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Date: 05-24-2019
Case Style:
League of Women Voters of Michigan, et al. v. Jocelyn Benson, in her capacity as Michigan Secretary of State, et al.
Case Number: 2:17-cv-14148
Judge: Clay
Court: United States District Court for the Eastern District of Michigan (Wayne County)
Plaintiff's Attorney: Mark C. Brewer, Kerry Lou Bundy and Matthew Kunkel Griffin
Defendant's Attorney: Michael A. Carvin
Description:
The League of Women Voters of Michigan (“League”),
numerous League members (“League Plaintiffs”), and several Democratic voters (“Individual
Plaintiffs”) bring suit against Jocelyn Benson, the Michigan Secretary of State in her official
capacity, under 42 U.S.C. §§ 1983 and 1988, alleging that Michigan’s current legislative
apportionment plan (the “Enacted Plan”), which the state legislature implemented as Michigan
Public Acts 128 and 129 of 2011, violates Plaintiffs’ Fourteenth Amendment equal protection
rights and First Amendment free speech and association rights by deliberately discriminating
against Democratic voters.1 (See Compl., ECF No. 1.)
After Plaintiffs filed suit, several parties moved to intervene. Ultimately, intervention was
granted to several of the Republican members of Michigan’s United States congressional
delegation and two Republican state house members (together “Congressional and State House
1 When referring to the League, League Plaintiffs, and Individual Plaintiffs together, the Court uses the term “Plaintiffs.” When referring only to the League Plaintiffs and the Individual Plaintiffs, separate from the League as an organization, the Court uses the term “Voters.”
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Intervenors”) (see ECF Nos. 103, 157) and to numerous Republican state senators and the
Michigan Senate as a whole (together “Senate Intervenors”) (see ECF No. 237).2
Plaintiffs initially sought to invalidate the entire Enacted Plan. (See Compl.) However,
they have since narrowed their claims to 34 congressional, House, and Senate districts (the
“Challenged Districts”).3
The Court held a trial on Plaintiffs’ claims. (See Trial Trs., ECF Nos. 248, 249, 250.) In
addition to presenting witnesses at trial, the parties submitted hundreds of exhibits and deposition
testimony from numerous witnesses in lieu of in-person testimony, pursuant to the Court’s order,
which reflected the parties’ stipulation about the presentation and admissibility of evidence. (See
Order Re: Parties’ Partial Stipulations and Report, ECF No. 234.) The parties also filed post-trial
briefs, including proposed findings of fact and proposed conclusions of law.4 (See ECF Nos. 254,
255, 256, 257, 258.) The Court has carefully considered all the evidence.
2 We initially denied the Congressional Intervenors’ motion to intervene, in large part because we concluded that they lacked a property interest in their elected offices and merely asserted a generalized interest in the litigation. (ECF No. 47.) The Sixth Circuit reversed, concluding that we should have granted the motion on the basis of permissive intervention. See League of Women Voters of Mich. v. Johnson, 902 F.3d 572, 578–80 (6th Cir. 2018). The Sixth Circuit found no need to decide whether the Congressional Intervenors possessed a “substantial legal interest” supporting intervention as of right, id. at 579 (internal quotations marks and alteration omitted), but concluded that Congressional Intervenors’ interests were sufficiently distinct from the Secretary’s and the general citizenry’s interests to warrant permissive intervention. Id. at 580. We later denied the State House Intervenors’ motion to intervene in their official capacities primarily because defense of a state law is a governmental function assigned to the executive branch. (ECF No. 91.) The Sixth Circuit reversed, citing the parties’ agreement that intervention was proper in light of the Sixth Circuit’s prior decision. (ECF No. 166.) Finally, we granted the Senate Intervenors’ motions to intervene because they arguably met the requirements for intervention as of right in light of the Sixth Circuit’s earlier decisions. (ECF No. 237.) 3 The term “Congress” refers to the United States House of Representatives, and the term “congressional” refers to the districts and overall map used to elect Michigan’s delegation to the United States Congress. “Senate” refers to Michigan’s state senate, Michigan’s upper chamber. “House” refers to Michigan’s state house of representatives, Michigan’s lower chamber. 4 The parties’ proposed findings of fact and conclusions of law total 768 pages. This figure does not include the thousands of pages of underlying deposition testimony, expert reports, and exhibits that the parties cite in their post-trial briefs.
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Today, this Court joins the growing chorus of federal courts that have, in recent years,
held that partisan gerrymandering is unconstitutional. We find that the Enacted Plan violates
Plaintiffs’ First and Fourteenth Amendment rights because it deliberately dilutes the power of
their votes by placing them in districts that were intentionally drawn to ensure a particular
partisan outcome in each district. See Gill v. Whitford, 138 S. Ct. 1916, 1929–31 (2018). The
Enacted Plan also injures Plaintiffs’ First Amendment right to association by discriminating
against them and their political party and subjecting them to “disfavored treatment by reason of
their views.” Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the
judgment). Because we find that these constitutional violations will reoccur if future elections are
held under the Enacted Plan, we HEREBY ENJOIN the use of the Challenged Districts in any
future election.
INTRODUCTIONI.
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.” Ariz. State Leg.
v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2658 (2015). “By definition, partisan
gerrymandering amounts to an effort to dictate electoral outcomes by favoring candidates of one
party and disfavoring candidates of another.” Common Cause v. Rucho, 318 F. Supp. 3d 777,
800 (M.D.N.C. 2018) (three-judge panel) (citing U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 833–34 (1995)). Partisan gerrymandering thus violates the core purpose of legislative
apportionment—providing “fair and effective representation for all citizens.” Reynolds v. Sims,
377 U.S. 533, 565 (1964).
The Supreme Court has acknowledged that partisan gerrymandering is “incompatible . . .
with democratic principles.” Ariz. State Leg., 135 S. Ct. at 2658 (quoting Vieth, 541 U.S. at 292
(plurality opinion)). It violates “the core principle of republican government . . . that the voters
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should choose their representatives, not the other way around.” Id. at 2652 (internal quotation
marks and citation omitted). Lower federal courts have also noted that partisan gerrymandering
diminishes our democracy, aptly describing it as a “noxious” practice that “has no place in a
representative democracy[,]” Shapiro v. McManus, 203 F. Supp. 3d 579, 600 (D. Md. 2016)
(Bredar, J. dissenting) (three-judge panel) (internal citation omitted); a “cancerous” problem that
“undermin[es] the fundamental tenets of our form of democracy,” Benisek v. Lamone, 266 F.
Supp. 3d 799, 818 (D. Md. 2017) (three-judge panel), aff’d, 138 S. Ct. 1942 (2018); and a
phenomenon “widely considered to be repugnant to representative democracy.” Benisek v.
Lamone, 348 F. Supp. 3d 493, 511 (D. Md. 2018) (three-judge panel).
Drawing district lines is an inherently political process. See Gaffney v. Cummings, 412
U.S. 735, 753 (1973) (“The reality is that districting inevitably has and is intended to have
substantial political consequences.”) And “because the Constitution commits district
apportionment to political departments [and] it is quintessentially a political process . . . courts
cannot invalidate a redistricting map merely because its drafters took political considerations into
account in some manner.” Benisek, 348 F. Supp. 3d at 511 (citing Gaffney, 412 U.S. at 752–53).
But, as a recent three-judge panel explained,
the political nature of redistricting does not “immunize state congressional apportionment laws which debase a citizen’s right to vote from the power of courts to protect the constitutional rights of individuals from legislative destruction, a power recognized at least since our decision in Marbury v. Madison [1 Cranch 137, 2 L.Ed. 60 (1803)] . . . . The right to vote is too important in our free society to be stripped of judicial protection.”
Id. (quoting Wesberry v. Sanders, 376 U.S. 1, 6–7 (1964) (citations omitted)). As Justice Kagan
recently observed, “the need for judicial review is at its most urgent in [partisan gerrymandering]
cases” because “politicians’ incentives conflict with voters’ interests, leaving citizens without
any political remedy for their constitutional harms.” Gill, 138 S. Ct. at 1941 (Kagan, J.,
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concurring). Partisan gerrymandering “enables politicians to entrench themselves in power
against the people’s will. And only the courts can do anything to remedy the problem, because
gerrymanders benefit those who control the political branches.” Id. at 1935 (Kagan, J,
concurring).
Federal courts must not abdicate their responsibility to protect American voters from this
unconstitutional and pernicious practice that undermines our democracy. Federal courts’ failure
to protect marginalized voters’ constitutional rights will only increase the citizenry’s growing
disenchantment with, and disillusionment in, our democracy, further weaken our democratic
institutions, and threaten the credibility of the judicial branch. See Vieth, 541 U.S. at 310
(predicting that “[a] determination by the Court to deny all hopes of intervention” in partisan
gerrymandering cases “could erode confidence in the courts”). Judges—and justices—must act
in accordance with their obligation to vindicate the constitutional rights of those harmed by
partisan gerrymandering.
FACTSII.
A. The Enacted Plan
The Michigan Constitution provides that the Michigan legislature shall redraw
Michigan’s congressional and state legislative districts by November 1, 2001, and every ten
years thereafter. See Mich. Comp. Laws §§ 3.62, 4.261. This directive ensures that Michigan
legislators will have the benefit of the decennial federal census and population data when they
redraw the legislative maps.
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As the release of the 2010 census data approached, the Republican State Leadership
Committee (“RSLC”)5 engaged in a national effort to ensure that states redrew their
congressional lines during the 2011 redistricting cycle to favor Republican candidates and
disadvantage Democrats. The RSLC appropriately named their initiative the “REDistrictng
MAjority Project,” or “Project REDMAP.” (See Pls.’ Trial Ex. 477.) According to a 2013 report
from the RSLC, they raised $30 million towards Project REDMAP from 2009 to 2010. (Pls.’
Trial Ex. 270 at 2.) The goal of Project REDMAP was simple: “[d]rawing 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.” (Id.) The report explained that drawing district lines favorable to Republicans was at the
core of this strategy. (Id.) According to the report, “all components of a successful congressional
race . . . rest in the congressional district lines, and this was an area where Republicans had an
unquestioned advantage [in the 2012 elections].” (Id. at 1.)
James Bolger, a Republican who at the time served as Speaker of the Michigan House of
Representatives, worked closely with the RSLC during the 2011 redistricting cycle. Bolger stated
that REDMAP materials were “ubiquitous” during the 2011 redistricting cycle and that he had
seen redistricting materials from the RSLC “many times.” (Bolger Dep. at 294:24–295:14.)
Bolger testified that he has attended approximately ten RSLC-related events. (Id. at 274:1–7.) He
also served as Chairman of the Executive Committee of the Republican Legislative Campaign
Committee, a caucus group of the RSLC. (Id. at 273:15–25.) According to Randy Richardville, a
Republican who served as the Michigan Senate’s Majority Leader during the 2011 redistricting
cycle, Bolger was “pretty involved” in these groups. (See Richardville Dep. at 36:19–37:5.)
5 The RSLC describes itself as “the largest caucus of Republican state leaders and the only national organization whose mission is to elect down ballot, state-level Republican officeholders.” (Pls.’ Trial Ex. 477.)
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Project REDMAP proved wildly successful both nationally and in Michigan. As the
RSLC said in its 2013 report, in the 113th Congress, elected in November 2012 during the first
elections after the 2011 redistricting cycle, “Republicans enjoy[ed] a 33-seat margin” nationally
despite the fact that “voters pulled the lever for Republicans only 49 percent of the time in
congressional races, suggesting that 2012 could have been a repeat of 2008” when Democrats
won the United States House of Representatives. (Pls.’ Trial Ex. 270 at 1.) Further, the report
found that “[t]he effectiveness of REDMAP is perhaps most clear in the state of Michigan.” (Id.
at 3.) The REDMAP report explained that while “[t]he 2012 election was a huge success for
Democrats at the statewide level in Michigan[,]” with voters “elect[ing] a Democratic U.S.
Senator by more than 20 points and reelect[ing] President Obama by almost 10 points . . .
Republicans at the state level maintained majorities in both chambers of the legislature and
voters elected a 9-5 Republican majority to represent them in Congress.” (Id. at 3–4.)
Republicans enjoyed 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. The
passage of the Enacted Plan represented the culmination of a calculated initiative by Michigan’s
Republican legislators and map-makers, in the 2011 redistricting cycle, to deliberately draw
Michigan’s legislative districts to maximize Republican advantage and, consequently,
disadvantage Democratic voters, Democratic candidates, and the Democratic Party. The partisan
advantage that Michigan lawmakers achieved through the Enacted Plan persists to this day.
During the 2011 redistricting cycle, Michigan Republican lawmakers engaged various
political operatives to draw the congressional, Senate, and House maps to favor Republicans and
disadvantage Democrats.
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For the congressional districts, Republican lawmakers engaged Robert LaBrant, who
provided “advice and counsel” to “legislators and committee chairs . . . .” (LaBrant Dep. at
126:22–127:4.) At the time, LaBrant served as President for the Michigan Redistricting Resource
Institute (“MRRI”), an organization that LaBrant had formed to “generate money to finance
redistricting litigation” and defend Republican maps.6 (LaBrant Dep. at 74:21–78:20.) LaBrant,
through MRRI, in turn hired Sterling Corporation, a “Republican political consulting firm,” and,
specifically, Jeffrey Timmer, a Senior Counselor at Sterling, to draw the congressional map.
(Timmer Dep. at 13:3–6; 16:14–17; 18:6–8; LaBrant Dep. at 140:23–141:8.) Timmer had
extensive map-drawing experience; he had served as the Republicans’ lead map-drawer in
Michigan’s 1991 and 2001 redistricting cycles. (Pls.’ Trial Ex. 272 at 1.) He was also a well
known political figure. From 2005 to 2009, Timmer served as the Executive Director of the
Michigan Republican Party. (Timmer Dep. at 20:11–16.) Timmer began his mapping and
consulting work for the 2011 redistricting cycle in 2009, over a year before the 2010 census data
was released. (Timmer Trial Tr., ECF No. 250 at PageID #9306.)
Terry Marquardt drew the Senate map. (Marquardt Dep. at 31:6.) Marquardt had
previously served as the Political Director of the Michigan Republican Party during the 2001
redistricting cycle. (Marquardt Dep. at 27:4–6.)
Daniel McMaster had the primary responsibility for drawing the House map. From early
2009 to January 2011, McMaster served as the Director of the House Republican Campaign
Committee. (McMaster Dep. at 29:19–23.) Following the 2010 elections, the Michigan House
Republican Caucus hired McMaster as a Senior Policy Advisor to draw the House map. (Id. at
36:1–5; 49:12–14.) After McMaster informed Pete Lund, a Republican House member who had
6 LaBrant formed MRRI in 2005 as a successor to the Michigan Reapportionment Fund, which, like MRRI, was formed to “raise funds” to defend Republican maps in litigation. (LaBrant Dep. at 90:4–11; 40:9–12.)
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recently been appointed as Chairman of the Redistricting and Elections Committee, that he
needed assistance, Lund hired Brian Began to assist McMaster in drawing the House map. (Id. at
50:20–51:19; Lund Dep. 23:15–23.) McMaster appreciated the importance of drawing districts
that favored Republicans and disadvantaged Democrats. He candidly stated that “flipping the
House in 2010 was more important than in any other year” because “there was just a belief or
assumption that the party that wins . . . the majority in the last race of the decade will have a role
in the redistricting process the following decade.” (McMaster Dep. at 33:18–34:2.)
By statute, redistricting in Michigan must follow a set of criteria known as the “Apol”
criteria. The Apol criteria contain a hierarchical set of requirements and provide, among other
things, that districts be contiguous, contain either a population within 5% of the ideal district size
(for the Senate and House districts) or exactly equal population (for the congressional districts),
and minimize county and municipal breaks. See Mich. Comp. Laws § 3.63 (Senate and House
districts); Mich. Comp. Laws § 4.261 (congressional districts). The Apol statutes provide that
redistricting plans shall be created using “only” the Apol guidelines. See Mich. Comp. Laws
§ 3.63 (Senate and House districts); Mich. Comp. Laws § 4.261 (congressional districts). The
Apol criteria do not provide that legislators may take political considerations into account when
drawing maps. See generally, Mich. Comp. Laws § 3.63; Mich. Comp. Laws § 4.261.
The map-makers claim that they drew their respective maps to simply comply with the
Apol criteria.7 But the evidence tells a much different story. The evidence points to only one
conclusion: partisan considerations played a central role in every aspect of the redistricting
process.
7 See, e.g., Timmer Dep. at 28:4–16; 47:25–48:6; 55:3–11; 61:20–62:1; McMaster Dep. at 58:21–60:20; 72:2–16; 73:2–12; 85:20–87:6; 113:3–7; 118:25–119:4; 128:24–129:6; 130:8– 13; 160:22–161:2; 165:22–166:3; 172:21–23; Began Dep. at 37:14–38:1; Marquardt Dep. at 53:2–25.
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Political data served as the foundation upon which the map-makers constructed their
maps. They used this political data to deliberately draw districts that advantaged Republicans and
disadvantaged Democrats. For example, to draw congressional maps that provided maximum
Republican advantage, Timmer purchased historical voter lists and election data from a company
called Combat Data. (Timmer Dep. at 16:21–17:10.) This political data consisted of historical
election data from a number of historical statewide elections: the 2000, 2004, and 2008
presidential elections; the 2004 and 2008 gubernatorial elections; and the Michigan Board of
Education elections in 2000, 2002, 2004, 2006, and 2008.8 (Timmer Trial Tr., ECF No. 250 at
PageID #9323:9–9324:15; Pls.’ Trial Ex. 149 at 2.) This political data consisted of the number of
Democratic and Republican votes cast in each of these historical elections down to the census
block level.9 (Timmer Trial Tr., ECF No. 250 at PageID #9316:19–25.) Timmer inputted this
data into Maptitude, the map-drawing software he used to draw the congressional map. (Id.;
Timmer Dep. at 28:17–20.) Relying on this granular political data, Timmer began drawing the
congressional map in January 2011, approximately two months before the federal government
released the actual 2010 census data, in March 2011. (Timmer Trial Tr., ECF No. 250 at PageID
#9317:1–2; id. at PageID #9344:14–18.) Using this political data in conjunction with Maptitude,
Timmer monitored the partisan composition of the congressional districts as he drew them,
obtained instantaneous updates about the political composition of a district as he altered its
8 Education board averages are commonly used as proxies for partisanship. (Timmer Trial Tr., ECF No. 250 at PageID #9324.) Marquardt explained the theory behind using data from state education board races: “nobody really knew who those people [running for the state education board] were and so voters were voting more by party . . . so we used that as kind of a guideline” for a district’s partisan composition. (Marquardt Dep. at 103:2–22.) 9 Census block data is “exactly what you think. It’s . . . like a city block or a country block . . . it’s that small of a unit.” (Vatter Trial Tr., ECF No. 249 at PageID #8990:7–12.)
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boundaries, and deliberately drew districts that packed or cracked Democratic voters.10 (See
Timmer Dep. at 60:14–61:9; 95:1–5.)
Marquardt used a program called AutoBound to draw the Senate map. (Marquardt Dep.
at 40:5–15.) Marquardt used political data from a database compiled by the Michigan
government that was provided to Michigan’s Republican and Democratic caucuses for use in the
2011 redistricting cycle. (Marquardt Dep. at 42:8–43:12; Vatter Trial Tr., ECF No. 250 at
PageID #8986:21–8987:16.) This data consisted of “[p]ast election results” from a variety of
statewide elections in Michigan, and it showed how Michigan voters voted “down to [the] block
level.” (Marquardt Dep. at 42:20–43:12; 69:11–22; 102:13–104:15.) Marquardt paid closest
attention to past presidential results, as they “give[] you the best gauge on” the political makeup
of a district. (Marquardt Dep. at 70:2–20.) Marquardt elected to have AutoBound display a
matrix of political data next to his Senate maps as he drew them; the figures in the matrix
updated automatically as he altered the shape and contours of a given district. (Marquardt Dep. at
195:16–198:7.) Marquardt was aware of the political makeup of the new districts as he drew
them and could tell whether they were more advantageous for Republicans than the maps that
had been used in the previous decade. (Marquardt Dep. at 148:13–21; 158:9–15; 174:8–175:19.)
Marquardt drew districts that he expected would produce better Republican outcomes compared
to the existing map. (Marquardt Dep. at 114:7–11.)
When McMaster began drawing the House maps, he used magic markers to draw district
boundaries because he had still not received map-drawing computer software. (McMaster Dep. at
87:16–25.) However, McMaster eventually received AutoBound and used it to draw the House
maps. (McMaster Dep at 87:13–15.) While McMaster believes that he did not initially have
10 “Packing” involves filling a district with a supermajority of members of a disfavored political party. Vieth, 541 U.S. at 287 n.7. “Cracking” involves dispersing members of a disfavored party among several districts to deny that party a majority in any of those districts. Id.
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access to political data, he eventually received “the election numbers” from previous elections
and “plugged in, double-checked” the numbers in AutoBound. (McMaster Dep. at 88:15–24.)
The map-makers believed that they could draw maps to secure a partisan advantage even
if doing so required violating the traditional non-partisan redistricting criteria enumerated in the
Apol standards. (See, e.g., Timmer Trial Tr., ECF No. 250 at PageID #9301:18–19; PageID
#9304:24–9305:2.) Timmer, who drew the congressional districts, stated that map-makers and
legislators may consider purportedly “neutral considerations” not listed in the Apol criteria, such
as “incumbency considerations” and “achieving support sufficient for passage.” (Timmer Report
at 6.) However, these factors were not politically neutral given that Republicans dominated both
chambers of the state legislature and held the governorship during the 2011 redistricting cycle.
Protecting incumbents generally meant protecting Republicans. And securing enough votes for
passage did not necessarily require securing a single vote from a Democratic legislator in either
chamber. At trial, Timmer went a step further, testifying that legislators may consider “whatever
factors they deem necessary” and may “take into account any political consideration they like in
drawing these maps.” (Timmer Trial Tr., ECF No. 250 at PageID #9301:18–19; PageID
#9304:24–9305:2.)
The map-makers were intimately aware of the political consequences of their map
drawing efforts. For instance, McMaster and Began drew the House maps in a secure location to
which nobody else had access because, according to McMaster, “everyone was honing us. Every
staffer’s political future, every representative’s political future, depended on how the lines turned
out . . . .” (McMaster Dep. at 63:18–24.) Marquardt drew the Senate maps to ensure that they
would garner enough support among Senators to win a majority of votes in the Senate—where
the Republicans held 26 seats compared to Democrats’ 12—because “if [the maps] don’t pass the
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legislature, you’ve . . . done your work for nothing . . . you have to have at least 20 people happy
with the draft.” (Marquardt Dep. at 56:23–57:13.) Marquardt explained that “sitting, you know,
representatives or senators, you know, obviously in many cases want to be re-elected, so that was
probably the major consideration as far as getting the vote—the 20 votes that we needed in the
Senate to pass the bill.” (Marquardt Dep. at 63:9–14.)
During the spring of 2011, Michigan’s Republican leadership held weekly meetings on
Thursday mornings at the Dickinson Wright law firm to discuss their redistricting efforts. (Pls.’
Trial Exs. 463, 384; Richardville Dep. at 92:14–93:12.) Bobby Schostak, Chairman of the
Michigan Republican Party, attended between three and eight of these redistricting meetings,
even though he did not serve in the Michigan legislature and would therefore not cast a vote on
any of the maps at issue. (Schostak Dep. at 13:12–16; 43:1–18.) Congressional map-drawer Jeff
Timmer also attended some of these leadership meetings, even though he was not a legislator and
even though he was working on the congressional maps, not the Senate or House maps
containing districts whose legislators would vote on the redistricting legislation. (Id. at 15:13.)
James Bolger, the Republican House member who at the time served as Speaker of the Michigan
House, attended “some or all” of these weekly redistricting meetings. (Bolger Dep. at 120:11–
122:14.) Randy Richardville, a Republican who served as Michigan’s Senate Majority Leader,
attended between three and six of these meetings. (Richardville Dep. 85:2–14.) Joe Hune, the
Republican Senator who served as Chairman of the Senate Redistricting Committee, attended
more than five of these redistricting meetings. (Hune Dep. at 19:2–5; 142:2–5.) Pete Lund, the
Republican House member who served as Chairman of the Redistricting and Elections
Committee, also attended. (Lund Dep. at 93:7–95:20.)
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The Republican leadership took several steps to ensure that these weekly redistricting
meetings remained secret. Members of the Republican leadership and their staffs often used
personal—rather than governmental—email addresses to communicate about the redistricting
meetings. (See, e.g., Pls.’ Trial Ex. 462 (email confirming March 10, 2011 meeting sent to the
personal email addresses of Suzanne Miller, Chief of Staff to Speaker Bolger (Bolger Dep. at
138:20–25); Laura Dubreuil, Executive Assistant to Speaker Bolger (Bolger Dep. at 149:7–23);
Jordan Hankwitz, aide to Senate Majority Leader Richardville (Bolger Dep. at 127:20–22); Keli
Saunders, a staffer in Republican Governor Rick Snyder’s administration (Bolger Dep. at 126:6–
18); and Laurie Rospond, a staffer for Lieutenant Governor Dick Posthumus (Bolger Dep. at
126:19–127:4)); Pls.’ Trial Ex. 463 (Speaker Bolger using personal email address to
communicate with his top assistant about the April 19, 2011 redistricting meeting).)
Majority Leader Richardville explained the significance of communicating over personal
email; he and his staff “were very sensitive” to “doing something with or on government
property if there are potential political discussions going on[,]” and he and his staff used non
governmental email addresses for any conversation that was “going to be political.”
(Richardville Dep. at 99:10–100:5; see also id. at 169:11–170:7.) Furthermore, the agendas for
each of these meetings were labeled “confidential.” (Pls.’ Trial Ex. 274.) Democrats were not
invited to attend the meetings until June 2011, i.e., after the maps had already been voted out of
committee by the Michigan legislature. (Timmer Trial Tr., ECF No. 250 at PageID #9341:1–12;
see Schostak Dep. at 48:25–49:23.)
In addition to the leadership meetings, map-drawer meetings regularly took place at
Dickinson Wright. (Timmer Dep. at 56:2–25; 256:18–257:2.) Map-drawer meetings occurred
“[p]erhaps as often as weekly.” (Id. at 56:17–18.) Timmer, Marquardt, McMaster, and Began
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frequently attended. (McMaster Dep, at 52:9–54:8.) Robert LaBrant also attended some in his
capacity as president of MRRI. (Timmer Dep. at 258:11–20.) Attorneys from Dickinson Wright
would also attend as legal counsel. (McMaster Dep. at 53:14–23; Marquardt Dep. at 88:12–
89:1.) The map-drawers shared maps with each other, gave “report[s] of where we are, what
problems we’re having[,]” strategized about the map-making process, discussed technical
questions, and worked with counsel to confirm that their maps complied with what they believed
to be the relevant legal requirements. (McMaster Dep. at 52:8–19; Marquardt Dep. at 82:18–22.)
Like the leadership meetings, the map-drawer meetings were “confidential.” (Timmer Dep. at
256:21–23.) No representative from the Democratic Party, or member of any Democratic interest
group, ever attended. (Id. at 56:19–25.)
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. (See Pls.’ Trial
Ex. 274.)
Marquardt, 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. (Marquardt Dep. at 82:23–84:20.) Marquardt
never met with Democrats. (Id. at 84:17–20.) Marquardt brought two maps with him to every
meeting, which he presented side-by-side on a single piece of paper: one that depicted the
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senator’s “Current Senate District” and one that depicted the senator’s “Proposed Senate
District.” (Id. at 100:21–106:15.) Marquardt displayed two sets of political data underneath the
map of each senator’s current and proposed district: the percentage of votes cast within that
district for the Republican gubernatorial candidates in the last three elections and the percentage
of votes cast within that district for Republican candidates in the last three elections for the
Michigan Board of Education.11 Marquardt displayed this political data on each senator’s current
and proposed district map “[b]ecause the senators obviously would be interested in knowing
whether their district got better or worse[,]” better meaning more Republican and “worse being
either less Republican or more Democrat.” (Id. at 103:23–104:15; see, e.g., Pls.’ Trial Exs. 331–
56 (side-by-side maps Marquardt prepared for each Republican senator showing the political
composition of each senator’s current and proposed districts); see also Richardville Dep. at
232:19–235:14 (discussing meetings with Marquardt and incumbent Republican senators).)
Like Marquardt, McMaster, the principal architect of the House map, showed incumbent
legislators the boundaries and political composition of their proposed districts before the maps
were introduced into the legislature. (McMaster Dep. at 65:19–67:13; 71:9–19; Began Dep. at
45:17–25.) McMaster met with Republican House members in May 2011. (McMaster Dep. at
65:19–67:13.) During these meetings, McMaster presented Republican House members with
various “choices” for the boundaries of their districts. (Id. at 65:19–67:13.) For example, if
McMaster had identified multiple ways of splitting a county into two House districts, he would
ask, “So, what do you guys want? Do you want this one? Do you want this one? Do you want to
flip a coin?” (Id. at 66:11–13.) The maps that McMaster brought to the meetings contained
historical election data from approximately ten previous elections and allowed incumbent
11 As noted above, education board averages are commonly used as proxies for partisanship. (Timmer Trial Tr., ECF No. 250 at PageID #9324; Marquardt Dep. at 103:2–22.)
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Republican House members to gauge the partisan composition of their proposed districts. (Id. at
71:9–19.) After one of these meetings, McMaster made changes to the House map to
accommodate the concerns that an incumbent Republican House member expressed about the
“political makeup” of his proposed district and, specifically, “how hard he thought it would be
for him to win” in the new district. (Id. at 86:1–89:22.)
In late February 2011, Timmer traveled to Washington, D.C., to meet with the
Republican members of Michigan’s congressional delegation and present them with draft maps
of Michigan’s congressional districts. (Pls.’ Trial Ex. 398; Timmer Trial Tr., ECF No. 250 at
PageID #9324:16–9325:6.) Prior to his trip, Timmer sent the proposed congressional districts to
LaBrant, the president of MRRI and the person who hired Timmer, and the two discussed the
“potential options” that Timmer planned to present to the congresspersons with whom he was
scheduled to meet. (See Pls.’ Trial Ex. 398.) Timmer did not meet with any Democrats during his
trip or provide any proposed maps to Democrats during the 2011 redistricting cycle. (Timmer
Dep. at 110:2–25.)
When Timmer arrived in Washington, D.C., he met with the Republican members of
Michigan’s congressional delegation and presented several different configurations of
Michigan’s statewide congressional map. (See Pls.’ Trial Exs. 398–99.) Each iteration estimated
the political composition of each congressional district based on historical election results from
ten recent statewide races. (See id.) In this way, each congressperson could evaluate the
partisanship of his or her proposed district in each possible configuration, as well as the
partisanship of each congressional district in the overall map. (See id.) Timmer discussed the
potential districts with the incumbent Republican congresspersons and asked them what portions
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of their current districts they would most like to continue to represent. (Timmer Dep. at 169:7–
11.)
After returning from Washington, D.C., Timmer revised the congressional map to
accommodate the preferences expressed by the incumbent Republican congresspersons with
whom he had met. (Timmer Trial Tr., ECF No. 250 at PageID #9325:19–9327:17; see Pls.’ Trial
Ex. 399.) On March 6, 2011, he emailed LaBrant an updated version of the congressional map.
