By Zachary Gorchow
Executive Editor and Publisher
Posted: July 16, 2018 3:28 PM

“Hey, what do you think the Supreme Court is going to do with the redistricting ballot proposal?”

That’s the question on the mind of the Capitol community this week as the Michigan Supreme Court prepares to hear oral arguments on whether the ballot proposal to move the redistricting process out of the Legislature and into a new commission consisting of self-identified Democratic, Republican and independent voters.

Foes of the proposal – the Michigan Chamber of Commerce, Attorney General Bill Schuette and other Republicans – have contended it violates the Michigan Constitution, claiming it is a general revision of the Constitution that can only be accomplished via a constitutional convention and that the petition failed list all the sections of the Constitution it would alter or abrogate. Supporters have scoffed at the general revision claim since it focuses on one topic and said they believe they did list all the affected sections.

On the law, the foes probably have a better shot on the alter or abrogate challenge. Six years ago, the Supreme Court denied ballot access to a casino expansion ballot proposal on that basis, and all it takes is finding one section not listed on the petition where text is altered or rendered inoperative. The general revision argument appears a reach given the measure contains nowhere near the number of changes that the ill-fated 2008 Reform Michigan Government Now proposal included (and which offers the precedent for the challenge).

Beyond the law, there’s just as much interest – probably more – in the politics of how the Supreme Court will rule.

Politics on the court, you say? Shocking.

In recent years, the courts – save for the casino proposal – have tended to leave matters to the voters. The court let the referendum on the emergency manager referendum go to the ballot. It let the recall campaign against then-Rep. Paul Scott proceed. It let three proposals other than the casino one in 2012 go to the ballot.

Prior to Governor Rick Snyder appointing Justice Kurtis Wilder to replace Robert Young Jr. and Justice Elizabeth Clement to replace Joan Larsen, there had been something of a bipartisan four-justice majority consisting of Justice Richard Bernstein, Ms. Larsen, Justice Bridget McCormack and Justice David Viviano on several major decisions. The court now has a different look and how it confronts one of two closely watched decisions (there is a major case involving guns and schools that is the other) will signal how it will operate for the foreseeable future.

In terms of the politics, the focus is on Ms. Clement and Mr. Wilder because they stand for election this year.

To the extent political considerations play any part, it comes down to this calculus: What is the bigger obstacle to winning election, a handful of angry high-level Republicans who feel betrayed or incurring the wrath of the massive grassroots organization Voters Not Politicians formed to put the redistricting proposal on the ballot?

On that question, the answer seems obvious – the latter. Ms. Clement and Mr. Wilder, while they surely would prefer a clean nomination without any trouble at the state Republican convention in August, technically don’t need the convention’s blessing. As incumbents, they can just renominate themselves. And no matter how angry Republican funders would be, what is their alternative? Sit out the race and allow the two Democratic nominees to win, putting the court into a 4-3 majority of justices nominated by the Democrats?

The Voters Not Politicians organization gathered more than 400,000 valid signatures of registered voters in relatively short order purely through volunteers, a rare achievement that has wowed politicos of all political stripes. It has engaged people who do not typically work in the political trenches. Its supporters have passion. And if the court denies their proposal access to the ballot, they will have nothing to do for the next three-plus months other than turn their anger and organization on Ms. Clement and Mr. Wilder.

Not to mention if the court did find Voters Not Politicians made a correctable error like failing to list a section that would be altered or abrogated that the group would surely come back in 2020 with a cleaned-up petition that would then make the ballot, meaning possibly Ms. Clement and/or Mr. Wilder would have put themselves in serious danger of losing for nothing.

The court has been harder to predict in recent years. Besides the former Bernstein-Larsen-McCormack-Viviano bloc, Ms. McCormack has joined the justices nominated by the Republican Party on several cases, especially insurance ones, upsetting some Democrats. While the focus short-term is on Ms. Clement and Mr. Wilder, if Ms. McCormack ended up voting to deny the redistricting proposal ballot access, it would almost surely throw into the open what have been behind-the-scenes grumblings among some Democrats and make her expected 2020 re-election campaign interesting (though, again, she can just renominate herself).

The upcoming decision has a trifecta of implications, all significant. The short-term direction of the court. The November election of two justices. And the long-term process for redistricting in the state. No pressure.