The 146-page decision landed with a dull thud when dropped on the conference table.
A panel of three judges in the U.S. District Court for the Eastern District of Michigan had found in April that the congressional and legislative maps drawn by the state’s majority party violated the voters’ constitutional rights to free speech, free association and equal protection. It was the fifth ruling from a federal court since 2016 striking down partisan gerrymandering.
However, the celebration by the Faegre Baker Daniels team representing the plaintiffs in League of Women Voters of Michigan, et al. v. Jocelyn Benson, et al., 2:17-cv-14148, was muted. They were expecting an order from the Supreme Court of United States that would likely be just one page, vacating the Michigan decision.
The disappointing outcome is the result of the Supreme Court’s 5-4 decision in Rucho v. Common Cause, 588 U.S. ___ (2019), which found partisan gerrymandering claims “are beyond the reach of the federal courts.” That ended the high court’s protracted wrestling match with the issue of redistricting based on political considerations that can be traced back to an Indiana case, Davis v. Bandemer, 478 U.S. 109 (1986).
Jay Yeager, newly retired partner from Faegre, led the firm’s team in litigating the Michigan case. Working pro bono, the attorneys were able to present evidence, including emails and in-depth analysis of the district maps, showing the Statehouse’s Republican majority intentionally and severely disadvantaged Democratic voters.
“When the legislature acts in the way it does in (the Michigan) case, it really does work to chill the expression of First Amendment rights because it punishes voters for voting the way they do, for having the political views they do and for having the associations they do,” Yeager said.
In its failed motion for summary judgment, Michigan argued, in part, there was no judicial framework for evaluating these claims and no recognized standard measure for determining when a political gerrymander is impermissible.
The Supreme Court’s similar finding — no standard existed for determining how much is too much — frustrated the Faegre team. They pointed to rulings from the federal courts in Wisconsin, North Carolina, Maryland, Ohio and Michigan that all found and applied a standard for measuring partisan gerrymandering.
“The power of that fact that all these courts are reaching this conclusion, it goes to what the majority thought was the core legal issue, which was, ‘Is there a manageable standard so that these cases can be justiciable?’” Yeager said. “I thought it was very powerful all these federal judges … agreed this was manageable; the standard was there.”
Fueling the renewed fight over partisan gerrymandering has been the software programs and big data now being employed in drawing the electoral maps. Today’s technology is much better at packing and cracking voters than past methods and tools.
As the Michigan decision highlighted, Republicans retained their majority in Congress and the Statehouse even though they won just 50 percent of the votes. Indeed, in the 2014 state Senate election, the majority party won 50.4 percent of the votes but 71.1 percent of the seats.
“The Republic has survived gerrymandering for a couple hundred years, so you’ve got to believe we’re going to survive this from here on out, but the big change is the technology,” Faegre partner Kevin Toner said. “We can be so much more effective in our line-drawing than we ever could in the hundreds of years before. That’s worrisome.”
University of Illinois Urbana-Champaign political scientist and statistician Wendy Tam Cho acknowledged the computer-generated maps are more sophisticated. However, she stopped short of blaming the advancements for the growing concern over partisan gerrymandering.
“It’s software,” said Cho, who also is a law professor. “Technology is neither good nor bad. It’s the person using it.”
The wizardry now available puts voter demographics and historical election data and other information at the fingertips of those drawing district maps.
In Michigan, the court decision highlighted, the mapmakers were soliciting input from incumbent Republicans as to which communities and neighborhoods to include in their districts to give them the advantage at the ballot box. The drawing team even conferred with Republican donors, according to the court order.
Cho is uncertain if the Rucho decision will unleash a deluge of extreme partisan electoral maps. State legislatures might curtail their worse instincts if they know more of the public will be paying attention to how they redistrict. With organizations such as Common Cause and the American Civil Liberties Union watching and possibly preparing legal action, the elected officials could refrain from creating hyper-partisan districts, she said.
The team at Faegre praised their firm for allowing them to take the Michigan case and provide the necessary resources to litigate it. The attorneys said they are looking to continue their voter advocacy work.
“Even though this particular outcome isn’t what we wanted,” said Faegre partner Harmony Mappes, “a lot of good things came out of it, and we still have that drive and enthusiasm.”
While closing the federal courthouse doors to partisan gerrymandering disputes, the majority opinion in Rucho does point to alternatives. Namely, it said, state constitutions might provide standards and guidance for state courts to apply. Also, the redistricting task could be removed from statehouses and assigned to independent nonpartisan commissions.
Attempts have been made in the Indiana General Assembly to establish redistricting commissions, but so far, the efforts have gained little traction. In the 2019 session, six such bills were introduced by Democrats and Republicans. One, Senate Bill 105, passed through the Senate but was never given a hearing in the House.
The Indiana judiciary is Hoosier voters’ only recourse, said William Groth, of counsel at Fillenwarth Dennerline Groth & Towe LLP.
Groth has litigated voting-rights cases and pushed for public transparency. He pointed out the reasons he is concerned about the detrimental impact Rucho could have on Indiana: state statute does not impose any requirements on redistricting that might mitigate extreme partisan gerrymandering; voters have no ability to put a referendum on the ballot that could circumvent legislative action; and even a governor’s veto of a redistricting plan would pose only a minor obstacle since it can be overridden by a simple majority vote in both chambers.
“If there is any state where the state supreme court needs to step up and put some limits on the Legislature’s redistricting, it’s Indiana,” Groth said.
A Pennsylvania lawsuit, League of Women Voters of Pennsylvania, et al. v. The Commonwealth of Pennsylvania et al., 159 MM 2017, shows challenges to partisan gerrymandering based on provisions in a state constitution can be successful.
Closer to home, Groth sees the language in Article 1, Section 1 of the Indiana Constitution — providing an “indefeasible right to alter and reform their government” — as an avenue for the state supreme court to squelch any electoral maps that severely disenfranchise voters of one or another party. Also, Article 1, Section 23, the Equal Privileges and Immunities Clause, might be another pathway, although he noted the Indiana Supreme Court has not applied that provision as broadly as the U.S. Supreme Court has used similar protections in the 14th Amendment.
With the U.S. Census coming in 2020 and redistricting to follow in 2021, Groth thinks any lawsuits over Indiana’s 2011 maps are unlikely. However, if the year after next the Legislature produces maps that, he said, are as partisan and racially gerrymandered as the current maps, litigation will be filed.
“Essentially at this point,” Groth said, “the only guardrails, now that the U.S. Supreme Court has abdicated its responsibility, is what we find in state constitutions.”•