ASKED & ANSWERED: Jocelyn Benson

By Jo Mathis

Legal News

As a result of the significant population loss over the last decade, Michigan has redrawn its election map to reflect loss of representation in Congress.

The Legal News talks to election law expert Jocelyn Benson of Detroit, who organized opportunities for Michigan citizens to express opinions on redistricting by creating a Michigan Citizens' Redistricting Competition. She is the founder and CEO of the Michigan Center for Election Law and Administration, and teaches election law at Wayne State University Law School. She was the Democratic candidate for Michigan Secretary of State in 2010.

Mathis: What are your thoughts about the congressional and legislative redistricting plan drafted by majority Republicans in Lansing and signed into law August 9?

Benson: The Congressional District map is arguably the most oddly shaped in Michigan's history, with districts swirling around Southeast Michigan like colors in a Willy Wonka lollipop. What troubles me most is that the map's defenders claim the federal Voting Rights Act compels such bizarrely shaped districts. The Act is widely interpreted to require Michigan to maintain two congressional districts where African Americans comprise over 50 percent of the voting population.

But the Voting Rights Act in no way requires the creation of such contorted districts. In fact, throughout the redistricting process, citizens submitted a wide array of alternative maps that met VRA standards with more compact and fair district configurations.

Mathis: Now the suburban Detroit districts of incumbent Congressional Democrats Sander Levin and Gary Peters will merge, leading to a possible run against each other next year. What effect will that have on elections?

Benson: When politicians control the redistricting process, as they do in Michigan, the typical result is for the process to be used as a weapon against their political opponents. That's precisely what we saw here, unfortunately. Gary Peters is relatively young and moderate and is widely regarded to have a bright future in Congress. Sander Levin is the former chair of the influential Ways and Means Committee, and is one of the most powerful Democrats in Congress. In the new map, Peters' old district is split into three new districts and it appears that he would have to defeat Levin in order to remain in Congress. If Peters runs against Levin in this new district, voters -- mostly Democrats -- are left with having to decide which of these two leaders to eliminate.

Mathis: Most of Allegan County will now be represented by Republicans Fred Upton in Washington and Tonya Schuitmaker in the state Senate. The new map also strengthens the district of Republicans Thaddeus McCotter, Dan Benishek and Rep. Tim Walberg. Your thoughts?

Benson: Because Republicans control the process, it is no surprise that these Congressional Districts were "strengthened" through the addition of more Republican voters. But past elections illustrate that voters in Michigan are mobile and independent. Sometimes what appears to be a "strong Republican" or "strong Democrat" district can become a swing or moderate district in subsequent years. This may happen in particular with Benishek's district, which covers all of Northern Michigan. If Democrat leaning voters continue to move north, a Democrat could ultimately win in this district.

Mathis: The Michigan legislature redraws district lines for U.S. Congress and the state legislature at least every 10 years. Is that too often? Not often enough?

Benson: The primary legal reason to redraw districts is to ensure that the populations in each district are as equal as possible. In Reynolds v. Sims, the court established that each district must have the same number of people in it, because under the U.S. Constitution each person's vote was of equal value.

Because we get new census data every 10 years, states are required to update their districts to reflect any population changes. States do have the option, according the U.S. Supreme Court, to redraw the lines in the middle of the decade if they so choose. Texas did this a few years ago, in 2003, for example.

Mathis: What's wrong with the current redistricting process?

Benson: Under the current system, regardless of which political party happens to control the process, one thing is certain: the people do not. As we saw over the past few months, the current legislative and Congressional district maps were drawn behind closed doors, and then enacted into law with little deliberation. I think voters should have a greater say in what their districts look like.

Mathis: Why do you support a new independent redistricting commission in Michigan similar to California's?

Benson: As the 2010 Democratic Candidate for Secretary of State, I talked extensively about the need for a Citizens' Redistricting Commission in Michigan. The vision is simple: our state should have a committee appointed and comprised of every day people charged with the authority to draw the lines that group voters into different "districts" that enable voters to send representatives to Lansing or Congress.

