Statement as to jurisdiction — Lee Chatfield, et al., Appellants v. League of Women Voters of Michigan, et al.

APPENDIX

la

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

[Filed 04/25/19]

No. 2:17-cev-14148

LEAGUE OF WOMEN VOTERS OF MICHIGAN, ef al.,

Plaintiffs,

V.

JOCELYN BENSON, IN HER OFFICIAL CAPACITY AS

MICHIGAN SECRETARY OF STATE, ef al.,

Defendants.

OPINION AND ORDER

BEFORE: CLAY, Circuit Judge; HOOD and QUIST,

District Judges.

CLAY, Circuit Judge. The League of Women Voters

of Michigan (“League”), numerous League members

(“League Plaintiffs”), and several Democratic voters

(“Individual Plaintiffs”) bring suit against Jocelyn

Benson, the Michigan Secretary of State in her official

capacity, under 42 U.S.C. §§ 1983 and 1988, alleging

that Michigan’s current legislative apportionment plan

(the “Enacted Plan”), which the state legislature implemented as Michigan Public Acts 128 and 129 of 2011,

violates Plaintiffs’ Fourteenth Amendment equal protection rights and First Amendment free speech and

2a

association rights by deliberately discriminating against

Democratic voters.’ (See Compl., ECF No. 1.)

After Plaintiffs filed suit, several parties moved to

intervene. Ultimately, intervention was granted to several of the Republican members of Michigan’s United

States congressional delegation and two Republican

state house members (together “Congressional and

State House Intervenors”) (see ECF Nos. 103, 157) and

to numerous Republican state senators and the Michigan

Senate as a whole (together “Senate Intervenors’”) (see

ECF No. 237).?

! When referring to the League, League Plaintiffs, and Individual Plaintiffs together, the Court uses the term “Plaintiffs.” When

referring only to the League Plaintiffs and the Individual Plaintiffs, separate from the League as an organization, the Court uses

the term “Voters.”

2 We initially denied the Congressional Intervenors’ motion to

intervene, in large part because we concluded that they lacked a

property interest in their elected offices and merely asserted a

generalized interest in the litigation. (ECF No. 47.) The Sixth

Circuit reversed, concluding that we should have granted the

motion on the basis of permissive intervention. See League of

Women Voters of Mich. v. Johnson, 902 F.3d 572, 578-80 (6th Cir.

2018). The Sixth Circuit found no need to decide whether the

Congressional Intervenors possessed a “substantial legal interest”

supporting intervention as of right, id. at 579 Gnternal quotations

marks and alteration omitted), but concluded that Congressional

Intervenors’ interests were sufficiently distinct from the Secretary’s

and the general citizenry’s interests to warrant permissive intervention. Jd. at 580. We later denied the State House Intervenors’

motion to intervene in their official capacities primarily because

defense of a state law is a governmental function assigned to the

executive branch. (ECF No. 91.) The Sixth Circuit reversed, citing

the parties’ agreement that intervention was proper in light of

the Sixth Circuit’s prior decision. (ECF No. 166.) Finally, we

granted the Senate Intervenors’ motions to intervene because

3a

Plaintiffs initially sought to invalidate the entire

Enacted Plan. (See Compl.) However, they have since

narrowed their claims to 34 congressional, House, and

Senate districts (the “Challenged Districts”).°

The Court held a trial on Plaintiffs’ claims. (See Trial

Trs., ECF Nos. 248, 249, 250.) In addition to presenting witnesses at trial, the parties submitted hundreds

of exhibits and deposition testimony from numerous

witnesses in lieu of in-person testimony, pursuant to

the Court’s order, which reflected the parties’ stipulation about the presentation and admissibility of evidence.

(See Order Re: Parties’ Partial Stipulations and Report,

ECF No. 234.) The parties also filed post-trial briefs,

including proposed findings of fact and proposed conclusions of law.* (See ECF Nos. 254, 255, 256, 257, 258.)

The Court has carefully considered all the evidence.

Today, this Court joins the growing chorus of federal

courts that have, in recent years, held that partisan

gerrymandering is unconstitutional. We find that the

Enacted Plan violates Plaintiffs’ First and Fourteenth

Amendment rights because it deliberately dilutes the

power of their votes by placing them in districts that

were intentionally drawn to ensure a particular

they arguably met the requirements for intervention as of right

in light of the Sixth Circuit’s earlier decisions. (ECF No. 237.)

