5 concerns about Michigan’s redistricting proposal and what to make of them

Nov. 7 update: One woman’s Facebook post leads to Michigan vote against gerrymandering

Whether it’s in support or opposition, Michigan’s Proposal 2 — which would create a citizens redistricting commission responsible for drawing voting district lines instead of state lawmakers — is the object of passion.

Today we explore the five biggest objections raised by opponents of the measure, which recent polls indicate is gaining broad support. Some criticisms are patently false, while others are based in fact and warrant deeper exploration.  

Proponents of Prop 2, organized by the group Voters Not Politicians, envision the commission as an antidote for a state that has long been gerrymandered every 10 years to favor the whichever party holds power (which in recent election cycles has been Republicans). VNP rallied thousands of volunteers to get more than 400,000 petition signatures without paying signature gatherers — what many have called a remarkable political feat.

Those who oppose Prop 2 say it is overreaching and heavy with flaws; such as a requirement that the commission include four Republicans, four Democrats and five independents selected at random. This, critics say, creates an unaccountable, potentially partisan body that would cost the state millions of dollars. Some opponents challenged the proposal up to the state Supreme Court; others protested or organized against a Republican-nominated justice who helped ensure Prop 2 would remain on the ballot.

Bridge interviewed experts in political science, redistricting and election law to explore criticisms of the measure. Here’s what they had to say.

Commissioners would self-identify their political affiliation.

The concern: Michigan doesn’t require voters to identify party affiliation when voting, so there isn’t a clear way to know whether someone actually identifies with the party they say they do. Significant power would lie with the commission’s independents, and even independents usually have some political leaning.

That’s led some critics to wonder whether the threat of perjury is enough to prevent political gamesmanship from creeping into who applies for a seat on the commission. A video opposing Prop 2 that played at the state GOP convention shows the five independents turning blue, implying they’d really lean liberal.

What experts say: “It’s a valid issue,” said John Chamberlin, a professor of public policy at the University of Michigan. But “it’s not a fatal flaw.”

Under the proposal, legislative leaders in each major party retain a small amount of veto power in the selection of commission members, which Chamberlin said would eliminate the worst partisans. And “having multiple independents helps (mitigate the risk they’d lean too much one way). But at least you have a better shot at it being bipartisan than when one party controls the process. In that sense it’s a no-brainer.”

Karin Mac Donald, director of California’s Statewide Redistricting Database, said it is important that regulations be created for the application process that would require stringent vetting. She suggested requiring essays and letters of recommendation about candidate qualifications and putting them online so the public can weigh in.

“If it’s just one person (selecting the commissioners, even if it’s random) and your Secretary of State is a partisan, then I would be a little bit concerned about that, too,” Mac Donald said.

Commissioners must consider “communities of interest”

The concern: One of the most important criteria commissioners would have to consider in drawing maps is that they reflect “communities of interest” within Michigan.

It would be a brand new standard in Michigan redistricting. Many are worried the term’s ambiguity leaves too much up to interpretation and could lead to unfair manipulation of district lines.

“Some other states have used the same phrase but it’s never defined, so as a practical matter it is whatever these commissioners say it is. They are allowed to define community of interest,” said Ken Sikkema, a senior policy fellow at Public Sector Consultants who has served as a Republican leader in both the house and senate. “I am not prepared to support putting something in the state constitution when I don’t have a clue as to what it means.”

What experts say: The National Conference of State Legislatures defines communities of interest as: “Geographical areas, such as neighborhoods of a city or regions of a state, where the residents have common political interests that do not necessarily coincide with the boundaries of a political subdivision, such as a city or county.”

Mac Donald has studied the “communities of interest” standard in redistricting for two decades. She said, “I would come down on the side of leaving it undefined.”

In California, which has a redistricting commission similar to the one proposed in Prop 2, the commission’s multi-party structure (and the often well-meaning nature of people who choose to serve) means commissioners have sniffed out partisanship and not given it much weight in determining communities of interest, she said. The flexibility of the definition allows the standard to adapt to communities’ electoral needs, many of which policy makers might not anticipate on their own.

David Daley, author of "Ratf**ked: Why Your Vote Doesn't Count," a book on gerrymandering, and a supporter of Prop 2 in Michigan, said legislators already make decisions about communities when redistricting — just without public input. “Better to have the people making that decision be citizens using a rigorous process than politicians using a secret process to try to entrench themselves in office.”

