From left: Conor B. Dugan and Paul D. Bratt of Warner Norcross + Judd.

The U.S. Court of Appeals for the Sixth Circuit in Daunt v. Benson, Nos. 19-2377/2420 recently affirmed a decision allowing Michigan to continue implementing its Independent Citizens Redistricting Commission, approved by voter-initiative in 2018. In a case of first impression, the court held that each of the constitutional challenges to the commission was unlikely to succeed on the merits. After the U.S. Supreme Court's 2019 case, Rucho v. Common Cause, in which it acknowledged states' efforts at addressing redistricting, the Sixth Circuit's decision could serve as a future guide to others states looking to create their own independent redistricting commissions.

The commission was created after Michigan voters approved Proposal 18-2 in the 2018 election, which amended the Michigan Constitution. The commission is to be comprised of 13 registered voters, four of whom self-identify as Republican, four as Democrat and five as unaffiliated. There are additional restrictions on members. Commissioners must not be or have been a candidate for partisan office in the last six years. Nor can commissioners be elected officials, paid consultants or immediate family members of someone in these and other categories. Commissioners are also prohibited from speaking publicly about the redistricting, outside of open meetings of the commission or when seeking relevant information. The commission will approve redistricting lines after a census, with approval by at least two commissioners affiliated with each party and at least two of the unaffiliated commissioners.

A collection of Michigan citizens, the Michigan Republican party, or MRP, and individual plaintiffs, sought a preliminary injunction against the implementation of the commission. The citizen plaintiffs alleged that the commission's eligibility requirements violated the First and Fourteenth amendments. The MRP and individual plaintiffs alleged the same, saying the commission violated their rights to freedom of association and speech, and constituted viewpoint discrimination. The U.S. District Court for the Western District of Michigan denied both motions for a preliminary injunction, and the plaintiffs appealed.

The Sixth Circuit majority's opinion affirmed the district court's denial because it found the plaintiffs were unlikely to succeed on the merits for any of their claims. Much of the opinion is devoted to the challenges based upon the eligibility criteria for the commission, largely related to past political activities. The court held these challenges were unlikely to succeed under two alternative criteria: the Anderson-Burdick test and the unconstitutional-conditions doctrine.

Anderson-Burdick is a balancing test developed through two U.S. Supreme Court decisions and is used to analyze constitutional challenges to state election laws. Although the constitutional amendment creating the commission itself is not clearly an "election law," the court here held that eligibility requirements for a body that draws electoral lines "could conceivably be classified as an 'election law.'" The test involves a sliding scale of scrutiny not unlike the rational basis/strict scrutiny scales; the greater the restrictions, the narrower they must be drawn in favor of a more compelling state interest.

The Sixth Circuit concluded the burdens imposed via the commission's eligibility requirements were not severe, particularly given their content-neutrality and temporal limitation of six years. The Court further noted that even if the eligibility criteria imposed a moderate burden, the criteria would satisfy Anderson-Burdick's middle-ground, "flexible analysis" because Michigan has a compelling interest in limiting conflicts of interest on the commission. Furthermore, the court generally deferred to Michigan's "fundamental interest in structuring its government."

The appellants also argued that the eligibility requirements violated their First Amendment rights to engage in political activities. While the Sixth Circuit recognized the eligibility requirements did restrict First Amendment protections, it highlighted Michigan's interest in avoiding conflicts of interests and "unsavory patronage practices" and concluded this justified the restrictions. The Sixth Circuit compared these limitations to the federal  Hatch Act, which restricts federal employees' partisan political activity.

Given all this, the Sixth Circuit concluded that Michigan's legitimate interests in avoiding any appearances of undue influence, e.g., of "political insiders" serving on the commission, and maintaining "public confidence in the integrity of the redistricting process," permitted the challenged restrictions. Independence from partisan meddling was at the heart of the commission, and the eligibility restrictions were designed to support this state interest. Therefore, the court found the eligibility criteria satisfied either the Anderson-Burdick test or the unconstitutional-conditions doctrine, whichever applied. Accordingly, the Sixth Circuit affirmed the denial of a preliminary injunction on these grounds.

