Daunt v. Benson

999 F.3d 299

Anthony DAUNT, Tom Barrett, Aaron Beauchine, Kathy Berden, Stephen Daunt, Gerry Hildenbrand, Gary Koutsoubos, Linda Lee Tarver, Patrick Meyers, Marian Sheridan, Mary Shinkle, Norm Shinkle, Paul Sheridan, Bridget Beard, Clint Tarver (19-cv-00614), Plaintiffs-Appellants,

Michigan Republican Party (19-cv-00669), Plaintiff,

v.Jocelyn BENSON, in her official capacity as Michigan Secretary of State; Count MI Vote, doing business as Voters Not Politicians, Defendants-Appellees.

No. 20-1734

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2021

Decided and Filed: May 27, 2021

KAREN NELSON MOORE, Circuit Judge.

Even before the Supreme Court declared the issue of partisan gerrymandering a nonjusticiable political question in Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 2491, 204 L.Ed.2d 931 (2019), some states had begun to address the issue head on. This case involves one such endeavor: Michigan's Independent Citizens Redistricting Commission (the "Commission"), which was established by ballot initiative in the state's 2018 general election. The Commission is composed of thirteen registered voters—eight who affiliate with the state's two major political parties (four per party) and five who are unaffiliated with those parties—who must satisfy various eligibility criteria designed to ensure that they lack certain political ties.

Plaintiffs here are Michigan citizens who allege that they are unconstitutionally excluded from serving on the Commission by its eligibility criteria, in violation of the First and Fourteenth Amendments to the U.S. Constitution. They appeal the district court's dismissal of their Complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). We rejected similar—if not identical—arguments to those that Plaintiffs raise here when we affirmed the district court's earlier denial of Plaintiffs’ motion for a preliminary injunction in Daunt v. Benson , 956 F.3d 396 (6th Cir. 2020) (" Daunt I "). Plaintiffs’ arguments are no more persuasive this time around. For the reasons that follow, we hold that the Commission's eligibility criteria do not offend the First or Fourteenth Amendments, and therefore we AFFIRM the judgment of the district court.

I. BACKGROUND

On November 6, 2018, Michiganders went to the polls and voted in favor of Proposal 18-2 on their general-election ballots. That proposal—filed by defendant-intervenor Count MI Vote d/b/a Voters Not Politicians ("VNP")—called for a state constitutional amendment "to establish a commission of citizens with exclusive authority to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress." Michigan Board of State Canvassers, Official Ballot Wording approved by the Board of State Canvassers, August 30, 2018, Voters Not Politicians , https://www.michigan.gov/documents/sos/Official_Ballot_Wording_Prop_18-2_632052_7.pdf.

The commission would be composed of thirteen registered voters, randomly selected by the Secretary of State, of whom four each would be affiliated with Michigan's two "major political parties" and five would be unaffiliated with those two parties. Id. Pursuant to the Proposal, "partisan officeholders and candidates, their employees, certain relatives, and lobbyists" would be prohibited from serving on the Commission. Id. The Proposal also called for the amendment to "[e]stablish new redistricting criteria including geographically compact and contiguous districts of equal population, reflecting Michigan's diverse population and communities of interest. Districts shall not provide disproportionate advantage to political parties or candidates." Id.

Consistent with Proposal 18-2, Michigan's constitution was amended effective December 22, 2018, to establish the Commission and new redistricting criteria. See Mich. Const. art. IV, § 6 (the "Amendment"). The Commission is made up of the aforementioned thirteen registered voters in the requisite four-four-five division. See id. § 6 (1). The Amendment sets forth eligibility criteria for commissioners, who must not be currently, or have been in the past six years:

(i) A declared candidate for partisan federal, state, or local office;

(ii) An elected official to partisan federal, state, or local office;

(iii) An officer or member of the governing body of a national, state, or local political party;

(iv) A paid consultant or employee of a federal, state, or local elected official or political candidate, of a federal, state, or local political candidate's campaign, or of a political action committee;

(v) An employee of the legislature;

(vi) Any person who is registered as a lobbyist agent with the Michigan bureau of elections, or any employee of such person; or

(vii) An unclassified state employee who is exempt from classification in state civil service pursuant to article XI, section 5, except for employees of courts of record, employees of the state institutions of higher education, and persons in the armed forces of the state[.]

