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Judges deny Benson’s proposed redistricting settlement

February 6, 2019

A three-judge appellate panel denied the proposed consent agreement that would have resolved the League of Women Voters’ lawsuit against the Secretary of State (SOS) over Republican-drawn redistricting maps that the League believes are gerrymandered.

U.S. District Judge Eric Clay, writing on behalf of a three-judge panel, said SOS Jocelyn Benson lacks the authority to enter into the proposed consent decree,” which would have seen 11 of Michigan’s 110 House districts redrawn for the 2020 election.

“. . . The Michigan Constitution gives the Michigan Legislature, not any political subdivision, authority to ‘enact laws to regulate the time, place and manner of all . . . elections,'” the court’s order reads. “Accordingly, Benson lacks the authority — absent the express consent of the Michigan Legislature, which she lacks — to enter into the proposed consent decree.”

The panel also granted the motion from Sens. Jim Stamas (R-Midland), Ken Horn (R-Frankenmuth), and Lana Theis (R-Brighton) to intervene in the case. The court said it questioned whether they timely filed the motion, which came a mere 12 days before trial, but notwithstanding the tardiness, the court is allowing them to intervene since they say they are “prepared to fully participate . . . without the need to adjust” the court’s schedule.

However, the Senators, who also filed a motion Friday asking the court to replace Benson as the defendant, won’t be allowed to engage in pre-trial motions. They base their argument for the new motion on an Aug. 30 Sixth Circuit Court opinion that indicated “if the new Secretary takes office in January 2019 and decides not to further pursue the state’s defense of its apportionment schemes, the district court will have to appoint someone to take the Secretary’s place.”

The trial was set to begin 9 a.m. Feb. 5 as the court denied a motion to stay the case.

Whether Benson will present a case is questionable. Court records show Benson’s witness list indicated that she “does not intend to call any witnesses.”

Meanwhile, U.S. Supreme Court Justice Sonia Sotomayor has requested a response from the SOS to Republican lawmakers’, including House Speaker Lee Chatfield (R-Levering) and Rep. Aaron Miller (R-Sturgis), request for an emergency stay. 

The GOP congressional delegation wants the case put on hold until the country’s highest court makes a decision in two related cases, Common Cause v. Rucho in North Carolina, and Benisek v. Lamone in Maryland.

The lawsuit, filed in December 2017 by former Democratic Party Chair Mark Brewer on behalf of the League, alleges partisan gerrymandering by the GOP-led Legislature when the new maps were drawn in 2011.

Benson, the state’s top election official who became the named defendant when she took office Jan. 1, concluded there is “significant evidence” the maps are unconstitutional. In court filings, Benson’s side argues the Supreme Court’s decision in Lawyer v. Department of Justice in Florida granted her the decision-making power.

In that case, six residents challenged the legislative district under the Equal Protection Clause and both sides reached a consent agreement, which the District Court approved after receiving assurances from attorneys for the Florida Senate and Speaker of the House that their clients agreed to the terms. The Supreme Court affirmed the lower court’s approval of the consent agreement.

The Michigan GOP intervenors assert that Benson lacks authority to enter into the agreement without the Michigan Legislature’s approval.

The panel agreed, noting that the Florida case doesn’t apply because that state’s Senate and House “explicitly consented” to the consent decree, but Michigan’s Senate doesn’t, as evident by their move to challenge the proposed agreement.

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