I have written this piece for Vox. It begins:
Reformers hoping to rein in partisan gerrymandering have a big idea that’s caught on in several states: handing the redistricting power over to an independent commission, rather than politicians in the legislature, as Michigan’s electorate voted to do last year.
But now, Michigan Republicans have filed a lawsuit to try and strike that commission down. And they’re using a longshot legal argument that could put similar bodies in other states at risk, too, with serious implications for the next round of state and congressional redistricting after the 2020 Census….
So why have Michigan Republicans raised two potentially weak arguments when there is a stronger one waiting in the wings? At this point, I have two tentative theories.
The Republicans are clearly hoping their Hail Mary strategy will kill commissions across the country. If the new First Amendment theory works in Michigan, it would be a way to bring down similar commissions elsewhere, including in Arizona and California, and for all redistricting (not just congressional redistricting). The Supreme Court has expanded the First Amendment in various ways to hurt progressive causes in recent years, and Michigan Republicans might be trying to go for broke.
But Republicans might also be looking for a way to win without putting Chief Justice Roberts in a tough spot. Roberts has desperately been trying to prove that all the justices do is call balls and strikes, and as part of that effort he’s going to be loath to overturn precedent.
When NPR Legal Affairs Correspondent Nina Totenberg asked Supreme Court Justice Ruth Bader Ginsburg recentlywhy Roberts referred to commissions as a possible solution to partisan gerrymandering in Rucho given his Arizona dissent, Ginsburg answered: “As one lives, one learns. … So I think the Chief learned that he was wrong in Arizona.” Whether or not that’s true, asking Roberts to overturn precedent in a highly partisan case seems like risky business. After all, Roberts sided against Republicans and his fellow conservatives in the recent case about whether to add a citizenship question to the US census.
Whatever the reason for the unusual strategy, if these latest efforts fail, someone can still raise an Arizona argument against the Michigan commission before the next round of redistricting begins.
In the meantime, Michigan Republicans have gone big, trying to establish not only that partisan gerrymandering is permissible but that it is unconstitutional to keep partisan officials outside the redistricting process. It is a bold, daring argument that shows just how far the courts may go to protect partisan election processes and the Republican Party itself.