Apportionment of State Legislature 1992, In re

• Decision Date: 15 June 1992
• Docket Number: LEGISLATURE--1992,No. 92092,92092
• Parties: In re APPORTIONMENT OF the STATECecilia NEFF, Robert Graham, Mary Smith, Billie Wright, and Don Griffin, Plaintiffs, v. SECRETARY OF STATE, Iosco Board of County Election Commissioners, and Oscoda Board of County Election Commissioners, Defendants, and Mary W. Hoffman, Albert W. Orr, Beatrice Giles, Clifford B. Trudell, and Lupe Ramos-Montigney, Intervening Defendants.
• Court: Michigan Supreme Court

Page 639

486 N.W.2d 639

439 Mich. 715

In re APPORTIONMENT OF the STATE LEGISLATURE--1992 Cecilia NEFF, Robert Graham, Mary Smith, Billie Wright, and Don Griffin, Plaintiffs, v. SECRETARY OF STATE, Iosco Board of County Election Commissioners, and Oscoda Board of County Election Commissioners, Defendants and Mary W. Hoffman, Albert W. Orr, Beatrice Giles, Clifford B Trudell, and Lupe Ramos-Montigney, Intervening Defendants.

No. 92092.

Supreme Court of Michigan.

June 15, 1992.

MEMORANDUM OPINION.

On several prior occasions, this Court has found it necessary to communicate, sua sponte, our views concerning a public question of substantial importance to the whole body politic. In re 1976 Pa. 267, 400 Mich. 660, 255 N.W.2d 635 (1977); In re Redistricting for Court of Appeals, 372 Mich. 227, 125 N.W.2d 719 (1964); In re Head Notes to the Opinions of the Supreme Court, 43 Mich. 641, 8 N.W. 552 (1881). A similar occasion has now arisen.

On April 1, 1992, we entered an order adopting, with modifications, the apportionment plan submitted by the special masters. Accordingly, this Court's order of April 1, 1992, 439 Mich. 251, 483 N.W.2d 52, remains the law of Michigan, cloaked with the presumption of constitutionality until an appeal is filed in the proper court, the United States Supreme Court, and that Court rules otherwise.

Thus, this memorandum opinion is entered to communicate the basis of our decision and, in the spirit of comity, to assist the federal court in the suit filed in the United States District Court for the Eastern District of Michigan. ¹

I

A recurring part of the American political scene is the periodic apportionment and districting that follows each decennial census. ² It is axiomatic that apportionment is of overwhelming importance to the political parties. In recent years, other segments of society have increasingly realized the importance of this undertaking.

Although apportionment is primarily a legislative task, this Court's involvement in the process is of long standing. The constitutions of 1835, 1850, and 1908 required that the Legislature be apportioned following each decennial federal census. ³ The purpose was to achieve a degree of fair representation, based on population. ⁴ Districts were to be contiguous, and of a reasonably compact shape. ⁵ Recognizing the importance of local communities, and the harm that would result from splitting the political influence of these communities, each of these constitutions explicitly protected jurisdictional lines. ⁶

In a number of early mandamus actions against the Secretary of State, ⁷ this Court was asked to rule that an apportionment was inequitable or otherwise violative of the constitutional provisions regarding the allocation of districts. ⁸ Where relief was granted, it was ordinarily in the form of an order compelling the Secretary of State to conduct the election under the preceding valid apportionment. ⁹

The principle that apportionment should honor jurisdictional lines was taken one step further in the 1952 amendments of the 1908 constitution. The districts of a thirty-four-member Senate were frozen into designated counties. ¹⁰ The Legislature's decennial apportionment task was limited to the House. ¹¹

Under the 1908 constitution, as amended in 1952, few state constitutional issues remained. During the following years, however, an evolving appreciation of the constitutional aspects of apportionment helped develop the one-person/one-vote movement. After apportionment issues were found to be justiciable, ¹² this Court ruled in Scholle ¹³ that the 1952 amendments concerning Senate districts were invalid.

While Scholle was being litigated, the 1961 Constitutional Convention was in progress. The framers produced a constitution that called for a Senate that would be apportioned under a weighted formula involving both land area and population. Const.1963, arts. 2-5. The 1963 constitution specifically directed that, in apportioning the Legislature, the highest allegiance was to be given to county lines. Wherever possible, city and township lines were also to be followed. Districts were to be compact, contiguous, and as nearly uniform in shape as possible. ¹⁴

The 1963 constitution also established the Commission on Legislative Apportionment (CLA). This body had eight members, four from each of the leading political parties. ¹⁵ The 1963 constitution further provided that, if the CLA was unable to adopt a plan, the rival plans were to be submitted to this Court, which was then to "determine which plan complies most accurately with the constitutional requirements."

