Proposal 2 of 2018:
An Explainer and Key Arguments

This policy brief describes the history of redistricting and how it is currently practiced in Michigan and in other states. It also explains Proposal 2 and how redistricting would work if it is passed. Finally, it presents an equal number of arguments for and against the proposal.

Introduction

Redistricting, or reapportionment, is the process of determining which geographical areas will be represented by which politician. There are 164 representative districts in Michigan, counting both state and federal districts.[*] Broadly, the goal of redistricting is to define district lines so that each political representative is apportioned about the same number of people to represent in Lansing or Washington, D.C. Periodic redistricting is necessary because populations change: Some areas grow or shrink in population faster than others.

The redistricting process is rooted in the U.S. Constitution, which states that elected representatives “shall be apportioned among the several states … according to their respective numbers.”[1] Further, the Constitution explicitly empowers the states to determine the “times, places and manner of holding elections” for Congress.[2] Subsequently, states typically draw these lines every 10 years or so, after each official national census.

The U.S. Supreme Court provided additional clarification on this process in cases decided in 1964. The Court ruled that the Constitution requires that each representative district be drawn so “that as nearly as is practicable, one man’s vote in a congressional election is to be worth as much as another’s.”[3] In a different case decided that year, the Court held that the same standard applies to state-level districts and representation.[4]

The chief concern about the redistricting process is gerrymandering. This is the term used for drawing representative district boundaries in a way that gives an electoral advantage to a political candidate, incumbent politician or to one particular political party. Gerrymandering’s impact and prevalence is a common topic of debate in political science.

Proposal 2 of 2018 would change the way redistricting is done in Michigan. By amending the Michigan Constitution, it would prohibit the Legislature from drawing districts and instead empower a 13-member commission to determine district lines. Supporters of Proposal 2 claim that allowing politicians to determine district boundaries is “a conflict of interest” and enables the political party with majority control to “draw maps that give them an almost unbeatable advantage in future elections.”[5]

This policy brief will quickly describe the history of redistricting and how it is currently practiced in Michigan and in other states. It will then explain the plan contained in Proposal 2. Finally, it will present an equal number of arguments for and against the proposal. An appendix contains the exact language that voters will find on the ballot on Nov. 6, 2018.

How Redistricting Works Now

A process for redistricting is defined in Article IV, Section 6 of the Michigan Constitution, which was ratified in 1963. It empowers an eight-member, bipartisan special commission to draw district lines based on certain criteria. The commission was employed three times — in 1964, 1972 and 1982.[*] These constitutional redistricting guidelines and the commission, however, were deemed unconstitutional under the U.S. Constitution by the Michigan Supreme Court in 1982 and have been invalidated.[6] In other words, Michigan currently has no binding constitutional rules for redistricting.

As part of this 1982 decision, the state’s highest court created new redistricting guidelines and appointed Bernard Apol, who had experience working with the redistricting commissions, to draw new districts based on them.[7] These new guidelines became known as the Apol Standards and were used to redraw districts in 1982 and 1992.[8] The court also authorized the Legislature to take charge of redistricting in the future, based on these new standards.[9]

The Michigan Legislature responded first in 1996 by passing into statute redistricting rules, largely following the Apol Standards, for Michigan legislative districts.[10] Then in 1999, the Legislature passed similar statutory guidelines for congressional redistricting.[11]

These legislative guidelines, however, were never actually binding, as the Michigan Supreme Court declared in a 2002 case.[12] The reason for this is that one legislature cannot create laws that control the actions of future legislatures. Therefore, the Michigan Legislature does not necessarily have to follow the statutory redistricting guidelines created by previous legislatures.