> The term “Congress” refers to the United States House of

Representatives, and the term “congressional” refers to the districts and overall map used to elect Michigan’s delegation to

the United States Congress. “Senate” refers to Michigan’s state

senate, Michigan’s upper chamber. “House” refers to Michigan’s

state house of representatives, Michigan’s lower chamber.

4 The parties’ proposed findings of fact and conclusions of law

total 768 pages. This figure does not include the thousands of

pages of underlying deposition testimony, expert reports, and

exhibits that the parties cite in their post-trial briefs.

4a

partisan outcome in each district. See Gill v. Whitford,

138 S. Ct. 1916, 1929-31 (2018). The Enacted Plan

also injures Plaintiffs’ First Amendment right to association by discriminating against them and their political

party and subjecting them to “disfavored treatment by

reason of their views.” Vieth v. Jubelirer, 541 U.S. 267,

314 (2004) (Kennedy, J., concurring in the judgment).

Because we find that these constitutional violations

will reoccur if future elections are held under the

Enacted Plan, we HEREBY ENJOIN the use of the

Challenged Districts in any future election.

I. INTRODUCTION

The term “partisan gerrymandering” describes “the

drawing of legislative district lines to subordinate

adherents of one political party and entrench a rival

party in power.” Ariz. State Leg. v. Ariz. Indep.

Redistricting Comm’n, 135 8S. Ct. 2652, 2658 (2015).

“By definition, partisan gerrymandering amounts to

an effort to dictate electoral outcomes by favoring

candidates of one party and disfavoring candidates of

another.” Common Cause v. Rucho, 318 F. Supp. 3d

777, 800 (M.D.N.C. 2018) (three-judge panel) (citing

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833—

34 (1995)). Partisan gerrymandering thus violates the

core purpose of legislative apportionment—providing

“fair and effective representation for all citizens.”

Reynolds v. Sims, 377 U.S. 533, 565 (1964).

The Supreme Court has acknowledged that partisan

gerrymandering is “incompatible . . . with democratic

principles.” Ariz. State Leg., 13558. Ct. at 2658 (quoting

Vieth, 541 U.S. at 292 (plurality opinion)). It violates

“the core principle of republican government... that

the voters should choose their representatives, not the

other way around.” Id. at 2652 (internal quotation marks

and citation omitted). Lower federal courts have also

pa

noted that partisan gerrymandering diminishes our

democracy, aptly describing it as a “noxious” practice

that “has no place in a representative democracy|,]”

Shapiro v. McManus, 203 F. Supp. 3d 579, 600 (D.

Md. 2016) (Bredar, J. dissenting) (three-judge panel)

(internal citation omitted); a “cancerous” problem that

“underminles] the fundamental tenets of our form of

democracy,” Benisek v. Lamone, 266 F. Supp. 3d 799,

818 (D. Md. 2017) (three-judge panel), aff'd, 138 S. Ct.

1942 (2018); and a phenomenon “widely considered to

be repugnant to representative democracy.” Benisek v.

Lamone, 348 F. Supp. 3d 498, 511 (D. Md. 2018)

(three-judge panel).

Drawing district lines is an inherently political

process. See Gaffney v. Cummings, 412 U.S. 735, 753

(1973) (“The reality is that districting inevitably has

and is intended to have substantial political consequences.”) And “because the Constitution commits

district apportionment to political departments [and]

it is quintessentially a political process ... courts

cannot invalidate a redistricting map merely because

its drafters took political considerations into account

in some manner.” Benisek, 348 F. Supp. 3d at 511

(citing Gaffney, 412 U.S. at 752-53). But, as a recent

three-judge panel explained,

the political nature of redistricting does not

“immunize state congressional apportionment laws which debase a citizen’s right to

vote from the power of courts to protect the

constitutional rights of individuals from legislative destruction, a power recognized at least

since our decision in Marbury v. Madison {1

Cranch 137, 2 L.Ed. 60 (1803)].... The right

to vote is too important in our free society to

be stripped of judicial protection.”

6a

Id. (quoting Wesberry v. Sanders, 376 U.S. 1, 6-7

(1964) (citations omitted)). As Justice Kagan recently

observed, “the need for judicial review is at its most

urgent in [partisan gerrymandering] cases” because “politiclans’ incentives conflict with voters’ interests, leaving

citizens without any political remedy for their constitutional harms.” Gill, 1388 8S. Ct. at 1941 (Kagan, J.,

concurring). Partisan gerrymandering “enables politiclans to entrench themselves in power against the

people’s will. And only the courts can do anything to

remedy the problem, because gerrymanders benefit

those who control the political branches.” Id. at 1935

(Kagan, J, concurring).

Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional

and pernicious practice that undermines our democracy. Federal courts’ failure to protect marginalized

voters’ constitutional rights will only increase the

citizenry’s growing disenchantment with, and disillusionment in, our democracy, further weaken our

democratic institutions, and threaten the credibility of

the judicial branch. See Vieth, 541 U.S. at 310

(predicting that “[a] determination by the Court to

deny all hopes of intervention” in partisan gerrymandering cases “could erode confidence in the courts”).

Judges—and justices—must act in accordance with

their obligation to vindicate the constitutional rights

of those harmed by partisan gerrymandering.

II. FACTS

A. The Enacted Plan

The Michigan Constitution provides that the Michigan

legislature shall redraw Michigan’s congressional and

state legislative districts by November 1, 2001, and

every ten years thereafter. See Mich. Comp. Laws

Va

$$ 3.62, 4.261. This directive ensures that Michigan

legislators will have the benefit of the decennial

federal census and population data when they redraw

the legislative maps.

As the release of the 2010 census data approached,

the Republican State Leadership Committee (““RSLC”)°

engaged in a national effort to ensure that states redrew

their congressional lines during the 2011 redistricting

cycle to favor Republican candidates and disadvantage

Democrats. The RSLC appropriately named their initiative the “REDistrictng MAjority Project,” or “Project

REDMAP.” (See Pls.’ Trial Ex. 477.) According to a

2013 report from the RSLC, they raised $30 million

towards Project REDMAP from 2009 to 2010. (Pls.’

Trial Ex. 270 at 2.) The goal of Project REDMAP was

simple: “[djrawing new district lines in states with the

most redistricting activity .. . to solidify conservative

policymaking at the state level and maintain a Republican stronghold in the U.S. House of Representatives

for the next decade.” (U/d.) The report explained that

drawing district lines favorable to Republicans was at

the core of this strategy. id.) According to the report,

“all components of a successful congressional race .. .

rest in the congressional district lines, and this was an

area where Republicans had an unquestioned advantage

lin the 2012 elections].” Ud. at 1.)

James Bolger, a Republican who at the time served

as Speaker of the Michigan House of Representatives,

worked closely with the RSLC during the 2011 redistricting cycle. Bolger stated that REDMAP materials

> The RSLC describes itself as “the largest caucus of

Republican state leaders and the only national organization

whose mission is to elect down ballot, state-level Republican

office-holders.” (Pls.’ Trial Ex. 477.)

8a

were “ubiquitous” during the 2011 redistricting cycle

and that he had seen redistricting materials from the

RSLC “many times.” (Bolger Dep. at 294:24—295:14.)

Bolger testified that he has attended approximately

ten RSLC-related events. Ud. at 274:1—-7.) He also

served as Chairman of the Executive Committee of the

Republican Legislative Campaign Committee, a caucus

group of the RSLC. Ud. at 273:15—25.) According to

Randy Richardville, a Republican who served as the

Michigan Senate’s Majority Leader during the 2011

redistricting cycle, Bolger was “pretty involved” in

these groups. (See Richardville Dep. at 36:19—37:5.)

Project REDMAP proved wildly successful both nationally and in Michigan. As the RSLC said in its 2013

report, in the 113th Congress, elected in November

2012 during the first elections after the 2011 redistricting cycle, “Republicans enjoy[ed] a 33-seat margin”

nationally despite the fact that “voters pulled the lever

for Republicans only 49 percent of the time in congressional races, suggesting that 2012 could have been a

repeat of 2008” when Democrats won the United States

House of Representatives. (Pls.’ Trial Ex. 270 at 1.)

Further, the report found that “[t]he effectiveness of

REDMAP is perhaps most clear in the state of Michigan.”

Ud. at 3.) The REDMAP report explained that while

“(t]he 2012 election was a huge success for Democrats

at the statewide level in Michigan|[,]” with voters

“elect[ing] a Democratic U.S. Senator by more than 20

points and reelect[ing] President Obama by almost 10

points ... Republicans at the state level maintained

majorities in both chambers of the legislature and

voters elected a 9-5 Republican majority to represent

them in Congress.” (Ud. at 3-4.)