(See Pls.’ Trial Ex. 399.) The map contained political data for each proposed district. (Id.)
Timmer told LaBrant that the map “captures the bulk of what we heard the [congressional
delegation] indicate they’d like to see.” (Id.) Two days later, Timmer emailed LaBrant “the map
we discussed yesterday with separate maps for the individual districts.” (Pls’ Trial Ex. 400.) The
map for each district contained the same set of political data that Timmer had included in his
statewide maps. (Id.)
The map-makers also shared draft maps with each other and strategized about how to best
draw maps that advantaged Republicans. For example, in one email exchange from May 9, 2011,
Marquardt asked Timmer to send him a plan that Timmer had proposed for Senate districts
covering Oakland and Genesee counties. (Pls.’ Trial Ex. 358.) After Timmer replied, Marquardt
said that one of the proposed Senate districts “would be a little vulnerable under this plan.” (Id.)
By “a little more vulnerable,” Marquardt meant that the district was “more competitive, maybe a
little more Democratic.” (Marquardt Dep. at 137:22–138:6.) Marquardt asked Timmer for the
“McCain numbers” for the proposed district because Marquardt wanted to know where the
district “landed on the political scale.” (Id. at 140:4–5.)
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Emails between the map-makers and Republican leaders, legislators, and legislative staff
further reveal that the motivating factor behind the map-making process was a desire to construct
districts that favored Republicans and disadvantaged Democrats.
For example, on May 17, 2011, Jim Brandell, Chief of Staff to Republican Congressman
Dave Camp, used his personal yahoo email address to email Timmer and LaBrant about Camp’s
concerns with the “[l]atest [d]raft” of Camp’s district.12 (Pls.’ Trial Ex. 579.) LaBrant—who had
hired Timmer to draw the congressional maps—replied that “[w]e will accommodate whatever
Dave wants in his district . . . .” (Id.) LaBrant also assured Brandell that “[w]e’ve spent a lot of
time providing options to ensure we have a solid 9-5 delegation in 2012 and beyond[,]” (id.),
meaning a congressional delegation of nine Republicans and five Democrats. (Timmer Trial Tr.,
ECF No. 250 at PageID #9318:2–7.)
Another example is an email exchange from May 16, 2011, where LaBrant told Timmer
that he had just received a call from Jack Daly, Chief of Staff to incumbent Republican
Congressman Thad McCotter. (Pls.’ Trial Ex. 409.) LaBrant had “walked [Daly] through Thad’s
proposed district.” (Id.) LaBrant reported that, according to Daly, “Dale at the RNC has drawn a
10-4 map.” (Id.) LaBrant told Daly “I suppose you could [draw a map that likely produces a 10-4
Republican/Democratic split] if you broke a [sic] sorts of counties and MCD’s . . . .” (Id.) But
LaBrant told Daly that “we need for legal and PR purposes a good looking map that [does] not
look like an obvious gerrymander.” (Id.) LaBrant complimented Timmer on his latest draft of the
congressional map, stating that it “protects all nine [Republican] incumbents and it looks good.”
(Id.)
12 Brandell also sent the email to Jamie Roe, a staffer for Republican incumbent Congresswoman Candace Miller. (Pls.’ Trial Ex. 579; Timmer Trial Tr., ECF No. 250 at PageID #9318:16–23.) Brandell sent the email to Roe’s personal yahoo email address. (Pls.’ Trial Ex. 579.)
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In a separate email exchange, Daly requested that Timmer evaluate additional district
configurations using newly-available population and elections data.13 (See Pls.’ Trial Ex. 401.)
Timmer responded, “[i]nteresting numbers overall. Detroit being 150k less than projected shakes
things up.” (Id.) Daly replied that it was “a glorious way that makes it easier to cram ALL of the
Dem garbage in Wayne, Washtenaw, Oakland, and Macomb counties into only four districts.”
(Id.) Daly also asked, “Is there anyone on our side who doesn’t recognize that dynamic?” (Id.)
Timmer admitted that the only way to interpret Daly’s comments was as a request that Timmer
pack Democratic voters. (Timmer Trial Tr., ECF No. 250 at PageID #9327:18–9329:11.)
Yet another example is a June 22, 2011 email exchange that began with a Republican
operative informing Timmer that he was “[w]orking on damage control” in the Third
Congressional District because incumbent Republican Congressman Justin Amash had concerns
about the political makeup of his new district. (Pls.’ Trial Ex. 432.) Timmer responded that,
under the new maps, the Third Congressional District “is a bit less GOP, but not so much less so
that it is in jeopardy of going south on us.” (Id.) Timmer further explained that “the new 3rd
would become slightly less Republican” to allow the district held by incumbent Republican
Congressman Tim Walberg “to become slightly more so.” (Id.)
In a different email, Jamie Roe, a staffer for incumbent Republican Congresswoman
Candice Miller, expressed his approval of one of Timmer’s proposed maps, saying it was
“perfect” because “it’s giving the finger to [S]andy [L]evin,” a long-time Democratic United
States congressman.14 (Pls.’ Trial Ex. 426; Timmer Dep. 127:2–10.)
Schostak served as a liaison between incumbent Republican congresspersons and Timmer
throughout the 2011 redistricting cycle. Congresspersons contacted Schostak—the Chairman of
13 Daly used his personal yahoo email address for this exchange. (See Pls.’ Trial Ex. 401.) 14 Roe sent this email from his personal yahoo address. (See Pls.’ Trial Ex. 426.)
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the Michigan Republican Party—and expressed preferences or concerns about the contours of
their districts, and Schostak conveyed these concerns to Timmer, who revised the congressional
maps accordingly. (Schostak Dep. at 89:1–94:20.) For example, in June 2011, Timmer emailed
Schostak and explained changes that he had made to Congressional District 2 and Congressional
District 3 based on concerns that Schostak had relayed from Bill Huizenga and Justin Amash, the
incumbent Republican congressmen that represented those districts. (Pls.’ Trial Ex. 387.) In
another email, Timmer informed Stu Sandler, an outside consultant working for Schostak, that
despite incumbent Republican congressmen Thad McCotter’s disapproval of his new district,
“it’s hard to envision a Dem winning this seat even in a year like 2008.” (Ex. 65 to Timmer
Dep.)
Republican donors also inserted themselves into the map-drawing process through
Schostak. For example, Schostak forwarded Timmer an email in which a Republican donor had
asked Schostak if the map-drawers could “draw a favorable Republican district with the Pointes
all together[,]” an apparent reference to the five communities in the Grosse Pointes area. (Pls.’
Trial Ex 389.) A few weeks later, Timmer sent Schostak a new set of maps. (See Pls.’ Trial Ex.
438.) Timmer told Schostak that “as part of the maps I’ve redrawn, I’ve come up with a
configuration which likely also satisfies the Grosse Pointes wrinkle you’ve been dealing with.”
(Id.) Timmer told Schostak to “[k]eep this all under hat” given the “possibility that this fizzles.”
(Id.) But Timmer reassured Schostak that “you may be able to deliver a vistory [sic] to the
G[rosse] P[ointes] $$ folks.” (Id.)
Schostak did not merely act as an intermediary through which Republican donors and
Timmer would communicate. On one occasion, in response to a request from a Republican
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donor, Schostak had Timmer speak directly to the donor to “[t]ell them [sic] what’s possible.”
(Schostak Dep. at 109:1–13.)
Even after they formally introduced the redistricting legislation, the Republican
controlled legislature concealed the contents of the redistricting plan and expedited its
progression through the legislative process to prevent it from being subject to meaningful public
scrutiny.
Shortly after the proposed district maps were introduced in June 2011, the House
Elections Committee held a public hearing on redistricting. (See Smith Trial Tr., ECF No. 248 at
PageID #8771:1–10.) Susan Smith attended the hearing in her capacity as president of the
League. (Id. at PageID #8771:10–15.) When Smith arrived, she picked up a copy of the bill so
that she could follow along during the hearing. (Id. at PageID #8771:10–24.) When Smith
opened up the bill, she realized that it was a “shell bill”—a “cover and a back sheet, and ending
sheet[,] but nothing in between.” (Id. at PageID #8771:19–24.)
The members of the House Elections Committee entered the room. A staff member
brought an additional stack of bills and placed them on a back table. Smith retrieved a copy of
the bill, and returned to her seat to read it, “expecting to see a description of the maps[.]” (Id. at
PageID #8772:6–8.) But the bill did not contain any maps, only rows of census data, “like you
see when you get your tax bill . . . .” (Id. at PageID #8772:8–10.) It was impossible for Smith to
figure out what district she lived in. (Id. at PageID #8772:10–11.) Shortly thereafter, a staff
person set up three easels, one for each map. (Id. at PageID #8772:11–15.) Each map was
approximately 30 by 36 inches and portrayed the entire state of Michigan. (Id. at PageID
#8772:17–19.) Smith approached the maps for a closer examination but, like many other
attendees, could not tell with any particularity what districts she lived in. (Id. at PageID
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#8772:20–8773:10.) Despite many attendees at the hearing voicing their complaints about the
lack of transparency and public involvement, the bill made it out of committee after a vote along
party lines, with Democrats voting against the bill and Republicans voting for it. (Id. at PageID
#8772:20–8773:10.)
Within approximately two weeks of the hearing, both chambers of Michigan’s
Republican-controlled legislature had voted to pass bills containing the redistricting legislation.
The bills went to Governor Snyder, a Republican, who signed the legislation into law on August
9, 2011.15
Democrats played no meaningful role in the 2011 redistricting process. On one occasion,
Marquardt showed Mike Vatter, the Democratic map-drawer, a Senate map that Marquardt had
drawn for the Detroit area. But according to Vatter, Marquardt was not soliciting his input but
rather telling him that “these were the districts that were going to be drawn in the City of
Detroit,” a Democratic stronghold. (Vatter Trial Tr., ECF No. 249 at PageID #8994:20–
8995:15.) While Richardville, the Republican Senate Majority Leader, once met with Vatter and
then-Democratic Senate Minority Leader Gretchen Whitmer, this meeting did not occur until
after the Republican maps were already published. (Timmer Trial Tr., ECF No. 250 at PageID
#9320:22–9321:12.) And while Republicans briefly entered into negotiations with the legislative
black caucus, these negotiations took place after the Michigan legislature had already approved
the Enacted Plan and did not result in any change to the maps. (Timmer Dep. at 149:20–150:1.)
The Enacted Plan proved tremendously successful in advantaging Republicans and
disadvantaging Democrats throughout several election cycles. In each of the three statewide
15 See Public Acts 128 and 129, available at http://www.legislature .mi.gov/(S(iarreoked0nkcgalxktqk0lv))/documents/2011-2012/publicact/pdf/2011-PA-0128.pdf, last accessed April 19, 2019; http://www.legislature.mi.gov/(S(iarreoked0nkcgalxktqk0lv))/ documents/2011-2012/publicact/pdf/2011-PA-0129.pdf, last accessed April 19, 2019.
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elections held under the Enacted Plan between 2012 and 2016, Republicans won 64% of
Michigan’s congressional seats (i.e., 9 of 14) even though they never earned more than 50.5% of
the statewide vote.16 During this same period, Republicans won at least 53.6% of Michigan’s
House Districts while never earning more than 50.3% of the total vote.17 In Michigan’s 2014
Senate election, Republicans earned only 50.4% of the vote but won 71.1% of the seats.18
The partisan bias in Michigan’s legislative maps continued in the 2018 midterm
elections. Democrats earned approximately 55.8% of the vote in congressional elections but
gained only 50% of the congressional seats;19 52.6% of the vote in the House but only 47% of
the House seats,20 and over 50% of the vote in the Senate but only 42% of the Senate seats.21 In
other words, despite earning a sizable majority of aggregate votes for congressional candidates,
Democrats merely pulled even with Republicans in terms of seats won. And despite earning a
majority of the votes cast in the House and Senate elections, Democrats remained decidedly in
the minority in both chambers of the state legislature.
B. Plaintiffs’ Expert Evidence
The Court finds that Plaintiffs have proven that the Enacted Plan is a partisan
gerrymander. Plaintiffs’ expert evidence overwhelmingly supports this conclusion. Plaintiffs
introduced testimony from three witnesses, each of whom employed several different statistical
analyses and metrics to evaluate the partisan outcomes resulting from the Enacted Plan, clearly
demonstrates that the Enacted Plan strongly and systematically advantages Republicans and
16 See https://mielections.us/election/results/2016GEN_CENR.html (2016); https://miele ctions.us/election/results/14GEN/ (2014); https://mielections.us/election/results/12GEN/ (2012). 17 See https://mielections.us/election/results/2016GEN_CENR.html (2016); https://miele ctions.us/election/results/14GEN/ (2014); https://mielections.us/election/results/12GEN/ (2012). 18 See https://mielections.us/election/results/14GEN/ (2014). 19 See https://mielections.us/election/results/2018GEN_CENR.html (2018). 20 See id. 21 See id.
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disfavors Democrats. In reaching this conclusion, the Court does not rely primarily on any
individual expert’s testimony or on any particular statistical measure; rather, the Court reaches
this determination after considering the totality of Plaintiffs’ wide-ranging and extensive expert
evidence. All of this evidence points to the same conclusion: the Enacted Plan gives Republicans
a strong, systematic, and durable structural advantage in Michigan’s elections and decidedly
discriminates against Democrats.
1. Dr. Jowei Chen22
Plaintiffs’ first expert, Jowei Chen, Ph.D. (“Dr. Chen”), analyzed Michigan’s
congressional, Senate, and House districts to determine whether the Enacted Plan produced “an
extreme partisan outcome that diverges from possible alternative maps.” (Chen Report at 2, 6.)
Dr. Chen compared the Enacted Plan to computer-simulated districting plans drawn without
partisan intent that adhere to “traditional districting criteria,” such as “equalizing population,
maximizing geographic compactness, and preserving county, municipal, and ward boundaries.”
(Id. at 3.) Dr. Chen created an algorithm that used these traditional, non-partisan criteria to
produce randomly-generated districting plans. His algorithm generated 1,000 alternative
congressional districting plans, 1,000 alternative Senate districting plans, and 1,000 alternative
House districting plans. (Id.)
Next, using past election results, Dr. Chen measured the partisanship of each legislative
district in the Enacted Plan and in his simulated districting plans. (Id. at 5.) Specifically, Dr.
Chen assessed block-level election results for all of Michigan’s 40 statewide elections from
22 Dr. Jowei Chen is an Associate Professor in the Department of Political Science at the University of Michigan. He received his B.A. in Ethics, Politics, and Economics from Yale University, his M.S. in Statistics from Stanford University, and his Ph.D. in Political Science from Stanford University. He has published several academic articles regarding redistricting in peer-reviewed journals and has provided expert reports in approximately nine redistricting cases. (See Chen Report at 89–93.)
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2006-2010 and 2012-2016, and calculated “the vote totals across these statewide elections within
every district.” (Id. at 6–7.) Dr. Chen then compared the partisan composition of the districts
under the Enacted Plan to the partisan composition of the alternative simulated districts. In this
way, Dr. Chen was able to deduce whether a district in the Enacted Plan favors Republican or
Democratic candidates compared to the corresponding simulated districts drawn without partisan
intent. (Id. at 7.)
To calculate the partisanship of each district, Dr. Chen used three different
measurements. As the Court describes below, each of Dr. Chen’s metrics indicates that the
Enacted Plan strongly and systematically advantages Republicans and discriminates against
Democrats.
Number of Republican and Democratic Districtsa.
First, Dr. Chen simply counted the number of Republican and Democratic districts in the
Enacted Plan and each alternative simulated plan based on a district’s partisan composition. (Id.
at 9.) This method is considered the most basic and commonly-used method for measuring the
partisanship of a districting plan. (Id.) By using this method, Dr. Chen directly and precisely
quantified the difference in partisanship between the Enacted Plan and the simulated plans drawn
without partisan intent. (Id.)
Dr. Chen also determined whether the districts in the Enacted Plan constitute partisan
outliers. (Id. at 11.) Dr. Chen defined a “partisan outlier” as a district whose partisanship falls
“outside the middle 95% range [of partisanship] of the simulated geographically overlapping
districts;” he considered a simulated district to be “geographically overlapping” if it contained at
least 50% of the same population as the corresponding district under the Enacted Plan. (Id. at 55–
56.) Therefore, if Dr. Chen deemed a district in the Enacted Plan a “partisan outlier,” the partisan
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composition of that district falls outside the middle 95% of the simulated, geographically
overlapping districts drawn without partisan intent. (Id.)
Congressional Map i.
Michigan currently has 14 congressional districts. Using the 2012-2016 election results,
the Enacted Plan contains 9 Republican congressional districts and only 5 Democratic
congressional districts. (Id. at 14.) The vast majority of the Dr. Chen’s simulated plans, drawn
without partisan intent, created 7 Republican congressional districts and 7 Democratic
congressional districts. (Id.) Not a single one of Dr. Chen’s 1,000 simulated plans created 9
Republican congressional districts and only 5 Democratic congressional districts. (Id.) Dr. Chen
concluded with overwhelming certainty that the pro-Republican bias in the Enacted Plan’s
congressional map did not occur because of chance but was rather the product of a deliberate
effort to tilt the scales to favor Republicans. (Id. at 14–15.)
Senate Mapii.
There are 38 Senate districts in Michigan. Using the 2012-2016 election results, the
Enacted Plan contains 24 Republican Senate districts and only 14 Democratic Senate districts.
(Id. at 26.) Dr. Chen’s simulated plans all created between 18 and 22 Republican Senate districts,
and the vast majority of his simulated plans created 19 or 20 Republican Senate districts. (Id.)
Not a single one of Dr. Chen’s 1,000 simulated plans created 24 Republican Senate districts.
(Id.) Dr. Chen concluded with overwhelming certainty that the Enacted Plan’s Senate map is a
partisan outlier and was intentionally created to produce a pro-Republican outcome. (Id.)
House Mapiii.
There are 110 House districts in Michigan. (Id. at 39.) Using the 2012-2016 election
results, the Enacted Plan contains 61 Republican House districts and only 49 Democratic House
districts. (Id.) Dr. Chen’s simulated plans produced between 56 and 60 Republican House
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districts, and the vast majority of his simulated plans created 58 Republican House districts. (Id.)
Not a single one of Dr. Chen’s simulated plans created 61 Republican House districts. (Id.) Dr.
Chen determined that the Enacted Plan’s House map is a partisan outlier and was intentionally
created to produce a pro-Republican partisan outcome. (Id.)
Median-mean Differenceb.
Second, Dr. Chen analyzed the partisanship of the maps in the Enacted Plan and the
simulated plans using median-mean difference analysis. Scholars commonly use this method to
compare the partisan bias of different districting plans. (Id. at 11.) As Dr. Chen explained, “[f]or
any districting plan, the mean is simply calculated as [the] average of the Republican vote share
across all districts, and the median is the Republican vote share in the district where the
Republicans performed the middle-best.” (Id.) Higher, positive values signify that the median
district’s Republican vote share is higher than the mean district-level Republican vote share,
which indicates that the plan favors Republicans and disadvantages Democrats. (Id.) By
calculating the median-mean difference of the Enacted Plan, Dr. Chen assessed whether a
Republican-favoring skew in the median-mean difference resulted from an intentional partisan
effort to favor one party over another. (Id. at 12.)
Dr. Chen’s median-mean analysis demonstrates that the Enacted Plan strongly
advantages Republicans. Using the 2012-2016 statewide election results, the congressional
districts in the Enacted Plan have a median-mean difference of 7.55%. (Id. at 18.) In other words,
the median congressional district is 7.55% more Republican than the Enacted Plan’s “average”
district. (Id.) Dr. Chen found that this large pro-Republican bias also manifests in the Senate and
House maps; the median-mean difference for the current Senate plan is 5.97% and the median
mean difference for the current House plan is 6.86%. (Id. at 33, 46.) These findings demonstrate
that across the congressional, Senate, and House maps, the median district under the Enacted
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Plan is significantly more Republican than the “average” district. Dr. Chen found that these large
median-mean differences give Republicans a strong, systematic advantage in elections held
under Michigan’s congressional, Senate, and House maps. (Id. at 21, 33, 46.)
Efficiency Gapc.
Third, Dr. Chen measured the partisanship of the Enacted Plan using the efficiency gap.
This measurement is calculated by first determining the partisan composition of each district in
the Enacted Plan and the simulated maps, which Dr. Chen measured using the 2012-2016
statewide election results. (Id. at 12.) A district is considered a Democratic district if the number
of Democratic votes in that district exceeds the number of Republican votes. (Id.) If a district is
not designated as a Democratic district, Dr. Chen classified it as being a Republican district. (Id.)
Dr. Chen then calculated “the total sum of surplus votes in districts [each] party won and lost
votes in districts where [each] party lost.” (Id.) In the districts that a party lost, all the votes cast
for that party are considered “lost votes.” (Id.) Conversely, in the districts that a party won, only
the party’s votes that exceed the 50% threshold needed to win those districts are considered
“surplus votes.” (Id.) The sum of a party’s lost and surplus votes is that party’s total number of
“wasted votes.” (Id.) The efficiency gap is calculated from “the total wasted Republican votes
minus total wasted Democratic votes, divided by the total number of two-party votes cast
statewide across all seven23 elections.” (Id.)
The efficiency gap may appear to be a rather convoluted statistical measure. But its
explanatory power is simple and clear: it indicates whether, and to what extent, votes cast for a
particular political party are “wasted” in elections across a given districting plan. (Id.) As Dr.
23 Dr. Chen is referring to the seven statewide elections that occurred between Enacted Plan’s adoption and when he prepared his expert report, specifically, the congressional elections in 2012, 2014, and 2016; the Senate elections in 2014; and the House elections in 2012, 2014, and 2016. (Chen Report at 53.)
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Chen explains, “[a] significant positive efficiency gap indicates that there are more Republican
wasted votes, while a significantly negative efficiency gap indicates far more Democratic wasted
votes.” (Id.) By comparing the efficiency gap under the Enacted Plan with the efficiency gaps
under his simulated plans, Dr. Chen was able to determine whether the Enacted Plan causes
Democrats to frequently waste more votes than they would waste under alternative maps drawn
without partisan intent. (Id.)
Dr. Chen’s analysis of Michigan’s 2012-2016 statewide elections demonstrates that the
Enacted Plan consistently results in more wasted Democratic votes than wasted Republican
votes. The current congressional plan has an efficiency gap of í19.8%. (Id. at 25.) This figure
indicates that the Enacted Plan “consistently results in significantly more wasted Democratic
votes than Republican votes.” (Id.) Furthermore, this efficiency gap “is far more biased than
even the most biased” of Dr. Chen’s 1,000 simulated congressional maps. (Id.) In fact, more than
half of Dr. Chen’s simulation maps resulted in an efficiency gap within ±5% of 0, meaning that
“it is clearly not difficult to create a map that is relatively unbiased according to the efficiency
gap” and that complies with Michigan’s statutory non-partisan districting criteria. (Id.) Dr. Chen
concluded that to create a congressional map with an efficiency gap score greater than ±15%
“would require extraordinary and deliberate partisan map-drawing efforts.” (Id.)
The Senate and House districts show similarly staggering pro-Republican efficiency gap
scores. The current Senate plan has an efficiency gap of í16.6%. (Id. at 38.) The current House
plan creates an efficiency gap of í12.1%. (Id. at 51.) These heavily pro-Republican efficiency
gaps are “entirely outside of the range produced by the simulated plans.” (Id. at 38, 51.) In other
words, according to the efficiency gap metric, the Senate and House districts under the Enacted
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Plan are “far more biased than even the most biased” simulated maps drawn without partisan
intent. (Id.)
Durability d.
After Dr. Chen concluded that the current legislative plans were partisan outliers
compared to the simulated plans using the three metrics described above, he then assessed
whether the partisan bias in the Enacted Plan is “politically durable.” According to Dr. Chen, the
“partisan durability of a districting plan refers to whether a plan would allow a particular
political party to preserve its majority control over a chamber or congressional delegation under
a reasonable range of alternative electoral conditions.” (Id. at 52.) Dr. Chen’s sought to ascertain
if Republicans would still win the majority of Michigan’s districts during an election in which
the overall Republican electoral performance was worse than normal. (Id.) As Dr. Chen
explained, if the Enacted Plan “gives Republicans control over a majority of all districts, and
only a significant pro-Democratic [] swing would allow Democrats to ever win a majority of
districts in a single election, then the Republican’s control” is “durable.” (Id.)
To analyze the partisan durability of the legislative plans, Dr. Chen used the “uniform
swing analysis.” (See id.) This metric begins with the assumption that a political party’s
performance in a given election is generally not confined to a single district. When a political
party performs worse than usual, its vote share typically decreases by a comparable degree in all
legislative districts across the state. (Id.) Conversely, when a political party performs better than
usual, its vote share generally rises in all districts across that state. (Id.) The uniform swing
analysis involves “simulating a uniform increase (or decrease) in a party’s vote share across all
districts within a state.” (Id.)
Using this method, Dr. Chen evaluated how Republicans and Democrats in Michigan
“would perform under alternative electoral conditions.” (Id.) Dr. Chen evaluated the results of
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Michigan’s seven statewide elections that took place between the adoption of the Enacted Plan
and when Plaintiffs filed suit. (Id. at 53.) Republicans won a majority of the seats in each of
these elections. For each election, Dr. Chen calculated the smallest pro-Democratic uniform
swing that would have allowed Democrats to win one-half of the seats. (Id.)
Dr. Chen’s found that, in each of these seven statewide elections, Republicans would
have maintained a majority under any reasonable range of alternative electoral conditions. (Id.)
Specifically, in November 2012, Republicans won 9 of 14 congressional districts and the
Republican vote share in the seventh-most Democratic district was 53.37%. (Id.) Therefore, a
uniform swing of í3.37% would have been required for Republicans to lose their majority
control over the congressional districts and for Democrats to win 7 of the 14 congressional seats.
(Id.) In 2014 and 2016, Republicans also won 9 of 14 congressional districts. (Id.) A uniform
swing of í6.45% in November 2014 and í7.79% in November 2016 would have been required
for the Democrats to win one-half of the congressional districts in those elections. (Id.) In the
November 2014 Senate election, Republicans won 27 of 38 districts, and it would have taken a
uniform swing of í6.4% for Democrats to win one-half of all Senate districts. (Id.) Finally, in the
2012, 2014, and 2016 House elections, the Republicans won 59, 63, and 63 of Michigan’s House
districts, respectively. (Id.) For the Democrats to win one-half of all House districts, it would
have taken a uniform swing of í1.04% in November 2012, í2.25% in November 2014, and
í4.14% in November 2016. (Id.)
Based on the large uniform swings required for Democrats to win a majority of the seats
in these seven state-wide elections that took place over three separate election cycles, Dr. Chen
concluded that “Republican majority control” was “durable” across “a reasonable range of
alternative electoral conditions.” (Id.) In other words, given the large pro-Republican bias in the
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Enacted Plan, it would take an extraordinarily strong showing by Democrats to unseat the
Republican majority.
Single District Comparisons e.
Dr. Chen also compared the partisanship of the districts in the Enacted Plan to the
partisanship of the corresponding districts in his alternative, simulated maps. By comparing the
partisanship of the actual and simulated districts, Dr. Chen determined whether the districts in
the Enacted Plan constitute “partisan outliers.” Specifically, he evaluated whether the districts in
the Enacted Plan are “packed” and/or “cracked” to favor Republicans. “Packing” involves filling
a district with a supermajority of members of a disfavored political party. Vieth, 541 U.S. at 287
n.7. “Cracking” involves dispersing members of a disfavored party among several districts to
deny that party a majority in any of those districts. Id.
At first glance, it might appear perplexing that a dominant party would deliberately pack
a large majority of members of the disfavored party into a small number of districts, thereby
guaranteeing that the disfavored party would win those districts handily. However, upon closer
examination, that strategy can prove quite effective for the party in power, if it chooses to use its
power for nefarious ends; by packing a large proportion of the disfavored party’s voters into a
small number of districts, the dominant party can crack (i.e., disperse) the remaining members of
the disfavored party across many districts such that the disfavored party can never obtain a
majority of votes in those districts. While the disfavored party will consistently prevail by large
margins in the small number of districts where its members are packed, it will inevitably lose,
albeit by somewhat lesser margins, across the larger number of districts where its members are
cracked. Through packing and cracking, a dominant party can prevent a disfavored party from
ever obtaining a majority of the seats in a legislature or congressional delegation.
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Dr. Chen compared the individual districts under the Enacted Plan and the simulated
plans in two ways. First, Dr. Chen aligned the districts from least to most Republican. (Id. at 54.)
Then, he compared the partisanship of the most Republican congressional district from the
Enacted Plan to the most Republican district from each of the 1,000 simulated congressional
plans. (Id.) Dr. Chen subsequently compared the second-most Republican congressional district
in the Enacted Plan to the second-most Republican congressional district in the simulated plans,
and so forth. (Id.) Dr. Chen also applied the same procedure to the Senate and House districts.
(Id.)
Second, Dr. Chen compared the districts under the Enacted Plan and the simulated maps
using district geography. (Id.) Dr. Chen compared each district under the Enacted Plan to the
district from the simulated plans that overlaps with it the most. (Id.) Comparing geographically
overlapping districts in this way allowed Dr. Chen to “identify partisan differences” between the
Enacted Plan and the simulated districts “in terms of how each region in Michigan is districted.”
(Id.) When a district under the Enacted Plan is a partisan outlier compared to the simulated
districts that cover the same geographic area, Dr. Chen inferred that the district’s boundaries
were manipulated in violation of the Apol criteria, Michigan’s non-partisan statutory redistricting
guidelines. See Mich. Comp. Laws § 3.63; Mich. Comp. Laws § 4.261.
Using these methods to compare individual districts, Dr Chen determined whether the
districts in the Enacted Plan constitute partisan outliers. (Chen Report at 55.) As discussed
above, Dr. Chen labeled a district a “partisan outlier” if the partisan composition of that district
falls outside the middle 95% of the simulated, geographically-overlapping districts drawn
without partisan intent. (Id.) Dr. Chen concluded that Congressional Districts 1, 4, 5, 8, 9, 10, 11,
and 12; Senate Districts 8, 9, 18, 22, 24, 27, and 32; and House Districts 11, 12, 14, 16, 19, 20,
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21, 30, 31, 32, 36, 43, 44, 45, 51, 52, 53, 55, 57, 60, 62, 63, 65, 69, 75, 76, 80, 87, 91, 92, 94, 98,
103, 105, 106, and 107 are partisan outliers. (Id. at 56.) Dr. Chen determined that these districts
“are the most effectively cracked and packed districts” in the Enacted Plan. (Id.)
Criticisms f.
Congressional and State House Intervenors argue that Dr. Chen’s expert evidence is
unreliable because he misapplied the Apol criteria in two respects. (Cong. and State House
Intervenors’ Proposed Findings of Fact, ECF No. 258 at PageID #10986.) First, they argue that
when he conducted his simulations, Dr. Chen considered the Apol criteria to be absolute, which
they contend is contrary to the Michigan State Supreme Court’s ruling in LeRoux v. Secretary of
State, 465 Mich. 594, 615 (2002) (Id.). We are skeptical about the validity of LeRoux’s holding.