Prop 2 is more expensive than the current redistricting process

The concern: The Citizens Research Council of Michigan, a nonpartisan public policy research group, noted in an analysis of Prop 2 that the state’s redistricting costs would increase if it passes in November.

The CRC says $878,000 was appropriated for redistricting in 2011, not including the cost to the state for defending maps in court (which experts said is usually fairly significant). Under Prop 2, the state would appropriate $4.6 million annually for the commission until all legal challenges to its work is complete. The commission would be required to return any unused funds, but it would also be allowed to use more than what’s appropriated.

What experts say: “This is a more expensive way to do democracy. I would argue that that expense is worth it,” said Justin Levitt, a professor at Loyola Law School in Los Angeles who tracks redistricting around the country.  

Levitt said Americans spend very little on elections compared to other countries, and that the added cost is likely to be a tiny fraction of the state’s total budget. The Citizens Research Council estimated that over the 10-year cycle, funding for redistricting would be around $10 million — .01 percent of the General Fund or about $1 per Michigander per decade.

“The citizens would be asking other Michiganders to pay a little more for a process that’s much more fair,” Levitt said.

Thousands of people would be excluded from the commission.

The concern: There’s a pretty extensive list of those who would be excluded from serving on the redistricting commission, presumably to keep politically connected people from seeking a seat:

• A partisan candidate or elected official in local, state or federal government
• An officer in a political party
• A consultant or employee for a political candidate, campaign or PAC
• Legislative staffers
• Registered lobbyists and their employees
• Unclassified state employees, except those who work for public universities, the courts or the armed forces
• The parent, child or spouse of any of the above people, including stepparents and children

The last one is the real kicker for many opponents. There are many low-level partisan elected officials (such a precinct delegate or township clerk) whose entire family would be excluded from serving for six years after their relative held or ran for office.

“It’s the principle of it. That people by virtue of who they’re related to are excluded from participating in what’s supposed to be a citizens’ panel? That’s ridiculous. It’s a violation of their 14th and 1st amendment rights,” Tony Daunt, executive director of conservative advocacy organization the Michigan Freedom Fund, told Bridge in late August.

What experts say: “Michigan went quite far in its conflict of interest rules,” Levitt of Loyola Law School said. “California’s limitations are a little bit less strict; other states have even fewer restrictions.”

“The idea was to get people who aren’t going to leave big partisan fingerprints on this process,” said U-M’s Chamberlin, who said there is validity to the claim that it is overly exclusive. “On the other hand, it invites into the process a lot more people (because of the transparency requirements). Compared to the status quo, this looks pretty good.”

Both Levitt and Mac Donald said Californians were worried their rules excluded too many qualified candidates, but there were thousands more qualified people eligible than expected.

There would be no way for voters to remove commissioners

The concern: The only way for a commissioner to be removed from office is by a vote of at least 10 of the other 12 commissioners, which insulates each member from being unseated by legislators, the governor, or voters themselves.

Michigan Supreme Court Chief Justice Stephen Markman addressed this in his dissent from the ruling that kept Prop 2 on the ballot. He wrote that the proposal would replace the accountability system of the legislature — in which voters choose their representative every cycle — with a commission of people “who are not in any way chosen by the people, representative of the people, or accountable to the people. This, in my judgment, reflects a fundamental alteration in the relationship between the people and their representatives.”

What experts say: “They’re right about the fact that it is very hard to remove one of these commissioners,” Levitt said, calling it an impeachment standard — the commissioner has to be considered negligent in the eyes of nearly all their peers to be removed.

All four experts, however, said that practically speaking, legislators aren’t held accountable under the current system of redistricting either.

“The interesting thing about legislative acts is that voters can hold their legislators accountable when they don’t like what their legislator’s done. Redistricting is the one thing that doesn’t fit that pattern, because the same people who would be pissed off before the legislature does the redistricting are not the same people who are voting on that legislator’s performance afterwards,” Levitt said.

Daley, the book author and Michigan redistricting critic, said: “The folks who are drawing these lines right now are partisans behind closed doors who have drawn themselves districts in which they are almost completely unaccountable to the voters. They, in many ways, can’t be voted out, either.”