The result of these developments and legal rulings is that the only rules the Legislature must follow when redrawing districts are those contained in the U.S. Constitution, federal statutes and case law established by U.S. Supreme Court.[†]

Redistricting Practices in Other States

Most states empower their state legislature to draw new district lines. In 37 states, legislators determine the district lines used for state-level political representation, and in 42 they draw district lines for congressional representation.[*] In most of these states, district maps are passed into law just like any other piece of legislation. They require majority approval from each legislative chamber and approval from the governor.[13]

A handful of states use advisory commissions to help their legislature draw redistricting maps. The recommendations of these commissions are not binding. Some states also designate a public body to redraw district maps if the legislature fails to approve one. In some cases, these backup commissions are convened specifically for redistricting purposes. But other states rely on existing government departments, such as the Secretary of State, Attorney General or State Treasurer.[14]

Seven states use special “politician commissions” to draw district boundaries. These commissions are staffed by elected officials. In some cases, these officials are nominated by other politicians; in other cases, states designate holders of certain political offices to serve on these commissions.[15]

Six states — Alaska, Arizona, California, Idaho, Montana and Washington — use a separate, independent commission to draw district lines. These states restrict the ability of elected officials to participate in creating new district maps and prohibit certain people from serving on these commissions, such as employees of politicians and lobbyists.[16] These commissions are similar to what is being proposed in Proposal 2 and Michigan would join this list of six states if voters approve it.

The Nuts and Bolts of Proposal 2*

Proposal 2 would modify or amend 11 different sections of the Michigan Constitution.[†] The majority of these modifications are relatively simple and applied to sections of the Constitution that specify the respective powers of the legislative, executive and judicial branches of Michigan’s government. Proposal 2 would add language to these sections that clarifies that none of these three branches of government have the power to draw district lines, as that power would be reserved exclusively for a 13-member commission.

The most significant changes Proposal 2 would produce are in Article IV of the constitution, which contains the invalidated language about redistricting.[17] Sections in this article would be eliminated and replaced with language to direct the new process of redistricting. This new language defines and directs the new “permanent commission” that would be used to draw all the district lines needed to elect state and federal representatives: Michigan House members, Michigan senators, U.S. House of Representatives members and U.S. senators.

Eligibility for the redistricting commission

Only certain people would be eligible to serve on the commission. Its members must meet the following criteria:

• Be registered and eligible to vote;[*]
• Not have been or done any of the following within the last six years:
  • Declared candidacy for a partisan federal, state or local political office;[†]
  • An elected, partisan official in a federal, state or local political office;
  • An officer or member of a governing body of a national, state or local political party;
  • A paid consultant or employee of an elected official, political candidate, political campaign or a political action committee;
  • An employee of the state Legislature;
  • A registered lobbyist or an employee of a registered lobbyist;
  • A state employee whose job is not governed by the Michigan Civil Service Commission, except for employees of courts, public universities and the Michigan Army and Air National Guard;[‡]
  • Be a parent, stepparent, child, stepchild or spouse of a disqualified person;
  • Be disqualified for an appointed or elected state office.

Further, serving on the commission would make someone ineligible for five years after their appointment for an elected, partisan office at any level of government: state, county, city, village or township.

How commissioners will be selected

Under Proposal 2, the secretary of state must carry out the plan for selecting the 13 members of the commission. By Jan. 1 of each year the decennial U.S. census is conducted, the secretary must circulate membership applications “in a manner that invites wide public participation from different regions of the state.” The secretary also must mail 10,000 applications to a random selection of registered voters and accept returned applications until June 1 of the same year.

The content of the application form appears to be largely left to the discretion of the secretary of state. Proposal 2 makes only a few requirements of the application. One is that applicants must “attest under oath” that they meet the eligibility requirements for the commission. Another is that applicants must declare their affiliation with one of the two largest political parties, as measured by their representation in the current legislature, or declare that they do not affiliate with either party.

Ascertaining the political affiliation of each applicant is of chief importance. Proposal 2 would require the secretary of state to ensure that, of the registered voters who were mailed the 10,000 applications, there are submitted applications from at least 30 people who affiliate with each of the two most popular political parties and 40 from people who do not affiliate with either. Between Jan. 1 and June 1, the secretary must mail additional applications to registered voters, at random, until the responses from the mailings meet these marks.