Not long after the adoption of the 1963 constitution, the United States Supreme Court issued its decision regarding the principles of one-person/one-vote. ¹⁶ In time, this led to a determination that the weighted land/population formulation for apportioning the Michigan Legislature needed to be set aside. ¹⁷

Notwithstanding that much of the language found in the 1963 apportionment sections was no longer to be enforced, the CLA process continued in 1972, with the eventual result that this Court apportioned the state. ¹⁸

A decade later, this Court decided In re Apportionment of State Legislature--1982, 413 Mich. 96, 321 N.W.2d 565 (1982). ¹⁹ Observing that the United States Supreme Court had overturned the 1963 constitution's requirements concerning the allocation of legislative districts, ²⁰ this Court concluded that "[w]hen the weighted land area/population apportionment formulae fell, all the apportionment rules fell because they are inextricably related." 413 Mich. at 138, 321 N.W.2d 565. ²¹

This Court recognized, however, that it retained the "responsibility to provide for the continuity of government by assuring that the people will be provided the opportunity to elect a lawfully apportioned Legislature in the 1982 election." 413 Mich. at 116, 321 N.W.2d 565. To that end, we asked Bernard J. Apol, former Director of Elections for the Secretary of State, to produce maps in conformance with a set of directions drawn from the Michigan Constitution and other controlling authorities. A clarified set of directions, sent to Mr. Apol in response to his inquiry, was recounted in a later opinion written by Justice Levin and Justice Fitzgerald:

"1. The Senate consists of 38 districts.

"2. The House consists of 110 districts.

"3. All districts shall be contiguous, single-member districts.

"4. The districts shall have a population not exceeding 108.2% and not less than 91.8% of the ideal district which, based on the 1980 census, would contain 243,739 persons in the Senate and 84,201 persons in the House. ^{[ 22}

"5. The boundaries of the districts shall first be drawn to contain only whole counties to the extent this can be done within the 16.4% range of divergence and to minimize within that range the number of county lines which are broken.

"6. If a county line is broken, the fewest cities or townships necessary to reduce the divergence to within 16.4% shall be shifted; between two cities or townships, both of which will bring the district within the range, the city or township with the least population shall be shifted.

"7. Between two plans with the same number of county line breaks, the one that shifts the fewest cities and townships statewide shall be selected; if more than one plan shifts the same number of cities and townships statewide, the plan that shifts the fewest people in the aggregate statewide to election districts that break county lines shall be selected.

"8. In a county which has more than one senator or representative, the boundaries of the districts shall first be drawn to contain only whole cities and townships to the extent this can be done within the 16.4% range of divergence and to minimize within that range the number of city and township lines that are broken.

"9. If a city or township line is broken, there shall be shifted the number of people necessary to achieve population equality between the two election districts affected by the shift, except that in lieu of absolute equality the lines may be drawn along the closest street or comparable boundary; between alternate plans, shifting the necessary number of people, the plan which is more compact is to be selected.

"10. Between two plans, both of which have the same number of city and township breaks within a particular county, the one which minimizes the population divergence in districts across the county is to be selected.

"11. Within a city or township which is apportioned more than one senator or representative, election district lines shall be drawn to achieve the maximum compactness possible within a population range of 98%-102% of absolute equality between districts within that city or township.

"12. Compactness shall be determined by circumscribing each district within a circle of minimum radius and measuring the area, not part of the Great Lakes and not part of another state, inside the circle but not inside the district. The plan to be selected is the plan with the least area within all the circles not within the district circumscribed by the circle." (Omitted are footnotes containing further clarification of this Court's directions to Mr. Apol.) In re Apportionment--1982 (opinion of Levin and Fitzgerald, JJ.) 413 Mich. at 154-156, 321 N.W.2d 565.

Following a hearing, this Court adopted the apportionment plan submitted by Mr. Apol. ²³ We explained that the plan would remain in effect until the Legislature and the Governor enacted a new plan. ²⁴

The 1982 apportionment was challenged in the United States Supreme Court, but that Court dismissed the appeal for want of substantial federal question. Kleiner v. Sanderson, 459 U.S. 900, 103 S.Ct. 201, 74 L.Ed.2d 161 (1982).

Since 1982, the Legislature has made one significant attempt to apportion itself. However, that effort (1983 P.A. 256) was found to be unconstitutional because of the manner in which it was enacted. ²⁵

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