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‘Big Kahuna’ of Redistricting Trials Handed to Judges

November 14, 2023

(KALAMAZOO) – Lawyers gave closing arguments Wednesday in front of a federal three-judge panel in a case that could determine if the Michigan Independent Citizens Redistricting Commission (MICRC) will be redrawing state legislative districts early next year.

The Agee v. Benson case played out over six days with expert testimony and MICRC commissioners testifying about their experience redrawing legislative and congressional boundaries. While it was the last of four legal challenges to the MICRC maps, it was the only one to go to trial and the biggest challenge.

“This is the big kahuna,” Commissioner Steve Lett said.

Ultimately, the arguments of plaintiff attorney John Burschand MICRC attorney Katherine McNight came down to a battle of experts and the mountain of data that was used by each side to prove the “bacon strips” in Detroit were drawn to either take away a choice of political candidates by Black voters or done to even the political playing field or for a number of various other reasons.

Bursch’s final appeal to U.S. Sixth Circuit Court of Appeals Judge  Raymond Kethledge and U.S. District Court Judges Paul Maloneyand Janet Neff pointed out that the attempt at satisfying Voting Rights Act (VRA) compliance numbers for the districts that set the Black voter age population were districts between 30% to 45% Black.

Bursch also offered this emotional plea about what it’s like for Black candidates to campaign in white suburbs.

“People don’t answer doors. People call the police. They call them the n-word. They pull a gun. To the point where Black candidates have to hire white canvassers to go knock on those doors to get any response at all. That’s horrible,” Bursch said.

Bursch said the drawn districts were directly impacting the legislative issues that “are of intense interest of Black voters,” such as land value tax and an emergency manager law. He pointed out that the Detroit Mayor Mike Duggan-backed land value tax is struggling to pass the House.

He also pointed at the Sen. Mallory McMorrow (D-Royal Oak) race in which she beat former Sen. Marshall Bullock III in the 2022 primary, when the maps forced the two to run against each other.

McKnight brought up the fact that McMorrow was able to raise money on the back of a viral speech that allowed her to raise an unusually high amount of money for a state legislator. 

“The fact that a white candidate could make a speech about a policy of interest to white voters and that would cause them to defeat the Black candidate of choice is exactly why we have the VRA, because white voters and Black voters care about different issues,” Bursch said.

He said despite the Democrats being in complete control of the Legislature and the Office of the Governor, that the African American community was getting nothing.

“This is what the VRA is supposed to protect against. This is what the equal protection clause is supposed to protect against, and this bench is the only thing standing in the way of that discrimination,” he said.

McKnight made her argument based on a reflection of the data brought from the transcripts of the MICRC meetings.  She continued her march that the Michigan Constitutional amendment was meant to create fair maps for everyone.

“This effort to draw fair maps for Michigan was a very human experience. I also told you that redistricting was hard no matter who does it,” she said.

She pointed to the 12 House and Senate districts that are being challenged by the plaintiffs and stated that not all of them were challenged as violating the Voting Rights Act, but some were only challenged as violating the equal protection clause.

Again, she brought out a 2020 census map of the population loss seen across Wayne County and Detroit into the surrounding counties.

“You don’t need more than this map to understand why the resulting electoral maps look the way they do,” she said.

The issue of “predominance” of racial discussions was addressed and McKnight said the MICRC absolutely talked about race.  She said that because Detroit was packed with Democrats and Black voters and it looked like it was “one and the same.” 

“It does not violate the 14th Amendment to talk about race. The commission talked about communities of interest, political fairness, and a variety of other considerations.

She said the districts in Detroit had been “packed” for far too long.

“The fair maps were in unpacking the densely populated Democratic districts in Detroit and creating districts that were more politically heterogeneous,” McKnight said.

She said all the discussions about race that happened concerning the creation of the Detroit districts and other districts in the state were meant to comply with the Voting Rights Act. She said the districts were ultimately drawn to give Black candidates of choice a chance to be elected. 

“Some losses of minority-preferred candidates do not amount to a VRA violation,” she said.

McKnight pointed to other testimony of former Sen. Virgil Smith who said that there are Black voters in the suburbs who don’t share the same candidates of choice as Black voters in Detroit.

“There are unusual candidates with unusual resources and performance who, for example, give viral speeches and go on a fundraising blitz.  That issue cannot be addressed through the Voting Rights Act. That is a political issue, not a Voting Rights Act issue,” she said.

She said the plaintiffs failed to show the commission had disregarded all the other issues and had complied with everything they needed.

Bursch was allowed rebuttal.

“The plaintiff’s urge you to use common sense. When you ‘crack’ Black districts, you end up with fewer Black candidates of choice elected. That’s common sense,” he said.

Article courtesy MIRS News for SBAM’s Lansing Watchdog newsletter

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