Michigan is on the verge of adopting what proponents describe as a “new theory of representation,” in which the state’s redistricting process would be built not on actual communities—counties, cities, townships and villages—but on so-called communities of interest. If the proposal goes forward, these new electoral districts will be based on concepts like identity and affiliation groupings. The result will be a representative system increasingly unresponsive to “we the people,” the one grouping to which all Americans belong and in whose name our constitutions were ratified.
Michigan voters chose in 2018 to amend the state constitution to create the Michigan Independent Citizens Redistricting Commission. Its purpose is to rid the decennial redistricting process of the purported abuses of gerrymandering, partisanship and legislative self-dealing. The commission has 13 members—four Democrats, four Republicans, and five independents—who were randomly selected from an applicant pool of registered voters.
The public comment period, during which the commission has solicited and considered recommendations, closes July 1. Among the proposals the commission has received is a report prepared by the University of Michigan with the assistance and oversight of the Michigan secretary of state, which recommends creating communities of interest based on whether they are “linked to public policy issues that are affected by legislation” or “concerned about environmental hazards.” Anyone with “a shared vision of the future” could become a community of interest. So could “immigrant, language, and creative arts communities” or “media markets and tax assessment districts.” The University of Michigan report recommends ignoring the most genuine communities of interest—the ones in which the people of Michigan actually reside with their families and alongside their friends and neighbors.
At the request of Hillsdale College, I have also submitted a set of recommendations to the commission. From my perspective, the individual voter is the building block of the democratic process. His primary responsibility is to exercise judgment in selecting a representative. That representative makes laws and policies which apply impartially to everyone and secure equally the rights of all who live in the community. The individual voter’s role isn’t to contribute to the “critical mass” of an interest, identity or affinity group, cobbled together as a bloc by a government agency.
“Voters not politicians” was the clarion call of the 2018 initiative. The purpose of the constitutional amendment was to purge the redistricting process of its worst abuses by replacing interested decision makers with disinterested ones. The people of Michigan didn’t go to all this trouble merely to empower a new set of administrators for a broken system.
A redistricting process in which the boundaries of municipalities are respected doesn’t guarantee perfection. But in the hands of a responsible and farsighted commission, acting in accord with its nonpartisan obligations, it is the approach most likely to minimize the worst forms of redistricting abuse. Such a commission would have several overarching principles in mind: “Racial, ethnic, and religious” calculations wouldn’t become proxies for according partisan advantage and disadvantage; interest, identity and affinity communities wouldn’t be stitched together in squiggly electoral districts resembling gerrymanders; and geographic boundaries—some of which preceded Michigan’s statehood in 1837—would be recognized.
Most important for Michiganders to understand is the lack of legal moorings for the University of Michigan’s recommendations. There are simply no coherent constraints—or any consistent rule-of-law standards for that matter—undergirding the recommendation to proceed with its novel communities-of-interest concept.
One purpose of the University of Michigan’s report is to inject “expertise” into the redistricting process. It is apparently not enough that judgments of the people’s representatives have been replaced with those of randomly selected voters. Rather, the substantive rules of configuring electoral districts themselves must be “reimagined,” and not in closer accord with traditional American understandings of representative self-government. Thus, the University of Michigan’s report would invest the commission with responsibility to assess such quasisociological concepts as “common bonds,” “invisible communities of interest,” “shared identities,” things that “bind communities together,” and “how a community currently engages with the political process.” This will all require the commission to collaborate with academic, philanthropic, nonprofit and media experts.
None of this complexity or convolution would be required if the commission’s mandate was merely to draw Michigan’s legislative districts in a fair-minded, neutral and nonpartisan manner. But to achieve a “new theory of representation,” much more is required, and the political opportunity must not be wasted.
The Michigan Independent Citizens Redistricting Commission can do the public a great service by uniting behind an electoral map that curtails gerrymandering, partisanship and self-dealing. Or it can continue these same abuses, albeit in a camouflaged manner, by transforming the people of Michigan’s towns, cities and townships into a mere assemblage of favored and disfavored interest, identity and affinity groupings.
Mr. Markman is a retired Michigan Supreme Court justice and professor of constitutional law at Hillsdale College, which commissioned his report to the state redistricting commission.
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