In LeRoux, the Michigan Supreme Court decided that the 2001 Michigan legislature was not
required to follow the guidelines set forth in Mich. Comp. Laws § 3.63 that were adopted by the
1999 Michigan legislature. (Id.) This holding conflicts with the plain language of Mich. Comp.
Laws § 3.63, which provides that Michigan’s redistricting plans can “only” be drawn using the
guidelines set forth in that statute. However, regardless of the validity of LeRoux’s holding,
LeRoux, as a state court case, does not insulate the Enacted Plan from Plaintiffs’ claims alleging
a violation of the United States Constitution. See U.S. Const. art. VI, cl. 2. (“This Constitution
. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”)
Intervenors also assert that Dr. Chen’s methodology and data is flawed because he
improperly applied the Apol criteria in creating his simulations. They claim that Dr. Chen’s
algorithm failed to follow the Apol requirement that, when choosing between two townships or
municipalities to shift, the one with the lesser population shall be shifted, and that his algorithm
improperly always favored compactness, not just in the limited circumstances required by the
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Apol criteria. (Cong. and State House Intervenors’ Proposed Conclusions of Law, ECF No. 258
at PageID #11107–11; Senate Intervenors’ Proposed Conclusions of Law, ECF No. 254 at
PageID #10373–76.) Simultaneously to arguing that Dr. Chen’s algorithm applied the wrong
Apol criteria, Senate Intervenors argue that Dr. Chen’s simulations are flawed because his
algorithm applied the Apol criteria too strictly and failed to appreciate that they “are only
guidance, not mandatory.” (Senate Intervenors’ Proposed Conclusions of Law at PageID
#10376.) In other words, they contend that Dr. Chen’s simulations are irrelevant because they
failed to account for map-maker discretion and the political considerations that factored into the
creation of the Enacted Plan. (Id.)
Intervenors cannot have it both ways. They cannot convincingly argue both that Dr.
Chen’s algorithm is flawed because it failed to properly apply the mandatory Apol criteria, and
because it erroneously considered the Apol criteria as binding when, in fact, they are merely non
binding guidelines that the map-drawers may discard whenever they desire. Further, the map
makers did not scrupulously follow the Apol criteria when drawing the districts in the Enacted
Plan. Instead, they drew districts with the predominant purpose of advantaging Republicans and
disadvantaging Democrats. The map-makers regularly discarded the Apol criteria to achieve
their aim of entrenching Republicans in power. In fact, Timmer—the congressional map
drawer—testified that “a legislator can take into account any political consideration they like in
drawing these maps.” (Timmer Trial Tr., ECF No. 250 at PageID #9304:24–9305:2) (emphasis
added). Further, Intervenors have not presented any evidence that Dr. Chen’s conclusions would
be any different if his algorithm perfectly applied the Apol criteria. Under these circumstances,
the fact that Dr. Chen’s algorithm may not have flawlessly followed the Apol criteria does not
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diminish the value of Dr. Chen’s simulations or undermine the validity of his conclusion that the
Enacted Plan is a partisan gerrymander.
Intervenors additionally contend that Dr. Chen’s data is flawed because he erroneously
used Voter Tabulation Districts (“VTDs”) as the “building blocks” of his simulations, while the
map-makers used census tracks and census blocks. (Cong. and State House Intervenors’
Proposed Findings of Fact, ECF No. 258 at PageID #10989; Senate Intervenors’ Proposed
Findings of Fact, ECF No. 255 at PageID #10423–24.) Census block data changes every ten
years following the release of the U.S. census data, while precinct level data is adjusted every
two years by the local election clerks within their respective jurisdictions. (Timmer Trial Tr.,
ECF No. 250 at PageID #9282:9–25.) According to Timmer, the census block data is more static
and neutral than the precinct level data. (Id. at PageID #9283:12.) However, Timmer testified
that he has never “actually calculated what percentage difference” using VTDs instead of census
data “actually makes.” (Id. at PageID #9299:23–25.) Further, Intervenors have not presented any
evidence to support their assertion that Dr. Chen’s using VTDs rendered his simulations
inaccurate. Nor have they provided any reason for this Court to believe that Dr. Chen’s algorithm
would have produced materially different results had he had used census block data in his
simulations. Accordingly, we reject Intervenors’ argument that Dr. Chen’s using VTDs instead
of census data undermines his findings.
Yan Liu, Ph.D.,24 (“Dr. Liu”), Defendants’ expert, articulated several criticisms of Dr.
Chen’s findings, which the Congressional and State House Intervenors separate into three
24 Dr. Yan Liu is a Senior Research Programmer at the National Center for Supercomputing Applications at the University of Illinois at Urbana-Champaign. He received his B.S. in Computer Science from Wuhan University, his M.E. in Computer Engineering from Wuhan University, his M.C.S. in Computer Science from the University of Iowa, and his Ph.D. in Informatics from the University of Illinois at Urbana-Champaign. He has published more than forty research articles that are primarily in computer and computational sciences and the
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categories. (See Cong. and State House Intervenors’ Proposed Findings of Fact, ECF No. 258 at
PageID #10990.) First, Dr. Liu criticizes Dr. Chen’s entire simulation methodology.25 (Liu
Report at 27.) Second, Dr. Liu claims that Dr. Chen’s compactness analysis is flawed because he
uses the Reock measure of compactness, which is not the compactness measure required by
Michigan law, and because it is unclear whether there is a substantively meaningful difference
between the compactness of the Enacted Plan and Dr. Chen’s simulated maps. (Id. at 11–14.)
Third, Dr. Liu asserts that Dr. Chen failed to provide him with a copy of the source code used to
create his simulations, which would have allowed Dr. Liu to evaluate Dr. Chen’s algorithm and
“critique additional flaws as to his methodology.” (Id. at 25.)
The Court finds that Dr. Chen’s data is reliable notwithstanding Dr. Liu’s criticisms. Dr.
Chen’s data has been peer reviewed, published in academic journals, and deemed credible and
admissible in several other redistricting cases. Further, Dr. Liu has not shown that Dr. Chen’s
data would produce alternate results if Dr. Chen’s methodology were altered in the manner that
Dr. Liu suggests. Moreover, Dr. Liu has neither personally generated any simulated maps nor
evaluated the partisanship of Michigan’s maps under the Enacted Plan. Dr. Liu’s examination of
Dr. Chen’s simulated maps merely consisted of an “eyeball assessment.” (Id. at 12.) Regarding
interdisciplinary science domains of scientific computing, geographic information science, and operations research. He specializes in developing scalable spatial analysis and optimization algorithms. (See Liu Report at 1.) 25 Specifically, Dr. Liu contended that Dr. Chen’s methodology was unreliable because: (1) he did not provide a proper comparison set to prove that his data was reliable because the set that he did put forward was too small and was not a random sample; (2) his algorithm does not yield a random sample and consequently produced biased results; (3) he lacks a theoretical basis for his work in either his statistical or operations research, and cannot make claims about optimization, outliers, or statistical certainty in his analysis; (4) he problematically conflated small numerical differences as substantively important findings; (5) he presented his results in a misleading manner by playing with the presentation of the plots; (6) his argument for how to determine if a plan is drawn with partisan intent is logically flawed; and (7) he made numerous errors throughout his analysis, including inconsistencies in his tables and in describing which data set was being used. (Liu Report at 27.)
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Dr. Chen’s source code, Dr. Chen testified that he provided the final computer-readable code that
he used to run his simulations and a near-final version of the source code, which was structurally
identical and substantially the same as the source code that was compiled to create the simulated
maps. (Chen Dep. at 50:4–52:7.) Dr. Liu contends that if he had access to a version of Dr.
Chen’s source code that was more easily readable, he could have found other “flaws” in Dr.
Chen’s methodology. But there is no evidence that Dr. Chen’s findings were erroneous in any
way, or that Dr. Liu would have found that Dr. Chen’s methodology lacked credibility. Dr.
Chen’s findings are not excludable merely because Dr. Liu did not receive Dr. Chen’s source
code in the exact format that would have been ideal for Dr. Liu.
2. Dr. Christopher Warshaw26
Plaintiffs next expert, Christopher Warshaw, Ph.D. (“Dr. Warshaw”), evaluated the
partisanship of the Enacted Plan using three different statistical measures: the efficiency gap,
median-mean difference, and declination. (Warshaw Report at 6–12.) He also used a historical
lens to evaluate the degree of partisan bias in the Enacted Plan. Like Dr. Chen, Dr. Warshaw
concluded that the Enacted Plan strongly and systematically advantages Republicans and
disadvantages Democrats. (Id. at 4–5.)
Efficiency Gapa.
Congressional Plani.
Dr. Warshaw found that, in recent congressional elections, Michigan had a pro
Republican efficiency gap that is extreme compared to its own historical efficiency gaps and the
26 Dr. Christopher Warshaw is an Assistant Professor of Political Science at George Washington University. Previously, he was an Associate and Assistant Professor at the Massachusetts Institute of Technology. He received his B.A. in Economics and Political Science from Williams College, his J.D. from Stanford Law School, and his Ph.D. in Political Science from Stanford University. His work has been published in numerous peer-reviewed journals. He previously provided an expert report in League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania. (Warshaw Report at 1–4; 60–64.)
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historical efficiency gaps in other states. (Id. at 16–19.) Dr. Warshaw reported that the efficiency
gaps in Michigan’s past three congressional elections “were among the most Republican-leaning
efficiency gaps the nation has ever seen.” (Id. at 17.)
For example, in the 2012 Michigan congressional election, there was a pro-Republican
efficiency gap of approximately í19.7%. (Id. at 17.) Democrats wasted over 1.5 million votes,
while Republicans wasted only 650,000 votes. (Id.) Republicans’ greater efficiency at translating
their votes into seats resulted in their enjoying 64.3% of the congressional seats despite earning
only 47.3% of the vote. (Id.)
The 2014 and 2016 Michigan congressional elections also had efficiency gaps that
greatly advantaged Republicans. These elections had efficiency gaps of approximately í16% and
í13.2%, respectively. (Id. at 18) In these elections, Republicans won 64.3% of Michigan’s
congressional seats, even though they lost the statewide vote in 2014 and only narrowly earned
the statewide vote in 2016. (Id.) Dr. Warshaw explained that these efficiency gaps “imply that
Republicans in Michigan won 2-3 more seats in these elections than they would have won if
Michigan had no partisan bias in its [e]fficiency [g]ap.” (Id.)
Overall, Dr. Warshaw found that the efficiency gaps in Michigan were similar to the
efficiency gaps of other states until the Enacted Plan came into effect. (Id. at 19.) However,
“[a]fter the most recent redistricting, Michigan had more extreme pro-Republican [e]fficiency
[g]aps than it has ever had before.” (Id.) According to Dr. Warshaw, the 2012 efficiency gap in
Michigan’s congressional elections was “more extreme than 95% of previous plans in states with
more than six seats over the past 45 years, and it was more Republican-leaning than 98% of
previous congressional districting plans.” (Id.)
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Using the efficiency gap measure, Dr. Warshaw concluded that the Enacted Plan’s
congressional maps have one of the largest partisan biases of any congressional districting plan
in history. (Id.) He further found that the extreme pro-Republican advantage in Michigan’s
congressional districts, which manifested immediately after the Enacted Plan was implemented,
is unlikely to have been caused by political geography. (Id.)
Senate and House Plansii.
Dr. Warshaw found that the efficiency gaps in Michigan’s House and Senate districts
during the 2012, 2014, and 2016 elections were among the most pro-Republican efficiency gaps
in history. (Id. at 33.) For example, in the 2012 House elections, Democratic candidates earned
54% of the votes but only gained 46% of Michigan’s House seats, which yielded a pro
Republican efficiency gap of approximately í12.3%. (Id. at 34.) In the 2014 Senate elections,
Democrats received about 49% of the votes but only 29% of the Senate seats, which yielded a
pro-Republican efficiency gap of almost í20%. (Id. at 33–34.)
When considered in a historical context, the pro-Republican efficiency gaps in
Michigan’s Senate and House plans are as problematic as the pro-Republican efficiency gaps in
Michigan’s congressional plan. Dr. Warshaw explained that Michigan’s 2014 Senate election
had a larger pro-Republican efficiency gap than 99.7% of the of the state senate elections over
the past fifty years. (Id. at 36.) He also found that Michigan’s House election in 2012 had a
larger pro-Republican efficiency gap than 98% of the state house elections over the past 50 years
and had a “larger absolute bias” than 91% of previous plans. (Id. at 35.)
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Median-mean Difference27b.
Dr. Warshaw’s median-mean analysis also demonstrates that the Enacted Plan strongly
favors Republicans. Dr. Warshaw found that, in the 2012 congressional election, there was a
6.9% pro-Republican bias in the partisan composition of the median congressional district
compared to the “average” congressional district. (Id, at 19.) This was “more extreme than the
median-mean difference in 78% of previous elections and more pro-Republican than the median
mean difference in 89% of previous [congressional] elections.” (Id.) Furthermore, like Dr. Chen,
Dr. Warshaw found that the Enacted Plan packed Democratic voters into 5 congressional
districts, which Democratic candidates generally won by “overwhelming margins,” and cracked
the remaining Democratic voters across the other 9 congressional districts. (Id. at 9–10.)
Dr. Warshaw concluded that the median-mean differences in Michigan’s Senate and
House districts are similarly extreme. For example, the median-mean difference in Michigan’s
2014 Senate election was more extreme than in 95% of previous state senate elections
nationwide. (Id. at 36.) And in the three House elections that took place between 2012 and 2016,
the median-mean difference was greater than in 97% of previous state house elections. (Id.)
Declination c.
As Dr. Warshaw explains, the declination metric assumes “that a plan drawn with the
intent to advantage one party will arrange the distribution of district vote shares in a way that
treats the 50 percent threshold for victory differently than other vote values.” (Id. at 10.) If all the
districts in a plan drawn without partisan intent are lined up from the least Democratic to the
most Democratic, “then the mid-point of the line formed by one party’s seats should be about as
far from 50 percent on average as the other party’s.” (Id.) If a plan is not deliberately drawn to
27 Throughout Dr. Warshaw’s report, he refers to this metric as the “mean-median” measure. To avoid confusion, the Court refers to this metric as the “median-mean” measure as Dr. Chen does in his report.
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favor one party over the other, the angles of the lines representing each parties’ mean vote share
in each district should be roughly equal. (Id. at 11.) When the lines deviate from each other, the
smaller angle will “generally identify the favored party.” (Id.) In Michigan, the line representing
Republicans’ mean vote share across congressional elections has a much smaller angle than that
representing Democrats’ mean vote share, indicating that the Enacted Plan’s congressional
districts favor Republicans. (Id.)
Dr. Warshaw notes that one weakness of the declination approach is that it lacks a “clear
interpretation in terms of the number of seats that a party gains through gerrymandering.” (Id. at
15.) However, Dr. Warshaw also explains that some scholars claim that it represents a better
measure of intent in the gerrymandering process than the efficiency gap. (Id.) Additionally,
declination is arguably less sensitive to the outcome of close elections than the efficiency gap or
the median-mean difference. (Id.)
The declination measure demonstrates that the Enacted Plan favors Republicans.
Michigan’s 2012 congressional election had a declination score that was more extreme than 91%
of previous congressional elections and more pro-Republican than 96% of previous
congressional elections over the past 45 years. (Id. at 20.) Michigan’s 2014 Senate election had a
more extreme declination value than 96% of previous state senate elections and a larger pro
Republican declination value than 99% of the previous state senate elections. (Id. at 36.)
Similarly, Michigan’s 2012 House election had a more extreme declination value than 90% of
previous state house elections and a larger pro-Republican declination value than 97% of the
previous state house elections. (Id.) Therefore, like the efficiency gap and the median-mean
difference, the declination metric indicates that the Enacted Plan strongly advantages
Republicans and disadvantages Democrats.
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Review of Dr. Chen’s Simulations d.
In addition to conducting his own analysis, Dr. Warshaw reviewed Dr. Chen’s findings.
Dr. Warshaw created charts comparing the partisanship of each Individual Plaintiff and League
Member’s district under the Enacted Plan to the partisanship of that same district under Dr.
Chen’s simulations. (See Pls.’ Trial Ex. 278.) The charts contain red X’s showing the
partisanship of each current district and gray bars denoting Dr. Chen’s simulated districts for
each Individual Plaintiff and League Member’s current address under each type of map,
congressional, Senate, and House. (Warshaw Trial Tr., ECF No. 248 at PageID #8824:20–23.)
By comparing the red X’s to the gray bars, Dr. Warshaw determined whether a district under the
Enacted Plan falls within the range of simulated districts drawn without partisan intent that
include that same Individual or League Plaintiff’s address. (Id. at PageID #8824:24–8825:2.)
Dr. Warshaw explained that if a district under the Enacted Plan falls outside the range of
simulated districts, its partisan composition is extremely unlikely to have occurred by chance.
(Id. at PageID #8825:11–14.) However, the mere fact that a district falls within Dr. Chen’s
simulations does not indicate that the district was drawn without partisan intent. For example, if
a district falls within only a small number of Dr. Chen’s simulations, it could still exhibit “more
extreme partisanship than 99 percent of Dr. Chen’s simulations.” (Id. at PageID #8918:14–19.)
Thus, if a current district falls along the outer range of Dr. Chen’s simulated districts, it is
extremely unlikely that that the district’s partisan composition occurred by chance. (Id. at
PageID #8918:2–5.)
Dr. Warshaw determined that many of the Enacted Plan’s districts contained pro
Republican partisan compositions that fall completely outside the range of Dr. Chen’s simulated
districts. (Pls.’ Trial Ex. 278.) At trial, Dr. Warshaw used Plaintiff Rosa Holliday, who resides in
Congressional District 5, as an example of this phenomenon. Dr. Warshaw explained that none
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of the 1,000 simulated congressional districts containing Holliday’s address were as heavily
Democratic as the district in which she lives, indicating that Congressional District 5 “packs”
Democratic voters. (Warshaw Trial Tr., ECF No. 248 at PageID #8826:14–18.)
Dr. Warshaw also found that the partisanship of some districts lies within, but at the
extreme outer ranges of, the partisanship of Dr. Chen’s simulated districts. At trial, Dr. Warshaw
used Plaintiff Karen Sherwood, who lives in Congressional District 4, as an example of this
phenomenon. Dr. Warshaw explained that while Congressional District 4, as currently drawn, is
within the range of Dr. Chen’s simulations for districts containing Sherwood’s address,
Congressional District 4’s partisanship is “certainly more extreme than the vast majority” of
simulated districts. (Id. at PageID #8827:17–8828:7.) Dr. Warshaw testified that the 4th
Congressional District’s partisanship is more extreme than 95% of the simulated congressional
districts, indicating that its partisan composition is very unlikely to have occurred by chance. (Id.
at PageID #8828:8–14.)
Criticisms e.
The Congressional and Senate Intervenors attempt to discredit Dr. Warshaw’s findings,
but the Court is not convinced that his results are unreliable. Their first critique is that the
efficiency gap is not a dependable measure because it has been criticized by some political
scientists. (Cong. and State House Intervenors’ Proposed Findings of Fact, ECF No. 258 at
PageID #11008–9; Senate Intervenors’ Proposed Findings of Fact, ECF No. 255 at PageID
#10421.) The Court is not swayed by this argument. Contrary to Intervenors’ assertion, recent
literature has characterized the efficiency gap metric as a “powerful way” to evaluate the
existence of partisan gerrymandering.28 Furthermore, as noted above, Dr. Warshaw does not rely
28 See, e.g., Warshaw Report at 6 (citing recent scientific literature that supports the efficacy and use of the efficiency gap to measure partisan gerrymandering).
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on the efficiency gap in isolation. He compares the efficiency gap of the Enacted Plan to
historical measures of the efficiency gap. He also uses the median-mean difference and the
declination metric. Each comparison and metric strongly supports his conclusion that the
Enacted Plan advantages Republicans and disfavors Democrats.
Next, the Congressional and State House Intervenors challenge the legitimacy of Dr.
Warshaw’s two other measures—median-mean difference and declination. The Congressional
and State House Intervenors argue that these measures have not been widely accepted in the
political science community and urge the Court to consider them flawed. (Cong. and State House
Intervenors’ Proposed Findings of Fact, ECF No. 258 at PageID #11018–20.) In support of their
contention, Congressional and State House Intervenors cite to sections of Dr. Warshaw’s
deposition testimony where he discusses criticisms of these two measures that have been voiced
in some scientific publications. (Warshaw Dep. at 171:5–7; 177:3–8.) However, Congressional
and State House Intervenors conveniently fail to cite other parts of Dr. Warshaw’s deposition
testimony where he explains why the criticisms concerning the median-mean difference and
declination measures do not undermine his conclusions in this case. Dr. Warshaw explains that
“it’s important to remember that the measure you use is relatively unimportant . . . at the end of
the day all these measures of gerrymandering are extremely highly correlated, particularly in
states like Michigan with competitive elections.” (Id. at 167:2–12.)
Dr. Warshaw’s point, with which the Court agrees, is that while one could reasonably
criticize certain aspects of each measure used to evaluate partisan gerrymandering, these
criticisms do not diminish Plaintiffs’ experts’ findings given that all of the measures they use
uniformly and unequivocally point to the same conclusion: the Enacted Plan strongly, and
systematically, advantages Republicans and disadvantages Democrats.
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3. Dr. Kenneth Mayer29
Plaintiffs’ last expert, Kenneth Mayer, Ph.D., (“Dr. Mayer”), evaluated whether the
Enacted Plan constituted an extreme partisan gerrymander. (Mayer Report at 3.) Dr. Mayer used
various metrics to analyze the partisanship of Enacted Plan, namely: (1) partisan bias;30 (2)
partisan symmetry;31 (3) efficiency gap; (4) median-mean difference; and (5) declination.32 Like
the evidence presented by Plaintiffs’ other experts, Dr. Mayer’s statistical analyses all indicate
that the Enacted Plan constitutes a pro-Republican partisan gerrymander.
29 Dr. Kenneth Mayer is a Professor of Political Science at the University of Wisconsin, Madison. He received his B.A. in Political Science from the University of California, San Diego, his M.A. and M.Phil. from Yale University, and his Ph.D. in Political Science from Yale University. He has served as an expert witness in approximately five cases regarding redistricting. (See Mayer Report at 96–107.) 30 Dr. Mayer explained that, to calculate the partisan vote-bias, “n, the number of districts a party must win to obtain a majority, will be i = (n+1)/2 rounded up to the nearest integer. If the districts are sorted in ascending order of the vote share of the minority party, the ith district will be the pivotal district. Subtracting the vote share in this district from 0.5, and adding the result to the aggregate vote share that party received, will show the statewide vote share that the minority party would need to win in order to gain a majority of seats, assuming a uniform swing.” (Mayer Report at 17 (footnotes omitted).) 31 Dr. Mayer stated that partisan symmetry is calculated by “using the results from an election or a measure of baseline partisanship, [and] calculat[ing] the aggregate vote share and seat share for the party holding a majority of the seats. Then[,] conduct[ing] a uniform swing analysis, shifting the statewide vote by the amount needed to give the other party the equivalent vote share, and applying the shift in each district, determining the winner of each district election at the shifted vote percentage. If both parties have the same share of seats at the equivalent vote share, the electoral system is symmetric. If not, the difference in seat shares obtained at the same vote share is a measure of symmetry.” (Mayer Report at 19.) 32 Dr. Mayer relied on the data file that was provided to him that has one observation for each of Michigan’s 329,885 census blocks, and includes population, VTD assignments, district assignments to Michigan’s current congressional, Senate, and House districts, and data allocating to each block Democratic and Republican votes in a series of statewide elections. (Mayer Report at 28.) The election data that Dr. Mayer used was aggregated from the stipulated data into baseline measures by Dr. Chen. While Dr. Mayer analyzed statewide election data from between 2006 and 2010 and between 2012 and 2016, the Court only discusses his data from 2012 to 2016.
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Partisan Bias and Partisan Symmetry a.
Congressional Mapi.
Dr. Mayer found that in the congressional elections that took place from 2012 to 2016,
the partisan bias was í16.6%, which when adjusted to 50% of the statewide vote using a uniform
swing analysis, becomes í14.3%. (Mayer Report at 30–31.) In other words, if Republicans won
50% of the statewide vote under the Enacted Plan, they would be estimated to win approximately
64.3% of the congressional seats. (Id.) Dr. Mayer further found that, to win a majority of the
congressional seats under the Enacted Plan, Democrats would need to win 57.5% of the
statewide vote. (Id. at 30.) This is in stark contrast to Republicans, who won 9 of the 14
congressional seats (64.3%) in each election between 2012 and 2016 despite never securing more
than 50.5% of the statewide vote. Dr. Mayer also determined that if the Republicans received the
same percentage of the statewide vote as Democrats across these congressional elections, they
would have won 9 seats compared to the 5 seats that the Democrats won. (Id.)
Senate Mapii.
Dr. Mayer found that during the 2014 Senate elections, the partisan bias of the Senate
map was í15.5%, which when adjusted to 50% of the statewide vote using a uniform swing
analysis, becomes í15.8%. (Id. at 50.) In other words, even if Republicans only won 50% of the
vote, they were estimated to win approximately 65.8% of the Senate seats. (Id.) Dr. Mayer also
found that, if Republicans received the same percentage of the aggregate vote as Democrats
received in the 2014 Senate election, they would have won 27 seats compared to the 14 that
Democrats won. (Id.)
House Mapiii.
Dr. Mayer found that during the House elections that took place between 2012 and 2016,
the partisan bias of the House map was í7.8%, which when adjusted to 50% of the statewide
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vote using a uniform swing, becomes í9.1%. (Id. at 40.) In other words, even if Republicans
only won 50% of the vote, they would be estimated to win 59.1% of the House seats. (Id.) Dr.
Mayer also found that if Republicans received the same percentage of the aggregate vote as
Democrats, they would have won 70 seats compared to the 49 that Democrats won on average.
(Id.)
Efficiency Gapb.
Dr. Mayer determined that the efficiency gap for the congressional elections held
between 2012 and 2016 was “extraordinarily large and negative,” meaning that it strongly
favored Republicans. (Id. at 31–32.) Specifically, the efficiency gap for these elections was
í19.7%, which translated to Republicans winning approximately 3 additional seats in each
congressional election. (Id. at 32.) Dr. Mayer similarly found that efficiency gap for the Senate
map in the 2014 elections ZDVí19.3%. (Id. at 51.) He further found that efficiency gap for the
House map between 2012 and 2016 was í11.9%, which indicates a pro-Republican bias that
“endur[ed] over multiple election cycles.” (Id. at 41.)
Median-mean Differencec.
Like the other statistical metrics used by Dr. Mayer, the median-mean difference
demonstrates a strong pro-Republican bias across all three maps. Dr. Mayer found that the
median-mean measure for the congressional, Senate, and House maps is í7.7%, í6.1%, and
í6.9%, respectively. (Id. at 32; 42; 51.) These results indicate that the Enacted Plan weighs
Republican and Democratic votes unequally. (Id.)
Declination d.
Dr. Mayer also found that the declination measure demonstrates the Enacted Plan’s
strong pro-Republican bias. According to Dr. Mayer, the declination metric for Michigan’s
current congressional, Senate, and House plans for 2012-2016 is 0.398, 0.380, and 0.243,
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respectively. (Id. at 35; 44; 54.) These values suggest that the Enacted Plan cracks and packs
Democrats and thus advantages Republicans. (Id.)
Criticismse.
Intervenors’ main criticism of Dr. Mayer’s findings is that they are based on Dr. Chen’s
data, which Intervenors claim is unreliable. (See, e.g., Cong. and State House Intervenors’
Proposed Findings of Fact, ECF No. 258 at PageID #11002–3.) However, as previously noted,
Dr. Chen is widely-renowned as an expert in his field and he has provided admissible expert
testimony in several redistricting cases. Furthermore, the Court has determined that Dr. Chen’s
data and expert findings are reliable.
Congressional and State House Intervenors also argue that the Court should disregard
Dr. Mayer’s findings because he relied on the efficiency gap, which they contend is an inherently
flawed measure, and because Dr. Mayer’s efficiency gap scores did not perfectly match those
calculated by Dr. Chen. (Cong. and State House Intervenors’ Proposed Findings of Fact, ECF
No. 258 at PageID #11062.) But, as the Court noted above, the efficiency gap is a widely
accepted measure of partisan gerrymandering. While reasonable criticisms of the measure exist,
these criticisms fail to diminish the power of Plaintiffs’ experts’ findings given that all the
metrics unvaryingly point towards the Enacted Plan being a partisan gerrymander. The same is
true with the discrepancies in Dr. Chen and Dr. Mayer’s efficiency gap scores; while their scores
do not perfectly match, both experts’ analyses show an extremely large and durable pro
Republican efficiency gap across Michigan’s congressional, Senate, and House maps. Minor
inconsistencies between their data do not diminish the power of their findings, particularly given
that all of Plaintiffs’ experts’ evidence unequivocally supports the same conclusion: the Enacted
Plan profoundly, and systematically, advantages Republicans and disadvantages Democrats.
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C. Summary
Based on the robust qualitative evidence of discriminatory partisan intent discussed in
Part II.A, and the equally powerful quantitative evidence of discriminatory partisan intent and
discriminatory partisan effects discussed in Part II.B, the Court concludes that the Enacted Plan
was designed with the predominant purpose of advantaging Republicans and discriminating
against Democrats. The Court further finds 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.
Having made its factual findings above, the Court will now turn to the relevant legal
issues.
LACHESIII.
A. Introduction
Intervenors argue that the equitable doctrine of laches bars Plaintiffs claims because
Plaintiffs unreasonably delayed in asserting their rights. Intervenors observe that Plaintiffs did
not file suit until December 2017, over six years after passage of the Enacted Plan and after three
election cycles had already been held under the Enacted Plan. (See Senate Intervenors’ Proposed
Conclusions of Law, ECF No. 254 at PageID #10382–88; Cong. and State House Intervenors’
Proposed Conclusions of Law, ECF No. 258 at PageID #11148–49.) Intervenors argue that
Plaintiffs should have known that the Enacted Plan constituted an alleged partisan gerrymander
in June 2011 and, at the very latest, Plaintiffs knew that the Enacted Plan was an alleged partisan
gerrymander in 2015 when the League hired expert witnesses to examine the issue. (Cong. and
State House Intervenors’ Proposed Conclusions of Law at PageID #11148–49.) They also argue
that laches bars Plaintiffs’ claims because any relief would require drawing new maps using
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census data from 2010 which is no longer accurate. (Senate Intervenors’ Proposed Conclusions
of Law at PageID #10383–86.)
In response, Plaintiffs contend that laches does not apply to Plaintiffs’ partisan
gerrymandering claims as a matter of law because Plaintiffs are entitled to seek injunctive relief
to prevent continuing constitutional harms and because the Enacted Plan causes ongoing
violations of their constitutional rights. (Pls.’ Proposed Conclusions of Law, ECF No. 260-1 at
PageID #11480–85.) Plaintiffs alternatively argue that, even if laches applies to partisan
gerrymandering claims in theory, it does not bar their claims here, because Plaintiffs acted
diligently to assert their rights and because Intervenors have not demonstrated that they have
suffered any prejudice because of any alleged delay. (Id. at PageID #11485–87.)
The Court holds that laches does not apply to Plaintiffs’ partisan gerrymandering claims
as a matter of law. In the alternative, the Court holds that even if laches applies to these types of
claims, Intervenors have failed to establish that laches bars Plaintiffs claims in this case.
