League of Women Voters of Mich. v. Johnson

• Decision Date: 30 November 2018
• Docket Number: No. 2:17-cv-14148,2:17-cv-14148
• Parties: LEAGUE OF WOMEN VOTERS OF MICHIGAN, et al., Plaintiffs, v. Ruth JOHNSON, in Her Official Capacity as Michigan Secretary of State, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

352 F.Supp.3d 777

LEAGUE OF WOMEN VOTERS OF MICHIGAN, et al., Plaintiffs,
v.
Ruth JOHNSON, in Her Official Capacity as Michigan Secretary of State, et al., Defendants.

No. 2:17-cv-14148

United States District Court, E.D. Michigan, Southern Division.

Signed November 30, 2018

OPINION AND ORDER

CLAY, Circuit Judge.

The League of Women Voters ("the League") and the Individual Plaintiffs (together "Plaintiffs") bring suit under 42 U.S.C. §§ 1983 and 1988, alleging that Michigan's current apportionment plan (the "Apportionment Plan"), which the state legislature implemented as Michigan Public Acts 128 and 129 of 2011, violates (1) Plaintiffs' Fourteenth Amendment equal protection rights and (2) Plaintiffs' First Amendment free speech and association rights. (See Compl., ECF No. 1.)

There are three dispositive motions currently pending before the court: (1) the Motion to Dismiss and Motion for Summary Judgment filed by Defendant Ruth Johnson, the Secretary of State of Michigan in her official capacity ("Johnson") (ECF No. 119); (2) the Motion for Summary Judgment filed by the Republican Congressional Intervenors ("Congressional Intervenors") (ECF No. 121); and (3) Plaintiffs' Motion for Partial Summary Judgment on Laches (ECF No. 117).¹ The motions have been fully briefed and are ripe for disposition.

The parties spend hundreds of pages briefing their motions and attach an even greater number of pages of exhibits. But the motions present only three issues for decision: (1) whether Plaintiffs have standing; (2) whether Plaintiffs' political gerrymandering claims are justiciable; and (3) whether laches bars Plaintiffs' claims.

For the reasons that follow, we DENY Johnson's Motion to Dismiss and Motion for Summary Judgment (ECF No. 119), DENY the Congressional Intervenors' Motion for Summary Judgment (ECF No. 121), and DENY Plaintiffs' Motion for Partial Summary Judgment on Laches (ECF No. 117).

STATEMENT OF FACTS

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A. Factual History²

The Apportionment Plan was signed into law by the governor of Michigan on August 11, 2011, after being passed by both chambers of the Michigan legislature. The Michigan State Senate map was primarily drawn by Terry Marquardt, a senior Republican Senate staffer. (Marquardt Dep., ECF No. 129-46 at 23:1–25:2; 31:2–15.) The task of redistricting the Michigan State House map fell to Daniel McMaster, a senior Republican advisor in the House, who later retained Brian Began to assist him. (McMaster Dep., ECF No. 129-47 at 36:4–5, 49:14, 50:4-51:24.) Republican lawmakers outsourced the drawing of the Congressional Districts to the Michigan Redistricting Resource Institute, which in turn hired Jeff Timmer of Sterling Corporation, a Republican consulting firm. (Labrant Dep., ECF No. 129-44 at 140:23–141:05.)

Marquardt, McMaster, Began, and Timmer participated in weekly meetings at the Dickinson Wright law firm where they reported on the maps upon which they were working and strategized about the mapmaking process. (See Timmer Dep., ECF No. 129-49 at 56:17–18; Marquardt Dep., ECF No. 129-46 at 82:18–22; McMaster Dep., ECF No. 129-47 at 52:9–54:15; Labrant Dep., ECF No. 129-44 at 235:5–237:19.) Attorneys for Republican legislators also attended the meetings to provide legal counsel to the mapmakers. (Labrant Dep., ECF No. 129-44 at 235:5–2:37:19; McMaster Dep., ECF No. 129-47 at 53:14–54:8; Timmer Dep., ECF No. 129-49 at 256:24–257:2.) Bob Labrant, the founder of the Michigan Redistricting Resource Institute, also participated. (Labrant Dep., ECF No. 129-44 at 236:25–237:11.) These meetings were "confidential." (Timmer Dep., ECF No. 129-49 at 256:18–23.) No Democratic representative or interest group ever attended the meetings. (Timmer Dep., ECF No. 129-49 at 56:19–22.)

