A prominent constitutional law professor says the Supreme Court is obliged to hear a new legal challenge to a federal court’s determination that congressional districts in Michigan were unlawfully gerrymandered and will have to be redrawn before elections in November 2020.
Michigan lawmakers and congressional Republicans filed an emergency appeal May 3 with the Supreme Court to set aside a ruling by a panel of three federal judges in Detroit that ordered the state’s electoral map be redrawn because of what the judges unanimously called an unconstitutional “political gerrymander of ‘historical proportions’” that caused “severe” constitutional violations. “A wide breadth of statistical evidence” suggests partisan bias that gave Republicans a strong advantage over Democrats, the ruling stated, according to The Detroit News.
The officials also are expected to ask the high court to stay enforcement of the judges’ ruling until that court rules on gerrymandering cases related to Maryland and North Carolina.
The redistricting in the Wolverine State was approved by the GOP-controlled state legislature in 2011 and signed into law by the then-Gov. Rick Snyder, a Republican, in time for the 2012 elections. The judges found the redrawn boundaries ran afoul of the First and 14th Amendment rights of the voters who initiated the legal action, and directed state officials to again redraw at least 34 state House, Senate and congressional districts.
“This is one of the small class of cases where the appeal to the Supreme Court is in the mandatory jurisdiction of the court,” Samuel Bagenstos, a University of Michigan law professor, told MLive Media Group.
“They have to at least take the case and issue some kind of judgment on it.”
Bagenstos said Michigan Republicans probably will reiterate arguments they already made in the U.S. District Court that they expect will resonate with the justices of the high court.
“The first thing I think Republicans will say is this just isn’t a matter for the courts,” Bagenstos said. “I think they’ll also make the argument that the plaintiffs here waited too long to sue. I don’t expect you’ll see any new arguments from them.”
Traditionally, conservative members of the Supreme Court tend to favor treating redistricting as a political question that should be left to lawmakers who have been elected to make this kind of decision. Liberal justices tend to be more open to intervening in the map-drawing process to correct perceived injustices.
But the Supreme Court is likely to hold off on taking up the Michigan case until after it hands down decisions in two pending gerrymandering cases, according to Bagenstos.
In oral arguments in two cases heard March 26, the Supreme Court appeared divided about separate legal challenges to the state electoral maps of North Carolina and Maryland, which partisans on both sides in those states say are unfairly tilted to their opponents.
The Supreme Court reportedly has never struck down an entire state map for gerrymandering—the partisan manipulation of the boundaries of electoral districts to favor one party or group—but it has ordered the redrawing of congressional districts.
In the cases before the court, in the presidential battleground state of North Carolina, the legislature redrew the map in 2016, giving Republicans a 10 to 3 advantage over Democrats in the delegation to the U.S. House of Representatives. The legislature had to act because, at the urging of left-wing activist groups, a U.S. District Court found the 2011 map amounted to an unconstitutional race-based gerrymander. A legislative committee made the new map based on seven criteria, including politics and race.
In the Maryland case, the map also was redesigned, handing Democrats a 7 to 1 advantage over Republicans in the liberal bastion’s congressional delegation.
Gerald Tschura, a constitutional law professor at Western Michigan University’s Cooley Law School, told MLive the court-ordered redistricting in Michigan would likely survive further legal scrutiny because the evidence was “pretty strong” that the boundary-drafters were trying to gerrymander the electoral districts.
“If I were a betting man, I would say there is a strong likelihood that the Michigan case would be upheld,” Tschura said.