch.

“Going forward,” he said, “we should strictly confine (if not abandon altogether) our reliance on Anderson-Burdick, to curb the judicial overreach we currently invite.”

Readler took issue with his colleague’s stance on the importance of Michigan’s interest in maintaining a nonpartisan commission, which he noted is “something many steps removed from an election.”

“To be sure,” reasonable minds can debate (in the proper forum) how ‘compelling’ the arguments are for establishing an independent commission like Michigan’s, a debate that likely informed the electorate’s consideration of the underlying ballot initiative,” he wrote. “But resting the commission’s constitutionality on such a subjective and unconstrained inquiry has an anything-goes quality to it, a feature rarely seen when judicial decisionmaking is constrained.” (Parentheses and emphasis in original.)

Ultimately, however, Readler determined that because the eligibility requirements do not “invidiously discriminate” against aspiring members, and the commission was created through the self-governance of Michigan’s own voters, the suit was properly dismissed.

Senior U.S. Circuit Judge Ronald Gilman, another Clinton appointee, rounded out the panel and joined with Moore’s lead opinion.

Neither party immediately responded to a request for comment.

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