Republicans enjoyed great success in Michigan’s 2012

elections due in large part to the efforts of Republican

9a

legislators and map-drawers in the redistricting process

in 2011. The passage of the Enacted Plan represented

the culmination of a calculated initiative by Michigan’s

Republican legislators and map-makers, in the 2011

redistricting cycle, to deliberately draw Michigan’s legislative districts to maximize Republican advantage and,

consequently, disadvantage Democratic voters, Democratic candidates, and the Democratic Party. The partisan

advantage that Michigan lawmakers achieved through

the Enacted Plan persists to this day.

During the 2011 redistricting cycle, Michigan Republican lawmakers engaged various political operatives

to draw the congressional, Senate, and House maps to

favor Republicans and disadvantage Democrats.

For the congressional districts, Republican lawmakers engaged Robert LaBrant, who provided “advice

and counsel” to “legislators and committee chairs... .”

(LaBrant Dep. at 126:22—127:4.) At the time, LaBrant

served as President for the Michigan Redistricting

Resource Institute (““MRRI”), an organization that

LaBrant had formed to “generate money to finance

redistricting litigation” and defend Republican maps.°®

(LaBrant Dep. at 74:21—78:20.) LaBrant, through MRRI,

in turn hired Sterling Corporation, a “Republican political consulting firm,” and, specifically, Jeffrey Timmer,

a Senior Counselor at Sterling, to draw the congressional map. (Timmer Dep. at 13:3—6; 16:14-17; 18:6—8;

LaBrant Dep. at 140:23—141:8.) Timmer had extensive

map-drawing experience; he had served as the

Republicans’ lead map-drawer in Michigan’s 1991 and

° LaBrant formed MRRI in 2005 as a successor to the Michigan

Reapportionment Fund, which, like MRRI, was formed to “raise

funds” to defend Republican maps in litigation. (LaBrant Dep. at

90:4—11; 40:9-12.)

10a

2001 redistricting cycles. (Pls.’ Trial Ex. 272 at 1.) He

was also a well-known political figure. From 2005 to

2009, Timmer served as the Executive Director of the

Michigan Republican Party. (Timmer Dep. at 20:11-

16.) Timmer began his mapping and consulting work

for the 2011 redistricting cycle in 2009, over a year

before the 2010 census data was released. (Timmer

Trial Tr., ECF No. 250 at PageID #9306.)

Terry Marquardt drew the Senate map. (Marquardt

Dep. at 31:6.) Marquardt had previously served as the

Political Director of the Michigan Republican Party

during the 2001 redistricting cycle. (Marquardt Dep.

at 27:4-6.)

Daniel McMaster had the primary responsibility for

drawing the House map. From early 2009 to January

2011, McMaster served as the Director of the House

Republican Campaign Committee. (McMaster Dep. at

29:19—23.) Following the 2010 elections, the Michigan

House Republican Caucus hired McMaster as a Senior

Policy Advisor to draw the House map. (Ud. at 36:1—-5;

49:12-14.) After McMaster informed Pete Lund, a

Republican House member who had recently been

appointed as Chairman of the Redistricting and Elections

Committee, that he needed assistance, Lund hired

Brian Began to assist McMaster in drawing the House

map. (/d. at 50:20—51:19; Lund Dep. 23:15—23.) McMaster

appreciated the importance of drawing districts that

favored Republicans and disadvantaged Democrats.

He candidly stated that “flipping the House in 2010

was more important than in any other year” because

“there was just a belief or assumption that the party

that wins... the majority in the last race of the decade

will have a role in the redistricting process the following decade.” (McMaster Dep. at 33:18—34:2.)

lla

By statute, redistricting in Michigan must follow a

set of criteria known as the “Apol” criteria. The Apol

criteria contain a hierarchical set of requirements and

provide, among other things, that districts be contiguous, contain either a population within 5% of the ideal

district size (for the Senate and House districts) or

exactly equal population (for the congressional districts), and minimize county and municipal breaks.

See Mich. Comp. Laws § 3.63 (Senate and House

districts); Mich. Comp. Laws § 4.261 (congressional

districts). The Apol statutes provide that redistricting

plans shall be created using “only” the Apol guidelines.

See Mich. Comp. Laws § 3.63 (Senate and House

districts); Mich. Comp. Laws § 4.261 (congressional

districts). The Apol criteria do not provide that legislators may take political considerations into account

when drawing maps. See generally, Mich. Comp. Laws

§ 3.63; Mich. Comp. Laws § 4.261.