B. Legal Standard
“Where a plaintiff seeks solely equitable relief, his action may be barred by the equitable
defense of laches if (1) the plaintiff delayed unreasonably in asserting his rights and (2) the
defendant was prejudiced by this delay.” Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385
F.3d 641, 647 (6th Cir. 2004) (citing Brown–Graves Co. v. Cent. States, Se. and Sw. Areas
Pension Fund, 206 F.3d 680, 684 (6th Cir. 2000)). The Sixth Circuit has defined laches as the
“‘negligent and unintentional failure to protect one’s rights.’” Nartron Corp. v.
STMicroelectronics, Inc., 305 F.3d 397, 408 (6th Cir. 2002) (quoting Elvis Presley Enter., Inc. v.
Elvisly Yours, Inc., 936 F.2d 889, 894 (6th Cir. 1991)).
“Laches only bars damages that occurred before the filing date of the lawsuit.” Id. at 412
(internal citation omitted). “It does not prevent plaintiff[s] from obtaining injunctive relief or
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post-filing damages.” Id.; see Kellogg Co. v. Exxon Corp., 209 F.3d 562, 568 (6th Cir. 2000)
(holding that laches “does not bar injunctive relief”) (citing TWM Mfg. Co., Inc. v. Dura Corp.,
592 F.2d 346, 349–50 (6th Cir. 1979)). Laches does not apply to ongoing or recurring harms
because while “[l]aches stems from prejudice to the defendant occasioned by the plaintiff’s past
delay . . . almost by definition, the plaintiff’s past dilatoriness is unrelated to a defendant’s
ongoing behavior that threatens future harm.” Danjaq LLC v. Sony Corp., 263 F.3d 942, 959–60
(9th Cir. 2001) (citing Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 799 (4th Cir.
2001)); see also Kuhnle Bros., Inc. v. Cty. of Geauga, 103 F.3d 516, 522 (6th Cir. 1997) (holding
that “a law that works an ongoing violation of constitutional rights does not become immunized
from legal challenge” merely because the plaintiff failed to sue within the applicable statute of
limitations).
Notably, a recent three-judge panel in the Sixth Circuit held that laches does not apply as
a matter of law to partisan gerrymandering claims. See Ohio A. Philip Randolph Inst. v. Smith,
335 F. Supp. 3d 988, 1002 (S.D. Ohio 2018) (three-judge panel).
C. Laches Does Not Apply as a Matter of Law Because Plaintiffs Seek to Redress Ongoing Harms and Recurring Violations of Their Constitutional Rights
The Court finds that laches does not bar Plaintiffs’ claims as a matter of law. Plaintiffs
seek declaratory and injunctive relief. The Sixth Circuit has held that laches does not apply to
claims for prospective relief, see Nartron Corp., 305 F.3d at 412 and Kellogg Co., 209 F.3d at
568, and a three-judge panel in the Sixth Circuit has held that laches does not apply to allegations
of partisan gerrymandering, see Smith, 335 F. Supp. 3d at 1002. In this case, Plaintiffs assert that
the Enacted Plan has injured, and will continue to harm, their First and Fourteenth Amendment
rights. They ask this Court to declare the Challenged Districts unconstitutional and enjoin their
use in future elections to prevent further harm to their constitutional rights. Laches does not
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apply to Plaintiffs’ claims for declaratory and injunctive relief. See Nartron Corp., 305 F.3d at
412; Kellogg Co., 209 F.3d at 568; Smith, 335 F. Supp. 3d at 1002.
Our holding—that laches does not apply as a matter of law to partisan gerrymandering
claims—is consistent with the Supreme Court’s pronouncement, in Bandemer, that
an equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.
Davis v. Bandemer, 478 U.S. 109, 133 (1986). In Bandemer, the Supreme Court held that
“[r]elying on a single election cycle to prove unconstitutional discrimination is unsatisfactory” to
establish partisan gerrymandering. Id. Given that relying on a single election cycle is
“unsatisfactory” and that plaintiffs must demonstrate a “continued frustration” to prevail on their
partisan gerrymandering claims, laches cannot bar Plaintiffs’ claims on the basis that they waited
three election cycles to sue. See generally, id. To hold otherwise would force plaintiffs to sue
after exactly two elections have been held under a challenged districting plan. This Court is not
aware of any authority supporting such a rigid temporal requirement.
To argue that laches applies to Plaintiffs’ claims, Intervenors unconvincingly cite cases
that this Court has already distinguished in our opinion on summary judgment. For example,
Congressional and State House Intervenors rely on Benisek v. Lamone, 138 S. Ct. 1942, 1944
(2018) (see Cong. and State House Intervenors’ Proposed Conclusions of Law at PageID
#11147). But as we previously stated, Benisek involved a preliminary injunction and did not
directly address laches. See League of Women Voters of Michigan v. Johnson, 352 F. Supp. 3d
777, 808 (E.D. Mich. 2018) (three-judge panel). Congressional and State House Intervenors also
rely on Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273 (1983). (Cong. and
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State House Intervenors’ Proposed Conclusions of Law at PageID #11147.) However, as we
have already observed, Block “is completely inapposite because it involved title to the bed of a
river, not gerrymandering.” Id. at 809. These misguided analogies to Benisek and Block failed to
convince us at the summary judgment stage and similarly fail to persuade us now.
D. In the Alternative, Intervenors Have Failed to Prove Their Affirmative Defense of Laches
Even if the doctrine of laches were applicable to partisan gerrymandering claims, it
would not bar Plaintiffs’ claims in this case for two independently sufficient reasons. First,
Plaintiffs did not unreasonably delay in asserting their rights. Second, Intervenors did not suffer
prejudice from any alleged delay. See, e.g., Taft, 385 F.3d at 647. Therefore, Intervenors have
failed to establish their affirmative defense of laches. See generally E.E.O.C. v. Watkins Motor
Lines, Inc., 463 F.3d 436, 439 (6th Cir. 2006) (“As laches is an affirmative defense, the burden
of establishing both of these elements is on the party raising the defense.”)
Plaintiffs did not unreasonably delay in asserting their rights. See Taft, 385 F.3d at 647.
The three election cycles that occurred under the Enacted Plan before Plaintiffs filed their lawsuit
solidified Plaintiffs’ concerns that the Enacted Plan is a partisan gerrymander and added
legitimacy and support to Plaintiffs’ legal claims. Given that the Supreme Court has held that
relying on a single election cycle is “unsatisfactory” to prove partisan gerrymandering, Plaintiffs
did not act unreasonably by waiting until three elections had been held to sue. Furthermore, this
is an evolving area of the law that has experienced significant developments in recent years; it
was not unreasonable for Plaintiffs to wait to sue until the law in this area had developed
sufficiently to allow Plaintiffs to articulate and support their partisan gerrymandering claims.
Intervenors have therefore failed to satisfy their burden of proving that Plaintiffs unreasonably
delayed in asserting their rights. Id.
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Additionally, Intervenors have not demonstrated that they suffered prejudice because of
any delay in Plaintiffs’ decision to sue. See id. In support of their assertions of prejudice,
Intervenors posit that, because of Plaintiffs’ alleged delay, witnesses might have failed to
remember certain events and may have lost emails and other documents. (Cong. and State House
Intervenors’ Proposed Conclusions of Law at PageID #11148; Senate Intervenors’ Proposed
Findings of Fact, ECF No. 255 at PageID #10447–48.) However, Intervenors have failed to
substantiate these amorphous allegations. They argue, in a speculative and conclusory fashion,
that “they were unable to potentially mount as vigorous [a] defense” as they would have had
Plaintiffs sued sooner (Senate Intervenors’ Proposed Findings of Fact at PageID #11148), but
they have not explained with any particularity which emails, documents, and conversations were
lost to the passage of time or how access to these materials would have helped them defend
against Plaintiffs’ claims. Further, Intervenors undoubtedly benefitted from the fact that
Plaintiffs did not sue until 2016 insofar as, to date, four election cycles have been held under the
Enacted Plan. Intervenors have therefore failed to satisfy their burden of proving that they
suffered prejudice because of Plaintiffs’ alleged delay. Id.
Intervenors have failed to prove their affirmative defense of laches. Even if laches
applied to partisan gerrymandering claims, it would not bar Plaintiffs’ claims in this case.
JUSTICIABILITY AND SUBSTANTIVE STANDARDSIV.
The Supreme Court has held that partisan gerrymandering claims are justiciable. See
Bandemer, 478 U.S. at 127 (holding that partisan gerrymandering claims present justiciable
controversies under the Equal Protection Clause of the Fourteenth Amendment). It is true that, in
Bandemer, the Supreme Court “could not . . . settle on a standard for what constitutes an
unconstitutional partisan gerrymander.” Gill, 138 S. Ct. at 1927 (discussing Bandemer, 478 U.S.
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at 125, 127). Nonetheless, the Supreme Court has never overturned Bandemer’s holding that
political gerrymandering claims are justiciable. In Vieth, a four-justice plurality would have
overturned Bandemer because they believed that a judicially-manageable standard does not exist
to analyze claims of partisan gerrymandering. Vieth, 541 U.S. at 288–91; 305–07. However,
Justice Kennedy, who concurred in the judgment, refused to hold that partisan gerrymandering
claims are categorically non-justiciable and reaffirmed that Bandemer constitutes “controlling
precedent on the question of justiciability.” Id. at 310 (Kennedy, J., concurring in the judgment)
(stating that “[o]ur willingness to enter the political thicket of the apportionment process with
respect to one-person, one-vote claims makes it particularly difficult to justify a categorical
refusal to entertain claims against this other type of gerrymandering”). The Supreme Court
declined to reconsider Bandemer’s holding in its most recent decisions involving partisan
gerrymandering, League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) and Gill,
138 S. Ct. 1916.
In recent years, several three-judge panels have held that partisan gerrymandering claims
are justiciable. See, e.g., Ohio A. Philip Randolph Inst. v. Householder, No. 1:18-CV-357, 2019
WL 652980, at *2–7 (S.D. Ohio Feb. 15, 2019) (three-judge panel); Rucho, 318 F. Supp. 3d at
838; see Benisek, 348 F. Supp. 3d at 513; see also Shapiro, 203 F. Supp. 3d at 594. And lower
federal courts have formulated judicially-manageable standards for adjudicating partisan
gerrymandering claims. Householder, 2019 WL 652980, at *3–4 (explaining that federal courts
have “converged considerably on common ground in establishing standards for determining
whether a partisan gerrymander is unconstitutional”). In these cases, federal courts have largely
agreed on a three-part framework for evaluating the constitutionality of alleged partisan
gerrymanders whereby, to prevail, Plaintiffs must demonstrate: (1) discriminatory partisan intent,
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(2) discriminatory partisan effects, and (3) causation and/or a lack of justification. See id. at *4
(applying three-part discriminatory partisan intent, discriminatory partisan effects, and lack of
legitimate justification test for Fourteenth Amendment and First Amendment claims); Rucho,
318 F. Supp. 3d at 860–68 (articulating three-part discriminatory intent, discriminatory effects,
and lack of justification test for Fourteenth Amendment claims and a similar three-part test for
First Amendment claims); Benisek, 348 F. Supp. 3d at 515 (formulating a three-part
discriminatory intent, discriminatory effects, and causation test for First Amendment claims);
Shapiro, 203 F. Supp. 3d at 598 (using a three-part intent, effects, and causation standard for
First Amendment claims).
In keeping with these other federal courts, we previously determined, at the summary
judgment stage, that judicially-manageable standards exist to adjudicate Plaintiffs’ partisan
gerrymandering claims under the three-part discriminatory intent, discriminatory effects, and
lack of justification test. See Johnson, 352 F. Supp. 3d at 804–05.
We will evaluate Plaintiffs’ Fourteenth Amendment Equal Protection claims under the
standard articulated by the Rucho panel. Id.; see Rucho, 318 F. Supp. 3d at 860–68. Under this
framework, Plaintiffs bear the burden of establishing two elements: (1) discriminatory intent
under the predominant purpose standard, i.e., that “a legislative mapdrawer’s predominant
purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political
party and entrench a rival party in power,’”33 see Rucho, 318 F. Supp. 3d at 864 (quoting Ariz.
33 We previously explained why we will employ the “predominant purpose” test to analyze the “intent” prong of the three-part standard:
The Court will evaluate the intent prong using the “predominant purpose” test, under which “a congressional district amounts to an unconstitutional partisan gerrymander only if the legislative body’s predominant purpose in drawing the district was to subordinate the interests of supporters of a disfavored party and entrench a representative from a favored party in power.” Id. at 852 (emphasis in
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State Leg., 135 S. Ct. at 2658); and (2) discriminatory effects, i.e., that “the lines of a particular
district have the effect of discriminating against—or subordinating—voters who support
candidates of a disfavored party, if the district dilutes such voters’ votes by virtue of cracking or
packing.” Id. at 867; see Gill, 138 S. Ct. at 1931 and Ariz. State Leg., 135 S. Ct at 2658. If
Plaintiffs establish these elements, the burden shifts to Intervenors to show “that a legitimate
state interest or other neutral factor justified such discrimination.” Id. (citing Cooper v. Harris,
137 S. Ct. 1455, 1464 (2017) (applying burden-shifting framework to racial gerrymandering
claims) and Brown v. Thomson, 462 U.S. 835, 843 (1983) (applying burden-shifting framework
to one-person, one-vote claims)).
We will apply a similar three-part test for adjudicating Plaintiffs’ First Amendment
claims. Johnson, 352 F. Supp. 3d at 805–07. Under this framework, Plaintiffs bear the burden of
establishing three elements: (1) that the districts were drawn with the “‘specific intent’ to ‘burden
individuals or entities that support a disfavored candidate or political party,’” id. at 807 (quoting
Shapiro, 203 F. Supp. 3d at 597 and Rucho, 318 F. Supp. 3d at 929); (2) that the Enacted Plan
“actually caused an injury” and “‘burdened the political speech or associational rights of such
individuals or entities,’” id. (quoting Rucho, 318 F. Supp. 3d at 929); and (3) causation, namely
that “‘absent the mapmakers’ intent to burden a particular group of voters by reason of their
original). The Court adopts the “predominant purpose” test because, in Gill, the Supreme Court directly analogized partisan gerrymandering claims and racial gerrymandering claims, see Gill, 138 S. Ct. at 1930, and because federal courts regularly apply the “predominant purpose” standard to racial gerrymandering claims. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections, ––– U.S. ––––, 137 S. Ct. 788, 797, 197 L.Ed.2d 85 (2017); Alabama Legislative Black Caucus v. Alabama, ––– U.S. ––––, 135 S. Ct. 1257, 1270, 191 L.Ed.2d 314 (2015); Miller v. Johnson, 515 U.S. 900, 916, 115 S. Ct. 2475, 132 L.Ed.2d 762 (1995).
Johnson, 352 F. Supp. 3d at 804–05.
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views, the concrete adverse impact would not have occurred.’” Id. (quoting Shapiro, 203 F.
Supp. 3d at 598).
Before analyzing the merits of Plaintiffs’ claims, we observe that the fact that Plaintiffs’
rely on social-scientific data to support their claims does not render their claims non-justiciable.
Plaintiffs do not ask the Court to derive a substantive standard from their statistical evidence or
constitutionalize their empirical methodologies. Rather, Plaintiffs offer robust social science
evidence to support their constitutional claims—i.e., as evidence to prove their allegation that the
Enacted Plan violated their constitutional rights.
There is nothing unusual about this approach. “Courts routinely utilize statistical analyses
in other contexts, including the similar context of racial vote-dilution cases under the [Voting
Rights Act].” Householder, 2019 WL 652980, at *8. Furthermore, the Supreme Court has long
“relied on statistical and social science evidence as proof that a government action was motivated
by discriminatory intent or had a discriminatory effect . . . .” Rucho, 318 F. Supp. 3d at 853. See
e.g., Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954). And, as Justice
Kennedy aptly observed in Vieth, “new technologies may produce new methods of analysis that
make more evident the precise nature of the burdens gerrymanders impose on the
representational rights of voters and parties [which] would facilitate court efforts to identify and
remedy the burdens” caused by partisan gerrymanders. Vieth, 541 U.S. at 312–13 (Kennedy, J.
concurring).
We are aware of no convincing reason why we should not consult statistical and social
scientific evidence—which federal courts regularly employ in cases involving similar issues, and
which may help elucidate the nature and extent of the injuries allegedly caused by the Enacted
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Plan—in determining whether Plaintiffs have proven the elements of their partisan
gerrymandering claims.
STANDINGV.
A. Introduction
“Article III of the Constitution limits the judicial power of the United States to the
resolution of ‘Cases’ and ‘Controversies,’ and ‘Article III standing . . . enforces the
Constitution’s case-or-controversy requirement.’” Hein v. Freedom From Religion Found., Inc.,
551 U.S. 587, 597–98 (2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006)). Standing “is the threshold question in every federal case, determining the power of the
court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). “[T]the standing question
is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as
to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s
remedial powers on his behalf.” Id. at 498–99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
A plaintiff must satisfy three elements to establish standing. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). First, that she suffered an “injury in fact” that is “concrete
and particularized” and “actual or imminent” rather than “conjectural or hypothetical.” Lujan,
504 U.S. at 560 (internal citations omitted). Second, “a causal connection between the injury and
the conduct complained of—the injury has to be ‘fairly trace[able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some third party not before the
court.” Id. (alteration in original) (internal citation omitted). Third, that a favorable decision will
“likely” redress her injury. Id. at 561 (internal citation omitted). Courts refer to these elements as
the “‘injury-in-fact,’ ‘causation,’ and ‘redressability’ requirements.” Phillips v. DeWine, 841
F.3d 405, 414 (6th Cir. 2016) (citing Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S.
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269, 273 (2008)). “The party invoking federal jurisdiction bears the burden of establishing these
elements.” Lujan, 504 U.S. at 561 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)).
“[S]tanding is not dispensed in gross.” Gill, 138 S. Ct. at 1934. Therefore, “a plaintiff
must demonstrate standing for each claim.” Cuno, 547 U.S. at 352.
B. Plaintiffs Have Established Standing for Their Fourteenth Amendment Vote Dilution Claims for Most of the Challenged Districts
“The Equal Protection Clause guarantees citizens that their State will govern them
impartially.” Bandemer, 478 U.S. at 166 (Powell, J., concurring in part and dissenting in part).
This guarantee is of “critical importance” in the redistricting context “because the franchise
provides most citizens their only voice in the legislative process.” Id. (citing Reynolds, 377 U.S.
at 561–62.) Because “the contours of a voting district powerfully may affect citizens’ ability to
exercise influence through their vote, district lines should be determined in accordance with
neutral and legitimate criteria.” Id. Therefore, “[w]hen deciding where those lines will fall, the
State should treat its voters as standing in the same position, regardless of their political beliefs
or party affiliation.” Id. (citing Chapman v. Meier, 420 U.S. 1, 17 (1975) and Gaffney, 412 U.S.
at 751).
The Court will first analyze whether Voters have established standing for their vote
dilution claims. The Court will then evaluate whether the League has established derivative
standing for its vote dilution claims based on district-specific injuries to its members. As
discussed below, the Court finds that Voters and, by extension, the League, have established
standing to proceed on their vote dilution claims for most of the Challenged Districts.
1. Voters
The Court finds that Voters have established standing for their Fourteenth Amendment
vote-dilution claims for most of the Challenged Districts.
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Relevant Legal Standarda.
In Gill, the Supreme Court articulated the standing requirements for a partisan
gerrymandering claim asserting vote dilution in violation of the Fourteenth Amendment’s Equal
Protection Clause. See Gill, 138 S. Ct. at 1929–31. The Supreme Court reaffirmed the well
established principle that “a person’s right to vote is ‘individual and personal in nature.’” Id. at
1929 (quoting Reynolds, 377 U.S. at 561). Therefore, only “‘voters who allege facts showing
disadvantage to themselves as individuals have standing to sue’” under the Fourteenth
Amendment. Id. (emphasis added) (quoting Baker, 369 U.S. at 206).
When plaintiffs allege that their votes have been diluted because of packing or cracking,
“that injury is district specific.” Id. at 1930. This is because “[t]he boundaries of the district, and
the composition of its voters, determine whether and to what extent a particular voter is packed
or cracked.” Id. Accordingly, under a theory of vote dilution, any injury a voter suffers as an
individual “results from the boundaries of the particular district in which he resides.” Id.
(emphasis added). And “the remedy that is proper and sufficient lies in the revision of the
boundaries of the individual’s own district.” Id.
The plaintiffs in Gill failed to establish standing because they asserted only statewide
injuries, not district-specific harms. They proceeded on a theory that “their legal injury is not
limited to the injury that they have suffered as individual voters, but extends also to the statewide
harm to their interest in their collective representation in the legislature, and in influencing the
legislature’s overall composition and policymaking.” Id. at 1931 (internal quotations and
citations omitted). The Supreme Court rejected the plaintiffs’ theory as “the kind of
undifferentiated, generalized grievance about the conduct of government that we have refused to
countenance in the past.” Id. (internal quotation marks and citation omitted).
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The Supreme Court observed that “[f]our of the plaintiffs” had sufficiently “pleaded a
particularized burden” to their individual right to vote because they alleged that the challenged
apportionment plan “diluted the influence of their votes as a result of packing or cracking in their
legislative districts.” Id. (citation, quotation marks, and alteration omitted). But, after the
pleading stage, “the plaintiffs failed to meaningfully pursue their allegations of individual harm.”
Id. at 1932. In fact, at trial, “not a single plaintiff sought to prove that he or she lives in a cracked
or packed district.” Id. Instead, the plaintiffs “rested their case at trial—and their arguments
before [the Supreme] Court—on their theory of statewide injury to Wisconsin Democrats” which
did not demonstrate harm to an individual voter in any specific district. Id. Recognizing that the
Gill plaintiffs could satisfy the injury-in-fact requirement by presenting evidence “that would
tend to demonstrate a burden on their individual votes,” the Supreme Court remanded the case to
the district court to allow the plaintiffs to present the requisite evidence of individual, district
specific harms. Id. at 1934.
As Gill points out, individual voters have standing to challenge an apportionment plan if
they can show a constitutional, redressable injury resulting from the imposition of an
unconstitutional partisan gerrymander. This Court must then look at each district wherein a
constitutional injury is alleged to determine standing. This Court has studied the parties’ proofs
and has determined that the Plaintiffs have carried their burden of proof on most, but not all, of
the Challenged Districts.
Plaintiffs challenge the following 34 districts as being unconstitutionally cracked or
packed: Congressional Districts 1, 4, 5, 7, 8, 9, 10, 11, and 12; Senate Districts 8, 10, 11, 12, 14,
18, 22, 27, 32, and 36; and House Districts 24, 32, 51, 52, 55, 60, 62, 63, 75, 76, 83, 91, 92, 94,
and 95. The Court has found standing in those districts where Plaintiffs have shown that (1) at
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least one Individual or League Plaintiff resides in the Challenged District; (2) Plaintiff intends to
live in the district in 2020; (3) Plaintiff identifies with the Democratic party, consistently votes
for Democrats, and/or is likely to vote for the Democratic candidate for the district in 2020; (4)
Plaintiff’s vote is diluted because he or she has been placed in a packed or cracked district; and
(5) Plaintiff’s vote would carry more weight if the map were drawn without partisan
considerations.
Given the above criteria, Plaintiffs have established standing in all but the following
Challenged Districts: Senate Districts 10, 22, and 32; and House Districts 52, 62, 76, and 92.
Voters Have Established Standing with Respect to Most of the b. Challenged Districts
Congressional District 1i.
Congressional District 1 spans the entire Upper Peninsula, the northern portion of the
Lower Peninsula, and a few counties along the west side of the state.
League Plaintiff Jane Elizabeth Speer is a registered voter who has resided in
Congressional District 1 for at least the past 18 years and plans to reside in the same district in
2020. (Speer Dep. at 6:4–12.) Speer consistently votes for Democrats and intends to vote for
Democrats in 2020. (Id. at 10:19–11:15.) Speer feels frustrated and less enthusiastic about voting
because she is “pretty sure what the results are going to be.” (Id. at 12:24–13:2.) Speer believes
that her representative in Congressional District 1 is less responsive to her because the
congressman will likely be reelected regardless of his responsiveness. (Id. at 15:25–17:25.)
League Plaintiff Trina Rae Borenstein also is a registered voter and has resided in Congressional
District 1 since before the 2011 redistricting and plans to reside in Congressional District 1 in
2020 and vote for Democrats. (Borenstein Dep. at 10:17–11:9.) Borenstein is a Democrat and
serves on the board of her local Democratic Party. (Id. at 23:10–18.) Borenstein participates in
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local politics but feels disheartened because participation feels “futile.” (Id. at 83:10–17.)
Borenstein stated that when she wrote letters to the congressman for Congressional District 1,
she received responses only “[a]bout half the time,” and the responses she did receive often did
not refer to the topic on which she wrote the letter. (Id. at 30:16–31:4.)
Congressional District 1 is more Republican than the vast majority of Dr. Chen’s 1,000
alternative maps, meaning that the district is cracked. Most of the alternative maps would place
Speer and Borenstein in a competitive or Democratic-leaning district where their votes would
carry more weight, thereby redressing their harms. (Pls.’ Trial Ex. 278 at p. 3.) Congressional
District 1 is a partisan outlier. (Chen Report at 56.)
Vatter, who was the principal map-drawer for the Senate Democrats in 2000 and 2010,
testified that the Enacted Plan removed Bay, Arenac, and Iosco Counties—Democratic-leaning
counties—from Congressional District 1 and added counties from the western side of the state,
making Congressional District 1 “much more Republican.” (Vatter Trial Tr., ECF No. 249 at
PageID #9000:5–25.) Since the 2011 redistricting, no Democratic candidate has won in
Congressional District 1. (Id. at PageID #9001:1–3.) Moreover, the Enacted Plan contains both
county and municipal breaks in Congressional District 1, but, as Vatter testified, it was possible
to draw Congressional District 1 without those breaks. (Id. at PageID #9003:1–8.)
Congressional District 4ii.
Congressional District 4 covers the middle portion of the Lower Peninsula without
touching any coastline of the Great Lakes. Congressional District 4 has an odd shape that has
been described as a man with a beard wearing a chef’s hat and smoking a pipe.
League Plaintiff Karen Sherwood is a registered voter residing in Congressional District
4, and she plans to reside at the same address in 2020. (Sherwood Trial Tr., ECF No. 249 at
PageID #8944:3–5, 8945:9–13.) Sherwood votes Democratic and plans to vote for Democrats in
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the 2020 election. (Id. at PageID #8945:14–19.) Sherwood has voted for Democrats since the
2011 redistricting, but Congressional District 4 has elected only Republicans in that timeframe.
John Moolenaar is the current representative of Congressional District 4, and Sherwood opined
that “he really doesn’t represent [her] views.” (Id. at PageID #8946:14–8947:20.)
The Warshaw Charts show that for Sherwood, Congressional District 4 is more
Republican than the majority of alternative districts Dr. Chen provided, making Congressional
District 4 a cracked district. Numerous alternative maps would place Sherwood in a competitive
or Democratic-leaning district, giving her vote more weight and redressing her harm. (Pls.’ Trial
Ex. 278 at p. 3.) Congressional District 4 is a partisan outlier. (Chen Report at 56.)
As Brandon Dillon, a former chair of the Michigan Democratic Party, testified: in 2016,
the Democratic Party was unable to have a candidate for Congressional District 4 get enough
signatures to qualify for the ballot by the filing deadline because the party had a difficult time
finding anybody who was willing to run. (Dillon Trial Tr., ECF No. 249 at PageID #9101:17–
21.) Dillon attributed the difficulty of finding a candidate to run in Congressional District 4 to an
attitude that no Democrat could win in the district. (Id. at PageID #9102:2–4.) Vatter testified
that when Congressional District 4 was drawn, instead of adding Iosco, Arenac, and Bay
Counties from the former Congressional District 1, the map-drawers added Republican areas,
making Congressional District 4 more Republican. (Vatter Trial Tr., ECF No. 249 at PageID
#9004:24–9005:3.) The map-drawers knew that there would have to be a break in Saginaw
County, but to achieve the break, the map for Congressional District 4 was drawn with an odd
shaped addition that included Frankenmuth, a Republican-leaning area of Saginaw County.
(LaBrant Dep. at 213:18–214:13.)
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Congressional District 5iii.
Congressional District 5 encompasses the entirety of Iosco, Arenac, Bay, and Genessee
Counties, and portions of Saginaw and Tuscola Counties. Congressional District 5 is a thin strip
of land with several jagged edges.
Individual Plaintiff Rosa Holliday is a registered voter residing in Congressional District
5 and plans to reside at the same address through the 2020 elections. (Holliday Trial Tr., ECF
No. 250 at PageID #9222:23–9223:10.) Holliday has voted in every election since she was
eligible to vote and typically votes for Democratic candidates. (Id. at PageID #9224:7–18.)
Holliday intends to vote for Democrats in the 2020 election. (Id. at PageID #9225:10–13.)
Holliday considers herself “[v]ery active” in politics, but she feels that her vote in Congressional
District 5 is “wasted” because Congressional District 5 is packed with Democrats. (Id. at PageID
#9225:16–17, 9231:11–12.) League Plaintiff Deborah Lee Cherry is a registered voter who has
resided in Congressional District 5 for at least the past 16 years and plans to live at the same
address in 2020. (Cherry Dep. at 5:5–24.) Cherry is a Democrat and plans to support Democrats
in 2020. (Id. at 10:9–11, 11:5–12:11.) Cherry has also served as a Democratic elected official in
various capacities. (Id. at 9:10–24.) Cherry does not believe that her vote counts as much in
Congressional District 5 as it would in other, more competitive races because it is “almost a
given that a Democrat will win” in Congressional District 5. (Id. at 14:2–10.)
For Holliday and Cherry, Congressional District 5 is more Democratic than any of the
1,000 alternative districts that Dr. Chen provided, making Congressional District 5 a packed
district. Every alternative map would place Holliday and Cherry in a more competitive district
than their current district where their votes would carry more weight, which would redress their
harms. (Pls.’ Trial Ex. 278 at p. 3.) Dr. Chen identified Congressional District 5 as a partisan
outlier. (Chen Report at 56.)
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Vatter refers to Congressional District 5 as “a super-Democratic congressional district.”
(Vatter Trial Tr., ECF No. 249 at PageID #9008:21–22.) According to Vatter, by adding the
Democratic-leaning counties of Bay, Iosco, and Arenac from the former Congressional District 1
to Genessee County (Flint) and the Democratic parts of Saginaw County, the map packed
Democrats into one district, making the surrounding districts—Congressional Districts 4, 8, and
10—more Republican. (Id. at PageID #9008:11–9009:6.)
Congressional District 7iv.
Congressional District 7 touches the southeastern corner of the Lower Peninsula and
includes Monroe, Lenawee, Hillsdale, Branch, Jackson, and Eaton Counties, plus the portion of
Washtenaw County that excludes Ann Arbor and Ypsilanti. Eaton County attaches to
Congressional District 7 by only a corner.
League Plaintiff Christine Canning-Peterson is a registered voter who has resided in
Congressional District 7 since before the 2011 redistricting and plans to reside at the same
address in 2020. (Canning-Peterson Dep. at 5:2–6:2.) Canning-Peterson identifies as a Democrat,
has voted for Democrats in the elections since 2012, and plans to vote for Democrats in 2020.
