ThinkProgress
Column

Republicans deploy a nasty bait-and-switch to save one of their worst gerrymanders

Former Gov. Arnold Schwarzenegger, (R-CA) speaks during a rally to coincide with the Supreme Court hearings on the redistricting cases in Maryland and North Carolina, in front of the US Supreme Court in Washington, DC on March 26, 2019. - The US Supreme Court is set Tuesday to once more hear arguments on gerrymandering, the dark art of redrawing political boundaries to extract partisan advantage: a practice that is almost as old as the country itself. The latest cases to come before the highest bench are from North Carolina, where Republican lawmakers are accused of devising electoral maps to favor themselves; and Maryland, where Democrats are accused of the same. (Photo by MANDEL NGAN / AFP)

The state of Michigan does not hold free and fair legislative elections. In 2018, Democratic state house and senate candidates received tens of thousands more votes than their Republican counterparts. Yet Republicans have solid majorities in both houses.

Meanwhile, the state’s congressional districts are so aggressively gerrymandered that, in 2012, when President Obama won the state by over nine points, Republicans still captured nine of Michigan’s 14 U.S. House seats.

All of this is supposed to change, however, and soon. In 2018, voters approved a state constitutional amendment providing that future legislative maps will be drawn by an independent commission. The members of this commission are chosen largely at random from a pool of applicants, in order to minimize either party’s ability to capture the commission. People who recently served as partisan officials, party leaders, lobbyists, or other forms of political insiders may not serve on this commission.

That is, of course, unless the Republican Party gets its way in a lawsuit filed on Tuesday. The case is Daunt v. Benson.

Ignoring corruption

Daunt rests on two interlocking arguments. The first is novel but all-too-plausible in a world where cases like Citizens United v. FEC prevent election laws intended to fight corruption, except in truly egregious cases. The second argument, however, is both extraordinarily aggressive and reminiscent of the argument a Republican federal judge in Texas recently used to order the entire Affordable Care Act repealed.

According to the Detroit News, the lawsuit “is backed by the Fair Lines America Foundation, a non-profit with ties to the National Republican Redistricting Trust.”

Team Daunt begins with the claim that the provision prohibiting political insiders from sitting on the redistricting commission violates the Constitution. They root this argument largely in the Supreme Court’s decision in Rutan v. Republican Party of Illinois, which held that “conditioning hiring decisions on political belief and association plainly constitutes an unconstitutional condition, unless the government has a vital interest in doing so.”

Rutan is not a perfect fit for this lawsuit — the Michigan redistricting amendment, after all, conditions a hiring decision on not having a particular association — though there is a longstanding First Amendment doctrine that treats laws that compel speech and laws that forbid it as equally impermissible. It’s not hard to imagine the courts extending that doctrine to a case such as this one.

The success of this first prong of the Daunt argument, in other words, is likely to hinge upon whether the courts believe that Michigan has a “vital interest” in preventing party insiders from corrupting the commission, and whether this amendment is appropriately tailored to achieve that goal. In the wake of Citizens United, which held that courts must turn a blind eye to many forms of corruption, the first prong of the Daunt argument could receive a very favorable hearing if it reaches the Supreme Court.

Judicial arson

But let’s say that this first prong does prevail. What’s next? When a court strikes down one provision of a broader legal scheme, it often must ask which other provisions of that scheme need to fall along with it — an inquiry known as “severability.”

Typically, courts apply a strong presumption in favor of preserving as much of the law as possible. In the federal context, the Supreme Court has explained, the bulk of a law must be retained “unless it is evident that the Legislature would not have enacted those provisions which are within its power.” Similarly, the federal appeals court overseeing Michigan held that “the law remaining after an invalid portion of the law is severed will be enforced independently ‘unless the invalid provisions are deemed so essential, and are so interwoven with others, that it cannot be presumed that the legislature intended the statute to operate otherwise than as a whole.'”

So this presumption should apply in Daunt, and the proper remedy if the ban on insiders is struck down is simply to leave the rest of the amendment intact. The purpose of the amendment was to remove the partisan legislature from the redistricting process. So, given the choice between returning the redistricting power to a legislature made up entirely of partisans, or leaving that power with a commission that might wind up including some partisans, the later is more consistent with the voters’ intent. At the very least, there’s no evidence that voters would have preferred nothing to a less-than-ideal solution.

But, of course, that’s not what the Republican Party wants. It wants the courts to strike down the entire amendment — which would leave redistricting entirely in the Republican-controlled legislature’s hands.

It’s a tactic reminiscent of the argument a Republican judge used to strike down the entire Affordable Care Act in a case called Texas v. United States. In that case, several Republican state officials claim they found a constitutional violation in a provision of Obamacare that literally does nothing whatsoever. And then they claim that the proper remedy is to toss out the entirety of Obamacare because of this flaw in a provision that does nothing.

If the courts allow these kinds of lawsuits to succeed, the future will be quite scary — at least for members of a political party that does not control the courts. Both Daunt and Texas raise novel constitutional challenges to a relatively minor provision (or, in the case of Texas, an utter nothingburger provision) of a law that the GOP does not like. Then, after convincing Republicans on the judiciary to embrace that novel theory, they also seek to have the entire law struck down. It’s a recipe for a world where any law opposed by Republicans can be dismantled by clever lawyering.

One more aspect of the Daunt case is worth noting. Last month, the Supreme Court voted along party lines to prevent federal courts from hearing partisan gerrymandering cases. Yet, while the court’s decision in Rucho v. Common Cause was a blow for advocates hoping to bring free and fair elections to gerrymandered states, it did contain a small silver lining. The Supreme Court appeared to endorse the very anti-gerrymandering amendment enacted in Michigan.

“Numerous other States are restricting partisan considerations in districting through legislation,” Chief Justice John Roberts wrote in a section of the Rucho opinion arguing that federal courts do not need to get involved in stopping partisan gerrymandering. “One way they are doing so,” he continued, “is by placing power to draw electoral districts in the hands of independent commissions.”

Roberts then cited two examples: “in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.”

It’s a pretty severe Catch-22 for Republicans on the Supreme Court to cite the Michigan amendment as a reason why courts don’t need to solve the problem of gerrymandering, and then turn around and strike that amendment on a novel legal theory that depends on a highly aggressive remedy.