Id. at § 6(1)(b).¹ In addition, the Amendment bars from the Commission "a parent, stepparent, child, stepchild, or spouse" of an individual in any of the above categories. Id. at § 6(1)(c). Commissioners are ineligible for partisan elected offices in Michigan for five years from the day of their appointment. Id. at § 6(1)(e).

The Amendment provides a detailed procedure for the selection of commissioners. The Secretary of State is to make commissioner applications available to the public no later than January 1 of the year that the decennial census is to take place. Id. at § 6(2)(a)(i). As part of the application, prospective commissioners must "attest under oath" that they satisfy the Amendment's eligibility criteria and "either that they affiliate with one of the two political parties with the largest representation in the legislature (hereinafter, the ‘major parties’), and if so, identify the party with which they affiliate, or that they do not affiliate with either of the major parties." Id. at § 6(2)(a)(iii). After eliminating incomplete applications and those applicants who do not satisfy the eligibility criteria, the Secretary of State divides the applications into pools for those affiliated with each of the state's two major political parties and a third pool for unaffiliated candidates. Id. at § 6(2)(d). The Secretary of State then randomly selects sixty applications from each of the affiliated pools and eighty applications from the unaffiliated pool, using a statistical weighting method to ensure that each of the three remaining sets "as closely as possible, mirror the geographic and demographic makeup of the state." Id. Once the Secretary of State has completed this process, she submits the applications to the majority and minority leaders of the state senate, the speaker of the state house of representatives, and the minority leader of the state house of representatives, each of whom may strike up to five applicants (up to twenty total strikes across the remaining applications). Id. at § 6(2)(e). The remaining applications are returned to the Secretary of State, who "shall randomly draw the names of four commissioners from each of the two pools of remaining applicants affiliating with a major party, and five commissioners from the pool of remaining non-affiliating applicants." Id. at § 6(2)(f). These thirteen commissioners hold office until the "Commission has completed its obligations for the census cycle," id. at § 6(18), and receive "compensation equal to at least [twenty-five] percent of the governor's salary," id. at § 6(5).

With respect to the Commission's operations, "[a] final decision of the [C]ommission to adopt a redistricting plan requires a majority vote of the [C]ommission, including at least two commissioners who affiliate with each major party, and at least two commissioners who do not affiliate with either major party." Id. at § 6(14)(c). Commissioners are required to "abide by the following criteria in proposing and adopting" these plans:

(a) Districts shall be of equal population as mandated by the United States constitution, and shall comply with the voting rights act and other federal laws.

(b) Districts shall be geographically contiguous. Island areas are considered to be contiguous by land to the county of which they are a part.

(c) Districts shall reflect the state's diverse population and communities of interest. Communities of interest may include, but shall not be limited to, populations that share cultural or historical characteristics or economic interests. Communities of interest do not include relationships with political parties, incumbents, or political candidates.

(d) Districts shall not provide a disproportionate advantage to any political party. A disproportionate advantage to a political party shall be determined using accepted measures of partisan fairness.

(e) Districts shall not favor or disfavor an incumbent elected official or a candidate.

(f) Districts shall reflect consideration of county, city, and township boundaries.

(g) Districts shall be reasonably compact.

Id. § 6(13). Before voting on a plan, "the commission shall ensure that the plan is tested, using appropriate technology, for compliance with the criteria described above." Id. at § 6(14)(a). Each commissioner is to "perform his or her duties in a manner that is impartial and reinforces public confidence in the integrity of the redistricting process." Id. at § 6(10).

On July 30, 2019, Plaintiffs initiated this lawsuit against Michigan Secretary of State Jocelyn Benson shortly after she released a draft of the commissioner application. See R. 1 (Compl. at ¶ 33) (Page ID #13–14). Each Plaintiff alleges that they "desire to serve on the Commission" but are barred because of their past or present partisan ties. See id. at ¶¶ 2, 39 (Page ID #3, 17). For example, Anthony Daunt alleges that he has served as a registered lobbyist in Michigan since 2013, a member and officer of the Clinton County...