The Mitten Memo. A blog by Nick Krieger.
In May 1964, the Michigan Supreme Court had ordered the bipartisan apportionment commission to adopt the legislative redistricting plan proposed by Commissioner William F. Hanna of Muskegon (later an Oceana County Prosecuting Attorney), finding that it most closely followed the requirements of the new state constitution. To recap from last week, the newly ratified Michigan Constitution essentially required the creation of 110 state house districts of equal population, but specified that the state’s 38 senate districts would be drawn on the basis of both population and geographic area. The so-called “Hanna plan” largely complied with these hybrid population/area standards.
Then, on June 15, 1964, the United States Supreme Court issued its decision in the landmark case of Reynolds v. Simms. In Reynolds, the U.S. Supreme Court applied its 1962 decision in Baker v. Carr to a new factual scenario—analyzing the vast population divergence among Alabama’s state legislative districts. After discussing the purpose of state legislatures and the history of state districting schemes, the Court observed that “[f]ull and effective participation by all citizens in state government requires . . . that each citizen have an equally effective voice in the election of members of his state legislature.” According to Chief Justice Earl Warren, a state apportionment scheme in which a larger, more-populous district was entitled to elect the same number of state senators or representatives as a smaller, less-populated district unfairly diluted the voting strength of each individual living in the larger district. In the end, the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment “requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis” and that every state must make “an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.”
Following the U.S. Supreme Court’s decision in Reynolds, the Michigan Supreme Court set aside its earlier order directing the apportionment commission to adopt the Hanna plan. The Michigan court directed the commission to adopt a brand new plan based entirely on districts of equal population in accordance with the principles announced in Reynolds.
By a vote of 4-to-3, the Michigan Supreme Court ultimately ordered the apportionment commission to adopt the redistricting plan proposed by Democratic Commissioners Richard H. Austin of Detroit (later Michigan’s Secretary of State) and A. Robert Kleiner of Grand Rapids. The so-called “Austin-Kleiner plan” was deemed objectionable by the Republican members of the apportionment commission because it included districts that were not necessarily compact and contiguous; it also split certain counties, townships, and municipalities in the creation of legislative districts. Nevertheless, the Austin-Kleiner plan called for state house and senate districts of roughly equal population and was therefore more consistent with the U.S. Supreme Court’s directives in Reynolds than any other plan pending before the commissioners.
The apportionment commission adopted the Austin-Kleiner plan as directed by the Michigan Supreme Court, and Michigan’s 1964 legislative elections were conducted under that arrangement.
The next year, Republican attorney Max Badgley of Jackson and several other citizens petitioned the Michigan Supreme Court to review the Austin-Kleiner plan. They argued that the Austin-Kleiner plan, as adopted in 1964, was gerrymandered to unfairly maximize the number of Democratic legislative districts. A majority of the Michigan Supreme Court justices agreed, sending the matter of redistricting back to the apportionment commission and directing the commission to complete a new redistricting plan within a set time. Writing separately, Justice Theodore Souris opined that nearly all the legislative-apportionment provisions of the new Michigan Constitution—including the provision establishing the bipartisan apportionment commission—were void in light of the U.S. Supreme Court’s decision in Reynolds. Although the other members of the Court did not share Justice Souris’s opinion at that time, his beliefs would eventually win the day.
Following remand by the Michigan Supreme Court, the apportionment commission deadlocked along party lines. The four Democratic commissioners continued to insist on the Austin-Kleiner plan. The four Republican commissioners submitted their own alternative plan. After a great deal of litigation, a majority of Michigan’s justices failed to adopt either of these two plans. Therefore, by default, the Democratic Austin-Kleiner plan was left in place for the balance of the 1960s. The apportionment commission was adjourned until the next federal census.
After the census of 1970, the legislative apportionment commission was impaneled once more. As in the 1960s, the apportionment commission deadlocked along party lines, a majority of the commissioners failed to agree on a plan, and the matter was referred to the Michigan Supreme Court. On May 4, 1972, in an opinion written by Chief Justice Thomas M. Kavanagh, a four-justice majority of the Court adopted the redistricting plan put forward by the Democratic apportionment commissioners. In many ways, this was unsurprising since the Court’s four-justice majority consisted entirely of past Democratic statewide officials: former Governor G. Mennen Williams (D-Grosse Pointe), former Governor John Swainson (D-Manchester), former Attorney General Thomas M. Kavanagh (D-Carson City), and former Attorney General Paul Adams (D-Laingsburg). Justice Souris had retired by 1972. But in dissent, Justice Thomas Giles Kavanagh (not to be confused with Chief Justice Thomas M. Kavanagh) echoed Souris’s previous concerns, asserting that the legislative-apportionment provisions of the Michigan Constitution of 1963 were void and that the Court should not be considering the matter of legislative redistricting at all.
The Democratic redistricting plan adopted by the Michigan Supreme Court majority in May 1972 remained in place throughout the 1970s.
After the federal census of 1980, Michigan’s bipartisan apportionment commission convened one last time. Predictably, the eight commissioners deadlocked along party lines and failed to agree on a plan to redistrict the Legislature. But by 1982, when the matter reached the Michigan Supreme Court, it was apparent that the justices had grown weary of intervening in the commissioners’ political squabbles every ten years. Moreover, the political makeup of the Court had changed: there were now three justices nominated by the Democratic party, three nominated by the Republican party, and one independent. The justices unanimously agreed to bring Michigan’s recurring legislative-apportionment fiasco to an end. This time things would be different.
Nick Krieger is a graduate of Ludington High School, earned a bachelor’s degree from Michigan State University, and holds a law degree and master’s degree from Wayne State University Law School. Nick works as an attorney for the Michigan Court of Appeals and owns a home in Ludington. The viewpoints expressed in The Mitten Memo are Nick’s own, and do not reflect the views of the Michigan Court of Appeals or Media Group 31, LLC and its affiliates: Mason County Press, Manistee County Press and Oceana County Press. Contact Nick via e-mail at [email protected] or follow him on Twitter at @nckrieger.