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.”
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. 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.
[*] Other terms that do not appear to be clearly defined include: 1) public hearings must “[invite] wide public participation throughout the state;” 2) the secretary of state’s random selection process must use “accepted statistical weighting methods;” and 3) districts may not provide a political advantage to one party as “determined using accepted measures of partisan fairness.”
[†] This is what occurred in 1964, 1972 and 1982 when the original redistricting commission convened, before the Michigan Supreme Court ruled that commission and its guidelines to be unconstitutional. “Congressional and Legislative Redistricting Reform” (Citizens Research Council of Michigan, May 2011), 7, https://perma.cc/E6VX-KP6T.
[‡] Proposal 2’s points-based voting system is not likely to make much of a difference here. The votes from the competing political parties will essentially cancel each other out, leaving the real meaningful votes in the hands of the members who self-identify as independent.