(Id. at 10:14–11:7.) When the lines were redrawn in 2011, Canning-Peterson no longer resided in
the same district as the congressman who had previously been her representative, and she was
upset that she could no longer vote for that representative. (Id. at 11:7–21.) Canning-Peterson
does not feel her vote has any power because “the district is stacked and written so that
Republicans are going to win.” (Id. at 13:11–12.) League Plaintiff Carolyn Vertin is a registered
voter who resides in Congressional District 7, and she has lived at the same address for more
than 40 years. (Vertin Dep. at 10:20–11:7.) Vertin identifies as a Democrat, consistently votes
for Democrats, and most likely intends to vote for Democrats in 2020. (Id. at 11:8–21.)
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Congressional District 7 is a cracked district. It is more Republican than the vast majority
of the alternative districts identified by Dr. Chen. Several alternative maps would place Canning
Peterson and Vertin in a more competitive, often Democratic-leaning district, which would give
their votes greater weight and redress their harms. (Pls.’ Trial Ex. 278 at p. 3.) Dr. Chen found
Congressional District 7 to be a partisan outlier. (Chen Report at 56.)
Vatter testified that before the Enacted Plan went into effect, Congressional District 7
was a competitive district that went back and forth between Democrat Mark Shauer and
Republican Tim Walberg. (Vatter Trial Tr., ECF No. 249 at PageID #9009:7–17.) The Enacted
Plan removed Calhoun County, a Democratic-leaning county and the home of Shauer, from
Congressional District 7, while adding the Republican-leaning portion of Washtenaw County,
resulting in a much more Republican district. (Id. at PageID #9009:19–9010:13.)
Congressional District 8v.
Congressional District 8 contains Ingham County, Livingston County, and the
northernmost portion of Oakland County in an odd configuration.
League Plaintiff Harold Lynn Jondahl has resided in Congressional District 8 at least
since the implementation of the Enacted Plan, though he changed addresses within
Congressional District 8 during that time. (Jondahl Dep. at 12:2–20.) Jondahl has voted
consistently for Democrats while residing in Congressional District 8 and considers himself a
Democrat. (Id. at 12:21–13:9.) Jondahl intends to live in Congressional District 8 and vote for
Democrats in 2020. (Id. at 13:10–14, 15:2–4.) Jondahl recalls his previous district being
competitive, going back and forth between electing Democrats and Republicans, until the 2011
redistricting made the district “quite lopsided in electing Republicans.” (Id. at 15:16–21.) League
Plaintiff Jill Corrine Kroll has lived at the same address within Congressional District 8 for the
last 25 years and intends to live there in 2020. (Kroll Dep. at 5:4–9.) Kroll is a registered voter
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and “always votes Democratic.” (Id. at 9:5–9.) Kroll intends to vote for Democrats in 2020. (Id.
at 9:13–14.) Kroll found her representative in Congressional District 8 to be “non-responsive”
after the 2011 redistricting and believed the decreased level of responsiveness was “because the
district was a safe district” for that representative. (Id. at 9:18–10:7.) Kroll stated that
“superhuman effort” was required to overcome the gerrymandered district and get a different
candidate elected. (Id. at 12:3–8.)
The Warshaw Charts show that for Jondahl and Kroll, Congressional District 8 is more
Republican than all of the alternative districts identified by Dr. Chen, making Congressional
District 8 a cracked district. Numerous alternative maps would place Jondahl and Kroll in a more
competitive or Democratic-leaning district, giving their votes more weight and redressing their
harms. (Pls.’ Trial Ex. 278 at p. 3.) Dr. Chen found that Congressional District 8 is a partisan
outlier. (Chen Report at 56.)
Vatter testified that prior to 2001, Congressional District 8 was a competitive district.
(Vatter Trial Tr., ECF No. 249 at PageID #9010:18–21.) The 2001 redistricting added the
Republican-leaning portion of Oakland County, making District 8 more Republican. (Id. at
PageID #9010:22–9011:8.) In 2018, a “very strong” year for Democrats, a Democrat was elected
to represent Congressional District 8 for the first time in more than 15 years. Despite that fact,
Jondahl and Kroll still have standing to sue because Plaintiffs have shown that the Enacted Plan
placed Jondahl and Kroll in a district that diluted their votes (harm) and that alternative maps
would make their district more competitive or Democratic-leaning (redressability).
Congressional District 9vi.
Congressional District 9 covers portions of Macomb and Oakland Counties, in an odd
shape that wraps around Bloomfield Hills without including Bloomfield Hills or Birmingham.
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Individual Plaintiff Jack Ellis has resided in Congressional District 9 since the
implementation of the Enacted Plan and intends to reside in the same district in 2020. (Ellis Dep.
at 8:21–25, 10:23–11:2.) Ellis has consistently voted for the Democratic Party and intends to
vote for a Democrat for Congressional District 9 in 2020. (Id. at 10:5–11:2.) Ellis believes that
Congressional District 9 is a packed district because since 2011 a Democrat has won the
congressional seat with somewhere between 57 to 61 percent of the vote, whereas before the
redistricting, the district was much more competitive. (Id. at 17:20–18:3.) Individual Plaintiff
William Grasha has resided at an address within Congressional District 9 for 31 years and plans
to live at that same address in 2020. (Grasha Trial Tr., ECF No. 250 at PageID #9195:17–25.)
Grasha is a registered voter who regularly votes Democratic and intends to vote for Democrats in
2020. (Id. at PageID #9196:1–9197:6.) Grasha considers Congressional District 9 to be a district
packed with Democrats and feels that his “vote is of less worth” because of the 2011
redistricting. (Id. at PageID #9202:21–9203:4.)
The Warshaw Charts show that for Ellis and Grasha, Congressional District 9 is more
Democratic than all the alternative districts identified by Dr. Chen, making Congressional
District 9 a packed district. (Pls.’ Trial Ex. 278 at p. 3.) Almost every alternative map would
place Ellis and Grasha in a more competitive district, giving their votes more weight and
redressing their harms. (Id.) Dr. Chen found that Congressional District 9 is a partisan outlier.
(Chen Report at 56.)
Vatter referred to Congressional District 9 as a “super Democratic district,” that contains
two county breaks, two municipal breaks, and “wraps around Bloomfield Hills.” (Vatter Trial
Tr., ECF No. 249 at PageID #9012:10, 9013:13–9014:12.) By including the Democratic-leaning
communities of Bloomfield Township and Southfield Township and excluding the Republican
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leaning communities of Bloomfield Hills and Birmingham, the Enacted Plan packed Democrats
into Congressional District 9 while making Congressional District 11 more Republican. (Id. at
PageID #9014:14–20.) The change in the map in 2011 also placed two Democratic incumbents
in the same district. (Id. at PageID #9014:21–24.)
Congressional District 10vii.
Congressional District 10 encompasses the “thumb” of the Lower Peninsula, including
the entirety of Huron, Sanilac, Lapeer, and St. Clair Counties, and portions of Tuscola and
Macomb Counties.
Individual Plaintiff Roger Brdak has resided at the same address in Congressional District
10 since 1976 and plans to reside in Congressional District 10 for the 2020 elections. (Brdak
Dep. at 10:3–24.) Brdak is a registered Democrat and has voted consistently for Democrats in all
two-year elections since 2011. (Id. at 11:9–12:4.) Brdak intends to vote for a Democrat for
Congressional District 10 in the 2020 elections. (Id. at 15:14–18.) League Plaintiff Lisa Morse
has resided at the same address within Congressional District 10 since 2004 and plans to live at
that address in 2020. (Morse Dep. at 9:7–12, 10:25–11:2.) Morse identifies as a Democrat, has
voted for Democrats consistently since 2011, and intends to vote for Democrats in 2020. (Id. at
9:16–10:6.) Morse does not think a Democrat has a chance of winning in her district because the
district is “stacked against Democratic candidates.” (Id. at 12:16–24.)
The Warshaw Charts show that for Brdak and Morse, Congressional District 10 is
significantly more Republican than any of the alternative district maps provided by Dr. Chen,
making Congressional District 10 a cracked district. (Pls.’ Trial Ex. 278 at p. 3.) Every
alternative map would place Brdak and Morse in a more competitive district, giving their votes
more weight and redressing their harms. (Id.) Dr. Chen identified Congressional District 10 as a
partisan outlier. (Chen Report at 56.)
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Vatter testified that Congressional Districts 9 and 10 “are very intertwined”—by packing
Democrats into Congressional District 9, Congressional District 10 was made to be much more
Republican. (Vatter Trial Tr., ECF No. 249 at PageID #9015:11–14.) No Democrat has
represented Congressional District 10 since the 2011 redistricting. (Id. at #9016:6–8.) Dillon
testified that the Democratic Party had a difficult time finding a candidate to run in
Congressional District 10 after the redistricting, and even when a candidate did step forward with
strong ties to donors in the district, the donors expressed “no interest in [supporting the
candidacy] because they felt the district was not winnable.” (Dillon Trial Tr., ECF No. 249 at
PageID #9102:7–15.)
Congressional District 11viii.
Congressional District 11 sits northwest of Detroit and contains portions of Oakland and
Wayne Counties. The district snakes around Pontiac to include Auburn Hills, a portion of
Rochester Hills, Troy, a portion of Clawson, Birmingham and Bloomfield Hills.
League Plaintiff Paula Bowman has resided at the same address in Congressional District
11 since before 2011 and intends to stay at that address through 2020. (Bowman Dep. at 8:2–11.)
Bowman is a registered voter who has voted consistently for Democrats and will likely vote for
Democrats in the 2020 elections. (Id. at 8:12–14, 9:8–22.) Bowman testified that until 2018 she
felt that her vote had no impact on Congressional District 11 because “Democratic voters were in
such a minority” that it seemed unlikely to elect a Democrat. (Id. at 33:5–12.) In 2018, though,
Congressional District 11 saw “historic vote totals” that changed how the district voted. (Id.)
League Plaintiff Angela Ryan has resided at the same address in Congressional District 11 since
2000 and intends to reside in Congressional District 11 in 2020. (Ryan Dep. at 12:1–5, 14:1–3.)
Ryan mostly identifies with the Democratic Party, has voted consistently, and tends to vote for
Democrats. (Id. at 12:9–22.) Ryan intends to vote in the 2020 election and more than likely will
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vote for the Democratic candidate. (Id. at 12:23–13:3.) Ryan testified that the way Congressional
District 11 is drawn “dilutes the significance of [her] vote.” (Id. at 14:18–21.)
Dr. Chen determined that Congressional District 11 is a partisan outlier. (Chen Report at
56.) Vatter testified that when Congressional District 11 was redrawn, it included a “wrap
around” that avoided a Democratic-trending area and made the district more Republican-leaning.
(Vatter Trial Tr., ECF No. 249 at PageID #9018:11–15, 9019:3–5.)
In 2012, there were two elections to fill the seat for Congressional District 11 because
Republican Congressman Thaddeus McCotter resigned in July 2012 after failing to qualify for
the primary ballot. One election was to fill the balance of McCotter’s term using the 2001
Apportionment Plan, and one election was to fill the seat under the Enacted Plan. Thus, “there
were simultaneous elections for the same seat with different boundaries.” (Dillon Trial Tr., ECF
No. 249 at PageID #9103:24–25.) For an election held at the same time for the same seat but
under different redistricting plans, a Democrat won the election under the old maps and a
Republican won the election under the new maps. (Id. at PageID #9104:1–9.)
Despite Democrats winning the 2018 election with historic voter turnout, Congressional
District 11 is a cracked district, as illustrated through the double election in 2012. Multiple
alternative maps would place Bowman and Ryan in a more competitive district where their votes
would carry more weight, thereby redressing their harms.
Congressional District 12ix.
Congressional District 12 encompasses the Ann Arbor and Ypsilanti communities of
Washtenaw County and an irregular U-shaped portion of southern Wayne County.
League Plaintiff Julia Caroff is a registered voter who resides in Congressional District
12 and intends to reside at the same address in 2020 (Caroff Dep. at 7:19–8:10.) Caroff is a
registered Democrat and intends to vote in the 2020 elections. (Id. at 8:4–6, 14:8.) Even though
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Caroff’s preferred candidates won in the past election cycle, she believes that gerrymandering
has harmed her personally because it has led to polarization of candidates and less of an
opportunity to hear views from strong Republican candidates. (Id. at 8:16–9:9, 13:11–23.)
League Plaintiff Harvey Somers resides in Congressional District 12. (Somers Dep. at 12:25–
13:4.) Somers votes consistently and identifies himself as “a strong supporter of the Democratic
Party.” (Id. at 13:12–21.) Somers intends to vote in the 2020 elections and will vote “[f]or the
Democrats as much as [he] can.” (Id. at 14:4–8.) Somers believes that election results are
“preordained,” noting that Democratic Congresswoman Debbie Dingel won Congressional
District 12 with 70 percent of the vote in the most recent election. (Id. at 21:20–22:10.)
The Warshaw Charts show that for Caroff and Somers, Congressional District 12 is more
Democratic than any of the alternative district maps provided by Dr. Chen, making
Congressional District 12 a packed district. (Pls.’ Trial Ex. 278 at p. 3.) Every alternative map
would place Caroff and Somers in a more competitive district, giving their votes more weight
and redressing their harms. (Id.) Dr. Chen identified Congressional District 12 as a partisan
outlier. (Chen Report at 56.)
Vatter refers to Congressional District 12 as “a super Democratic district, a packed
district,” and testified that District 12 starts in the city of Dearborn in Wayne County, moves to
the “Democratic territory downriver,” and then “comes over and grabs the very Democratic
territories of Ann Arbor, Ypsilanti, Ypsilanti Township, [and] Pittsfield Township.” (Vatter Trial
Tr., ECF No. 249 at PageID #9019:20–9020:4.)
Senate District 8x.
Senate District 8 covers Macomb County and includes the Townships of Bruce,
Chesterfield, Harrison, Lenox, Ray, Shelby, and Washington and the Cities of Mt. Clemens,
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Utica, St. Clair Shores, and the Village of Grosse Pointe Shores. Senate District 8 meanders
through Macomb County in an unusual shape.
Individual Plaintiff Roger Brdak has lived in Chesterfield Township, in Senate District 8,
since 1976. (Brdak Dep. at 10:10–15.) Brdak has voted in all elections since 2011, and now votes
consistently for Democratic candidates. (Id. at 11:9–14, 13:2–7, 41:11–15.) Brdak plans to reside
in Senate District 8 in 2020 and to vote for Democrat candidates in the 2020 election. (Id. at
10:22, 11:4–17, 15:3–16:6.) League Plaintiff Nanette Noorbakhsh has lived in Senate District 8
since before the 2011 redistricting and plans to live there in 2020. (Id. at 8:2–16.) Since 2011,
Noorbakhsh has consistently voted for Democrats and plans to vote in the 2020 election. (Id. at
9:17–22, 10:9–11.) Individual Plaintiff Jack Ellis has lived in Senate District 8 since before the
implementation of the Enacted Plan. (Ellis Dep. at 8:17–23.) Ellis has consistently voted for
Democrats since 2011 and plans to vote for Democrats in 2020. (Id. at 10:12–22.)
Brdak, Noorbakhsh, and Ellis reside in a cracked district. Senate District 8 is significantly
more Republican than most of Dr. Chen’s alternative nonpartisan maps. (Pls.’ Trial Ex. 278 at p.
5.) Senate District 8 is a partisan outlier. (Chen Report at 56.) Senate District 8 falls within the
range of Dr. Chen’s alternative nonpartisan maps, but several of the alternative maps place
Brdak, Noorbakhsh, and Ellis in a more competitive district, thereby giving their votes more
weight and redressing their harms. (Id.)
Senate District 10xi.
Senate District 10 is located in part of Macomb County and is comprised of part of
Clinton Township, Macomb Township, and the City of Sterling Heights.
League Plaintiff Nancy Duemling has resided in Senate District 10 since at least 2011.
(Duemling Dep. at 7:18–24.) She votes for Democratic candidates and plans to vote in the 2020
election. (Id. at 9:1–12.) League Plaintiff Gerald DeMaire has resided in Senate District 10 since
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at least January 2001. (DeMaire Dep. at 8:3–6.) He votes most often for Democrats and plans to
vote in the 2020 election. (Id. at 10:8–17.) DeMaire is less likely to donate to candidates, and he
believes his state senator is less responsive to local issues, because of how the map is drawn. (Id.
at 24:6–14, 31:2–25.) League Plaintiff Kathleen Poore has resided in Senate District 10 since at
least January 2011. (Poore Dep. at 11:2–13.) Her political views align with the Democrats and
she plans to vote in the 2020 election. (Id. at 14:12–12.)
The Warshaw Charts suggest that Duemling, DeMaire, and Poore reside in a cracked
district that is more Republican than many of Dr. Chen’s simulated districts. (Pls.’ Trial Ex. 278
at p. 5.) However, all of Dr. Chen’s alternative maps would place Duemling, DeMaire, and Poore
in a less competitive district, exacerbating the dilutionary effect on their votes rather than
redressing their harms. Duemling, DeMaire, and Poore have failed to demonstrate that the
Enacted Plan dilutes their votes. Therefore, Plaintiffs lack standing for their vote-dilution claim
to challenge Senate District 10.
Senate District 11xii.
Senate District 11 covers part of Oakland County and is comprised of the Cities of
Farmington, Farmington Hills, Ferndale, Hazel Park, Huntington Woods, Lathrup Village,
Madison Heights, Oak Park, Pleasant Ridge, and Southfield, and Royal Oak Township, in a
somewhat odd, elongated shape.
Individual Plaintiff William Grasha has lived in Madison Heights for 31 years and plans
to continue living there through 2020. (Trial Tr. Vol. III, 8:18–25.) Grasha votes regularly and
plans to vote for Democrats in the 2020 election. (Id. at 10:1–6.)
Grasha resides in a packed district that has significantly more Democrats than
Republicans and is more Democratic than almost all of Dr. Chen’s alternative nonpartisan maps.
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(Pls.’ Trial Ex. 278 at p. 5.) Nearly every alternative map would place Grasha in a competitive
district, which would redress his harm.
Senate District 12xiii.
Senate District 12 covers part of Oakland County. Senate District 12 starts in the north
with the Townships of Oxford, Addison, Independence, Orion, and Oakland, and the Village of
Clarkston, then abruptly dips south to encompass the Cities of Auburn Hills, Keego Harbor,
Pontiac, and Sylvan Lack, and the Townships of Bloomfield and Southfield.
League Plaintiff Maria Woloson has resided in Senate District 12 since approximately
1989. (Woloson Dep. at 6:12–14.) Woloson has no plans to move, tends to vote for Democrats,
and plans to vote in the 2020 election. (Id. at 10:13–11:1.)
Senate District 12 is cracked, meaning that it is more Republican than most of Dr. Chen’s
nonpartisan alternative maps. (Pls.’ Trial Ex. 278 at p. 5.) Numerous alternative maps would
place Woloson in a more competitive district, thereby redressing her harm.
Senate District 14xiv.
Senate District 14 covers part of Genesee and Oakland Counties and is comprised of the
Cities of Davison, Fenton, Grand Blanc, and Lake Angelus, and the Townships of Atlas,
Davison, Grand Blanc, Mundy, Brandon, Groveland, Highland, Holly, Rose, Springfield, and
Waterford. Senate District 14 connects to Waterford Township and the City of Lake Angelus by
only a corner.
League Plaintiff Josephine Feijoo has resided in Senate District 14 since before January
1, 2011. (Feijoo Dep. at 7:22–8:3.) Feijoo considers herself an independent, but more recently
has voted for Democratic candidates. (Id. at 9:1–11.) She intends to vote in the 2020 election.
(Id. at 9:15–17.) League Plaintiff Doris Sain has lived at her residence in Senate District 14 for
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over 40 years. (Sain Dep. at 11:14–16.) Sain votes for Democrats and plans to vote for
Democrats in the 2020 election. (Id. at 12:2–19.)
Feijoo and Sain reside in a cracked district that is more Republican than most of Dr.
Chen’s alternative maps (and in Sain’s case more Republican than all of Dr. Chen’s maps). (Pls.’
Trial Ex. 278 at p. 5.) Several alternative maps would place Feijoo and Sain in a more
competitive district where their votes would carry more weight, thereby redressing their harms.
Senate District 18xv.
Senate District 18 covers part of Washtenaw County and is comprised of the Cities of
Ann Arbor (in part), Milan, Saline, and Ypsilanti, and the Townships of Ann Arbor, Augusta,
Lodi (in part), Pittsfield, Salem, Saline (in part), Superior, York, and Ypsilanti.
League Plaintiff Margaret Leary has resided in Senate District 18 since at least before
January 2011. (Leary Dep. at 8:25–9:2.) Leary is a Democrat, votes for Democrat candidates,
and plans to vote in the 2020 election. (Id. at 9:16–10:2.) League Plaintiff Julia Caroff has
resided in Senate District 18 since August 2013 and intends to continue residing at the same
address. (Caroff Dep. at 7:17–8:3.) Caroff is a registered Democrat and plans to vote in the 2020
election. (Id. at 8:4–6, 14:8.) League Plaintiff Susan K. Smith has resided in Senate District 18
since 2007. (Smith Trial Tr., ECF No. 248 at 36:21–37:1.) Smith is affiliated with the
Democratic party and has voted for Democrats consistently. (Id. at 37:22–38:3.) Smith plans to
vote for Democrats in the 2020 election. (Id. at 39:10–14.)
Leary, Caroff, and Smith reside in a packed Democratic district. (Pls.’ Trial Ex. 278 at p.
5.) Senate District 18 is a partisan outlier—it is significantly more packed than any of Dr. Chen’s
alternative district maps. (Chen Report at 56.) Every alternative map would place Leary, Caroff,
and Smith in a less packed district, giving their votes more weight and redressing their harms.
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Senate District 22xvi.
Senate District 22 covers Livingston and part of Washtenaw Counties and is comprised
of the Cities of Ann Arbor (in part) and Chelsea, and the Townships of Bridgewater, Dexter,
Freedom, Lima, Lodi (in part), Lyndon, Manchester, Northfield, Saline (in part), Scio, Sharon,
Sylvan, and Webster.
League Plaintiff Harvey Somers has resided in Senate District 22 since 2009. Sommers
identifies as a Democrat and intends to live and vote for Democrats in Senate District 22 in the
2020 election. (Somers Dep. at 13:1–14:9, 15:11–14.)
Senate District 22 is a cracked district that is heavily Republican. (Pls.’ Trial Ex. 278 at p.
5.) According to Dr. Chen’s analysis, Senate District 22 is a partisan outlier—it is significantly
more Republican than any of his alternative maps. (Chen Report at 56.) However, all of Dr.
Chen’s nonpartisan alternatives would place Somers in a non-competitive, heavily packed
Democratic district, which would not redress any cognizable harm to Somers, as his vote would
be even more diluted. Therefore, Plaintiffs lack standing for their vote-dilution claim to
challenge Senate District 22.
Senate District 27xvii.
Senate District 27 covers part of Genesee County and is comprised of the Cities of
Burton, Clio, Flint, Mt. Morris, and Swartz Creek and the Townships of Flint, Forest, Genesee,
Mt. Morris, Richfield, Thetford, and Vienna. Swartz Creek extends from Senate District 27 like a
tail.
League Plaintiff Deborah Cherry has resided in Senate District 27 since approximately
2002 and plans to reside there in 2020. (Cherry Dep. at 5:5–21.) Cherry is a Democrat and plans
to vote for Democratic candidates in the 2020 election. (Id. at 11:9–12:11.) League Plaintiff
Thomas Haley has resided in Senate District 27 for twenty years. (Haley Trial Tr., ECF No. 249
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at 230:23–231:3.) Haley plans to reside there in 2020. (Id. at 231:7–9.) Haley has consistently
voted for Democrats and plans to vote for Democrats in 2020. (Id. at 236:5–237:3.)
Senate District 27 is a packed district that is more Democratic than almost all of Dr.
Chen’s alternative maps. (Pls.’ Trial Ex. 278 at p. 5.) Senate District 27 is a partisan outlier.
(Chen Report at 56.) Placing Cherry and Haley in almost any of Dr. Chen’s alternative districts
would increase the weight of their votes and therefore redress their harms.
Senate District 32xviii.
Senate District 32 covers all of Saginaw County and a leg-shaped strip encompassing the
following areas of Genesee County: the Cities of Flushing, Linden, and Montrose, and the
Townships of Argentine, Clayton, Fenton, Flushing, Gaines, and Montrose.
League Plaintiff Paul Purcell has resided at his address in Senate District 32 for forty
years. (Purcell Dep. at 10:16–20.) Purcell has consistently voted for Democrats. (Id. at 11:21–
25.) Purcell intends to continue residing at his current residence and plans to vote in the 2020
election. (Id. at 12:1–5.) League Plaintiff Sherrill Smith also resides in Senate District 32. Smith
has resided at her present address since January 2011. (Smith Dep. at 7:9–16.) Smith is not
affiliated with a political party but tends to vote for Democrats. (Id. at 9:10–20, 43:2–9.) Smith
intends to vote in the 2020 election. (Id. at 12:2–4.) League Plaintiff Jan Sain-Steinborn has
resided in Senate District 32 for twenty-four years. (Sain-Steinborn Dep. at 9:13–18.) Sain
Steinborn identifies with the Democratic party and votes consistently for Democratic candidates.
(Id. at 9:25–10:8.) Sain-Steinborn plans to vote for Democratic candidates in the 2020 election.
(Id. at 10:11–17.)
The Warshaw Chart places Purcell, Smith, and Sain-Steinborn in a Democratic-leaning
competitive district. (Pls.’ Trial Ex. 278 at 5.) In other words, it indicates that they currently
reside in a packed district. On the other hand, Vatter testified that Senate District 32 is a
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competitive Republican-leaning district (Vatter Trial Tr., ECF No. 249 at PageID #9028:7–9),
and the results from the 2014 and 2018 elections bear this out. As such, the Warshaw Chart
contradicts Plaintiff’s other evidence. Plaintiffs have failed to meet their burden of showing that
Purcell, Smith, and Sain-Steinborn live in a packed or cracked district and that their votes would
carry more weight in an alternative district. Therefore, Plaintiffs lack standing for their vote
dilution claim to challenge Senate District 32.
Senate District 36xix.
Senate District 36 winds through the northeast and central portions of Michigan’s lower
peninsula, comprising the Counties of Alcona, Alpena, Arenac, Gladwin, Iosco, Midland,
Montmorency, Oscoda, Otsego, and Presque Isle.
League Plaintiff Jane Speer has resided in Senate District 36 since prior to the 2011
redistricting. (Speer Dep. at 6:6–9.) Speer is a member of the Democratic party and votes
consistently for Democrats. (Id. at 10:19–11:2.) Speer plans to continue living at her current
address and to vote for Democrats in the 2020 election. (Id. at 11:10–15.) League Plaintiff Trina
Borenstein has resided in Senate District 36 since 2009. (Borenstein Dep. at 10:21–11:3.)
Borenstein is a member of the Democratic Party. (Id. at 69:1–3.) Borenstein plans to continue
residing at her current residence and to vote for Democrats in the 2020 election. (Id. at 11:4–12.)
League Plaintiff Karen Sherwood has resided in Senate District 36 since prior to 2011.
(Sherwood Trial Tr., ECF No. 248 at 6:24–7:2.) Sherwood plans to continue residing at her
current address through at least 2020. (Id. at 7:3–5.) Sherwood votes consistently for Democrats
and plans to vote for Democrats in the 2020 election. (Id. at 8:14–19.)
Senate District 36 is a cracked district that is heavily Republican. (Pls.’ Trial Ex. 278 at p.
5.) Speer and Borenstein live in a district that is more Republican than most of Dr. Chen’s
alternative maps, and for Sherwood, all of Dr. Chen’s alternative maps are less Republican. (Id.)
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Numerous alternative maps would place Speer, Borenstein, and Sherwood in a more competitive
district, thereby increasing the weight of their votes and redressing their harms.
House District 24xx.
House District 24 is comprised of Harrison Township and odd-shaped portions of
Macomb and Clinton Townships. League Plaintiff Kathleen Poore resides in House District 24.
(Poore Dep. at 11:2–13.) Poore has voted exclusively for Democrats since 2011 and intends to
vote in the 2020 elections. (Id. at 13:13–14:24.)
The House map-drawer, Daniel McMaster, testified that House District 24 became more
Republican after the 2011 redistricting. (McMaster Dep. at 191:18–25.) Vatter testified that the
breaks in Macomb and Clinton Townships resulted in a Republican district, rendering the
neighboring House District 18 more Democratic. (Vatter Trial Tr., ECF No. 249 at PageID
#9031:2–9.) Former Michigan Democratic Chairman Dillon testified that in 2016, even though
the Republican candidate in House District 24 had made “some very damaging statements” that
were captured on audiotape, a Democratic candidate still could not win the district. (Dillon Trial
Tr., ECF No. 249 at PageID #9104:17–9105:12.)
The Warshaw Charts show that for Poore, House District 24 is more Republican than any
of the alternative district maps provided by Dr. Chen, making the district cracked. (Pls.’ Trial Ex.
278 at p. 7.) Several alternative maps would place Poore in a competitive, Democratic-leaning
district, thereby redressing her harm. (Id.)
House District 32xxi.
House District 32 encompasses portions of St. Clair and Macomb Counties in a cross-like
shape. Individual Plaintiff Roger Brdak resides in House District 32. (Brdak Dep. at 17:5–8.)
Brdak intends to vote for a Democrat for House District 32 in the 2020 election. (Id. at 15:13–21,
18:17–23.)
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Vatter reported that prior to the 2011 redistricting, House District 32 was competitive, but
after the redistricting, House District 32 became a Republican district. (Vatter Trial Tr., ECF No.
249 at PageID #9032:1–5.) The district shifted Republican with the addition of the “top part of
the cross,” including Kenockee, Riley, Wales, Kimball, Columbus, and Casco Townships. (Id. at
PageID #9031:16–25.) Dillon similarly testified that House District 32 was competitive before
the 2011 redistricting—with a Democrat holding the seat until a Republican won in 2010—but
that the district became “unwinnable” for Democrats after the redistricting. (Dillon Trial Tr.,
ECF No. 9105:16–25.)
The Warshaw Charts show that for Brdak, House District 32 is more Republican than any
alternative district map provided by Dr. Chen, making House District 32 a cracked district. (Pls.’
Trial Ex. 278 at p. 7.) Every alternative map would place Brdak in a more competitive (though
still Republican-leaning) district, giving his vote more weight and redressing his harm. (Id.) Dr.
Chen has identified House District 32 as a partisan outlier. (Chen Report at 56.)
House District 51xxii.
House District 51 covers the northwest corner of Oakland County and wraps around Flint
in Genesee County. League Plaintiff Adalea Janice Sain-Steinborn resides in House District 51.
(Sain-Steinborn Dep. at 12:15–17.) Sain-Steinborn is a Democrat and plans to support
Democrats in 2020. (Id. at 10:5–17.) Sain-Steinborn feels that her “vote doesn’t really matter”
because of the 2011 redistricting. (Id. at 31:7–17.)
McMaster testified that House District 51 was a competitive district before the 2011
redistricting, but that House District 51 was deliberately drawn to be the one Republican district
in Genesee County. (McMaster Dep. at 119:16–121:16, 154:20–155:15.) Vatter testified that
House District 51 is much more Republican than it was under the old maps. (Vatter Trial Tr.,
ECF No. 249 at PageID #9033:5–7.) According to Vatter, the prior House District 51 was
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competitive and covered the lower part of Genesee County, mixing Democratic and Republican
areas. (Id. at PageID #9033:22–24.) After the 2011 redistricting, House District 51 wraps around
Flint to include the Republican areas of Genesee County, and pack Democrats into other
districts. (Id. at PageID #9033:8–16.)