Between June 1 and July 1, the secretary of state must remove incomplete applications from consideration, as well as those from people who are not qualified.[*] Then, 60 applicants affiliating with one of the two major parties and 80 affiliating with neither must be selected at random. Half the applicants chosen at random must come from the pool of applications received in response to the mailings.[†]

The random selection process used to choose these applicants must “use accepted statistical weighting methods to ensure that the pools, as closely as possible, mirror the geographic and demographic makeup of the state.” It is not clear which geographic and demographic factors must be included — presumably, that will be up to the secretary of state to determine.

This total of 200 applications then needs to be submitted to four legislators: the Speaker of the House, the House Minority Leader, the Senate Majority Leader and the Senate Minority Leader. These elected officials have until Aug. 1 to review the applicants and each may remove up to five applicants from the pool. If each elected official removes five applicants, together they would remove 20 — or 10 percent of the total.

After this step, the secretary of state must randomly select the 13 members from the pool of remaining applicants.[‡] This must be completed by Sept. 1. The 13 members must fit this profile: four affiliate with one of the two most popular political parties, four affiliate with the other and five attest that they affiliate with neither of these parties.

Operation and funding of the commission

The secretary of state would remain involved in the redistricting process, acting as a nonvoting secretary of the commission and providing technical assistance. The commission, however, will be responsible for its own internal operations and “has sole power to make its own rules of procedure.”

Under Proposal 2, the Legislature would have to appropriate funds for the commission by Dec. 1 of the year preceding a U.S. census. These funds must be “sufficient to compensate the commissioners and to enable the commission to carry out its functions, operations and activities” and may not be less than 25 percent of the general fund budget spent on the secretary of state that fiscal year. This would amount to about $4.6 million, based on these figures for the 2018-19 fiscal year.[18]

Each of the 13 commissioners would be paid no less than 25 percent of the governor’s salary, which in 2018-19 would amount to $39,825.[*] The legislatively appropriated funds could be used by the redistricting commission to hire staff, consultants and legal counsel and retain “independent, nonpartisan subject-matter experts.”[†]

Proposal 2 also would add language to the Michigan Constitution to ensure that the commission has enough resources to carry out its function. For instance, the commission is explicitly granted the right to sue the Legislature “regarding the adequacy of resources provided for the operation of the commission.” The state would also indemnify the 13 commissioners for any costs they incur “if the Legislature does not appropriate sufficient funds.”

All of the commission’s business must be conducted in open meetings, with advance notice published publicly. The commission would have to conduct its business in a manner that complies with Michigan’s Open Meetings Act of 1976. This law requires certain public bodies to make their meetings open to the public and host them in a publicly available space. Attendees can record and broadcast the meeting, and all decisions of the public body must be made at an open meeting.[19]

To establish a quorum at a meeting and conduct business, at least nine commissioners must be present. But these nine must include at least one commissioner from each of the three groups: one who affiliates with one of the two major parties, one who affiliates with the other and one who affiliates with neither.

The commission’s redistricting process

The commission must convene by Oct. 15 of the census year and adopt its plans for redistricting state House, state Senate and congressional districts by Nov. 1 of the following year. Before they draft any plans, however, commissioners must host at least 10 public hearings.[*] These meetings are meant to educate attendees about the commission and its redistricting process, as well as gather ideas from residents. The commission must allow the public to submit redistricting plans for its consideration as well.

Each commissioner may submit one proposal for each of the three types of representative districts. After at least one redistricting plan for each type of district has been proposed, the commission must publish them and any additional data or information used to develop the plan. Then the commission must hold at least five public meetings to gather feedback from attendees.

Redistricting plans must meet certain specifications. Districts must be of equal population and comply with the U.S. Constitution and federal laws. They must be geographically contiguous, “reasonably compact,” and “reflect consideration of county, city, and township boundaries.”