Turning to the MRP plaintiffs' other claims, the Sixth Circuit likewise concluded those plaintiffs were not likely to succeed on the merits of their claims. The MRP alleged that allowing applicants for the commission to self-identify as Republican violated the MRP's right to freedom of association. The MRP cited precedent barring a state from interfering with a party's chosen nominee in an election; the Sixth Circuit rejected this analysis because the individual commissioners are not "party officials" or nominees—indeed, they are specifically barred from this. The Court gave credit to the knowledge of Michigan's "well-informed electorate," namely they would understand a commissioner is merely affiliated with the national Republican party and not a "delegate" of the MRP. Accordingly, the MRP failed to show why it would have a First Amendment right to control or influence individual Commission applicants' own party affiliations.

The MRP also alleged the commission amendment violated the First Amendment's freedom of speech protections because it bars commissioners from discussing redistricting matters with members of the public. As it did in analyzing the eligibility restrictions, the Sixth Circuit examined the interests of the state in creating the commission. While the Sixth Circuit recognized commissioners would face limitations on their freedom of speech, these restrictions protected sensitive and confidential information related to the redistricting process and prevented outside influence on the commission. Accordingly, the court concluded Michigan's justifications for limiting public speech by the commissioners were "more-than-adequate" and outweighed any burden on the commissioners' freedom of speech.

The MRP's final challenge to the Commission was a view-point discrimination claim. The MRP argued the commission's makeup discriminated against applicants affiliated with major political parties in favor of non-affiliated applicants. Because the commission's unaffiliated class of commissioners had five members while the party-affiliated classes had four each, the MRP argued the commission unfairly favored the unaffiliated.

The Sixth Circuit found this argument unavailing. It highlighted the fact the unaffiliated group is not a specific third-party with its own unified views, but instead an amalgam of voters who do not affiliate with either the Republican or Democratic parties. Further, the party-affiliated class of commissioners, of both Republican and Democrat, outnumbers the non-affiliated class eight to five. Beyond that, the structure of the commission protects from the undesirable secondary effect of completely excluding non-affiliated voters from the commission. The commission also does not make decisions based purely on the number of representative commissioners; any final decision must be approved by at least two members from each of the three classes.

Taking all this into account, the Sixth Circuit held that the MRP's additional arguments were not likely to succeed on the merits. Thus, the Sixth Circuit affirmed the district court's denial of the Appellants' motion for a preliminary injunction.

Judge Chad Readler concurred in the judgment but authored a concurring opinion that criticized aspects of the majority opinion. In Readler's view, the use of Anderson-Burdick test was misplaced precisely because the commission does not control election mechanics or their administration. Employing Anderson-Burdick test here risked its extension into other election-adjacent fields, such as campaign finance or legislator conduct. Instead, Readler argued the commission should be analyzed under precedent governing limitations on public service, with something of a bright-line test to create clarity going forward. Anderson-Burdick, he argued, is a "dangerous tool" that grants too much discretion to federal judges over state-law issues, putting predictability and precision at hazard. Readler did not articulate what bright-line test should be employed, however.

With the increased push in states to move to some form of non-partisan redistricting, the Sixth Circuit's opinion offers some clarity as to the arguments and analyses that will be offered in challenges to those efforts. But there is not perfect clarity. As the Sixth Circuit's decision indicates, the proper test to apply when examining challenges to redistricting commissions is up for debate. Here, under any test conceived by the majority or the concurrence, the appellants were not likely to succeed. There will be cases where the test employed leads to different outcomes. This means that at some point the U.S. Supreme Court may called upon to resolve the question.

Conor B. Dugan is senior counsel in the appellate practice group of Warner Norcross + Judd. He has a wealth of appellate experience at the state and federal level, successfully representing clients in the U. S. Supreme Court, the Michigan Supreme Court, numerous federal courts of appeals, and the Michigan Court of Appeals.

Paul D. Bratt, an associate with the firm, practice focuses on environmental law and litigation.