The Warshaw Charts show that for Sain-Steinborn, House District 51 is more Republican
than any of the alternative district maps provided by Dr. Chen, making House District 51 a
cracked district. (Pls.’ Trial Ex. 278 at p. 7.) The majority of alternative maps would place Sain
Steinborn in a more competitive district, with almost all of alternative districts leaning
Democratic, which would redress Sain-Steinborn’s harm. (Id.) Dr. Chen has identified House
District 51 as a partisan outlier. (Chen Report at 56.)
House District 52xxiii.
House District 52 contains the western half and northeast corner of Washtenaw County.
League Plaintiff Harvey Somers, referenced earlier in regard to Congressional District 12,
resides in House District 52. (Somers Dep. at 14:11–14.) Somers recognizes that House District
52 is competitive but states that “the amount of real competitiveness was less than [he] had
hoped for.” (Id. at 18:14–18.)
The Warshaw Charts show that for Somers, House District 52 is more Republican than
any of the alternative maps provided by Dr. Chen, which suggests that House District 52 may be
cracked. (Pls.’ Trial Ex. 278 at p. 7.) However, House District 52 is currently a competitive
district, with a slight edge to the Democrats, so Somers’s vote is not diluted. (Id.) Moreover,
every alternative map would place Somers in a packed Democratic district, which would dilute
his vote. (Id.) Thus, because Somers cannot show injury or redressability based on Plaintiffs’
own evidence, Plaintiffs have failed to demonstrate standing to challenge House District 52.
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House District 55xxiv.
House District 55 includes Augusta and York Townships and portions of Ann Arbor
Township, Ann Arbor, Milan, and Pittsfield Township, wrapping around the southern half of
Ann Arbor and excluding Saline. House District 55 looks like an “L” with two chunks removed.
League Plaintiff Margaret Leary resides in House District 55 and has resided at the same
address since 2011. (Leary Dep. at 8:25–9:12.) Leary is a registered voter and considers herself a
member of the Democratic Party. (Id. at 9:13–25.) Leary intends to vote in the 2020 elections.
(Id. at 10:1–2.) Leary believes that House District 55 is packed, based on the very high margin
by which her Democratic State House Representative won in the 2018 elections. (Id. 13:3–22.)
The Warshaw Charts show that for Leary, House District 55 is more Democratic than any
of the alternative district maps provided by Dr. Chen, making House District 55 a packed district.
(Pls.’ Trial Ex. 278 at p. 7.) Every alternative map would place Leary in a more competitive
district where her vote would carry more weight. (Id.) House District 55 is a partisan outlier.
(Chen Report at 56.)
Vatter testified that House District 52 was drawn to gather the Republican portions of
Washtenaw County, making House Districts 53 to 55 more Democratic. (Vatter Trial Tr., ECF
No. 249 at PageID #9034:15–22.)
House District 60xxv.
House District 60 has many jagged edges and includes the City of Kalamazoo and
portions of Kalamazoo and Portage Townships. League Plaintiff Denise Louise Hartsough
resides in House District 60, has resided at the same address for the past 15 years, and intends to
live at the same address in 2020. (Hartsough Dep. at 5:10–15.) Hartsough plans to vote in 2020.
(Id. at 9:19–21.) Hartsough has voted exclusively for Democratic candidates since 2012 and will
likely vote for a Democrat in 2020. (Id. at 10:2–10.)
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The Warshaw Charts show that for Hartsough, House District 60 is significantly more
Democratic than any of the alternative district maps provided by Dr. Chen, making House
District 60 a packed district. (Pls.’ Trial Ex. 278 at p. 7.) Every alternative map would place
Hartsough in a competitive district, reducing the dilution of her vote and redressing her harm.
(Id.) Dr. Chen has identified House District 60 as a partisan outlier. (Chen Report at 56.)
House District 62xxvi.
House District 62 sits in the northern part of Calhoun County, including the cities of
Albion, Battle Creek, and Springfield, and the townships of Albion, Bedford, Clarence, Convis,
Lee, Pennfield, and Sheridan. League Plaintiff Shirley Zeller resides in House District 62 and has
resided at the same address since before the 2011 redistricting. (Zeller Dep. at 7:22–8:2.) Zeller
considers herself a Democrat and intends to vote in 2020. (Id. at 8:23–9:2.)
The Warshaw Charts show that for Zeller, House District 62 is more Democratic than
most of the alternative district maps provided by Dr. Chen, suggesting that House District 62 is a
packed district, but the current map and all alternative maps place Zeller in a competitive district.
(Pls.’ Trial Ex. 278 at p. 7.)
Zeller testified that she chooses to donate and campaign in a neighboring district in the
Jackson area because the representatives there better represent her political interests; in other
words, she considers House District 62 to be a cracked district and her chief complaint is that her
district does not contain enough Democrats. (Zeller Dep. at 12:21–13:25.) Election results since
the 2011 redistricting show House District 62 to be competitive—a Democrat won in 2012, a
Republican won in 2014 and 2016, and a Democrat won in 2018. Making House District 62
more Republican—which would be the appropriate remedy if this Court finds that House District
62 is packed—would exacerbate Zeller’s claimed injury rather than redress it. Because the
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evidence does not establish harm or redressability, Plaintiffs have failed to establish standing to
challenge House District 62.
House District 63xxvii.
House District 63 covers portions of Calhoun and Kalamazoo Counties in an unusual
shape. League Plaintiff Jessica Reiser has resided at the same address in House District 63 for
more than 20 years. (Reiser Dep. at 9:4–9.) Reiser is a registered voter who votes
“predominantly Democratic,” and she intends to vote in the 2020 elections. (Id. at 9:10–21.)
Reiser feels that her vote does not count in House District 63 because Democrats cannot win. (Id.
at 11:5–25, 24:8–16.)
The Warshaw Charts show that for Reiser, House District 63 is more Republican than
any of the alternative district maps provided by Dr. Chen, making House District 63 a cracked
district. Every alternative map would place Reiser in a more competitive district, which would
redress Reiser’s harm. (Pls.’ Trial Ex. 278 at p. 7.) Dr. Chen has identified House District 63 as a
partisan outlier. (Chen Report at 56.)
Vatter testified that House District 63 covers a lot of territory in Calhoun County but
excludes the biggest Democratic area of Calhoun County, which is Battle Creek. House District
63 then picks up the eastern municipalities of Kalamazoo County, creating a Republican district.
Vatter further testified that an alternative to the 2011 map for House District 63 would include
Battle Creek with the rest of Calhoun County, minimizing the breaks and creating a competitive
district. (Vatter Trial Tr., ECF No. 249 at PageID #9035:8–20.) McMaster, the House map
drawer, testified that the Speaker of the House in 2010 represented House District 63.34 Speaker
Bolger requested that McMaster draw a map for House District 63 that would include portions of
34 McMaster mistakenly named Paul Scott as the Speaker of the House in 2010, but the Speaker of the House in 2010 was James Bolger, and Speaker Bolger did, in fact, represent House District 63 in 2010. Thus, the Court assumes this was simply a misnomer.
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Kalamazoo County. McMaster obliged, making House District 63 a more Republican district.
(McMaster Dep. at 126:3–127:20, 213:6–214:16.)
House District 75 and 76xxviii.
House District 75 covers part of Kent County and part of Grand Rapids. House District
76 covers part of Kent County and includes part of the City of Grand Rapids. House District 76
is probably the most odd-shaped of all the districts in the Enacted Plan. It surrounds House
District 75 roughly on three sides.
League Plaintiff Elianna Bootzin has lived at her address in House District 75 since the
Enacted Plan was adopted and plans to live there in 2020. (Bootzin Dep. at 5:12–16.) She is not
affiliated with a political party, but typically votes for Democrats. (Id. at 9:21–10:1.) Bootzin
will likely vote for Democrat candidates in the 2020 election. (Id. at 10:23–11:1.)
House District 75 is a packed district that is more Democratic than all of Dr. Chen’s
alternative maps. (Pls.’ Trial Ex. 278 at p. 7.) Dr. Chen’s analysis shows that House District 75 is
a partisan outlier. (Chen Report at 56.) All of Dr. Chen’s alternative maps would place Bootzin
in a more competitive district, giving her vote more weight and redressing her harm.
Plaintiff Donna Farris has resided at her current address in Grand Rapids in House
District 76 for 39 years. (Farris Dep. at 6:1–2.) She is a registered Democrat and plans to vote for
Democrats in the 2020 election. (Id. at 7:10–17, 12:23–13:2.)
Plaintiffs suggest that Farris lives in a cracked district—one in which a party’s supporters
have been placed so they fall short of a majority—but the Warshaw chart suggests otherwise.
Farris resides in a competitive Democratic-leaning district. (Pls.’ Trial Ex. 278 at p. 7.) The
election results from 2012–2018 bear this out; a Democrat has won handily every year since
2012. (Farris Dep. at 22:16–18.)
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Farris has not been injured by the Enacted Plan. According to Dr. Chen, House District
76 is a partisan outlier (Chen Report at 56), but the current map places Farris in a district that is
less dilutive than all of Dr. Chen’s alternative maps. Moreover, to the extent Farris has suffered
an injury, almost all of Dr. Chen’s maps would place Farris in a packed district, which would
further dilute her vote and exacerbate her harm. Thus, her injury is not redressable. Accordingly,
Plaintiffs have failed to establish standing to challenge House District 76.
House District 83xxix.
House District 83 is located in Michigan’s “thumb” on the east side of the state and
covers Sanilac County and a small jut-out in St. Clair County along the coast of Lake Huron that
includes the City of Port Huron and the Townships of Burtchville and Fort Gratiot.
League Plaintiff Lisa Morse has resided in Port Huron in House District 83 since 2004.
(Morse Dep. at 9:7–12.) Morse is a registered Democrat and plans to vote for Democratic
candidates in 2020. (Id. at 9:20–10:4.)
House District 83 is a cracked district that is more Republican than all of Dr. Chen’s
alternative nonpartisan districts. (Pls.’ Trial Ex. 278 at p. 7.) Any alternative map would redress
Morse’s injury by placing her in a more competitive district.
House District 91xxx.
House District 91 covers part of Muskegon County and includes the Cities of Montague,
Norton Shores, Roosevelt Park, and Whitehall and the Townships of Blue Lake, Casnovia, Cedar
Creek, Dalton, Egelston, Fruitport, Holton, Montague, Moorland, Ravenna, Sullivan, and White
River. House District 91 wraps around House District 92 entirely, which covers the remainder of
Muskegon County and includes the Democratic areas of the county, including the Cities of
Muskegon and North Muskegon. (Vatter Trial Tr., ECF No. 249 at PageID #9035:25–9036:6.)
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League Plaintiff Linda Aerts has resided in House District 91 since 2000 and plans to
remain at her current address through 2020. (Aerts Dep. at 5:4–12.) Aerts is a member of the
Democratic party and plans to support Democrats in the 2020 election. (Id. at 11:11–12:22,
15:1–2.) Aerts said that House District 91 is “no longer as blue as it used to be,” making it “very
difficult” to get a Democrat elected. (Id. at 14:19–23.)
Aerts lives in a cracked district that is more Republican than almost all of Dr. Chen’s
alternative maps. (Pls.’ Trial Ex. 278 at 7.) Most of Dr. Chen’s alternative maps would redress
her injury by placing her in a competitive, Democratic-leaning district.
House District 92xxxi.
Plaintiffs included House District 92 in their list of challenged districts. However,
because Plaintiffs have failed to identify a single Individual or League Plaintiff who resides in
the district, Plaintiffs have failed to establish standing to challenge House District 92.
House District 94xxxii.
House District 94 covers part of Saginaw County and includes the City of Frankenmuth
and the Townships of Albee, Birch Run, Blumfield, Frankenmuth, Saginaw, St. Charles, Swan
Creek, Taymouth, Thomas, and Tittabawasse. The district snakes around the City of Saginaw
and other portions of House District 95 in the shape of an uneven “U.”
League Plaintiff Paul Purcell has lived in House District 94 for 40 years. (Purcell Dep. at
10:16–20.) Purcell has consistently voted for Democrats. (Id. at 11:21–25.) Purcell intends to
continue residing at his current residence and plans to vote in the 2020 election. (Id. at 12:1–5.)
House District 94 is a cracked district that is more Republican than all of Dr. Chen’s
alternative maps. (Pls.’ Trial Ex. 278 at p. 7.) Dr. Chen’s analysis shows that House District 94 is
a partisan outlier. (Chen Report at 56.) Almost all of Dr. Chen’s alternative maps would place
Purcell in a competitive district, thereby redressing his harm.
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House District 95xxxiii.
House District 95 covers part of Saginaw County and includes the Cities of Saginaw and
Zilwaukee and the Townships of Bridgeport, Buena Vista, Carollton, James, Kochville,
Spaulding, and Zilwaukee.
League Plaintiff Sherrill Smith resides in House District 95. She has resided at her
present address since January 2011. (Smith Dep. at 7:9–16.) She is not affiliated with a political
party but tends to vote for Democrats. (Id. at 9:10–20, 43:2–9.) Smith intends to vote in the 2020
election. (Id. at 12:2–4.)
Smith resides in a heavily-packed Democratic district. (Pls.’ Trial Ex. 278 at p. 7.) House
District 95 is more Democratic than the vast majority of Dr. Chen’s simulation maps. Placing
Smith in any of those districts would redress the harm that she has suffered by rendering her vote
less diluted.
Intervenors’ Arguments c.
The Congressional and Senate Intervenors present various arguments for why they
believe that Voters cannot establish standing. Some of their arguments concern purported flaws
in Voters’ expert evidence, and some concern the purported problems with Voters themselves.
None of these arguments persuades the Court.
Intervenors contend that Voters cannot establish standing with respect to any individual
district because their expert reports focus on statewide, rather than district-specific, harms.
(Cong. and State House Intervenors’ Proposed Conclusions of Law, ECF No. 258 at PageID
#11111–15; Senate Intervenors’ Proposed Conclusions of Law, ECF No. 254 at PageID #10377–
80.) However, Voters’ expert evidence does not merely measure partisan bias on the statewide
level. Dr. Chen’s simulations show the partisan composition of each specific district. Further, Dr.
Warshaw’s charts locate each Voter in a specific district, both under the Enacted Plan and under
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Dr. Chen’s 1,000 alternative simulated districts drawn without partisan intent. Federal courts
have relied on this exact type of expert evidence in finding that plaintiffs have established injury
in-fact for vote-dilution claims. See Rucho, 318 F. Supp. 3d at 821; Householder, 2019 WL
652980, at *16–17.
Congressional and State House Intervenors also argue that Dr. Chen’s simulations are
fundamentally flawed because they depict what each district’s boundaries might look like if all
the districts were redrawn at once, rather than if only the Challenged Districts were revised.
(Cong. and State House Intervenors’ Proposed Conclusions of Law at PageID #11102–05.)
Essentially, they contend that Dr. Chen’s simulations assume a counterfactual that does not
describe reality—a scenario where Michigan’s entire legislative maps are redrawn, rather than
only the Challenged Districts—and therefore cannot satisfy the requirement that Voters show
district-specific harms and district-specific remedies.
This argument is unavailing. Plaintiffs have demonstrated district-specific harms through
Dr. Chen’s simulations and Dr. Warshaw’s charts, which show that each Voter’s current district
dilutes his or her vote through packing or cracking. Further, while Voters challenge only a
limited number of districts, additional districts will likely need to be redrawn if the Court holds
that the Challenged Districts violate the Constitution. In fact, a large portion of the statewide
map may need to be revised, as Justice Kagan acknowledged in Gill; “with enough plaintiffs
joined together—attacking all the packed and cracked districts in a statewide gerrymander—
those obligatory revisions could amount to a wholesale restructuring of the State’s districting
plan.” Gill, 138 S. Ct. at 1937 (Kagan, J. concurring). Finally, the boundaries of a single
legislative district necessarily affect the boundaries of the adjoining districts which, in turn,
affect the boundaries of the districts that adjoin those districts. Given the interconnected nature
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of the districts in a districting plan, it would make little sense to require Voters to provide
simulations for the Challenged Districts without also accounting for the way that changing those
districts to comply with constitutional requirements would also necessitate altering the other
districts in the plan.
Congressional and State House Intervenors additionally argue that Voters currently
represented by Democrats have not suffered an injury in fact and thus lack standing. (Cong. and
State House Intervenors’ Proposed Conclusions of Law at PageID #11122.) Essentially,
Congressional and State House Intervenors argue that one cannot suffer an injury-in-fact if he or
she lives in a packed district and votes for the winning candidate. However, in Gill, the Supreme
Court stated that packing constitutes an injury-in-fact. Gill, 138 S. Ct. at 1931 (explaining that
the harm from a partisan gerrymander “arises from the particular composition of the voter’s own
district, which causes his vote—having been packed or cracked—to carry less weight than it
would carry in another, hypothetical district”) (emphasis added). Voters residing in packed
districts have suffered cognizable harms because packing dilutes their votes. See id. Their ability
to elect Democrats in their district does not mitigate this harm.
Congressional and State House Intervenors also assert that the Voters who testified that
they desire proportional representation have not suffered injuries-in-fact. (Cong. and State House
Intervenors’ Proposed Conclusions of Law at PageID #11124.) True, there is no right to
proportional representation, see Bandemer, 478 U.S. at 132, and a mere interest in the overall
composition of the legislature does not constitute an injury in fact for standing purposes, Gill,
138 S. Ct. at 1931. But even those Voters who may prefer proportional representation have not
merely suffered harms to their “abstract interest” id.; they have suffered injuries-in-fact by being
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placed in packed or cracked districts. Id. Therefore, Congressional and State House Intervenors’
argument fails.
Finally, Congressional and State House Intervenors assert that Voters residing in a
district that falls within the range of Dr. Chen’s simulations (as indicted by the gray bars on Dr.
Warshaw’s charts) have not suffered an injury-in-fact. (Cong. and State House Intervenors’
Proposed Conclusions of Law at PageID #11114.) However, as Dr. Warshaw testified, the fact
that the current district falls within a small number of Dr. Chen’s simulations does not indicate
that the current district was not drawn with predominantly partisan intent. (Warshaw Trial Tr.,
ECF No. 248 at PageID #8917:5–8919:20.) For example, a district that falls within a small
number of Dr. Chen’s simulations could still exhibit “more extreme partisanship than 99 percent
of Dr. Chen’s simulations.” (Id. at PageID #8918:14–19.) If a current district falls along the outer
range of Dr. Chen’s simulated districts, it is extremely unlikely that that the district’s partisan
composition occurred by chance. (Id. at PageID #8918:2–5.) Therefore, the fact that a Voter lives
in a district within a small fraction of Dr. Chen’s simulated districts does not preclude that Voter
from demonstrating an injury-in-fact.
2. The League
The Supreme Court has explained that “[a]n association has standing to bring suit on
behalf of its members when (1) its members would otherwise have standing to sue in their own
right, (2) the interests at stake are germane to the organization’s purpose, and (3) neither the
claim asserted nor the relief requested requires the participation of individual members in the
lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181
(2000) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
The Court finds that the League has standing, based on its members, with respect to any
Challenged District in which at least one of its members lives. See Johnson, 2018 WL 6257476,
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at *10; see Rucho, 318 F. Supp. 3d at 827. First, League Plaintiffs residing in the Challenged
Districts have standing to sue in their own right, as indicated above. Second, the interests at stake
are germane to the League’s purpose. Ms. Smith testified that the League’s mission is to
“empower voters and defend democracy.” (Smit Trial Tr., ECF No. 248 at PageID #8764:11–
17.) The League carries out its mission through voter education, voter registration efforts, and by
advocating for redistricting reforms and other legislation. (See generally, id. at PageID #8763:1–
8768:24.) As an organization that strives to “empower voters and defend democracy,” the
League has a clear interest in the constitutionality of Michigan’s legislative districts. Third,
because the League seeks injunctive relief, “the remedy, if granted, will inure to the benefit of
those members of the association actually injured,” Warth, 422 U.S. at 515, and the individual
League members need not directly participate in the lawsuit, Johnson, 352 F. Supp. 3d at 798.
Therefore, the League has standing, based on its membership, for each Challenged District where
one of its members resides.
C. Plaintiffs Have Established Standing for Their First Amendment Vote Dilution Claims for Any Challenged District Where They Also Established Fourteenth Amendment Standing
Partisan gerrymandering can injure voters’ First Amendment rights by subjecting
members of the disfavored party to discrimination because of their viewpoints. See generally
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“Viewpoint
discrimination is . . . an egregious form of content discrimination. The government must abstain
from regulating speech when the specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the restriction.”); Citizens United v. Fed. Election Comm’n, 558
U.S. 310, 340 (2010) (explaining that “the First Amendment stands against attempts to disfavor
certain subjects or viewpoints”). Partisan gerrymandering burdens voters’ First Amendment
rights by “‘purposely dilut[ing] the weight of certain citizens’ votes to make it more difficult for
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them to achieve electoral success because of the political views they have expressed through
their voting histories and party affiliations.’” Rucho, 318 F. Supp. 3d at 829 (emphasis in
original) (quoting Shapiro, 203 F. Supp. 3d at 595); see Benisek, 348 F. Supp. 3d at 514
(explaining that “partisan vote dilution . . . involves the State penalizing voters for expressing a
viewpoint while, at the same time, rewarding voters for expressing the opposite viewpoint” and
noting that “[t]his targeting of a citizen’s viewpoint is typical of First Amendment violations in
other contexts”); Householder, 2019 WL 652980, at *6 (characterizing partisan gerrymandering
as “a double-barreled constitutional issue” because it simultaneously violates voters’ Fourteenth
and First Amendment rights).
The “dilutionary aspect of the First Amendment injury associated with partisan
gerrymandering echoes the district-specific injury giving rise to a partisan vote dilution claim
under the Equal Protection Clause.” Rucho, 318 F. Supp. 3d at 829 (citing Shapiro, 203 F. Supp.
3d. at 595); see Householder, 2019 WL 652980, at *18 (explaining that “to the extent that the
First Amendment theory is based upon vote dilution, the same [standing] analysis applies as in
the Fourteenth Amendment context”). Accordingly, to establish standing for their First
Amendment vote-dilution claims, Plaintiffs must demonstrate the same elements as necessary to
establish standing for their Fourteenth Amendment vote-dilution claims. See id.; Householder,
2019 WL 652980, at *18.
We have already concluded, in our discussion of Plaintiffs’ Fourteenth Amendment vote
dilution claims, that at least one Voter has established standing to challenge most of the
Challenged Districts.35 Therefore, at least one Voter also has standing to challenge each of these
35 Specifically, Plaintiffs have standing with respect to their Fourteenth Amendment votedilution claims for all Challenged Districts except for Senate Districts 10, 22, and 32, and House Districts 52, 62, 76, and 92.
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same districts under a First Amendment vote dilution theory. See Rucho, 318 F. Supp. 3d at 829.
Householder, 2019 WL 652980, at *18.
D. Plaintiffs Have Established Standing for Their First Amendment Claims for Non-Dilutionary Injuries to Their Right of Association for Every Challenged District
Partisan gerrymandering also causes non-dilutionary injuries to the First Amendment
right of association. See Gill, 138 S. Ct. at 1938 (“[T]he associational harm of a partisan
gerrymander is distinct from vote dilution.”) (Kagan, J., concurring); Householder, 2019 WL
652980, at *18 (distinguishing First Amendment association claims from vote-dilution claims);
Rucho, 318 F. Supp. 3d at 829 (“Partisan gerrymandering also implicates ‘distinct,’ non
dilutionary First Amendment injuries.”) (quoting Gill, 138 S. Ct. at 1939 (Kagan, J.,
concurring)). “[T]he associational injury flowing from a statewide partisan gerrymander, whether
alleged by a party member or the party itself, has nothing to do with [vote dilution or] the
packing or cracking of any single district’s lines.” Gill, 138 S. Ct. at 1939 (Kagan, J.,
concurring).
Under a First Amendment associational theory, the alleged harm is “that the gerrymander
has burdened the ability of like-minded people across the State to affiliate in a political party and
carry out that organization’s activities and objects.” Gill, 138 S. Ct. at 1939 (Kagan, J.,
concurring). When plaintiffs allege a First Amendment associational injury, “the valued
association and the injury to it are statewide [and] so too is the relevant standing
requirement.” Id.; Householder, 2019 WL 652980, at *15 (stating that “the alleged separate
associational harm under the First Amendment is a statewide injury”). Therefore, plaintiffs may
seek a statewide remedy to redress injuries to their First Amendment associational rights. See
Gill, 138 S. Ct. at 1940 (Kagan, J., concurring); Householder, 2019 WL 652980, at *7 (quoting
Gill, 138 S. Ct. at 1934).
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While First Amendment association claims can entail statewide remedies, Plaintiffs in
this case only seek relief with respect to the Challenged Districts under both their vote-dilution
and First Amendment association claims. (See Pls.’ Proposed Conclusions of Law, ECF No. 257
at PageID #10805–06.) To understand why Plaintiffs would limit their requested remedy to
specific districts for a claim that could implicate the entire statewide map, some background
information on this litigation is in order.
Plaintiffs filed a two-count complaint, alleging a violation of their First Amendment right
of association in Count I and a violation of their Equal Protection rights in Count II.36 (See
Compl.) Plaintiffs sought statewide relief for both claims. (Id.) Ruth Johnson, who in the early
stages of this case was both Michigan’s Secretary of State and a Defendant in her official
capacity, filed a Motion to Dismiss for Lack of Standing. (ECF No. 11.) In our opinion granting
in part and denying in part Johnson’s motion to dismiss, we held that Plaintiffs lacked standing
to challenge the Enacted Plan “on a statewide basis” and dismissed Plaintiffs’ statewide claims.
(Op. & Order, ECF No. 54 at PageID #957.) In dismissing Plaintiffs’ statewide claims, we did
not distinguish between Plaintiffs’ dilutionary and non-dilutionary claims. (See id.)
After we dismissed Plaintiffs’ statewide claims, the Supreme Court issued its opinion in
Gill. In her concurrence, Justice Kagan explained that unlike vote-dilution claims, which require
36 Senate Intervenors erroneously claim that Plaintiffs “did not bring any non-dilutionary claims.” (Senate Intervenors’ Proposed Conclusions of Law, ECF No. 254 at PageID #10350.) However, nothing in Count I of Plaintiffs’ Complaint, which alleges a violation of Plaintiffs’ First Amendment associational rights, limits this claim to dilutionary harms. (See Compl., ECF No. 1 at ¶¶ 75–80.) In fact, while Plaintiffs’ Fourteenth Amendment claim (contained in Count II) alleges dilutionary harms because the Enacted Plan “packs and cracks Democratic voters, thus diluting their votes,” id. at ¶ 83, Count I contains no similar allegations of vote-dilution. Rather, it alleges non-dilutionary First Amendment injuries, for example, that the Enacted Plan “has the purpose and effect of subjecting Democrats to disfavored treatment, including burdening their representational rights by reason of their views.” (Id. at ¶ 79.) Therefore, contrary to Senate Intervenors’ contention, Plaintiffs asserted non-dilutionary First Amendment associational claims in their Complaint.
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showing district-specific injuries for standing purposes and, if proven, entail district-specific
remedies, claims alleging violations of voters’ First Amendment right to association may
proceed on a statewide basis. See id. at 1939–40 (Kagan, J., concurring). Since Justice Kagan’s
clarification in Gill, federal courts have found that plaintiffs may seek a statewide remedy if they
prevail on their First Amendment association claims. See, e.g., Householder, 2019 WL 652980,
at *7; Rucho, 318 F. Supp. 3d at 829–31 (explaining that injuries to the First Amendment right of
association are “statewide”).
Plaintiffs have continued to pursue their First Amendment association claim throughout
the course of the litigation and have presented robust evidence of non-dilutionary First
Amendment harms at trial and in their stipulated evidentiary submissions.37 However, Plaintiffs
did not revisit this Court’s dismissal of their “statewide claims” after Gill was published. In fact,
at the summary judgment stage, Plaintiffs explicitly disavowed a statewide challenge to the
Enacted Plan; Plaintiffs explained that they had “narrowed their list of challenged districts” to:
Congressional Districts 1, 4, 5, and 7–12; Senate Districts 8, 10–12, 14, 18, 22, 27, 32, and 36;
and House Districts 24, 32, 51, 52, 55, 60, 62 63, 75, 76, 83, 91, 92, 94, and 95. (Pls.’ Resp. Br.,
ECF No. 129 at 15, fn. 11.) And in their Proposed Conclusions of Law, Plaintiffs limit their
requested relief to enjoining the use of the Challenged Districts in future elections. (See Pls.’
Proposed Conclusions of Law, ECF No. 257 at PageID #10793–94.) They do not ask this Court
to invalidate the entire Enacted Plan.
While Plaintiffs seek less than the maximum relief they could obtain if they proved their
First Amendment associational claim—enjoining use of the 34 Challenged Districts, rather than
the Enacted Plan in its entirety—Plaintiffs still have First Amendment associational rights to be
37 Unlike the plaintiffs in Gill, see 138 S. Ct. at 1939 (Kagan, J. concurring), Plaintiffs have “sufficiently advance[d]” their First Amendment association claim to demonstrate standing (and, ultimately, to prove the merits of their associational claim).
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vindicated. The Court is not aware of any reason why it could not still consider statewide
evidence with respect to Plaintiffs’ First Amendment association claim, even though Plaintiffs
ultimately only seek relief for the Challenged Districts. See Gill, 138 S. Ct. at 1939–40 (Kagan,
J., concurring); See, e.g., Householder, 2019 WL 652980, at *7; Rucho, 318 F. Supp. 3d at 829–
31. Therefore, the Court will use statewide evidence to evaluate whether Plaintiffs’ have
established standing for this claim and, if so, to determine whether Plaintiffs have prevailed on
the merits. However, if the Court finds that the Enacted Plan violates Plaintiffs’ First
Amendment rights to association, the Court will limit any remedy to the Challenged Districts.
