MSC upholds county apportioning law

A divided Michigan Supreme Court has upheld 2011 PA 280, which limits county commissions to 21 members in counties with 50,000 or more residents.

In addition, in counties with more than 1 million residents, the act reassigns apportionment duties from county reapportionment commissions to the board of commissioners.

Counties not in compliance with the act have 30 days to adopt a conforming apportionment plan.

What’s the practical effect of all of this? It’s an enormous gift to Oakland County Republicans, according to the legislation’s critics.

As the act is written, Oakland County is the only county that will have to redraw its election maps right now. And because the county has more than 1 million residents, Oakland’s reapportionment commission, where Democrats have a 3-2 edge, gets cut out of the picture, and the Republican-controlled county commission is now in the driver’s seat.

Earlier this month, the Michigan Court of Appeals sided with the plaintiffs in Houston, et al. v. Governor, et al. (majority opinion) (concurring/dissenting opinion), and ruled that the act was unconstitutional.

The COA majority reasoned that because the act affected Oakland County only, it was a local act that required a two-thirds vote by the Legislature. The act is invalid because didn’t muster the required number of votes under the state constitution, the COA majority ruled.

Defendants, Gov. Rick Snyder and the Oakland County Board of Commissioners asked the MSC to grant leave to appeal. The MSC heard oral arguments on an expedited basis. Plaintiffs, in defending the COA’s ruling, hammered on two points: first, the act’s effects resulted from an exercise of raw political power, and second, the COA got it right — the act is a local act because it affects Oakland County only.

Late yesterday, in a 4-3 order, the MSC majority responded “so what” to the first point and “reversed” to the second point.

The majority, Chief Judge Robert Young, and Justices Stephen Markman, Mary Beth Kelly and Brian Zahra, acknowledged the case was a political hot potato but said that simply doesn’t matter:

Plaintiffs make much of the alleged political motivations behind the Act, calling it a “political favor” to the Oakland County Executive and citing numerous supportive editorial comments.

As with any redistricting of political maps, the parties here vie to create maps that benefit their own interests, and a dispute with partisan implications has not surprisingly arisen. Notwithstanding this reality, “[t]he validity of legislation can never be made to depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt.” Cooley, Constitutional Law, p 154.

In a case like this, someone’s ox was bound to be gored:

In reaching our decision, this Court, as it is always, is engaged in applying the equal rule of law to the best of its ability. That there may be some partisan advantage to one side or another in this decision is simply a function of the fact that there is no conceivable decision that could have been reached in which one side or the other could not have asserted that partisan advantage accrued to the other. We believe that a fair review of the decisions of this Court in which some partisan advantage was at issue would make clear that our decisions have been marked by a commitment to a faithful reading of the law.

As to the merits, the majority looked to the two-part test in Dearborn v. Board of Supervisors, 275 Mich. 151 (1936), for determining whether an act is local or general.

First, the limiting criteria of the act must be reasonably related to the overall purpose of the statute. Second, the act must be sufficiently open-ended so that localities may be brought within the scope of its provisions as such localities over time meet the required criteria. …

2011 PA 280 satisfies the Dearborn test. First, the limiting criteria are reasonably related to the overall purpose of the Act. Here, the overall purpose is to limit the number of districts a county may apportion, and the population criteria set forth in the Act seem a reasonable means of achieving that purpose.

Second, the Act is open-ended. It provides various population ranges and places corresponding limits on the number of districts for every county within those ranges. As a county’s population increases above or below a given range, the number of districts that may be apportioned by that county will increase or decrease respectively.

That the transitional provision, requiring compliance with the Act within 30 days by counties whose apportionment does not currently satisfy the requirements of 2011 PA 280, practically applies only to Oakland County frustrates neither of the elements of Dearborn. …

Absent a transitional period during which some counties must necessarily be treated differently from others, it would be impossible for the Legislature to make general, uniform changes to public policy pertaining to local government.

That is, to bring counties that are out of compliance with the Legislature’s preferred public policy into compliance, and to establish uniform policy, those counties out of compliance must be treated differently during the transition or else uniformity can never be achieved.

The transitional provision here accomplishes just such a purpose by ensuring that Oakland County will not be the only county that operates outside of the apportionment limits of the Act until the next census.

Justice Marilyn Kelly, joined by Justice Michael Kelly, dissented. Justice Diane Hathaway, in a separate dissent, agreed with Kelly’s dissent.

The act’s effective date is March 28.

The political cartographers in Oakland County are sharpening their pencils in anticipation.


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s