The map-makers claim that they drew their respective maps to simply comply with the Apol criteria.’ But

the evidence tells a much different story. The evidence

points to only one conclusion: partisan considerations

played a central role in every aspect of the redistricting process.

Political data served as the foundation upon which

the map-makers constructed their maps. They used

this political data to deliberately draw districts that

advantaged Republicans and disadvantaged Democrats.

For example, to draw congressional maps that provided

maximum Republican advantage, Timmer purchased

’ See, e.g., Timmer Dep. at 28:4—16; 47:25—48:6; 55:3-11; 61:20—

62:1; McMaster Dep. at 58:21-60:20; 72:2-16; 73:2-12; 85:20-

87:6; 113:3—7; 118:25-119:4; 128:24-129:6; 1380:8-13; 160:22-161:2;

165:22-166:3; 172:21—-23; Began Dep. at 37:14-38:1; Marquardt

Dep. at 53:2—25.

12a

historical voter lists and election data from a company

called Combat Data. (Timmer Dep. at 16:21—17:10.)

This political data consisted of historical election data

from a number of historical statewide elections: the

2000, 2004, and 2008 presidential elections; the 2004

and 2008 gubernatorial elections; and the Michigan

Board of Education elections in 2000, 2002, 2004, 2006,

and 2008.° (Timmer Trial Tr., ECF No. 250 at PageID

#9323:9-9324:15; Pls.’ Trial Ex. 149 at 2.) This political data consisted of the number of Democratic and

Republican votes cast in each of these historical elections down to the census block level.? (Timmer Trial

Tr., ECF No. 250 at PageID #9316:19—25.) Timmer

inputted this data into Maptitude, the map-drawing

software he used to draw the congressional map. (/d.;

Timmer Dep. at 28:17—20.) Relying on this granular

political data, Timmer began drawing the congressional map in January 2011, approximately two months

before the federal government released the actual

2010 census data, in March 2011. (Timmer Trial Tr.,

ECF No. 250 at PageID #9317:1-2; id. at PageID

#9344:14-18.) Using this political data in conjunction

with Maptitude, Timmer monitored the partisan composition of the congressional districts as he drew them,

obtained instantaneous updates about the political

5 Education board averages are commonly used as proxies for

partisanship. (Timmer Trial Tr., ECF No. 250 at PageID #9324.)

Marquardt explained the theory behind using data from state

education board races: “nobody really knew who those people

[running for the state education board] were and so voters were

voting more by party . .. so we used that as kind of a guideline”

for a district’s partisan composition. (Marquardt Dep. at 103:2—

22.)

” Census block data is “exactly what you think. It’s... like a

city block or a country block .. . it’s that small of a unit.” (Vatter

Trial Tr., ECF No. 249 at PageID #8990:7-12.)

13a

composition of a district as he altered its boundaries,

and deliberately drew districts that packed or cracked

Democratic voters.'° (See Timmer Dep. at 60:14—-61:9;

95:1-5.)

Marquardt used a program called AutoBound to

draw the Senate map. (Marquardt Dep. at 40:5—-15.)

Marquardt used political data from a database compiled by the Michigan government that was provided

to Michigan’s Republican and Democratic caucuses for

use in the 2011 redistricting cycle. (Marquardt Dep. at

42:8-43:12; Vatter Trial Tr., ECF No. 250 at PageID

#8986:21—8987:16.) This data consisted of “[plast

election results” from a variety of statewide elections

in Michigan, and it showed how Michigan voters voted

“down to [the] block level.” (Marquardt Dep. at 42:20—

43:12; 69:11—22; 102:13—-104:15.) Marquardt paid closest

attention to past presidential results, as they “givel]

you the best gauge on” the political makeup of a district. (Marquardt Dep. at 70:2—20.) Marquardt elected

to have AutoBound display a matrix of political data

next to his Senate maps as he drew them; the figures

in the matrix updated automatically as he altered the

shape and contours of a given district. (Marquardt

Dep. at 195:16—-198:7.) Marquardt was aware of the

political makeup of the new districts as he drew them

and could tell whether they were more advantageous

for Republicans than the maps that had been used in

the previous decade. (Marquardt Dep. at 148:13—21;

158:9-15; 174:8-175:19.) Marquardt drew districts

that he expected would produce better Republican

10 “Packing” involves filling a district with a supermajority of

members of a disfavored political party. Vieth, 541 U.S. at 287

n.7. “Cracking” involves dispersing members of a disfavored

party among several districts to deny that party a majority in any

of those districts. Id.

