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Washington Post: Federal judges rule Michigan gerrymandering unconstitutional, order maps redrawn by 2020

This article was originally published by Washington Post.

Federal judges ordered the state of Michigan to draw new legislative districts on Thursday, after finding that a gerrymandered plan enacted by the state’s Republican-dominated legislature in 2011 constituted an “extremely grave” constitutional violation.

The three-judge panel said it found that the redistricting plan in 34 congressional and state legislative districts was designed to thwart Democratic voters by dispersing their votes into districts where Republicans dominated, in violation of the First and 14th amendments.

“Evidence from numerous sources demonstrates that the map-drawers and legislators designed the Enacted Plan with the specific intent to discriminate against Democratic voters,” the panel, two judges appointed by President Bill Clinton and one by President George H.W. Bush, wrote in its decision.

The panel ordered the state’s Republican-controlled legislature to come to an agreement with its newly sworn-in Democratic governor, Gretchen Whitmer, to redraw the districts from the plan before the 2020 elections. If the state officials are unable to come up with new maps by Aug. 1, the court will redraw them itself.

The violations were so pronounced, the panel said, that all of the state Senate districts in the plan would need to have special elections, meaning that some lawmakers’ four-year terms would be cut short.

“The constitutional violations in this case are particularly severe,” the panel wrote, saying that the redistricting plan “taints thirty-four total legislative districts across the state, including ten Senate districts.”

The panel noted that the redistricting plan had advantaged Republicans over the course of several election cycles. In three elections in those districts between 2012 and 2016, Republicans won 64 percent of the state’s congressional seats — nine out of 14 — while never earning more than 50.5 percent of the statewide vote, they wrote.

The ruling against the state’s districts comes amid a series of defeats for partisan gerrymandering, a process by which electoral districts are drawn up in such a way to give the political party in charge a majority it might not have earned otherwise.

In Maryland and North Carolina in 2018, federal panels — typical for statewide gerrymandering cases — have made similar rulings against districts found to be gerrymandered for partisan gain by Democrats in Maryland and Republicans in North Carolina. Those cases were some of the first against gerrymandering to find success in the courts.

“We’ve clearly hit a tipping pint in partisan gerrymandering litigation around the country,” Thomas Wolf, a lawyer at the Brennan Center and an expert on voting rights, said in a phone interview. “As late as 2015, 2016, the idea that voters could walk into court and bring partisan gerrymandering claims and win was far-fetched.”

Now he said, federal judges are developing an understanding about how to handle the issue in the courts, as the issue has worsened over the past 10 years — a change that has been powered in part by an increase in data and computing capabilities.

The Supreme Court has never struck down a redistricting plan on the basis of partisan gerrymandering, and Chief Justice John G. Roberts Jr. has expressed some caution about the high court addressing such a political issue. But Wolf said that the lower courts were forging a path for the highest.

“The lower courts are showing the way — that courts can make sense of these problems and solve them in clear ways,” he said, adding that partisan gerrymanders are by nature blatantly unconstitutional. “It also suggests with all of these wins that it's the Supreme Court that’s really out of step.”

Like some of the other lawsuits against partisan redistricting plans, the lawsuit in Michigan included some sensational evidence, including an email exchange from a Republican staffer who wrote about finding “a glorious way that makes it easier to cram ALL of the Dem garbage” into four districts.

But the panel made clear that it was not ruling on the comments alone, saying it had reviewed an extensive collection of evidence that included testimony from the map-drawers and the legislators who helped enact the redistricting plan, and documentary evidence such as emails between the map-drawers, emails from legislators, agenda minutes and the handwritten notes from the weekly leadership meetings, and maps with detailed data about the partisan composition of districts that were used to create the plan.

“The breadth of evidence of discriminatory intent,” the panel said, rendered the arguments in defense of the plan “meritless.”

The lawsuit had been brought by the League of Women Voters of Michigan and some Democrats in the state.

“We WON!” the organization wrote on its Facebook page. It did not immediately respond to a request for comment.

Charlie Spies, a lawyer for the Republican majority in the state House who defended the redistricting plan, said the GOP majority probably would seek a stay of the opinion, as the Supreme Court is deliberating similar cases. The court is currently reviewing two lawsuits against partisan gerrymandering in North Carolina and Maryland.

"We will likely seek a stay, and urge caution in drawing conclusions from this opinion, which we believe is at odds with where the Supreme Court will end up,” Spies said in an email to The Washington Post.

Michigan Secretary of State Jocelyn Benson, a Democrat who inherited her office’s status as a defendant on the lawsuit, said she respected the court’s decision.

“The court’s ruling confirms that these Michigan state House and Senate and U.S. congressional districts are unconstitutional,” she said in a statement.