What Michigan’s redistricting commission could do now that maps are complete

The independent commission that redrew Michigan’s political districts last year still hasn’t quite figured out when and how to wind down operations, but legal guidance presented to the panel last week outlined a few possible options on how to get there.

Michigan’s political maps have been finished since late December, and thus far have withstood legal challenges. Two federal cases challenging the commission’s work remain pending, and the 13-member panel continues to meet, discussing pending lawsuits, final reports and a looming $1.15 million budget deficit members are hoping the Legislature will resolve.

Complicating matters is the fact that there’s no clear expiration date listed in the 2018 constitutional amendment that created the commission, and it’s still costing taxpayers money.

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The constitutional amendment states that “the terms of the commissioners shall expire once the commission has completed its obligations for a census cycle but not before any judicial review of the redistricting plan is complete.” And legal challenges could pop up at any point during the next decade the maps are in effect. Commissioners are currently making an annual salary of $55,755 per year.

On Thursday, the commission’s legal counsel offered some options for how the panel could proceed. In a memo provided to commissioners by the firm Fink Bressack, attorneys wrote a court would likely conclude commissioners’ terms expire when pending litigation is complete.

“Had the drafters of the Amendment intended to extend the terms of the Commissioners until a new Commission was seated, they could have stated so explicitly,” the memo reads. 

Commissioner Steve Lett, one of the panel’s five independents, said the counsel’s report is for informational purposes at this point. The group will likely discuss how to proceed at a meeting later this summer once members have had a chance to consider the options.

Option one: Reconvene the commission with new members for future legal challenges

If a lawsuit is filed challenging an existing map after commissioners’ terms have expired, the Secretary of State may need to select new commissioners to deal with it. 

Even if the commissioners’ terms expire, the commission itself doesn’t cease to exist and has a legal obligation to defend the maps should other lawsuits come up, meaning a new crop of commissioners could be selected down the line if current commissioners are no longer active.

The legal memo suggests this likely wouldn’t require the department to solicit new applications for the role and begin the selection process anew, but rather fill existing vacancies on the commission by randomly drawing from the pool of remaining applicants for the latest redistricting cycle. 

The panel’s counsel suggested the commission could argue in future legal challenges that “the people of this state approved the language … because they wanted finality, thus any legal challenge after the terms of the current Commissioners expire is simply too late.” 

“We understand that the practical reality of reconvening the Commission with new Commissioners raises significant concerns,” the memo reads. “This could leave the question of who defends the plan to the mere happenstance of when the suit is filed.”

Option two: Authorize the Secretary of State to handle future lawsuits

Because the constitutional amendment doesn’t explicitly say whether a full commission needs to be seated to handle any future lawsuits, the commissioners could in theory authorize the Secretary of State to defend future legal challenges without reconvening the commission, per the legal memo. 

If the courts order maps redrawn after current commissioners’ terms expire mid-cycle, the Secretary of State would be obligated to reconvene the commission, attorneys concluded.

Option three: Retain subject matter experts, legal counsel

Commissioners could choose to keep legal counsel and subject matter experts on hand even after their terms expire to defend against future legal challenges.

The memo stated procuring new attorneys and experts without the institutional knowledge of current counsel could mean additional time and costs in the event of future lawsuits, suggesting the commission could approve a refundable retention payment to keep them on hand in the event a legal challenge arises down the line. 

If the commission chooses to go this route, those agreements should expire upon the convening of the next commission, the memo reads. 

Option four: Reduce commission pay

Commissioners are constitutionally obligated to be paid at least 25 percent of the governor’s salary for their work drawing the maps, or $39,825. 

Although an argument could be made that this guarantees each commissioner makes that amount prorated on an annual basis for the entire term served, “that would dictate extraordinary compensation for each Commissioner during extended periods of relative inactivity after all the obligations of the Commissioners have been completed other than the defense of ongoing litigation,” the panel’s attorneys wrote. 

The memo states that the guarantee more likely means the minimum compensation is at least 25 percent of the governor’s salary for one year. 

Because the commissioners have already received more than the guaranteed amount of compensation after votes to raise their salaries, the Commission could choose to reduce Commissioners’ current compensation “as much as it deems appropriate,” the memo reads.

Any newly-selected commissioners would be entitled to compensation of at least 25 percent of the governor’s salary, the memo concludes.

Option five: Sue the Legislature if it doesn’t pay up

The commission is facing a projected $1.15 million budget shortfall, largely due to outstanding legal bills that came up in the commission's defense of the new maps. The commission’s initial appropriation was 25 percent of the Secretary of State budget – roughly $3.1 million for this fiscal year – although the constitution states the Legislature “shall appropriate funds sufficient to compensate the commissioners and to enable the commission to carry out its functions.”

The commission appealed to the Legislature for additional funds as part of the budget appropriations process, which is ongoing. 

In the event the Legislature refuses to appropriate funds to defend the maps, including to defend mid-cycle litigation, “the Commission may pursue legal action against the Legislature ‘regarding the adequacy of resources provided for the operation of the commission,’” the legal memo reads.