Michigan selects its legislative redistricting commissioners the way the ancient Athenians did
- Written by John Rothchild, Professor of Law, Wayne State University
How well can ordinary citizens exercise a political function traditionally assigned to elected legislators?
Michigan is finding out. The state has assigned the job of drawing election districts to a group of citizens with no special qualifications. Selecting government officials by lot is a procedure first employed in Athens 2,500 years ago[1]. This experiment has produced dramatic results – as well as a court challenge.
The Michigan experiment marks a departure from how redistricting has usually been done.
Every 10 years, after the U.S. Census Bureau determines how many members of the House of Representatives are allocated to each state, the states redraw the geographical districts from which members of the House, as well as members of the state legislature, are elected. Historically, state legislatures have been responsible for making these maps.
But throughout U.S. history, the redistricting process has been marred by partisan gerrymandering[2] – drawing election districts to favor the political party that controls the state legislature.
Gerrymandering has often been challenged in court[3] as a violation of the Constitution’s equal protection clause and on other grounds. But in 2019, the U.S. Supreme Court held[4] that federal courts may not hear claims of partisan gerrymandering because they represent a “political question” that is unsuited for resolution by the courts.
The high court held that such issues should instead be resolved by the legislative and executive branches of government.
Eight states have withdrawn the authority[5] to draw election districts from legislatures and assigned it to independent commissions. The procedures for selecting the members of these commissions vary, but in most states they are chosen by state legislators or judges.
Michigan’s Independent Citizens Redistricting Commission[6], created by a 2018 ballot initiative[7], is unique. As a professor who teaches constitutional law[8] and, occasionally, ancient Athenian law[9], I am fascinated by the fact that Michigan’s seemingly novel experiment in governance is based on a process that is thousands of years old.
Selection by lot
Unlike any other state, Michigan selected its 13 commission members almost entirely by lot from among those who applied for the position.
All Michigan registered voters who met the eligibility criteria, which excluded holders of political office and lobbyists, were eligible to apply.
From 9,367 applicants[10], the Michigan secretary of state randomly selected 200 semifinalists. The process resulted in 60 Democrats, 60 Republicans and 80 independents. Following the procedure established by the ballot initiative, the four leaders of the Michigan Legislature then eliminated 20 of those semifinalists.
In August 2020, the secretary of state randomly selected the 13 commissioners[11] from the remaining pool of 180 candidates – four Democrats, four Republicans and five independents, as required.
In a process completed in December 2021, the commission – made up of citizens with no special qualifications for the office – created election districts that were used to elect officials to the Michigan Legislature and the U.S. House of Representatives in the 2022 election cycle.
Random selection in ancient Athens
With the exception of trial juries, the random selection of citizens to fill government office is almost unheard of. But it was not always that way.
Random selection was a prominent feature of the ancient Athenian democracy[13]. In the fifth and fourth centuries B.C., most important government offices were filled by lottery. The Athenians considered this selection of officials a hallmark of democracy.
These included the 500 members of the Council[14]. This body proposed legislation for the agenda of the Assembly, composed of all free male adult citizens who chose to attend and the centerpiece of Athenian direct democracy. It also handled diplomatic relations between Athens and other states and appointed the members of administrative bodies.
Those selected by lot also included the nine chief officials of the city-state, the archons[15], who had executive and judicial responsibilities. About 1,100 officials were selected annually by lot from a citizen population of about 25,000.
The Athenian historian Xenophon tells us that the philosopher Socrates, who was sentenced to death by an Athenian jury for his unorthodox views, thought that the Athenians were foolish to entrust the selection of the bulk of government officials to chance: Nobody would select “a pilot or builder or flautist by lot[16],” Socrates observed, so why trust to chance the selection of government officials who, if unsuited to their responsibilities, could harm the community?
The Athenians agreed with Socrates to an extent. In Athens, an additional 100 or so officials were elected by the Assembly, not selected by lot. They included the 10 generals responsible for commanding the army and navy. The Athenians thought the generals’ role was too important, and too dependent on skills possessed by few citizens, to allow the choice to be made randomly.
How did Michigan’s redistricting commission do?