Representative districts must also “reflect the state’s diverse population and communities of interest.” The term “communities of interest” is not defined specifically, but it can include “populations that share cultural or historical characteristics or economic interests.” Proposal 2 explicitly states that communities of interest are not limited to these types of populations, however, so it is unclear what type of groupings it is meant to allow. There is one restriction: Communities of interest may not be based on relationships with political candidates or parties.

Proposal 2 states that districts drawn by the commission may not “provide a disproportionate advantage” to a political party or “favor or disfavor” a politician or political candidate. This is to be measured “using accepted measures of partisan fairness.” Plans must then be tested based on these criteria. The proposal does not specify how this testing will be accomplished, only that the commission will use “appropriate technology” to ensure the plans meet these criteria.

The commission must issue a public notice and provide 45 days for the public to review and submit comments on each plan it will vote on. A similar procedure is used by other public agencies that propose and implement state regulations and policies.[†]

Following the window for public comment, the commission votes on which plan to adopt. Each commissioner can submit one plan for each type of district for final approval. Commissioners then rank the plans according to their preference, with the plans receiving points based on this ranking. For instance, if there are three plans under consideration, each commissioner would assign three points to the most-preferred plan, two points to the second-preferred plan and one point to the least-preferred plan. The plan receiving the highest number of points will then be adopted.

There are additional stipulations, however. The highest-scoring plan must also receive a certain level of support from commissioners who self-identify with a different group than the one the commissioner who submitted the plan identifies with. Say, for example, the plan receiving the highest score was submitted from a commissioner who identifies as a Republican. Then, at least two commissioners who do not identify as a Republican must have ranked the plan in the top half of the plans they ranked.

If no plan meets these stipulations, the secretary of state will randomly select one of the proposed plans and adopt it as the final approved plan. If two or more plans tie for the highest number of points based on the commissioners’ votes, the secretary must randomly select one of those plans as the final approved one.

After a plan has been adopted, the commission must publish it within 30 days. It must also issue a report that explains why a majority of the commissioners chose the plan and how it meets the requirements imposed by Proposal 2. Commissioners who disapprove of the adopted plan may include a rationale for their dissent as part of these reports. There is no deadline for when these reports — one for each type of redistricting plan — must be completed and made public.

The adopted plan then becomes law 60 days after it has been published. It may still be challenged in court, and Proposal 2 gives power to the Michigan Supreme Court to review such challenges. The court may send the adopted plan back to the commission, if, in its view, it fails to comply with the requirements of Proposal 2, the U.S. Constitution or federal law. No other guidelines are provided as to what the commission must do if this occurs.

Arguments in Support of Proposal 2

1. Statistical tests suggest Michigan’s recent maps were gerrymandered

There are three statistical tests that are commonly used to assess whether political districts have been gerrymandered: the efficiency gap, the mean-median and the t-test. All these tests have their own limitations and cannot by themselves prove definitively whether gerrymandering occurred. They are useful, nevertheless, in identifying possible cases of it.

When these tests are applied to the election results from the district maps drawn after the 2000 and 2010 censuses in Michigan, a clear partisan advantage for Republicans appears. Republicans held majority control in the Legislature when those maps were drawn.[20]

The redistricting process contained in Proposal 2 may be a better safeguard against potential gerrymandering than the status quo. That is because it creates a separate commission and requires it to draw boundary lines that are supported by commissioners who self-identify with neither major political party.

2. Rules for redistricting should be included in the state constitution

As described above, the state Supreme Court has said the redistricting process contained in the Michigan Constitution violates the provisions of the U.S. Constitution. Consequently, Michigan has no constitutional rules to guide redistricting efforts. Further, because current legislators cannot restrict the action of future ones, statutory rules for redistricting are not binding on the legislature that gets to redraw the maps. The only rules the Michigan Legislature must follow are those contained in the U.S. Constitution, federal laws and U.S. Supreme Court case law, and the only recourse voters have to challenge the legislatively drawn maps is to sue in federal court.