The maps were also highly secretive. During meetings where McMaster showed individual Republican legislators copies of their districts' maps, he collected the maps after the meetings "for security." (McMaster Dep., ECF No. 129-47 at 136:25–137:16.) Even the Republican Senate Majority Leader was "just shown" the maps at one of the mapmakers' weekly meetings—he was "not allowed to keep a copy." (Marquardt Dep., ECF No. 129-46 at 83:1–9, 127:23–128:2.) And at a Senate Redistricting Committee meeting that took place on June 22, 2011—the day before the Senate passed the Apportionment Plan—the copies of the Apportionment Plan made available to members of the public "consisted entirely of census data" and "did not contain any maps." (Smith Decl., ECF No. 129-54 at PageID # 4974.)

The mapmakers relied on political data to draw the maps. For the Congressional Districts,³ Timmer used software called "Maptitude" which contained "population ... and election data." (Timmer Dep., ECF No. 129-49 at 29:10–17.) Marquardt, drawer of the Senate Districts, used software called "AutoBound" that "digitize[d] all the political data," i.e., "election results through the years," all the way "down to

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the block level." (Marquardt Dep., ECF No. 129-46 at 40:5–43:8.) Marquardt elected to have AutoBound automatically update the partisan composition of the districts as he drew the maps. (Marquardt Dep., ECF No. 129-46 at 195:16–197:20.) McMaster and Began, who drew the House Districts, also used AutoBound to create their maps. (Began Dep., ECF No. 129-41 at 31:17.)

The "underlying factor" for the mapmakers was that "if the plans don't pass the legislature ... you've done your work for nothing." (Marquardt Dep., ECF No. 129-46 at 56:23–57:4.) The "major consideration as far as getting the [legislature's] vote" was the fact that "sitting ... senators or representatives ... want to be re-elected." (Marquardt Dep., ECF No. 129-46 at 69:9–14.) With these considerations in mind, Marquardt prepared reports for every Republican caucus member that showed his or her current district and his or her proposed district. (Marquardt Dep., ECF No. 129-46 at 101:1–104:15.) The reports contained two sets of political data for each current and proposed district: (1) the percentage of voters who voted for the Republican candidate in the previous three governors' races and (2) the percentage of voters who voted in the last three elections for the statewide education boards, a "guideline" for the partisan makeup of the districts. (Marquardt Dep., ECF No. 129-46 at 102:3–103:22.) Marquardt provided these political data points to Republican senators "[b]ecause the senators obviously would be interested in knowing whether their district got better or worse," better being more Republican or less Democrat. (Marquardt Dep., ECF No. 129-46 at 104:1–15.)

Emails that the mapmakers exchanged illustrate the profound extent to which partisan political considerations played into their redistricting efforts. For example, a staffer wrote Timmer about "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." (ECF No. 129-18 at PageID # 3557.) Timmer responded, "[i]nteresting numbers overall. Detroit being 150k less than projected shakes things up." (ECF No. 129-18 at PageID # 3557.) In a different email, a staffer approved 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. (ECF No. 129-30 at PageID # 3606.) In another email, Timmer remarked that a proposed district "is a bit less GOP, but not so much less so that it is in jeopardy of going south on us." (ECF No. 129-31 at PageID # 3611.) In the same email, Timmer explained that, under the new districts, "the new 3rd would become slightly less Republican" to allow another seat "to become slightly more so." (ECF No. 129-31 at PageID # 3611.)

The mapmakers' efforts proved extremely successful. In each of the three statewide elections held under the Apportionment Plan between 2012 and 2016, the Republicans won 64% of Michigan's Congressional Districts (i.e., 9 of Michigan's 14 seats) despite never winning more than 50.5% of the statewide vote.⁴ Similarly, Republicans won at least 53.6% of the House Districts while never winning more than 50.3% of the total vote share.⁵ And in

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2014, the only year an election was held under the Apportionment Plan's Senate Districts, Republicans won only 50.4% of the vote but collected 71.1% of the seats.⁶

In the 2018 midterm elections, Democrats won 50% of the Congressional Districts despite winning approximately 55.8% of the vote.⁷ Similarly, Democrats won only 52 of the 110 House Districts despite securing 52.6% of the vote.⁸ Elections were not held for Senate Districts.

B. Procedural History

Plaintiffs filed a Complaint for Declaratory and Injunctive Relief against Johnson on December 22, 2017. (ECF. No. 1.) Johnson filed a Motion to Dismiss for Lack of Standing on January 23, 2018 (ECF No. 11), which this Court granted in part and denied in part on May 16, 2018. (See Op. & Order, ECF No. 54.) The Court held that Plaintiffs lacked standing to challenge the Apportionment Plan "on a statewide basis" and dismissed Plaintiffs' statewide claims. (Id. at PageID # 957.) However, the Court concluded that Plaintiffs had...