Like piloting a ship or commanding an army, districting is a complex task. The 2018 amendment to the Michigan Constitution[17] that established the commission says that the districts must be drawn in compliance with federal law. That includes a requirement that voting districts have roughly the same populations. It also requires that the districts “reflect the state’s diverse population and communities of interest” and “not provide a disproportionate advantage to any political party.”
Dividing the map to meet all of these criteria is not within the capabilities of a group of randomly selected citizens. Recognizing this, the 2018 amendment authorizes the commission to hire “independent, nonpartisan subject-matter experts and legal counsel” to assist them. The experts that the commission hired guided its members closely[18] throughout the redistricting process.
The outcome of the 2022 elections supports a conclusion that the commission achieved the goals that motivated its creation.
A 2018 report[19] by the nonpartisan Citizens Research Council of Michigan found that the state’s election districts were “highly-gerrymandered, with current district maps drawn so that Republicans are ensured disproportionate majorities on both the state and federal levels.” In 2019 a federal court[20] held that Michigan’s gerrymandering violated the U.S. Constitution. That opinion was later vacated, or canceled, for jurisdictional reasons.
This gerrymandering was reflected in election results. In recent elections preceding the 2022 redistricting, Democratic candidates for the Michigan House of Representatives received a majority of the votes cast, yet a majority of the candidates elected were Republican[21]. But in the 2022 elections, the first held using the redistricting commission’s maps, Democratic candidates for both the Michigan Senate and House won a majority of the votes and were awarded a majority of the seats: 20-18 in the Senate and 56-54 in the House[22]. Democrats control both houses of the state Legislature for the first time since 1984[23].
Legal challenge to redistricting commission’s maps
While the redistricting commission can claim success in eliminating the state’s partisan gerrymandering, in December 2023 a federal district court held[24] that the procedure the commission followed in drawing some of the election districts violated the U.S. Constitution.
The court said that the commission violated the equal protection clause when it drew boundaries for seven state House and six state Senate districts in metro Detroit in such a way that the voting power of Black voters was diluted[25].
The commission filed an appeal with the U.S. Supreme Court, but the court denied the commission’s request for a stay[26] of the lower court’s order. The commission is now working to redraw the districts, and the lower court has ordered it to have a draft of the state House districts ready for public comment by Feb. 2. Time is now of the essence, since under state law the candidate filing deadline is April 23.
Portions of this article originally appeared in an article published on Sept. 30, 2020[27].
References
- ^ first employed in Athens 2,500 years ago (blog.oup.com)
- ^ partisan gerrymandering (www.americanprogress.org)
- ^ Gerrymandering has often been challenged in court (www.brennancenter.org)
- ^ the U.S. Supreme Court held (www.oyez.org)
- ^ Eight states have withdrawn the authority (ballotpedia.org)
- ^ Independent Citizens Redistricting Commission (www.michigan.gov)
- ^ 2018 ballot initiative (votersnotpoliticians.com)
- ^ constitutional law (law.wayne.edu)
- ^ ancient Athenian law (dx.doi.org)
- ^ From 9,367 applicants (www.michigan.gov)
- ^ randomly selected the 13 commissioners (www.mlive.com)
- ^ Philipp Foltz (www.rijksmuseum.nl)
- ^ feature of the ancient Athenian democracy (www.ancient.eu)
- ^ 500 members of the Council (www.stoa.org)
- ^ the archons (erenow.net)
- ^ Nobody would select “a pilot or builder or flautist by lot (www.perseus.tufts.edu)
- ^ 2018 amendment to the Michigan Constitution (tinyurl.com)
- ^ guided its members closely (www.bridgemi.com)
- ^ 2018 report (www.michiganradio.org)
- ^ federal court (www.detroitnews.com)
- ^ a majority of the candidates elected were Republican (votersnotpoliticians.com)
- ^ 20-18 in the Senate and 56-54 in the House (www.nytimes.com)
- ^ the first time since 1984 (michiganadvance.com)
- ^ a federal district court held (law.justia.com)
- ^ the voting power of Black voters was diluted (www.bridgemi.com)
- ^ denied the commission’s request for a stay (www.detroitnews.com)
- ^ an article published on Sept. 30, 2020 (theconversation.com)
Authors: John Rothchild, Professor of Law, Wayne State University