1. Voters
Voters have established standing for their First Amendment association claim. Voters
identify as Democratic voters and/or regularly vote for Democratic candidates, and they plan to
support Democratic candidates in the 2020 election cycle. (See, generally, Pls.’ Proposed
Findings of Fact, ECF No. 257 at PageID #10591–10675.) Voters have presented robust
evidence that the Enacted Plan has “burdened the ability of like-minded people across the State
to affiliate in a political party and carry out that organization’s activities and objects.” Gill, 138
S. Ct. at 1939 (Kagan, J., concurring). Specifically, the Enacted Plan has made it more difficult
to energize the Democratic party’s base, register voters, recruit candidates, mobilize and attract
volunteers, raise money, and motivate people to vote. (See, e.g., Dillon Trial Tr., ECF No. 249 at
PageID #9098:23–9112:11; Bootzin Dep. at 11:15–12:14; Borenstein Dep. at 34:6–35:20;
Cherry Dep. at 14:4–17:2; Canning-Peterson Dep. at 13:1–16:9; Caroff Dep. at 28:22–29:14;
Demaire Dep. at 24:1–20, 31:2–33:4; Ellis Dep. at 27:18–30:11; Hartsough Dep. at 12:12–14:25;
Jondahl Dep. at 15:7–18:18; Kromrei Dep. at 13:22–15:2; Morse Dep. at 12:3–15:6; Reiser Dep.
at 11:5–25, 24:8–16; Sain Dep. at 18:2–21:4, 33:2–25; Sain-Steinborn Dep. at 18:20–20:8;
Schaffer-O’Connell Dep. at 11:3–15:20; Somers Dep. at 17:5–21:1; Speer Dep. at 12:18–15:19;
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Vertin Dep. at 14:8–21, 34:2–3.) Several Voters testified that they believe their votes—and their
voices—have been weakened or do not count at all because of the partisan bias in the Enacted
Plan. (See, e.g., Aerts Dep. at 16:4–15; Canning-Peterson Dep. at 13:9–14; Cherry Dep. at
12:15–14:3; Morse Dep. at 12:3–24; Reiser Dep. at 11:11–25; Speer Dep. at 11:18–12:21;
Stoetzer Dep. at 28:13–21; Watkins Dep. at 26:18–27:4.) Federal courts have held that plaintiffs
have demonstrated standing for First Amendment associational claims based on evidence of
associational harms analogous to those present in this case. See Householder, 2019 WL 652980,
at *18; Rucho, 318 F. Supp. 3d at 829–30. Therefore, Voters have established standing for their
First Amendment association claim.
2. The League
The League has derivative standing to pursue its First Amendment association claim
based on its members. First, League Plaintiffs have standing to sue in their own right under a
First Amendment association theory. See Part V.D.1, supra. Second, the interests at stake are
germane to the League’s purpose. See Part V.B.2, supra. And third, the individual League
members need not directly participate in the lawsuit. See Part V.B.2, supra. Therefore, based on
its membership, the League has standing to pursue a First Amendment claim based on injuries to
its members’ right of association. Because we have found that Voters have standing to challenge
the Enacted Plan based on First Amendment associational injuries and that the League has
derivative standing, we need not reach the issue of whether the League has independent standing
on First Amendment associational grounds.
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ANALYSISVI.
A. The Enacted Plan Violates Plaintiffs’ Fourteenth Amendment and First Amendment Rights by Diluting the Weight of Democratic Voters’ Votes
1. Statewide Evidence and Findings
We may consult statewide evidence to determine whether Plaintiffs have established the
intent element of their vote-dilution claims. Rucho, 318 F. Supp. 3d at 868 (“Plaintiffs can—and
do—rely on statewide evidence to prove their partisan vote dilution claims”) (internal citations
omitted); Gill, 138 S. Ct. at 1937 (Kagan, J., concurring) (explaining that a district court may
consider “statewide (as well as local) evidence” when adjudicating the merits of the plaintiffs’
vote-dilution claims and that the plaintiffs could present “evidence about the mapmakers’ goals
in formulating the entire statewide map” to prove intent with respect to a specific district because
such intent “would predictably carry down to individual districting decisions”) (emphasis
added); see Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257, 1265 (2015) (“Voters, of
course, can present statewide evidence in order to prove racial gerrymandering in a particular
district.”) (internal citation omitted).
As discussed in Part II, supra, the map-makers, political operatives, and legislators
elevated partisan considerations at every step in the 2011 redistricting process. Their primary
goal was to draw maps that advantaged Republicans, disadvantaged Democrats, and ensured that
Republicans could enjoy durable majorities in Michigan’s congressional delegation and in both
chambers of the Michigan legislature for the entire decade. The expert evidence, documentary
evidence, and testimony from map-drawers, legislators, and political operatives undeniably
points to this conclusion.
Senate Intervenors argue that emails from individual legislators and their staff members
do not demonstrate “legislative intent.” (Senate Intervenors’ Proposed Conclusions of Law, ECF
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No. 254 at PageID #10380–82.) Certainly, extemporaneous statements from a small number of
individual legislators may not suffice to ascribe intent to an entire legislature. See Hunter v.
Underwood, 471 U.S. 222, 228 (1985). However, in concluding that the Enacted Plan was
designed and implemented with the predominant purpose of discriminating against Democrats,
we do not rely on isolated off-hand comments from individual legislators. Rather, we base our
finding on Plaintiffs’ extensive expert evidence; testimony from the map-drawers; testimony
from several legislators who played central parts in the Enacted Plan’s creation and passage as
party leaders or committee chairs; statements from legislative staff and political operatives who
collaborated with the map-drawers during the redistricting process; and a wide-range of
documentary evidence, such as emails between the map-drawers, emails from legislators, agenda
minutes and the handwritten notes from the weekly leadership meetings, the Project REDMAP
materials, and the proposed district maps, that contained detailed political data and depicted the
partisan composition of the prosed districts, that the map-drawers and legislators relied on in
creating the Enacted Plan. The breadth of evidence of discriminatory intent, from these
multifarious sources, renders Senate Intervenors’ “legislative intent” argument meritless.
Based on the statewide evidence of discriminatory partisan intent discussed in Part II,
supra, and based on the district-specific evidence of discriminatory partisan intent discussed
below, we find that Plaintiffs have demonstrated that the Enacted Plan is an unconstitutional
partisan gerrymander. The Enacted Plan was devised with discriminatory intent; the predominant
purpose of the Enacted Plan is to subordinate the interests Democrats and entrench Republicans
in power by diluting the weight of Democratic voters’ votes. The Enacted Plan has caused
concrete discriminatory effects; it succeeded in discriminating against Democratic voters by
packing and/or cracking them into districts where their votes carry less weight. The
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Congressional and State House Intervenors and Senate Intervenors have failed to establish that
any legitimate or neutral factor justifies this discrimination.
As explained below, Plaintiffs have established that most of the Challenged Districts
violate their Fourteenth Amendment and First Amendment rights by diluting the weight of their
votes through packing or cracking.38
2. District-Specific Evidence and Findings
Congressional District 1a.
League Plaintiffs Speer and Borenstein assert that Congressional District 1 dilutes the
weight of their votes by cracking them into a safely Republican district. The vast majority of Dr.
Chen’s simulated districts, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, place Speer and Borenstein in a district that is less
Republican than their current district, and in some instances, in a Democratic-leaning district.
(See Pls.’ Trial Ex. 278.) Dr. Chen concluded that Congressional District 1 is a “partisan outlier.”
(Chen Report at 56.) In other words, the partisanship of Congressional District 1 falls outside the
middle 95% of simulated, geographically overlapping districts. (Chen Report at 55.)
During the 2011 redistricting cycle, the map-makers removed Iosco, Arenac, and Bay
counties—all of which are Democratic-leaning—from Congressional District 1 and moved them
to Congressional District 5. (Vatter Trial Tr., ECF No. 249 at PageID #9000:8–21.) These
changes made Congressional District 1 “much more Republican.” (Id. at PageID #9000:24–25.)
Further, Congressional District 1 unnecessarily breaks counties and municipalities. (Id. at
PageID #9002:23–9004:8.)
38 Plaintiffs have failed to carry their burden with respect to the districts for which they lack standing, i.e., Senate Districts 10, 22, and 32; and House Districts 52, 62, 76, and 92.
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Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 1 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 1 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 1. Therefore, Congressional District 1 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 4b.
League Plaintiff Sherwood asserts that Congressional District 4 dilutes the weight of her
vote by cracking her into a safely Republican district. The vast majority of Dr. Chen’s simulated
districts, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, place Sherwood in a district that is significantly less Republican than
her current district, and in some instances, in a Democratic-leaning district. (See Pls.’ Trial Ex.
278.) Dr. Chen concluded that Congressional District 4 is a “partisan outlier” because it cracks
Democratic voters. (Chen Report at 55.)
Vatter testified that, when drawing Congressional District 4, the map-makers faced a
choice: include the three Democratic-leaning counties that they had removed from Congressional
District 1, or instead include Republican-leaning Ogemaw County. (Vatter Trial Tr., ECF No.
249 at PageID #9004:9–9006:16.) The map-makers chose to include Ogemaw County, which
made Congressional District 4 more Republican. (Id. at PageID #9006:19.) Further, the map
makers deliberately drew Congressional District 4 to give incumbent Republican Congressman
Dave Camp the City of Frankenmuth, a Republican area. (LaBrant Dep. at 213:21–214:13.)
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Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 4 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 4 had the effect of diluting the weight of such voters’ votes; and that (3) no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 4. Therefore, Congressional District 4 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 5c.
League Plaintiffs Holliday, Cherry, Purcell, Smith, Sain, Haley, and Sain-Steinborn assert
that Congressional District 5 dilutes the weight of their votes by packing them into an
overwhelmingly Democratic district. Every single one of Dr. Chen’s 1,000 simulated district
maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, places Holliday, Cherry, Purcell, Smith, Sain, Haley, and Sain
Steinborn in a district that is less packed with Democratic voters than their current district. (See
Pls.’ Trial Ex. 278.) Dr. Chen concluded that Congressional District 5 is a “partisan outlier”
because it packs Democratic voters. (Chen Report at 55.)
The map-makers added the three Democratic-leaning counties they removed from
Congressional District 1 to Congressional District 5. (Vatter Trial Tr., ECF No. 249 at PageID
#9008:7–16.) This resulted in Congressional District 5 becoming a “super-Democratic district.”
(Id. at PageID #9008:21–22.) By concentrating so many Democratic voters in Congressional
District 5, the map-drawers made Congressional Districts 10, 4, and 8 more Republican. (Id. at
PageID #9009:1–6.)
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Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 5 with the predominant purpose of diluting the weight of Democratic
voters’ votes through packing; (2) that the packing of Democratic voters in Congressional
District 5 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified packing Democratic voters in Congressional District
5. Therefore, Congressional District 5 violates the Fourteenth Amendment’s Equal Protection
Clause and the First Amendment.
Congressional District 7d.
League Plaintiffs Canning-Peterson and Vertin assert that Congressional District 7 dilutes
the weight of their votes by cracking them into a safely Republican district. Nearly all of Dr.
Chen’s simulated districts, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, place Canning-Peterson and Vertin in a district that is
significantly less Republican than their current district, and most of Dr. Chen’s simulations place
them in a Democratic-leaning district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that
Congressional District 7 is a “partisan outlier” because it cracks Democratic voters. (Chen
Report at 56.)
Vatter testified that from 2001 to 2011, Congressional District 7 was a competitive
district. (Vatter Trial Tr., ECF No. 249 at PageID #9009:11–18.) However, during the 2011
redistricting cycle, the map-makers removed Calhoun County, a Democratic-leaning county that
was the home of the incumbent Democratic Congressman Mark Schauer, and moved it to
Congressional District 3, a more Republican district. (Id. at PageID #9009:19–9010:5.) These
changes caused Congressional District 7 to become “much more Republican.” (Id. at PageID
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#9010:9–13.) In fact, a Democrat has not won Congressional District 7 since the Enacted Plan
went into effect. (Id. at PageID #9010:9–13.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 7 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 7 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 7. Therefore, Congressional District 7 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 8e.
League Plaintiffs Kroll, Jondahl, and Yokich assert that Congressional District 8 dilutes
the weight of their votes by cracking them into a safely Republican district. Every single one of
Dr. Chen’s 1,000 simulated district maps, drawn in accordance with traditional non-partisan
redistricting criteria and without invidious partisan intent, places Kroll, Jondahl, and Yokich in a
district that is significantly less Republican than their current district, and the vast majority of Dr.
Chen’s simulations place them in a Democratic-leaning district. (See Pls.’ Trial Ex. 278.) Dr.
Chen concluded that Congressional District 8 is a “partisan outlier” because it cracks Democratic
voters. (Chen Report at 55.)
Vatter testified that Congressional District 8 was competitive prior to the 2001
redistricting cycle, when the Republican-dominated legislature added a Republican-leaning part
of Oakland County, which made the district much more Republican. (Vatter Trial Tr., ECF No.
249 at PageID #9010:18–9011:8.) In the 2011 redistricting, the map-makers decided to draw
Congressional District 8 in much the same way as in 2001, meaning that it remained a heavily
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Republican district. (Id. at PageID #9010:18–9011:8.) While a Democrat won Congressional
District 8 in 2018—a historically strong year for Democrats—it had been eighteen years since a
Democrat had carried the Eighth District. (Id. at PageID #9011:18–23.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 8 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 8 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 8. Therefore, Congressional District 8 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 9f.
League Plaintiffs Woloson, Noorbakhsh, Duemling, Demaire and Poore, and Individual
Plaintiffs Ellis and Grasha, assert that Congressional District 9 dilutes the weight of their votes
by packing them into an overwhelmingly Democratic district. Every single one of Dr. Chen’s
1,000 simulated district maps, drawn in accordance with traditional non-partisan redistricting
criteria and without invidious partisan intent, places Woloson, Noorbakhsh, Duemling, Demaire,
Ellis, Poore, and Grasha in a district that is less packed with Democratic voters than their current
district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that Congressional District 9 is a “partisan
outlier” because it packs Democratic voters. (Chen Report at 55.)
Vatter testified that, prior to the 2011 redistricting, the southern parts of Oakland and
Macomb counties were divided into two different congressional districts. (Vatter Trial Tr., ECF
No. 249 at PageID #9012:4–13.) During the 2011 redistricting cycle, the map-makers combined
the strongly Democratic portions of Oakland and Macomb counties in Congressional District 9,
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which made it a “super Democratic” district and made the surrounding congressional districts
correspondingly more Republican. (Id. at PageID #9012:9–13.) The map-makers also drew the
Ninth District to stretch west to include Southfield Township and Bloomfield Township, but to
strategically wrap around, in a snakelike fashion, Bloomfield Hills and Birmingham, which are
considerably more Republican than the surrounding areas and excluded from the Ninth District
as currently composed. (Id. at PageID #9014:8–20.) This strategic—and conspicuous—exclusion
of Republican areas also contributes to the packing of Democratic votes in Congressional
District 9.
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 9 with the predominant purpose of diluting the weight of Democratic
voters’ votes through packing; (2) that the packing of Democratic voters in Congressional
District 9 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified packing Democratic voters in Congressional District
9. Therefore, Congressional District 9 violates the Fourteenth Amendment’s Equal Protection
Clause and the First Amendment.
Congressional District 10g.
Individual Plaintiff Brdak and League Plaintiff Morse assert that Congressional District
10 dilutes the weight of their votes by cracking them into a reliably Republican district. Every
single one of Dr. Chen’s 1,000 simulated district maps, drawn in accordance with traditional
non-partisan redistricting criteria and without invidious partisan intent, places Brdak and Morse
in a district that is significantly less Republican than their current district, and some of Dr.
Chen’s simulations place them in a Democratic-leaning district. (See Pls.’ Trial Ex. 278.) Dr.
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Chen concluded that Congressional District 8 is a “partisan outlier” because it cracks Democratic
voters. (Chen Report at 55.)
Vatter testified that Congressional District 10 is “very intertwined” with Congressional
District 9. (Vatter Trial Tr., ECF No. 249 at PageID #9015:11–19.) By drawing the Ninth District
to pack Democratic voters, the map-makers made the Tenth District “much more Republican.”
(Id. at PageID #9015:11–14.) Specifically, the map-makers drew the border between the Ninth
and Tenth Districts such that “super Democratic” areas, such as Clinton Township, Mount
Clemens, Fraser, Sterling Heights, and Warren, were packed into the Ninth District, while
Republican-leaning areas, such as Shelby Township, Macomb Township, and Chesterfield, were
placed in the Tenth District, making the Tenth District more Republican. (Id. at PageID
#9015:11–9016:7.) No Democrat has been elected in Congressional District 10 under the Enacted
Plan. (Id. at PageID #9016:6–8.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 10 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 10 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 10. Therefore, Congressional District 10 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 11h.
League Plaintiffs Bowman, Watkins, Feijoo, and Ryan assert that Congressional District
11 dilutes the weight of their votes by cracking them into a reliably Republican district. Dr. Chen
concluded that Congressional District 11 is a “partisan outlier.” (Chen Report at 56.) Some of Dr.
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Chen’s simulations would place Bowman, Feijo, and Ryan in a district less Republican than their
current district. (See Pls.’ Trial Ex. 278.) Plaintiffs have presented additional evidence of
cracking—the double election in 2012 where, on the same exact day, a Democrat won the
election under the old maps and a Republican won the election under the new maps. (Dillon Trial
Tr., ECF No. 249 at PageID #9104:1–9.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 11 with the predominant purpose of diluting the weight of Democratic
voters’ votes through cracking; (2) that the cracking of Democratic voters in Congressional
District 11 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified cracking Democratic voters in Congressional
District 11. Therefore, Congressional District 11 violates the Fourteenth Amendment’s Equal
Protection Clause and the First Amendment.
Congressional District 12i.
League Plaintiffs Caroff, Kromrei, Somers, Leary, and Smith assert that Congressional
District 12 dilutes the weight of their votes by packing them into an overwhelmingly Democratic
district. Nearly every single one of Dr. Chen’s 1,000 simulated district maps, drawn in
accordance with traditional non-partisan redistricting criteria and without invidious partisan
intent, places Caroff, Kromrei, Somers, Leary, and Smith in a district that is less packed with
Democratic voters than their current district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that
Congressional District 12 is a “partisan outlier” because it packs Democratic voters. (Chen
Report at 55.)
Vatter testified that the map-makers drew Congressional District 12 to begin in Wayne
County and extend westward to capture the “very Democratic” areas of Ann Arbor, Ypsilanti,
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Ypsilanti Township, and Pittsfield Township, making it a “super Democratic district.” (Vatter
Trial Tr., ECF No. 249 at PageID #9019:20–9021:7.) By drawing the Twelfth District to pack
Democratic voters, the Enacted Plan makes the neighboring Seventh and Eleventh Districts
“much more Republican” than they otherwise would be. (Id. at PageID #9020:5–7.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed
Congressional District 12 with the predominant purpose of diluting the weight of Democratic
voters’ votes through packing; (2) that the packing of Democratic voters in Congressional
District 12 had the effect of diluting the weight of such voters’ votes; and (3) that no legitimate
state interest or other neutral factor justified packing Democratic voters in Congressional District
12. Therefore, Congressional District 12 violates the Fourteenth Amendment’s Equal Protection
Clause and the First Amendment.
Senate District 8j.
League Plaintiff Noorbakhsh, and Individual Plaintiffs Ellis and Brdak, assert that Senate
District 8 dilutes the weight of their votes by cracking them into a safely Republican district. The
vast majority of Dr. Chen’s simulated district maps, drawn in accordance with traditional non
partisan redistricting criteria and without invidious partisan intent, place Noorbakhsh and Ellis in
a district that is Democratic-leaning. (See Pls.’ Trial Ex. 278.) Similarly, many of Dr. Chen’s
simulations place Brdak in a Democratic-leaning district. (See id.) Dr. Chen concluded that
Senate District 8 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that the map-makers cracked Democratic voters in Senate District 8 by
drawing horizontal districts rather than vertical districts and by strategically placing the
Democratic-leaning communities of Warren, Centerline, Eastpointe, Roseville, Fraser, and part
of Clinton Township in the neighboring Ninth Senate District. (Vatter Trial Tr., ECF No. 249 at
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PageID #9021:10–16.) By placing these Democratic-leaning communities all in the Ninth Senate
District, the map-makers made the Eighth District “much more Republican.” (Id. at PageID
#9021:19–23.) Vatter also testified that the map-makers created a gratuitous municipality split;
they could have “very easily drawn” a map that did not split Clinton Township and would have
resulted in two “competitive districts.” (Id. at PageID #9022:1–10.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 8 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in Senate District 8 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified cracking Democratic voters in Senate District 8. Therefore, Senate District 8
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
Senate District 10k.
As noted above, Plaintiffs lack standing to challenge Senate District 10 under a vote
dilution theory.
Senate Districts 11 and 1239l.
Individual Plaintiff Grasha asserts that Senate District 11 dilutes the weight of his vote by
packing him into an overwhelmingly Democratic district. Dr. Chen did not characterize Senate
District 11 as a “partisan outlier.” However, the overwhelming majority of Dr. Chen’s 1,000
simulated district maps, drawn in accordance with traditional non-partisan redistricting criteria
39 The Court will evaluate several of the Senate and House Districts in groups. At trial, Plaintiffs’ expert testified about many of the Senate and House Districts in groups, and we believe that these districts are most appropriately considered together. The way that each district in a group was drawn had profound consequences on the partisanship of the other districts in that same group. One cannot fully grasp the partisan implications of the design of an individual district in each group without simultaneously evaluating the partisanship of the other districts in that group.
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and without invidious partisan intent, place Grasha in a district that is significantly less packed
with Democratic voters than his current district. (See Pls.’ Trial Ex. 278.)
League Plaintiff Woloson asserts that Senate District 12 dilutes the weight of her vote by
cracking her into a safely Republican district. Dr. Chen did not characterize Senate District 12 as
a “partisan outlier.” However, it appears that most of Dr. Chen’s simulated district maps, drawn
in accordance with traditional non-partisan redistricting criteria and without invidious partisan
intent, place Woloson in a district that is less Republican than her current district. (See id.) In
fact, many of Dr. Chen’s simulations place Woloson in a Democratic-leaning district. (See id.)
Vatter testified that the map-makers drew Senate District 11 to “pack all the Democrats in
the southern part of Oakland [County] into one Senate district.” (Vatter Trial Tr., ECF No. 249 at
PageID #9022:18–9023:22.) By placing the communities of Farmington Hills, Farmington,
Southfield, Lathrup Village, Huntington Woods, Oak Park, Ferndale, Hazel Park, and Pleasant
Ridge in Senate District 11, the map-makers made it a “super Democratic district.” (Id. at
PageID #9023:8–9.) And by packing the Democratic voters from these communities into a single
super-Democratic district, the map-makers correspondingly made Senate District 12 “more
Republican.” (Id. at PageID #9023:10–20.) While Senate District 12 elected a Democrat in 2018,
it had been approximately 20 years since a Democrat had prevailed in that district. (Id. at PageID
#9023:21–9024:3.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 11 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in Senate District 11 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
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factor justified packing Democratic voters in Senate District 11. Therefore, Senate District 11
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 12 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in Senate District 12 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in Senate District 12. Therefore, Senate
District 12 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
Senate District 18m.
League Plaintiffs Leary, Caroff, and Susan Smith assert that Senate District 18 dilutes the
weight of their votes by packing them into an overwhelmingly Democratic district. Every single
one of Dr. Chen’s 1,000 simulated district maps, drawn in accordance with traditional non
partisan redistricting criteria and without invidious partisan intent, places Leary, Caroff, and
Smith in a district that is less packed with Democratic voters than their current district. (See Pls.’
Trial Ex. 278.) Dr. Chen concluded that Senate District 18 is a “partisan outlier.” (Chen Report at
56.)
Vatter testified that the map-makers designed Senate District 18 to pack Democratic
voters and correspondingly drew Senate District 22 to be solidly Republican. (Vatter Trial Tr.,
ECF No. 249 at PageID #9024:4–21.) Vatter also testified that when drawing these two districts,
the map-makers ignored the Apol requirement that, when breaking a county between multiple
districts, a map must shift the fewest number of municipalities as required to achieve population
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equality. (Id. at PageID #9024:22–9026:15.) Specifically, the Enacted Plan breaks Washtenaw
County and shifts fourteen municipalities into Livingston County to create Senate District 22.
(Id. at PageID #9025:14–9026:15.) However, the map-makers could have “easily” shifted only
six municipalities from Washtenaw to Livingston. (Id. at PageID #9025:14–20.) Shifting only six
municipalities would have made Senate District 22 “a competitive seat” and caused Senate
District 18 to be less packed with Democrats. (Id. at PageID #9026:10–15.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 18 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in Senate District 18 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified packing Democratic voters in Senate District 18. Therefore, Senate District 18
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
Senate District 22n.
As noted above, Plaintiffs lack standing to challenge Senate District 22 under a vote
dilution theory.
Senate Districts 14 and 27o.
League Plaintiffs Feijoo and Sain assert that Senate District 14 dilutes the weight of their
votes by cracking them into a safely Republican district. Dr. Chen did not characterize Senate
District 14 as a “partisan outlier.” However, every single one of Dr. Chen’s 1,000 simulated
district maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, places Sain in a district that is less Republican than her current district,
and many of Dr. Chen’s simulated districts place her in a Democratic-leaning district. (See Pls.’
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Trial Ex. 278.) Similarly, many of Dr. Chen’s simulated districts place Ms. Feijoo in a district
that is less Republican than her current district. (See id.)
League Plaintiffs Cherry and Haley assert that Senate District 27 dilutes the weight of
their votes by packing them into an overwhelmingly Democratic district. Nearly every single one
of Dr. Chen’s 1,000 simulated district maps, drawn in accordance with traditional non-partisan
redistricting criteria and without invidious partisan intent, places Cherry and Haley in a district
that is less packed with Democratic voters than their current district. (See id.) Dr. Chen
concluded that Senate District 27 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that the map-makers packed Democratic voters into Senate District 27 by
creating the district out of the City of Flint and the Democratic-leaning regions of Genesee
County. (Vatter Trial Tr., ECF No. 249 at PageID #9027:6–9.) Vatter also testified that the map
makers designed Senate District 14 to be a safe Republican district; they achieved this outcome
by packing Democratic voters into the neighboring Twenty Seventh District and by breaking
Oakland County to pick up several Republican-leaning areas, such as Waterford Township. (Id.
at PageID #9027:6–18.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 14 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in Senate District 14 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in Senate District 14. Therefore, Senate
District 14 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
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Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 27 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in Senate District 27 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified packing Democratic voters in Senate District 27. Therefore, Senate District 27
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
Senate District 32p.
As noted above, Plaintiffs lack standing to challenge Senate District 32 under a vote
dilution theory.
Senate District 36q.
League Plaintiffs Speer, Borenstein, and Sherwood assert that Senate District 36 dilutes
the weight of their votes by packing them into an overwhelmingly Democratic district. Dr. Chen
did not characterize Senate District 36 as a “partisan outlier.” However, every single one of Dr.
Chen’s 1,000 simulated district maps, drawn in accordance with traditional non-partisan
redistricting criteria and without invidious partisan intent, place Sherwood in a district that is less
packed with Democratic voters than her current district. (See Pls.’ Trial Ex. 278.) Many of Dr.
Chen’s simulated district maps place Borenstein and Speer in districts that are less packed with
Democrats than their current district. (See id.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed Senate
District 36 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in Senate District 36 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
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factor justified packing Democratic voters in Senate District 36. Therefore, Senate District 36
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
House District 24r.
League Plaintiff Poore asserts that House District 24 dilutes the weight of her vote by
cracking her into a safely Republican district. Dr. Chen did not characterize House District 24 as
a “partisan outlier.” However, every single one of Dr. Chen’s 1,000 simulated district maps,
drawn in accordance with traditional non-partisan redistricting criteria and without invidious
partisan intent, places Poore in a district that leans Democratic. (See id.)
Vatter testified that the map-makers drew House District 24 to make it a Republican
District. (Vatter Trial Tr., ECF No. 249 at PageID #9030:22–9031:5.) He also testified that
drawing House District 24 as a Republican District had the effect of making the neighboring
Eighteenth House District, which comprises the Saint Clair Shores community, more
Democratic. (Id. at PageID #9030:21–9031:9.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 24 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 24 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 24. Therefore, House
District 24 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
House District 32s.
Individual Plaintiff Brdak asserts that House District 32 dilutes the weight of his vote by
cracking him into a safely Republican district. Every single one of Dr. Chen’s 1,000 simulated
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district maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, places Brdak in a less Republican district. (See Pls.’ Trial Ex. 278.) Dr.
Chen concluded that House District 32 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that the before the 2011 redistricting cycle, House District 32 was a
competitive district. (Vatter Trial Tr., ECF No. 249 at PageID #9032:1–3.) However, the map
makers added several Republican-leaning townships to House District 32 to make it more
Republican, such as Kenockee Township, Wales Township, Kimball Township, Columbus
Township, and Casco Township. (Id. at PageID #9031:16–25.) These changes transformed
House District 32 into a Republican district. (Id. at PageID #9032:4–5.) Furthermore, to achieve
their aim of making House District 32 a safe Republican district, the map-makers shifted eight
municipalities, when they could have drawn a competitive map that shifted only five. (Id. at
PageID #9032:8–19.) Accordingly, when drawing House District 32, the map-makers and
legislators subordinated the Apol criteria to their desire to devise a map that favored Republicans
and disadvantaged Democrats.
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 32 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 32 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 32. Therefore, House
District 32 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
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House District 51t.
League Plaintiff Sain-Steinborn asserts that House District 51 dilutes the weight of her
vote by cracking her into a safely Republican district. Every single one of Dr. Chen’s 1,000
simulated district maps, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, places Sain-Steinborn in a less Republican district, and
many of Dr. Chen’s simulations place her in a Democratic-leaning district. (See Pls.’ Trial Ex.
278.) Dr. Chen concluded that House District 51 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that House District 51 used to comprise both Democratic and Republican
areas and was competitive prior to the 2011 redistricting cycle. (Vatter Trial Tr., ECF No. 249 at
PageID #9033:20–25.) However, the map-makers redrew House District 51 to wrap almost all
the way around Flint and encompass the Republican-leaning parts of Genesee County. (Id. at
PageID #9033:8–17.) These changes made House District 51 much more Republican. (Id.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 51 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 51 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 51. Therefore, House
District 51 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
House District 52 u.
As noted above, Plaintiffs lack standing to challenge House District 52 under a vote
dilution theory.
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House District 55v.
League Plaintiff Leary asserts that House District 55 dilutes the weight of her vote by
packing her into an overwhelmingly Democratic district. Every single one of Dr. Chen’s 1,000
simulated district maps, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, places Leary in a district that is less packed with
Democratic voters than her current district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that
House District 55 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that the Enacted Plan places the Republican areas of Washtenaw County
into House District 52 and packs the Democratic-leaning areas into House Districts 53, 54, and
55. (Vatter Trial Tr., ECF No. 249 at PageID #9034:10–9033:22.) Vatter testified that the map
makers could have configured these districts so that some of the Democratic-leaning areas
extended into districts that included the western part of Washtenaw County, which would have
rendered these packed districts less Democratic and more competitive. (Id. at PageID #9034:23–
9035:2.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 55 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in House District 55 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified packing Democratic voters in House District 55. Therefore, House District 55
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
House Districts 60, 62, and 63w.
League Plaintiff Hartsough asserts that House District 60 dilutes the weight of her vote
by packing her into an overwhelmingly Democratic district. Every single one of Dr. Chen’s
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1,000 simulated district maps, drawn in accordance with traditional non-partisan redistricting
criteria and without invidious partisan intent, places Hartsough in a district that is less packed
with Democratic voters than her current district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded
that House District 60 is a “partisan outlier.” (Chen Report at 56.)
League Plaintiff Zeller asserts that House District 62 dilutes the weight of her vote by
packing her into a strongly Democratic district. Most of Dr. Chen’s 1,000 simulated district
maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, place Zeller in a district that is less packed with Democratic voters than
her current district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that House District 62 is a
“partisan outlier.” (Chen Report at 56.)
League Plaintiff Reiser asserts that House District 63 dilutes the weight of her vote by
cracking her into a safely Republican district. Every single one of Dr. Chen’s 1,000 simulated
district maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, places Reiser in a less Republican district. (See Pls.’ Trial Ex. 278.) Dr.