Proposal 2 would replace the redistricting process in the Michigan Constitution — now a dead letter — with a new one. This may provide more stability to the redistricting process, make it easier for voters to understand how it works, and potentially reduce the number of legal challenges to the redistricting process.

3. Proposal 2 would provide needed transparency to the redistricting process

The redistricting process envisioned by Proposal 2 includes important requirements for public transparency. For instance, the commission must hold at least 10 public hearings and accept for consideration plans submitted by the public. The commission must also publish any plans it is considering, hold another five public hearings regarding these plans and allow the public to submit comments for a period of 45 days. Further, the commission must conduct all of its business in meetings open to the public.

It is said that transparency is the best disinfectant for political corruption, and Proposal 2’s emphasis on a transparent redistricting process may help guard against gerrymandering.

Arguments in Opposition to Proposal 2

1. Proposal 2 relies heavily on poorly defined concepts

Many terms in Proposal 2 do not appear to be clearly defined. For instance, the secretary of state would be required “to ensure that [applicants for the commission], as closely as possible, mirror the geographic and demographic makeup of the state.” A number of different demographical factors could be used for this purpose, including age, race, income, gender, education level, ethnicity, sexual orientation and religion. Yet, the proposal is silent about which ones matter. Presumably, this question will be left to the discretion of the secretary of state.

Another potentially problematic concept is “communities of interest,” which districts drawn by the commission are required to “reflect.” Although the proposal states that these could be populations that share “cultural or historical characteristics or economic interests,” it also states that communities of interests “shall not be limited to” these definitions — essentially making it an open-ended term. And while 24 other states use this term or something similar in their redistricting guidelines, most provide either a more concrete definition or qualify this requirement with phrases like “to the extent feasible” or “where practicable.”[21]

By including these poorly defined concepts and others, Proposal 2 may inadvertently grant the secretary of state a significant amount of power over the redistricting process.[*] Further, ill-defined concepts are fertile ground for litigation, and the proposed commission’s maps may be continually challenged in court.

2. Partisanship will prevail

Proposal 2 aims to eliminate partisan influence over redistricting by relying on a commission of four Democrats, four Republicans and five self-identified independents. While any member may submit a plan for consideration, it is highly unlikely that members with the same political affiliation will submit competing plans. In other words, the Democrats and Republicans on the commission will likely vote en bloc, each supporting a single plan submitted by one of their own.[†]

This would result in making the votes of the five members who do not self-identify with either party the determining votes in which plan gets approved.[‡] And if no other plans are submitted, these five members will be forced to choose between a Republican-supported plan and a Democrat-supported plan. No matter the outcome, Michigan would still have a new district map designed by partisans.

Further, even if one or more nonpartisan members submit a plan for final approval, that plan must get the approval of at least two commission members who are affiliated with one of the major parties. Because these groups will likely vote en bloc, in order for one of these plans to be approved, it must gain the support of either the Democrats or Republicans. So in this scenario too, the approved plan would rely on partisan support.

3. Proposal 2 is a cleaver, only a scalpel is needed

Proposal 2 would create a completely new redistricting process and commission. Michigan would join the few states that use a similar mechanism for redistricting. Taking this step may be unnecessary, and a simpler alternative might fix the Michigan Constitution to make the original redistricting rules established in 1963 valid and functional again.

These original redistricting rules were deemed unconstitutional because they required redistricting officials to considered both population and land area when determining district boundaries.[22] Removing land area from the redistricting formula would likely render these rules constitutional.

The other key problem with the original constitutional redistricting rules is it uses an eight-member commission, evenly split between Democrats and Republicans. This led to deadlock every time the original commission convened. The Michigan Constitution could be modified so that the commission consists of an odd-numbered of members to avoid this deadlock. The Citizens Research Council of Michigan recommended in 2011 that the eight partisan members chosen for the commission elect a ninth member who is not affiliated with either party.[23]

Conclusion

Periodically defining new boundaries for political districts is a necessary task in a representative democracy. The U.S. Constitution and the U.S. Supreme Court require that each vote cast in American elections carry roughly the same weight. In other words, no matter where a voter resides, the weight of their vote should be of equal proportion to the weight of all other votes.

