Must the Legislature Gerrymander?

Will Michigan allow a commission to do the job of the legislature?

Michigan voters will be presented with a ballot measure in November that creates a commission for gerrymandering, also known as redistricting. Proposition 2 is currently being promoted by the group “VotersNotPoliticians,” which is running TV ads telling Michiganders to “vote yes on 2.”

The ads are compelling. They strike fear into the hearts of Michiganders. Michiganders are being abused by politicians who selfishly choose their own voters. The ads are accurate in that sense. A republican legislature will create districts that favor republicans. A democratic legislature will create districts that favor democrats. "Both sides do it" is not a sufficient explanation though.

Despite erroneous case law, the constitution gives state legislatures alone the power to redistrict. All practical considerations aside, this is why Prop 2 cannot pass. The people of Michigan do not have the authority to amend Article I, Section 4 of the US Constitution. If Prop 2 were limited to the districts in the state, I would have to address whether it’s good policy.

Article I, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

It’s obvious that gerrymandering is not mentioned directly, but the practice existed prior to the constitution. This clause gives all manner of authority related to elections to the legislatures of states.

That clause recognizes the role of congress in regulated some aspects of elections. Racial gerrymandering was prohibited by act of congress. Partisan gerrymandering has been addressed by various Supreme Court cases with no clear process for evaluating those claims.

People hate what gerrymandering does. Conservatives lose their voice in democratic districts and vice versa. Illinois is so bad that a rural town well outside of Chicagoland is represented by a congressman for a portion of Chicago proper. When I lived in Illinois, I went from having a democratic rep to a republican rep and back to a democratic rep, all because the boundaries changed, not because the area changed its views. I get it, it doesn’t seem right. It feels wrong.

Channeling Ben Shapiro, the constitution doesn’t care about your feelings.

Though we don’t have to consider feelings, there are some other considerations that muddy the waters.

The problem with law in America is that it is so convoluted. Policy goals trump everything. Language that is contradictory, ambiguous, or insane is shoehorned into legislation or ballot initiatives that creates an intolerable system of legislative unknowns.

In Arizona State Legislature v. Arizona Independent Redistricting Commission (thanks Amy Davis for directing me to this case), the Supreme Court had to decide whether the Elections Clause in Article I, Section 4 gave power to only the state legislature and not whatever body exercises some legislative power. This was of concern because Arizona’s state constitution gave the people some legislative power through the initiative process. A summary can be found here.

The question becomes, did the framers mean “the people” when they said “the legislature”? In a 5-4 decision, Justice Ginsburg’s opinion held that the redistricting commission set up by an initiative from the people was constitutional.

Chief Justice Roberts dissented along with Scalia, Alito, and Thomas. Roberts made clear that it was asinine for the term “the legislature” to mean anything but “the legislature.” This is quite ironic coming from the man who thinks “states” means “federal government.” Irony aside, the historical record surrounding ballot initiatives does not support the idea that the people, via direct democracy, could exercise legislative power in tandem with the legislature.

Roberts says the following “Just over a century ago, Arizona became the second State in the Union to ratify theSeventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment re-sulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States. What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”?”

Scalia added this “Normally, having arrived at that conclusion, I would express no opinion on the merits unless my vote was necessary to enable the Court to produce a judgment. In the present case, however, the majority’s resolution of the merits question (“legislature” means “the people”) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.”

Justice Thomas notes the double standard applied to ballot initiatives when they enacted a conservative policy goal. He then agrees with Scalia’s point on lack of standing.

That’s the jurisprudential climate that will be the backdrop for Michigan’s Proposition 2. The language of prop 2 can be found here.

The first issue that prop 2 runs into is the fact that [Michigan’s constitution]( vest the legislative power in the legislature alone. (Article IV, Section 1). Prop 2 cannot just create a redistricting commission out of thin air. The simple language presented on the ballot will not explain all that is being done. They will present a 100-word summary of an EIGHT page amendment to the voters. And that’s it. So first, they must amend Article IV and place the commission within the legislative branch so it can exercise legislative power.

Professor Justin Levitt of Loyola Law School (LA) says this about Michigan’s redistricting laws, “Michigan's congressional and state legislative lines are drawn by the legislature, as a regular statute, subject to gubernatorial veto.” This is derived from Article IV, Section 33 which says that “Every bill passed by the legislature shall be presented to the governor before it becomes law.” The language of Prop 2 says that “the powers granted to the commission are legislative functions not subject to the control or approval of the governor.” That section amends Article V Section 2 (The Executive). This is absurd. How can you give yourself legislative power and then pretend that the legislative is not subject to the same checks and balances?

All of that must occur for the US constitution to be satisfied.

The second issue is that the commission is unaccountable, relying on random appointments by the Michigan secretary of state. VotersNotPoliticans blasts opponents for supporting a regime where politicians choose their voters, but their proposal allows unelected, unaccountable random individuals to select voters for politicians. Regardless of who is in power, people can at least vote against those who currently draw up maps i.e. state reps and state senators. You can’t oppose the commission.

If the power is truly vested in the people, and not just the legislature, then this initiative also disenfranchises certain individuals because of associations or past endeavors.

The structure of the commission is also troublesome. They place an inordinate amount of value on the political identity of the commissioners. Four are from the major parties. Five are unaffiliated. You could end up with five unaffiliated individuals who are farther left than Jill Stein. You could end up with five unaffiliated individuals who are more libertarian than Ron Paul. At least with the legislature, you know what you’re getting.

Above all else, this initiative is deceptive. The average voter has no idea what will have to occur before this well-intentioned commission is enacted. They are voting on the ends with absolutely no awareness of the means.

A more balanced approach would be to present the voters with the following incremental initiatives. We could could quibble over the final constitutionality of it all, but at least the voters would have a clue about what is going on. But I suppose an incremental and transparent process would be detrimental to the aims of this referendum.

1: Should the legislative power be vested in the legislature as well as the electorate via ballot initiative? Yes or No.

2: Should the legislative power, when exercised by the people, be subject to gubernatorial veto? Yes or No.

3: Should the electorate establish an independent commission for redistricting outside of the control of the legislature? Yes or No.

To do everything at once is quite shady and reeks of partisanship since everyone knows this is really just an attempt to wrest control away from a republican controlled state house.

There have been various lawsuits trying to prevent this from making it on the ballot; my only hope is that if it does pass, it will be embroiled in endless lawsuits. I hope that the state of Michigan preserves the power of the legislature.

No. 1-3

Well I guess if people feel the law is unconstitutional, they are welcome to challenge it in court.


How this could be made to work is to follow the federal Base Realignment and Closure (BRAC) model. Pass a law requiring the legislature to delegate the process to an independent commission, and then for the legislature to vote to either approve or disapprove in whole what the independent commission decides. That keeps the decision within the realm of the legislature, but keeps the process independent. As the legislature gets to prescribe, a law could include guidance to limit gerrymandering, such as requiring the commission to draw district boundaries respecting existing political boundaries to the maximum extent possible (i.e., county lines, city limits, state senate districts, state house districts, postal zip codes, etc.).


We have yet to see an independent commission that is actually independent.

They are usually stuffed with left-wing academics who gerrymander in favor of Democrats.