The League of Women Voters of Michigan (“League”), its members, and several Democratic voters brought suit against the Michigan Secretary of State, alleging that the state’s current legislative apportionment plan (the “Enacted Plan”), violated the Plaintiffs’ Fourteenth Amendment equal protection rights and First Amendment free speech by deliberately discriminating against Democratic voters.
Plaintiffs initially sought to invalidate the entire Enacted Plan, but subsequently narrowed their claims to 34 congressional, House, and Senate districts (the “Challenged Districts”).
Sixth Circuit Judge Eric L. Clay wrote for a panel in the Eastern District of Michigan. The judge explained that the term “partisan gerrymandering” describes “the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.” It’s an effort to dictate electoral outcomes by favoring candidates of one party and disfavoring candidates of another. Partisan gerrymandering thus violates the core purpose of legislative apportionment—providing “fair and effective representation for all citizens,” he wrote.”
The Michigan Constitution says that the state legislature shall redraw Michigan’s congressional and state legislative districts every ten years. This directive ensures that Michigan legislators will have the benefit of the decennial federal census and population data when they redraw the legislative maps.
As the release of the 2010 census data approached, the Republican State Leadership Committee (“RSLC”) engaged in a national effort to ensure that states redrew their congressional lines during the 2011 redistricting cycle to favor Republican candidates and to disadvantage Democrats. The RSLC appropriately named their initiative the “REDistrictng MAjority Project,” or “Project REDMAP.” The goal of the project was simply to draw “new district lines in states with the most redistricting activity . . . to solidify conservative policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives for the next decade.” The report said that drawing district lines favorable to Republicans was at the core of this strategy. Republicans had great success in Michigan’s 2012 elections due in large part to the efforts of Republican legislators and map-drawers in the redistricting process in 2011.
In Michigan, redistricting must follow the “Apol” criteria. The criteria do not allow legislators to take political considerations into account when drawing maps. The map-makers say that they drew their maps to comply with the Apol criteria. But Judge Clay said the evidence “tells a much different story.” The evidence, he said, points to only one conclusion: partisan considerations played a central role in every aspect of the redistricting process.
Throughout the redistricting cycle, the map-makers regularly met with legislative leaders and incumbent Republican legislators. During these meetings, the map-makers presented incumbent Republicans with drafts of each legislator’s proposed district, discussed the boundaries and partisan makeup of each legislator’s proposed district, and solicited the incumbent’s preferences and/or desired changes to his or her district. Map-makers held these conversations even though they—and the Republican leadership for whom they worked—knew that protecting incumbents was not a permissible standard under the Apol criteria.
The drawer of the Senate maps, held meetings with and called each Republican senator between April and June 2011 to show them the partisan composition of their new district compared to their existing district. He never met with Democrats. The map-makers also shared draft maps with each other and strategized about how to best draw maps that advantaged Republicans. Democrats played no meaningful role in the 2011 redistricting process.
Judge Clay and the panel held that Plaintiffs proved that the Enacted Plan is a partisan gerrymander. Plaintiffs’ expert evidence overwhelmingly supported this conclusion, he wrote. Plaintiffs introduced expert testimony that employed several different statistical analyses and metrics to evaluate the partisan outcomes resulting from the Enacted Plan. This evidence clearly demonstrated that the Enacted Plan strongly and systematically advantaged Republicans and disfavored Democrats.
In reaching this conclusion, the Court didn’t rely primarily on any individual expert’s testimony or on any particular statistical measure. Instead it reached its determination after considering the totality of Plaintiffs’ wide-ranging and extensive expert evidence. All of this evidence pointed to the same conclusion: the Enacted Plan gave Republicans a strong, systematic, and durable structural advantage in Michigan’s elections and decidedly discriminates against Democrats.
Defendants challenged all of Plaintiffs’ experts, and offered their statistical expert, a Senior Research Programmer at the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign. Defendant’s expert received a B.S. in Computer Science, a M.E. in Computer Engineering, a M.C.S. in Computer Science, and a Ph.D. in Informatics. He published more than 40 research articles that are primarily in computer and computational sciences and the interdisciplinary science domains of scientific computing, geographic information science, and operations research. He specializes in developing scalable spatial analysis and optimization algorithms.
Defendant’s expert, made several criticisms of one of Plaintiff’s expert‘s findings. First, Defendant’s expert criticizes Plaintiff’s expert‘s entire simulation methodology.
Specifically, Defendant’s expert contended that Plaintiff’s expert‘s methodology was unreliable because:
- he didn’t provide a proper comparison set to prove that his data was reliable because the set that he did put forward was too small and wasn’t a random sample;
- his algorithm didn’t yield a random sample and consequently produced biased results;
- he lacked a theoretical basis for his work in either his statistical or operations research, and couldn’t make claims about optimization, outliers, or statistical certainty in his analysis;
- he problematically conflated small numerical differences as substantively important findings;
- he presented his results in a misleading manner by playing with the presentation of the plots;
- his argument for how to determine if a plan is drawn with partisan intent is logically flawed; and
- he made numerous errors throughout his analysis, including inconsistencies in his tables and in describing which data set was being used.
However, Judge Clay found that Plaintiff’s expert’s data was reliable, despite the opposing expert’s criticisms. He said that Plaintiff’s expert’s data had been peer reviewed, published in academic journals, and deemed credible and admissible in several other redistricting cases. Further, Defendant’s expert didn’t show that Plaintiff’s expert’s data would produce alternate results if Plaintiff’s expert’s methodology were altered in the way Defendant’s expert suggested. And Defendant’s expert neither personally generated any simulated maps nor evaluated the partisanship of Michigan’s maps under the Enacted Plan. Defendant’s expert’s examination of Plaintiff’s expert’s simulated maps merely consisted of an “eyeball assessment,” Judge Clay said.
Defendant’s expert claimed that if he had access to a version of Plaintiff’s expert‘s source code that was more easily readable, he could have found other “flaws” in Plaintiff’s expert‘s methodology. However, Judge Clay said there was no evidence that Plaintiff’s expert‘s findings were erroneous in any way, or that Defendant’s expert would have found that Plaintiff’s expert‘s methodology lacked credibility. Plaintiff’s expert‘s findings weren’t excludable just because Defendant’s expert didn’t receive Plaintiff’s expert‘s source code in the exact format that would have been ideal for him.
Based on the “robust” qualitative evidence of discriminatory partisan intent and the “equally powerful” quantitative evidence of discriminatory partisan intent and discriminatory partisan effects presented by Plaintiff’s expert, the Court concluded that the Enacted Plan was designed with the predominant purpose of advantaging Republicans and discriminating against Democrats. The Court also found that the Enacted Plan achieved its intended effects because it discriminated against Democratic voters in numerous elections across multiple election cycles. Therefore, the Enacted Plan constitutes a durable partisan gerrymander.
The motion to disqualify Plaintiff’s voting expert was denied.