While the impact and prevalence of gerrymandering is open for debate, there is no doubt that the process of redistricting can produce unfair partisan advantages. For these reasons, the rules that control how redistricting happens are important. On Nov. 6, 2018, Michigan voters will get to decide if the redistricting plan contained in Proposal 2 is the method this state should use in the future.

Endnotes

1. U.S. Const. Art 1 § 2.

2. U.S. Const. Art. 1 § 4.

3. Wesberry v. Sanders, 376 U.S. 1 (1964).

4. Reynolds v. Sims, 377 U.S. 533 (1964).

5. “The Problem” (Voters Not Politicians, 2018), https://perma.cc/93XV-YKQL.

6. In Re Apportionment of State Legislature 1982, 413 Mich. 96 (1982).

7. Bernard Apol, “Legislative Reapportionment in Michigan,” Michigan Commentary (Public Sector Consultants, Inc., Dec. 16, 1987), https://perma.cc/U7BP-96NK.

8. Chris Couch, “Legislative Redistricting” (Michigan House Fiscal Agency, Jan. 2, 1997), https://perma.cc/6JUU-SNP5; Frederick Headen, “Where Reapportionment Stands Today” (Citizens Research Council of Michigan, March 17, 1992), https://perma.cc/RD2K-M92F.

9. In Re Apportionment of State Legislature 1982, 413 Mich. 96 (1982).

10. “Public Act 463 of 1996” (State of Michigan, Dec. 26, 1996), https://perma.cc/6483-SNWB.

11. “Public Act 221 of 1999” (State of Michigan, Dec. 28, 1999), https://perma.cc/B9NX-HCCS.

12. LeRoux v. Secretary of State, 465 Mich. 594; 640 NW 2d 849 (2002).

13. Justin Levitt, “All About Redistricting: Who Draws the Lines?” (Loyala Law School Los Angeles, 2018), https://perma.cc/MQD3-THT7.

14. Ibid.

15. Ibid.

16. Ibid.

17. Mich Const Art. IV § 2-6.

18. “Department of State: Funding History” (Michigan Senate Fiscal Agency, Aug. 2, 2018), https://perma.cc/2W4F-RFAZ.

19. MCL § 15.263.

20. “Quantifying the Level of Gerrymandering in Michigan” (Citizens Research Council of Michigan, Jun. 2018), 31–35, https://perma.cc/ S9CZ-AW3G.

21. “Communities of Interest” (Brennan Center for Justice, Nov. 2010), https://perma.cc/X8PQ-XX8H.

22. In Re Apportionment of State Legislature 1982, 413 Mich. 96 (1982).

23. “Congressional and Legislative Redistricting Reform” (Citizens Research Council of Michigan, May 2011), 26, https://perma.cc/E6VX-KP6T.

Appendix: Ballot Language of Proposal 2

Proposal 18-2

A proposed constitutional amendment to establish a commission of citizens with exclusive authority to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress, every 10 years

This proposed constitutional amendment would:

• Create a commission of 13 registered voters randomly selected by the Secretary of State:
  • 4 each who self-identify as affiliated with the 2 major political parties; and
  • 5 who self-identify as unaffiliated with major political parties.

• Prohibit partisan officeholders and candidates, their employees, certain relatives, and lobbyists from serving as commissioners.


• Establish new redistricting criteria including geographically compact and contiguous districts of equal population, reflecting Michigan’s diverse population and communities of interest. Districts shall not provide disproportionate advantage to political parties or candidates.


• Require an appropriation of funds for commission operations and commissioner compensation.

Should this proposal be adopted?

[ ] YES

[ ] NO