Supreme Court Won’t Intervene in Dispute Over Michigan State Legislative Districts

A federal court is expected to select electoral maps before the state’s primary in August.

The U.S. Supreme Court is seen in Washington, D.C., on June 16, 2023. Saul Loeb/AFP via Getty Images

The U.S. Supreme Court has denied a request to block the redrawing of state legislative districts in Michigan that a federal court ordered after finding the district maps violated the federal Voting Rights Act (VRA).

The Supreme Court rejected an emergency application on Jan. 22 from the Michigan Independent Citizens Redistricting Commission to stay a lower court ruling finding that the commission-drafted maps for 13 state legislative districts in the Detroit area violate the VRA.

Section 2 of the VRA prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in a large language minority group.

Last year, Alabama had asked the Supreme Court to weaken Section 2. The court declined to do so, ruling 5-4 in Allen v. Milligan that the state’s electoral map for congressional elections was racially discriminatory and violated the VRA.

On Monday, the stay application in Michigan Independent Citizens Redistricting Commission v. Agee was denied (pdf) in an unsigned order. No justices dissented. The court did not explain its decision. The application for stay was presented to Justice Brett Kavanaugh who referred it to the full court.

Plaintiff-respondent Donald Agee Jr. is of 19 voters living in the Detroit-area districts at issue in the litigation. The voters argued that their districts were drawn by the Michigan Independent Citizens Redistricting Commission primarily using racial criteria, in violation of federal law.

The commission is a legislative body that the Michigan Constitution authorizes to draw state House, state Senate, and congressional election districts. It consists of 13 citizens selected at random with no experience in redistricting and no knowledge of election law.

The commission members hired experts to assist them, namely, their “voting rights act legal counsel,” Bruce Adelson; a political scientist Lisa Handley; and their general counsel, Julianne Pastula, according to court documents.

On Dec. 21, 2023, a three-judge panel of the U.S. District Court for the Western District of Michigan issued an opinion and order (pdf) blocking the use of the maps for the 13 state legislative districts in future elections, including state House elections later this year.

All three judges, Circuit Judge Raymond Kethledge, District Judge Paul Maloney, and District Judge Janet Neff, were appointed by President George W. Bush.

Legislative redistricting is usually carried out by state legislatures, which typically do not document every move during the process. But the commission kept extensive records—some 10,000 pages worth—of “every decision they made, every word they spoke[,]” the district court said.

“That record makes clear that the commissioners relied heavily on their experts’ advice, particularly with regard to compliance with the federal Voting Rights Act, 52 U.S.C. [Section] 10301. And the record shows, overwhelmingly, that those experts—Adelson, especially—expressly told the commissioners, scores if not hundreds of times, to sort Detroit-area voters into different districts on the basis of race.”

Mr. Adelson and Ms. Pastula advised the commissioners that to comply with the VRA, they had to limit the “BVAP” or “black voting age population” in each district to about 35 to 45 percent.

Although that “proposition is without support in the Supreme Court’s VRA caselaw,” the commissioners followed their experts’ advice “with great difficulty, and misgivings throughout, and over the vociferous objections of Detroit residents at the time[.]”

The commissioners did as they were advised and limited the percentages of black voters in the challenged districts “in a city whose African-American population is almost 80%[.]” The BVAPs of every district except one fell within the 35 to 45 percent range, the court said.

The record showed “overwhelmingly—indeed, inescapably—that the Commission drew the boundaries of plaintiffs’ districts predominantly on the basis of race[.]” The court held that the districts “were drawn in violation of the Equal Protection Clause of the U.S. Constitution.”

On Jan. 8, the district court followed up, denying an application to stay the injunction.

The district court has reportedly appointed two outside experts as special masters to redraw the districts according to the law. The commission has also been directed to redraw the districts by Feb. 2.

The district court is then expected to decide on the maps by March 29.

Michigan Attorney General Dana Nessel (D), who is representing Michigan Secretary of State Jocelyn Benson (D) in the Supreme Court case, had expressed concern in a Jan. 17 brief about “the unknown potential for error and voter confusion in the impacted districts” if the maps have to be redrawn in the lead-up to the 2024 primary election on Aug. 6.

Ms. Nessel urged the Supreme Court to stay the district court injunction, arguing the injunction “threatens an orderly administration of that election.”

The commission argued for a stay in the application it filed with the Supreme Court on Jan. 9.

The stay was needed “to preserve the status quo,” it said. It also argued that if left undisturbed, the district court’s ruling would have “profound implications” to the equal protection guaranteed by the U.S. Constitution, for the VRA, and “for the primacy of the State in managing its own elections.”

“In configuring Detroit-area districts, the Commission did everything this Court’s Voting Rights Act (VRA) and racial-gerrymandering precedents signals is necessary for voluntary VRA compliance, and it was not possible to do more than the Commission did.

“It employed a district-specific, functional analysis of racial voting patterns (a methodology the Court has embraced) that may be the most comprehensive ever adduced at the map-drawing phase of redistricting. Yet its plans still were found not to pass constitutional scrutiny.

“This Court’s immediate intervention is necessary to remedy this untenable state of affairs, where voluntary [Section] 2 compliance has become impossible,” the commission said.