The procedure for assembling the 14 member California Citizens' Redistricting Commission is a great example. A panel from the California State Auditor's office selects a pool of 60 interested applicants, and legislative leaders from both parties then have the option of eliminating 24 individuals from the pool. Eight individuals are then randomly selected in a lottery from the remaining 36 potential commissioners, and they in turn select an additional six to serve on the committee. The current 14-member Commission is made up of five Republicans, five Democrats, and four not affiliated with either of those two parties.

Mathis: According to census data, Michigan lost one-quarter of its population -- or about 237,000 people -- from 2000 to 2010. What happens if the trend continues?

Benson: Hopefully we have hit the low point of this trend. But if it continues, and if other states continue to gain population as well, we could lose even more Congressional seats to other states. Texas, for example, gained 4 new districts as a result of the massive population growth they've seen there since 2000.

Mathis: How did your Michigan Citizens' Redistricting Competition turn out?

Benson: The 2011 "Michigan Citizens' Redistricting Competition" was a nonpartisan project of the Michigan Center for Election Law and Administration, in partnership with the Michigan Redistricting Collaborative (which included groups such as Common Cause, the League of Women Voters, and Michigan Nonprofit Association).

Through providing tools for any Michigan citizen to craft and design their own redistricting maps for Congressional or Michigan legislative districts, we offered citizens an opportunity to take part in producing potential district maps for Michigan's 14 Congressional Seats, or Michigan's state senate or legislative seats.

The maps were then scored based upon objective criteria, and a nonpartisan panel of seven judges convened to evaluate and score the plans. The top nine scoring Congressional plans were submitted for your consideration on May 23, 2011.

Nathan Inks, a Lincoln Park resident and Central Michigan University undergraduate student was the first-prize winner of the competition. Inks, who also serves as president of the CMU College Republicans, drew a Congressional District plan that demonstrated how to draw fair, legal districts without gerrymandering or creating oddly shaped districts.

Mathis: What can citizens do to improve the redistricting process in Michigan?

Benson: In other states, citizens are working together to demand inclusive and transparent reforms to the redistricting process. In just this year alone, proposals have emerged from Utah to New York, North Carolina to Minnesota, Indiana to Massachusetts, calling for the creation of Independent Citizens' Redistricting Commissions in those states. Unfortunately, many of those proposals have failed at the hands of both Democrat and Republican political leaders.

True reform of Michigan's redistricting process will only come with a constitutional amendment that replaces politicians with citizens and independent experts who have a stake in preserving the fairness and integrity of the process. In my view, both Arizona and California provide us with great models to consider.

Mathis: There has been a lot of discussion about legal challenges to the plans that the governor signed into law on August 9. What is your opinion on the viability of any such challenges?

Benson: It's difficult to say, because redistricting law is very fact-specific and precedents evolve rapidly from year to year. We know that the U.S. Supreme Court has banned partisan and racial gerrymandering under the Equal Protection Clause of the Constitution. But the court can't seem to settle on what type of district actually violates these bans.

The court says partisan gerrymandering is illegal when district plans are "extraordinarily unfair" to one political party. But the court has never defined what an unfair district looks like. They've only upheld various plans that, though excessively partisan, were not "unfair." Most believe that a map would have to completely eliminate one party's chance of winning anywhere before the court would deem it unfair.

And when it comes to defining what types of districts amount to illegal racial gerrymandering, the Supreme Court says that the strongest evidence for illegal racial gerrymandering is bizarrely shaped districts. Because when the shapes of districts are "extremely irregular," the court says, it is likely that they arise out of "an effort to segregate the races for purposes of voting, without regard for traditional districting principles."

So a citizen in an oddly shaped district could file a suit if they could feasibly allege that traditional districting principles, such as respect for political subdivisions, compactness and contiguity, had been set aside in deference to considerations of the racial makeup of the district.

Incidentally, the new 9th, 11th, and 14th congressional districts for Michigan are three of the most awkwardly shaped districts that Michigan has ever seen. And the chairman of the Michigan Democratic Party stating he believes the districts are bizarre enough to suggest a racial gerrymander, the stage is set for a potential legal battle. But it remains to be seen if any citizen or group will have the resources to wage such a battle in court.

Published: Mon, Aug 29, 2011

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