SCOTUS sides with state autonomy in “gerrymandering” case
July 1, 2019
Letter from the President
By Brian Calley
There has been a lot of activity swirling lately on how and when lines are drawn for legislative and congressional districts. This has created an unprecedented level of uncertainty in our state political system. It is an important issue for our business climate because consistency and stability in the business climate is often tied to who wins elections and sets the state’s policy direction. The Supreme Court recently weighed in and settled things. We keep close track of these things here at SBAM and we’re here to break it down for you.
First, a quick civics review. Every 10 years a census is taken. In fact, work is already gearing up for the 2020 census. The census is a literal count of the people of the United States. It is a huge endeavor with very high consequences. While census numbers are used in many federal funding formulas, its most basic and primary purpose is to ensure that representation in our democratic republic matches the population. People move, regional populations go up and down, growth rates differ – and so the congressional and legislative lines need to be redrawn to match representation to the population changes. This is a process laid out in the U.S. Constitution. But where and how to draw the lines is left to each state per the federal constitution.
In 2018, the people of the state of Michigan amended the state’s constitution in a public vote to make substantial changes in how those legislative and congressional district lines get drawn. In the past, the lines were redrawn by the legislators in the form of legislation that was passed by the House and Senate and then signed by the Governor. The new process, to start after the 2020 census, would instead create a commission of (unelected) citizens to draw those lines. Those in favor of this change said that politicians should not be able to draw the lines of the districts they themselves ran for election in. Those opposed said that such power should not be handed over to people that never stand for election and therefore would have no accountability directly to the people. The initiative passed by a wide margin.
So while change was in the air, we knew what to expect until a lawsuit challenging the existing legislative and congressional district lines started making its way through the courts. In this lawsuit, plaintiffs claimed that the existing lines that defined the borders of political districts were “gerrymandered” meaning that they were drawn with political considerations in mind. In this case that means drawn to favor the election of Republicans over Democrats. A panel of federal appellate court judges agreed and mandated that the political boundaries be redrawn immediately for the next election, rather than waiting until after the 2020 census when they were to be redrawn anyway.
This decision came with a lot of consequences because in Michigan we have term limits. Those term limits restrict how many times a person can stand for election – not how many years they can serve. So an extra senate election thrown in the mix for 2020 would have meant that the state senate would experience a very high turnover. Hence, uncertainty. The senate is the more experienced body and in the term limits era, experience is at a premium. But the Supreme Court stepped in.
The appellate court decision was stayed by the U.S. Supreme Court because they were already taking up similar challenges in North Carolina and Maryland. That 5-4 decision came down last week and it was pretty blunt. To simplify, the court said that it is really none of the Federal Court’s business according to the U.S. Constitution. That is a pretty rare display of judicial restraint.
In the majority decision, Roberts wrote “Federal judges have no license to reallocate power between the two political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” He went on to say that doing so would be an “unprecedented expansion of judicial power.”
These days, political fights do not end in the legislative process. More and more often, including at the state level, those who experience losses in the legislative system take their fights to the courts for another bite at the apple.