Chen concluded that House District 63 is a “partisan outlier.” (Chen Report at 56.)
Vatter testified that the map-makers could have drawn House Districts 60, 62, and 63 to
be competitive districts. Specifically, the map-makers could have drawn House District 63,
currently a safe Republican district, to include Battle Creek, currently located in House District
62. (Vatter Trial Tr., ECF No. 249 at PageID #9035:8–20.) This would have made House District
63 a competitive district and, by extension, reduced the packing of Democrats in House District
62. (Id.)
The map-makers also could have drawn House District 60, which is currently packed
with Democrats, to be a competitive district. (Id. at PageID #9038:4–10.) Specifically, the map
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makers could have extended House District 60 further eastward to include Republican-leaning
townships in Calhoun County. (Id. at PageID #9038:4–10.) This change would render House
District 63, where Democrats are currently cracked, less Republican and more competitive. (Id.
at #9038:14–18.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 60 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in House District 60 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified packing Democratic voters in House District 60. Therefore, House District 60
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
As noted above, Plaintiffs lack standing to challenge House District 62 under a vote
dilution theory.
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 63 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 63 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 63. Therefore, House
District 63 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
House District 75x.
League Plaintiff Bootzin asserts that House District 75 dilutes the weight of her vote by
packing her into an overwhelmingly Democratic district. Every single one of Dr. Chen’s 1,000
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simulated district maps, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, places Bootzin in a district that is less packed with
Democratic voters than her current district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that
House District 75 is a “partisan outlier.” (Chen Report at 56.)
House District 75, which comprises downtown Grand Rapids, is almost completely
enclosed by House District 76, which wraps around the southern, eastern, and northern edges of
House District 75 in a narrow band, reminiscent of a snake. (See Benson Demonstrative 1,
“Michigan’s 110 House Districts.”) Brandon Dillon, a Democrat, represented House District 75
from 2011 until 2015. (Dillon Trial Tr., ECF No. 249 at PageID #9093:23–9094:3.) Dillion
represented House District 75 during the 2011 redistricting cycle. (Id. at PageID #9094:9–14.)
Dillon voted against the Enacted Plan, even though it transformed his district from a
“competitive seat to a safe, super-Democratic seat.” (Id. at PageID #9094:13–14.) Dillon voted
against the Enacted Plan because he believed that the Enacted Plan was unfair and that the
districts in Grand Rapids “were extremely gerrymandered.” (Id. at PageID #9094:22–9095:4.)
Dillon testified that the Republicans drew the House districts “to basically pack all of the
Democrats into the center of the city,” in House District 75, and then drew House District 76 “as
a backwards C around [House District 75] to try and make one of the districts a competitive seat
for Republicans.” (Id. at PageID #9095:4–15.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 75 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in House District 75 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
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factor justified packing Democratic voters in House District 75. Therefore, House District 75
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
House District 76y.
As noted above, Plaintiffs lack standing to challenge House District 76 under a vote
dilution theory.
House District 83z.
League Plaintiff Morse asserts that House District 83 dilutes the weight of her vote by
cracking her into a safe Republican district. Dr. Chen did not characterize House District 83 as a
“partisan outlier.” However, the vast majority of Dr. Chen’s 1,000 simulated district maps,
drawn in accordance with traditional non-partisan redistricting criteria and without invidious
partisan intent, place Morse in a less Republican district. (See Pls.’ Trial Ex. 278.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 83 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 83 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 83. Therefore, House
District 83 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
House District 91aa.
League Plaintiff Aerts asserts that House District 91 dilutes the weight of her vote by
cracking her into a safe Republican district. The vast majority of Dr. Chen’s 1,000 simulated
district maps, drawn in accordance with traditional non-partisan redistricting criteria and without
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invidious partisan intent, place Aerts in a Democratic-leaning district. (See Pls.’ Trial Ex. 278.)
Dr. Chen concluded that House District 91 is a “partisan outlier.” (Chen Report at 56.)
House District 91 is entirely in Muskegon County. Vatter testified that the Enacted Plan
packs the Democratic-leaning areas in Muskegon County into House District 92, while House
District 91 comprises the outlying Republican-leaning municipalities. (Vatter Trial Tr., ECF No.
249 at PageID #9035:21–9036:6.) As a result, Democrats are cracked in House District 91,
which is a reliably-Republican district. (Id. at PageID #9035:21–9036:6.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 91 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 91 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 91. Therefore, House
District 91 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
House District 92bb.
As noted above, Plaintiffs lack standing to challenge House District 92 under a vote
dilution theory.
House Districts 94 and 95cc.
League Plaintiff Purcell asserts that House District 94 dilutes the weight of his vote by
cracking him into a safe Republican district. Every single one of Dr. Chen’s 1,000 simulated
district maps, drawn in accordance with traditional non-partisan redistricting criteria and without
invidious partisan intent, places Purcell in a district that more Democratic than his current
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district. (See Pls.’ Trial Ex. 278.) Dr. Chen concluded that House District 94 is a “partisan
outlier.” (Chen Report at 56.)
League Plaintiff Sherrill Smith asserts that House District 95 dilutes the weight of her
vote by packing her into an overwhelmingly Democratic district. Dr. Chen did not characterize
House District 95 as a “partisan outlier.” However, the vast majority of Dr. Chen’s 1,000
simulated district maps, drawn in accordance with traditional non-partisan redistricting criteria
and without invidious partisan intent, place Smith in a district less packed with Democratic
voters. (See Pls.’ Trial Ex. 278.)
Vatter testified that the Enacted Plan packs heavily-Democratic areas, including the City
of Saginaw, Kochville, Zilwaukee Township, Zilwaukee, Spaulding Township, Bridgeport
Township, and James into House District 95. (Vatter Trial Tr., ECF No. 249 at PageID
#9036:15–20.) House District 94 wraps around House District 95 like a snake, starting with
Tittabawassee Township to the northwest, continuing south through Swan Creek and Saint
Charles, then stretching east to Frankenmuth and from there north to Blumfield. (Id. at PageID
#9036:24–9037:6.) Vatter testified that this configuration makes House District 95 “super
Democratic” and House District 94 a “very Republican district.” (Id. at PageID #9036:19–
9037:6.)
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 94 with the predominant purpose of diluting the weight of Democratic voters’ votes
through cracking; (2) that the cracking of Democratic voters in House District 94 had the effect
of diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other
neutral factor justified cracking Democratic voters in House District 94. Therefore, House
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District 94 violates the Fourteenth Amendment’s Equal Protection Clause and the First
Amendment.
Based on this district-specific evidence and the statewide evidence discussed in Parts II
and V.A.1.a. supra, the Court finds (1) that the map-makers and legislators designed House
District 95 with the predominant purpose of diluting the weight of Democratic voters’ votes
through packing; (2) that the packing of Democratic voters in House District 95 had the effect of
diluting the weight of such voters’ votes; and (3) that no legitimate state interest or other neutral
factor justified packing Democratic voters in House District 95. Therefore, House District 95
violates the Fourteenth Amendment’s Equal Protection Clause and the First Amendment.
3. Summary
The Court concludes that the following Challenged Districts constitute unconstitutional
partisan gerrymanders, in violation of the First and Fourteenth Amendments, because they dilute
the votes of Democratic voters: Congressional Districts 1, 4, 5, 7, 8, 9, 10, 11, and 12; Senate
Districts 8, 11, 12, 14, 18, 27, and 36; and House Districts 24, 32, 51, 55, 60, 63, 75, 83, 91, 94,
and 95.
The Court finds that Plaintiffs have failed to establish that Senate Districts 10, 22, and 32,
and House Districts 52, 62, 76, and 92 are unconstitutional partisan gerrymanders under a vote
dilution theory.
B. Every Challenged District Violates Plaintiffs’ First Amendment Right to Association
Voters and the League have proven their First Amendment association claims with
respect to every Challenged District.
First, we have already held that the “predominant purpose” of the Enacted Plan was to
subordinate the interests of Democratic voters and entrench Republicans in power. See Part
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V.A.1, supra. Therefore, we similarly find, based on the state-wide evidence discussed in Parts II
and V.A.1.a., supra, that the map-makers and legislators formulated the Enacted Plain with the
“specific intent” to burden the associational rights of Democratic voters. Johnson, 352 F. Supp.
3d at 807 (quoting Shapiro, 203 F. Supp. 3d at 597 and Rucho, 318 F. Supp. 3d at 929).
Specifically, the map-makers and legislators discriminated against Democratic voters by diluting
the weight of their votes because these voters had voted for Democrats, rather than Republicans,
in previous elections. Because Plaintiffs have established that their protected First Amendment
speech was the “predominant purpose” of the map-makers’ and legislators’ decision to dilute
their votes, they have necessarily satisfied the lower threshold, applicable to First Amendment
retaliation cases, of showing that their protected speech was a “motivating factor” for the
challenged activity. See Rucho, 318 F. Supp. 3d at 929 (applying “motivating factor” test to First
Amendment association claim based on partisan gerrymandering); Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977) (applying “motivating factor” test to First
Amendment retaliation claim).
Second, Plaintiffs have demonstrated that the Enacted Plan burdened their First
Amendment associational rights. Johnson, 352 F. Supp. 3d at 807; Rucho, 318 F. Supp. 3d at
929. Intervenors argue that the Enacted Plan does not burden Plaintiffs’ First Amendment
associational rights because it does not preclude them from “speaking to, endorsing,
campaigning for, making political contributions to, and/or voting for candidates.” (Cong. and
State House Intervenors’ Proposed Conclusions of Law, ECF No. 258 at PageID #11145–46; see
Senate Intervenors’ Proposed Conclusions of Law, ECF No. 254 at PageID #10352–53
(articulating the same argument).) Certainly, the Enacted Plan does not categorically prevent
Plaintiffs from engaging in political activity. But “constitutional violations may arise from the
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deterrent, or ‘chilling,’ effect of governmental [efforts] that fall short of a direct prohibition
against the exercise of First Amendment rights.” Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v.
Umbehr, 518 U.S. 668, 674 (1996) (internal citation omitted). An adverse action “chills” speech
if it would “deter a person of ordinary firmness from the exercise of the right at stake.”
Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th Cir. 1999) (internal citation and quotation marks
omitted). This same principle applies to First Amendment association claims based on partisan
gerrymandering. See Rucho, 318 F. Supp. 3d at 931.
Voters have satisfied this standard. By diluting the weight of Democratic voters’ votes,
the Enacted Plan has made it more difficult to energize the party’s base, register voters, recruit
candidates, mobilize and attract volunteers, raise money, and motivate people to vote. (See, e.g.,
Dillon Trial Tr., ECF No. 249 at PageID #9098:23–9112:11; Bootzin Dep. at 11:15–12:14;
Borenstein Dep. at 34:6–35:20; Cherry Dep. at 14:4–17:2; Canning-Peterson Dep. at 13:1– 16:9;
Caroff Dep. at 28:22–29:14; Demaire Dep. at 24:1–20, 31:2–33:4; Ellis Dep. at 27:18–30:11;
Hartsough Dep. at 12:12–14:25; Jondahl Dep. at 15:7–18:18; Kromrei Dep. at 13:22–15:2;
Morse Dep. at 12:3–15:6; Reiser Dep. at 11:5–25, 24:8–16; Sain Dep. at 18:2–21:4, 33:2–25;
Sain-Steinborn Dep. at 18:20–20:8; Schaffer-O’Connell Dep. at 11:3–15:20; Somers Dep. at
17:5–21:1; Speer Dep. at 12:18–15:19; Vertin Dep. at 14:8–21, 34:2–3.) Several Voters believe
their votes—and their voices—have been weakened or do not count at all because of the partisan
bias in the Enacted Plan’s districts. (See, e.g., Speer Dep. at 11:18–12:21; Stoetzer Dep. at
28:13–23; Cherry Dep. at 12:15–14:3; Canning-Peterson Dep. at 13:9–14; Morse Dep. at 12:3–
24; Watkins Dep. at 26:18–27:4; Reiser Dep. at 11:11–25; Aerts Dep. at 16:4–15.) Plaintiffs
have therefore demonstrated that the Enacted Plan chills their First Amendment rights. See
Thaddeus-X, 175 F.3d at 396.
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Intervenors argue that Voters have not suffered an injury to their First Amendment
associational rights because the First Amendment does not guarantee them the right to vote for
the winning candidate or be represented by a specific political party. (See Cong. and State House
Intervenors’ Proposed Conclusions of Law at PageID #11124–27 and 11145–46; Senate
Intervenors’ Proposed Conclusions of Law at PageID #10352.) Of course, the First Amendment
“does not guarantee political success.” Badham v. Mar. Fong Eu, 694 F. Supp. 664, 675 (N.D.
Cal. 1988). However, the First Amendment prevents the government from discriminating against
citizens based on their viewpoints. See, e.g., Rosenberger, 515 U.S. at 829 (describing viewpoint
discrimination as “an egregious form of content discrimination” and stating that “[t]he
government must abstain from regulating speech when the specific motivating ideology or the
opinion or perspective of the speaker is the rationale for the restriction.”) And “[t]he concept that
government may restrict the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment.” Emily’s List v. Fed. Election
Comm’n, 581 F.3d 1, 5 (D.C. Cir. 2009) (Kavanaugh, J.) (quoting Buckley v. Valeo, 424 U.S. 1,
49 (1976)). By discriminating against Democratic voters based on their voting history, the
Enacted Plan constitutes the quintessential type of viewpoint discrimination that the First
Amendment prohibits.
The League also suffered First Amendment harms. The League’s mission is to “empower
voters and defend democracy.” (Smit Trial Tr., ECF No. 248 at PageID #8764:11–17.) The
Enacted Plan has injured the League by engendering voter apathy that hampers the League’s
voter engagement, voter education, and get out the vote efforts; preventing the League from
making progress on voting rights issues through legislative reforms; and making it difficult for
the League to secure Republican candidates’ participation in candidate forums and voter
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education guides. (Id. at PageID #8776:2–8782:11.) Accordingly, the League has established that
the Enacted Plan burdened its First Amendment association rights. See Rucho, 318 F. Supp. 3d at
935 (finding that the individual plaintiffs and the North Carolina League of Women Voters
established injuries to their First Amendment association rights under similar circumstances).
Third, Plaintiffs have demonstrated causation. See Johnson, 352 F. Supp. 3d at 807;
Shapiro, 203 F. Supp. 3d at 597. Plaintiffs would not have suffered injuries to their First
Amendment association rights absent the map-makers’ and legislators’ intent to burden their
First Amendment rights through the Enacted Plan. In fact, the map-makers deliberately designed
and implemented the Enacted Plan to injure Democrats’ First Amendment rights.
We find that Plaintiffs have proven their First Amendment association claim with respect
to every Challenged District. Because Plaintiffs’ First Amendment association claim does not
require proving vote-dilution in a given district, Plaintiffs have established that every Challenged
District violates their First Amendment association right, including those Challenged Districts—
specifically, Senate Districts 10, 22, and 32, and House Districts 52, 62, 76, and 92—for which
Plaintiffs failed to demonstrate unconstitutional vote-dilution.
VII. SPECIAL SENATE ELECTION
A. Federal Courts May Order Special Elections in Appropriate Circumstances
“It is within the scope of [a court’s] equity powers to order a governmental body to hold
special elections” to redress constitutional violations. See Arbor Hill Concerned Citizens v. Cty.
of Albany, 357 F.3d 260, 262 (2d Cir. 2004) (reversing district court’s order that refused to hold
special election and requiring county to hold special election after district court invalidated
electoral maps as violative of the Voting Rights Act) (internal citation omitted); Pope v. Cty. of
Albany, 687 F.3d 565, 569 (2d Cir. 2012) (explaining that federal courts possess the “power to
order special elections” to redress constitutional violations); Marks v. Stinson, 19 F.3d 873, 889
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(3d Cir. 1994) (holding that “[i]f the district court finds a constitutional violation, it will have
authority to order a special election” regarding state senate district); Griffin v. Burns, 570 F.2d
1065, 1080 n.15 (1st Cir. 1978) (affirming district court’s power to “call a special election” to
remedy constitutional violation to voting rights); Ketchum v. City Council of City of Chicago,
Ill., 630 F. Supp. 551, 565 (N.D. Ill. 1985) (“Federal courts have often ordered special elections
to remedy violations of voting rights. Prospective relief alone is ‘of little consequence to the
many voters who sought to vote . . . and could not do so effectively.’” (quoting Coal. for Educ.
in District One v. Bd. of Elections, 370 F. Supp. 42, 58 (S.D.N.Y.), aff’d, 495 F.2d 1090 (2d Cir.
1974))). Indeed, “in cases involving unconstitutional burdens on the right to vote . . . numerous
courts . . . have concluded that shortening the terms of elected officials and ordering a special
election does not unduly intrude on state sovereignty, particularly when the constitutional
violation is widespread or serious.” Covington v. North Carolina, 270 F. Supp. 3d 881, 896
(M.D.N.C. 2017) (three-judge panel) (collecting cases).
The Supreme Court recently discussed the factors district courts must consider in
determining whether to order special state elections after invalidating a state’s apportionment
plan. In North Carolina v. Covington, 137 S. Ct. 1624 (2017) (per curium), the Supreme Court
explained that although it had “never addressed whether or when a special election may be a
proper remedy” when a district court invalidates an apportionment plan, courts must engage in
an “equitable weighing process.” Id. at 1625. The Supreme Court stated that, when determining
whether to order a special election, “obvious considerations include the severity and nature of the
particular constitutional violation, the extent of the likely disruption to the ordinary processes of
governance if early elections are imposed, and the need to act with proper judicial restraint when
intruding on state sovereignty.” Id. at 1625–26. Because the district court failed to weigh these
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factors appropriately and “addressed the balance of equities in only the most cursory fashion,”
the Supreme Court remanded the case for the district court to determine whether a special
election was appropriate under these principles. Id. at 1626.
On remand, the district court found that an equitable weighing of the factors articulated
by the Supreme Court did not warrant a special election. Covington, 270 F. Supp. 3d at 889.
The district court found that the first enumerated factor—the nature and severity of the
constitutional violation—counseled in favor of granting a special election. Id. at 894. The court
explained that “because the right to vote is ‘preservative of all rights,’ any infringement on that
right . . . strikes at the heart of the substantive rights and privileges guaranteed by our
Constitution.” Id. at 890 (citing Reynolds, 377 U.S. at 562–63). The court further found that the
constitutional violations were particularly severe because of the expansive geographic scope of
the racial gerrymander at issue, the fact that the constitutional violations harmed millions of
voters, and the fact that the unconstitutional legislative plan “persisted over six years, tainting
three separate election cycles and six statewide elections.” Id. at 894.
The district court found that the second enumerated factor—judicial restraint and state
sovereignty—also counseled in favor of granting a special election. Id. at 898. Two factors
guided the court’s analysis of this issue: first, that “any intrusion on state sovereignty [must be
evaluated] from the perspective of the people of North Carolina,” id. at 984, because a “‘basic
principle[] of our democratic system’ is that ‘sovereignty is vested in the people,’” id. (quoting
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793–94 (1995)); second, that “the Fourteenth
Amendment was ‘specifically designed as an expansion of federal power and an intrusion on
state sovereignty.’” Id. at 894–95 (quoting Gregory v. Ashcroft, 501 U.S. 452, 468 (1991)).
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In finding that these two considerations counseled in favor of holding a special election,
the court addressed, and ultimately dismissed, several arguments against a special election that
Secretary Benson and Senate Intervenors make in this case. For instance, the court explained
that, “because sovereignty lies with the people . . . inconvenience to legislators elected under an
unconstitutional districting plan resulting from such legislators having to adjust their personal,
legislative, or campaign schedules to facilitate a special election does not rise to the level of a
significant” intrusion on state sovereignty. Id. at 895. The court also held that truncating the two
year terms of legislators, as provided for by the North Carolina Constitution, was not “unduly
intrusive” and that the “serious and widespread nature of the constitutional
violation . . . substantially outweigh[ed] the intrusion associated with temporarily shortening the
terms of legislators elected in districts that must be redrawn.” Id. at 896.
The court found that the final enumerated factor—disruption to the ordinary processes of
government—counseled against ordering a special election. Id. at 901. The court first explained
that there was no merit in the legislative defendants’ contention that a burden on the state
legislators precluded a special election because the court must instead view any disruption from
the perspective of the voters who, because of the unconstitutional districts, “have long lacked
constitutionally adequate representation in their General Assembly.” Id. at 898. However, the
court found that holding a special election would be unduly disruptive given the circumstances.
The court noted that holding special primary and general elections, on days when elections were
not otherwise scheduled, would result in county election boards having to hold five different
elections, on five different dates, over an approximately twelve-month period. Id. at 899. The
court found that the “close succession during which voters would be called upon to participate in
both special and regularly scheduled elections risks generating substantial voter confusion and
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resulting low voter turnout, as voters may believe they need only vote in state legislative
elections once during a single calendar year.” Id. The court further found that adding a special
election to North Carolina’s election calendar would cause “problematic scheduling overlaps”
because the special election schedule proposed by the plaintiffs would have required legislative
candidates to file to run for the regularly-scheduled November 2018 general election before the
remedial special election was to take place. Id. Therefore, under the plaintiffs’ proposed special
election schedule, “the same candidates would be running for the same seats twice in a single
calendar year—with overlapping election schedules.” Id.
The court also found that plaintiffs’ proposed schedule for the special elections—which
would have required the general assembly to enact remedial districts approximately two weeks
after the district court held an evidentiary hearing on the special elections issue—did not allow
adequate time for the legislature to “obtain and incorporate public input on its redistricting
criteria and draft districting plans and to engage in the robust debate and discussion necessary to
enact plans that fully remedy the constitutional violations.” Id. Because the plaintiffs’ proposed
special election schedule was compressed, allowed insufficient time for review, and would
therefore likely cause confusion and poor voter turnout, the court held that ordering a special
election would “undermine one of the primary goals this Court must pursue in crafting a remedy:
putting districting plans and election procedures in place that will allow North Carolinians to
choose their representatives under constitutional districting plans.” Id. at 901.
B. Under an “Equitable Weighing Process,” a Special Senate Election Is Warranted in This Case
With Covington as guidance, we evaluate the balance of equities regarding the question
of whether to order a special Senate election. We find that the balance of equities leans in
Plaintiffs’ favor and that a special Senate election is warranted.
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The first enumerated factor—the nature and severity of the constitutional violation—
weighs strongly in favor of granting a special Senate election. The nature of the constitutional
violation is extremely grave. “[T]he right to exercise the franchise in a free and unimpaired
manner is preservative of other basic civil and political rights . . . .” Reynolds, 377 U.S. at 562.
Partisan gerrymandering also subverts the fundamental purpose of legislative apportionment—
providing “fair and effective representation for all citizens.” Id. at 565. And because sovereignty
is vested in the people, see Thornton, 514 U.S. at 793–94, by preventing the people of Michigan
from fairly and effectively exercising their franchise, the Enacted Plan infringes on state
sovereignty, further exacerbating its constitutional harm.
The constitutional violations in this case are particularly severe. Evidence from numerous
sources demonstrates that the map-drawers and legislators designed the Enacted Plan with the
specific intent to discriminate against Democratic voters. (See Part II.A.) A wide breadth of
statistical evidence indicates that the Enacted Plan’s partisan bias has proven severe and durable;
it has strongly advantaged Republicans and disadvantaged Democrats for eight years and across
four separate election cycles. Moreover, the Enacted Plan represents a political gerrymander of
historical proportions. Dr. Warshaw found that the 2014 Senate elections had a larger pro
Republican efficiency gap score than 99.7% of previous state senate elections nationwide; that
the 2012 congressional elections had a greater pro-Republican efficiency gap score than 98% of
previous congressional plans nationwide; and that the 2012 House elections had a larger pro
Republican efficiency gap score than 98% of previous state house elections nationwide.
(Warshaw Report at 16–19, 33–35.) Dr. Warshaw also found that the Enacted Plan’s partisan
bias is historically extreme using the median-mean and declination measures. (Warshaw Report
at 9–11, 19–20, 36.) Finally, the geographic scope of unconstitutionality is vast. The Enacted
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Plan taints thirty-four total legislative districts across the state, including ten Senate districts.
Accordingly, we find that the constitutional violations in this case are particularly severe.
The second enumerated factor—judicial restraint and state sovereignty—also weighs in
favor of granting a special Senate election. Because sovereignty emanates from the people, see
Thornton, 514 U.S. at 793–94, we evaluate this factor from the perspective of the people of
Michigan. See Covington, 270 F. Supp. 3d at 894. Like the court in Covington, we find that
inconvenience to legislators elected under the Enacted Plan does not constitute a significant
intrusion on state sovereignty. Id. at 895. We similarly find that the fact that a special Senate
election would truncate the four-year terms of senators is not “unduly intrusive” given the
gravity and extent of the constitutional violations at issue in this case. Id. at 895. While senators
may be disappointed that their four-year terms will be reduced to two years, the sentiment of the
legislators elected under an unconstitutional apportionment plan does not outweigh the
constitutional rights of millions of Michiganders to elect their senators under constitutional
maps.
The final enumerated factor—disruption to the ordinary processes of government—
weighs towards granting a special Senate election. In this regard, we find it useful to contrast the
circumstances present in this case with those in Covington, 270 F. Supp. 3d 881, where the court
appropriately found that a special election would cause substantial disruption to the ordinary
processes of government, and therefore decided not to order a special election.
In Covington, the schedule proposed by the plaintiffs would have entailed holding a
special primary election in December 2017 and a special election in March 2018, only two
months before the next primary election in May 2018, and eight months before the next general
election in November 2018. Id. at 899. The special election would have resulted in county
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election boards holding five different elections, on five different dates, over an approximately
twelve-month period. Id. at 899. For these reasons, the court found that the special election could
cause voter confusion and result in low voter turnout. In the instant case, Plaintiffs ask us to
order a special Senate election on the same date as the regularly-scheduled general elections in
November 2020. No additional election would be scheduled; voters would simply cast their votes
for one additional office on election day (both in the primary and in the general election).
Because the special Senate election would occur on a regular election day and at a regularly
scheduled interval, it would not result in any additional election being held during the calendar
year, and there would little risk of voter confusion or low turnout. Therefore, holding the Senate
election in November 2018 would not impose a heavy burden on Michigan’s normal electoral
process.
In Covington, the plaintiffs’ extremely compressed timetable for the special elections
would not have allowed sufficient time for the legislature to adequately consider remedial maps
or for the court to evaluate their constitutionality. These concerns are not present here. Under the
deadlines specified in this Court’s order, the Michigan legislature will have over four months to
enact remedial maps. Moreover, the Court will have ample time to ensure their constitutionality,
as the November 2020 elections are still eighteen months away. Therefore, unlike in Covington,
time considerations are not a factor weighing against ordering a special election.
After having undertaken an “equitable weighing process,” we find that all three factors
articulated by the Supreme Court in Covington counsel towards ordering a special Senate
election. Accordingly, we will require Secretary Benson to hold a special Senate election along
with the regularly scheduled elections in November 2020.
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Outcome: VIII. REMEDY
Absent unusual circumstances, “once a State’s legislative apportionment scheme has
been found to be unconstitutional . . . [the] appropriate action [is] to insure that no further
elections are conducted under the invalid plan.” Reynolds, 377 U.S. at 585; see Rucho, 318 F.
Supp. 3d at 942.
We have found that 27 of the 34 Challenged Districts violate Plaintiffs’ First and
Fourteenth Amendment rights by diluting the weight of their votes. We have also found that
every Challenged District violates Plaintiffs’ First Amendment right to association. Additionally,
we have found that these harms will reoccur if future elections are held under the Enacted Plan.
Therefore, we hereby enjoin the use of the Challenged Districts in future elections.
Further, we hereby order Secretary of State Benson to conduct special elections in 2020 for the
Senate districts that are included in the Challenged Districts, and for any Senate district affected
by any remedial map approved by this Court.
After a federal court finds that a state legislative apportionment scheme violates the
Constitution, it should, when practicable, “afford a reasonable opportunity for the legislature to
meet constitutional requirements by adopting a substitute measure rather than for the federal
court to devise and order into effect its own plan.” Wise v. Lipscomb, 437 U.S. 535, 539–40
(1978); see Rucho, 318 F. Supp. 3d at 943.
Accordingly, the Court will provide the Michigan legislature the opportunity to devise
remedial maps that are consistent with this opinion, that remedy the constitutional violations
discussed above, and that otherwise comply with the United States Constitution. We will only
consider any remedial plan passed by both chambers of the Michigan legislature, and signed into
law by the Governor of Michigan, on or before August 1, 2019. The Court will not entertain any
redistricting plans enacted after that date.
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In the event that the Michigan legislature passes remedial redistricting plans and the
Governor of Michigan signs said plans into law by August 1, 2019, Intervenors are hereby
ordered to file within 10 days said remedial plans to the Court, with the following:
1. A description of the process the Michigan legislature, and all constituent committees or members thereof, followed in drawing and enacting the proposed remedial plan, including, without limitation, the identity of all participants involved in the process, including any person, corporation, or organization formally or informally consulted by any committee, committee member, or legislator involved in the map-drawing process;
2. Any and all criteria, formal or informal, the Michigan legislature or its leadership, any constituent committee responsible for drawing the remedial plan, and all formal or informal consultants responsible for drawing the remedial plan, applied in drawing the proposed remedial plan, including, without limitation, all criteria related to partisanship, the use of political data, and the protection of incumbents, with a description of how the map-drawers used any such criteria;
3. All alternative plans considered by the Michigan legislature, any constituent committee responsible for drawing the remedial plan, or the leadership of the Michigan legislature or any such committee, including a detailed explanation of why such alternative remedial plan was not ultimately proposed by any committee or adopted by the Michigan legislature;
4. A map of each proposed remedial congressional, Senate, and House district—for the Challenged Districts and any other district(s) affected by the remedial plan— that depicts the boundaries of each proposed remedial district; and
5. A detailed explanation for why Intervenors believe that any enacted remedial plan remedies the constitutional harms identified above in each Challenged District.
Plaintiffs and Secretary Benson may respond to any proposed remedial maps and associated
materials by filing responsive briefs to this Court within 30 days of when Intervenors file the
materials discussed above.
If the Michigan legislature enacts and the Governor of Michigan signs into law a
proposed remedial plan by August 1, 2019, and the Intervenors file the proposed remedial plan
and the other materials described above within 10 days of said law’s enactment, the Court will
evaluate the constitutionality of any proposed remedial maps. If the Michigan legislature fails to
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pass, or the Governor of Michigan fails to sign into law, proposed remedial plans by August 1,
2019, or Intervenors fail to file the required materials within 10 days of said law’s enactment, or
if the Court finds that any proposed remedial maps fail to remedy the constitutional harms in the
Challenged Districts or otherwise fail to comply with constitutional requirements, the Court will
draw remedial maps itself.
To aid it in these efforts, the Court may appoint a special master, pursuant to Federal
Rule of Civil Procedure 53. See, e.g., Rucho, 318 F. Supp. 3d at 944 (appointing special master
to assist court in evaluating constitutionality of remedial legislative maps). We hereby order the
parties to file, by July 1, 2019, at 5:00 pm, a list of three mutually-agreeable, qualified, special
master candidates from which the Court will select a special master. If the parties fail to agree on
three qualified candidates by the deadline, the Court may appoint a special master of its own
choosing.
Plaintiff's Experts:
Defendant's Experts:
Comments: