Mark Brewer's presentation on Gerrymandering and Other Election Related Legal Action

April 27, 2019

 

NMC SCHOLAR'S HALL

 

Just when we needed a shot of positive energy, Atty. Mark Brewer gave us both hope and a dose of reality. Mark Brewer was the chair of the Michigan Democratic Party for many years.  Currently, he is working on the gerrymandering case that was supported by the Federal Court. This week the 3-judge panel ruled that 34 districts need to be redrawn before the 2020 election. They unanimously supported all the evidence that League of Women Voters MI vs. Benson presented and ordered that by August 1st, the legislature must redraw lines fairly and have Governor Whitmer sign the bill.

 

The story of this suit starts in 2011 when the Republican legislature and governor redrew the federal congressional districts as well as the state senate and house districts. Their expressed intention was preventing Democratic voters from having power in the Michigan legislature for the next ten years. This was part of a Republican strategy called Project REDMAP that was financed by Republicans and advocated across the entire country. It worked especially well in Wisconsin, Michigan, Pennsylvania, Virginia and North Carolina which are considered some of the worse examples of gerrymandering.   In Michigan, for    example, Democrats won more than 50% of votes, however due to gerrymandering, we have a minority of house seats in the legislature.  Based on the 2018 election, there should be 8 instead of 7 Democratic congressional districts, and Gov. Whitmer should have a majority in the house not the minority.

 

In the past SCOTUS has declined to rule on partisan gerrymandering because they did not have an objective measure to conclusively spot gerrymandering. Such a tool has been developed that measures the efficiency gap, or the number of wasted votes in elections that cannot be won.

 

In December 2017, the League of Women Voters Michigan, as the lead plaintiff, sued Michigan’s Secretary of State Ruth Johnson. The suit is now versus Jocelyn Benson. The SCOTUS case in Wisconsin was sent back to name individual voters that were harmed by the gerrymandering. Diana Ketola, member of the GT Dems, is one of the named voters in the Michigan case. The case was assigned in the Sixth Circuit and had 3 judges assigned, two were Clinton appointees and one was appointed by George H.W. Bush.

 

There were two legal theories about the harm caused by partisan gerrymandering. The first is based on the 14th Amendment and says that votes in gerrymandered districts are not equal to votes in a district where there is a more equal distribution of parties. The second theory depends on the First Amendment which says that you cannot be penalized or punished for the political group to which you belong.

 

Republicans employed stalling tactics to slow down the case, but lawyers for the LWVMI asked for an expedited review which occurred in February 2019. After a week of testimony and many depositions, the judges' decision was that all 34 districts (9 congressional, 10 Michigan senate and 15 Michigan house districts) were partisan gerrymandered.

 

The judges specified that the remedy is to redraw districts by August 1st and have the new maps signed by the Democratic governor, Gretchen Whitmer. They must also document all the steps that the legislature takes as well as all the involved parties. If the judges are not satisfied, they will appoint a Special Master who will expedite the redrawing in time for the 2020 elections.

 

The Republican led Michigan Senate says they will appeal directly to SCOTUS and ask for a stay of all parts of the remedy. It will go to Elena Kagan who will probably consult with the other justices. If SCOTUS does not take the case, this ruling stands.

 

So, while this case is a complete win for the LWVMI and will eliminate partisan gerrymandering for the 2020 election, victory is not certain. Additional factors are that the 2020 election may shorten the term-limited 4-year terms of the state senators elected in 2018. Another is that the Citizens Redistricting Commission mandated by Proposition 2 that will draw legislative districts in 2021 after the census, may or may not use these new districts.

 

The lawyers for this case are doing it pro bono (with no pay) but may ask for fees from the loser after the case is done. There are still costs involved and if you would like to donate, the site is https://www.endmigerrymandering.com/  Mr. Brewer recommended joining the League of Women Voters at http://www.lwvgta.org.

 

For additional reading, the Brennan Center for Justice site has the whole opinion. Search for Michigan Gerrymandering case and look at the April 25th opinions.

 

Mr. Brewer also commented on several other important issues. The Michigan legislature avoided having citizens vote on two propositions that had gotten enough signatures to be on the November ballot by adopting them and then amending them to subvert their intentions. They were minimum wage and earned sick leave. There is now a case in the Michigan Supreme Court as to whether this is permissible. It will be heard in July 2019.

 

The legislature in the lame duck session, also made the process of getting a proposition on the ballot more difficult. There is now litigation to correct this abuse of power.

 

Proposition 3 was passed with over a 60% voter approval rating, hugely enhancing our ability to vote. YOU CAN NOW REGISTER AND VOTE ON ELECTION DAY! There should be a process in every township or city to allow this. Here are 2 links that explain this more fully.

 

1. https://www.michigan.gov/documents/sos/New_rights_for_Michigan_voters_flier_653124_7.pdf

 

2. http://www.legislature.mi.gov/documents/mcl/pdf/mcl-chap1.pdf

 

This was a very well spent morning. Proposition 3 is a great step forward and the LWVMI vs. Benson case is another victory for voters. However, we must keep moving forward and stay vigilant.

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