14a

outcomes compared to the existing map. (Marquardt

Dep. at 114:7-11.)

When McMaster began drawing the House maps, he

used magic markers to draw district boundaries because

he had still not received map-drawing computer software. (McMaster Dep. at 87:16—25.) However, McMaster

eventually received AutoBound and used it to draw

the House maps. (McMaster Dep at 87:13—-15.) While

McMaster believes that he did not initially have access

to political data, he eventually received “the election

numbers” from previous elections and “plugged in,

double-checked” the numbers in AutoBound. (McMaster

Dep. at 88:15—24.)

The map-makers believed that they could draw

maps to secure a partisan advantage even if doing so

required violating the traditional non-partisan redistricting criteria enumerated in the Apol standards.

(See, e.g., Timmer Trial Tr., ECF No. 250 at PageID

#9301:18-19; PageID #9304:24—-9305:2.) Timmer,

who drew the congressional districts, stated that

map-makers and legislators may consider purportedly

“neutral considerations” not listed in the Apol criteria,

such as “incumbency considerations” and “achieving

support sufficient for passage.” (Timmer Report at 6.)

However, these factors were not politically neutral

given that Republicans dominated both chambers of

the state legislature and held the governorship during

the 2011 redistricting cycle. Protecting incumbents

generally meant protecting Republicans. And securing

enough votes for passage did not necessarily require

securing a single vote from a Democratic legislator in

either chamber. At trial, Timmer went a step further,

testifying that legislators may consider “whatever

factors they deem necessary” and may “take into account

any political consideration they like in drawing these

15a

maps.” (Timmer Trial Tr., ECF No. 250 at PageID

#9301:18-19; PageID #9304:24—9305:2.)

The map-makers were intimately aware of the

political consequences of their map-drawing efforts.

For instance, McMaster and Began drew the House

maps in a secure location to which nobody else had

access because, according to McMaster, “everyone was

honing us. Every staffer’s political future, every

representative's political future, depended on how the

lines turned out... .” (McMaster Dep. at 63:18—24.)

Marquardt drew the Senate maps to ensure that they

would garner enough support among Senators to win

a majority of votes in the Senate—where the Republicans

held 26 seats compared to Democrats’ 12—because “if

[the maps] don’t pass the legislature, you’ve .. . done

your work for nothing... you have to have at least 20

people happy with the draft.” (Marquardt Dep. at

56:23-57:13.) Marquardt explained that “sitting, you

know, representatives or senators, you know, obviously in many cases want to be re-elected, so that was

probably the major consideration as far as getting the

vote—the 20 votes that we needed in the Senate to

pass the bill.” (Marquardt Dep. at 63:9-14.)

During the spring of 2011, Michigan’s Republican

leadership held weekly meetings on Thursday mornings at the Dickinson Wright law firm to discuss

their redistricting efforts. (Pls. Trial Exs. 463, 384;

Richardville Dep. at 92:14—93:12.) Bobby Schostak,

Chairman of the Michigan Republican Party, attended

between three and eight of these redistricting meetings, even though he did not serve in the Michigan

legislature and would therefore not cast a vote on

any of the maps at issue. (Schostak Dep. at 13:12—16;

43:1-18.) Congressional map-drawer Jeff Timmer

also attended some of these leadership meetings, even

16a

though he was not a legislator and even though he was

working on the congressional maps, not the Senate or

House maps containing districts whose legislators

would vote on the redistricting legislation. Ud. at

15:18.) James Bolger, the Republican House member

who at the time served as Speaker of the Michigan

House, attended “some or all” of these weekly redistricting meetings. (Bolger Dep. at 120:11—122:14.) Randy

Richardville, a Republican who served as Michigan’s

Senate Majority Leader, attended between three and

six of these meetings. (Richardville Dep. 85:2-14.) Joe

Hune, the Republican Senator who served as Chairman

of the Senate Redistricting Committee, attended more

than five of these redistricting meetings. (Hune Dep.

at 19:2—5; 142:2-5.) Pete Lund, the Republican House

member who served as Chairman of the Redistricting

and Elections Committee, also attended. (Lund Dep.

at 93:7—95:20.)

The Republican leadership took several steps to ensure

that these weekly redistricting meetings remained

secret. Members of the Republican leadership and their

staffs often used personal—rather than governmental—

email addresses to communicate about the redistricting meetings. (See, e.g., Pls.’ Trial Ex. 462 (email

confirming March 10, 2011 meeting sent to the

personal email addresses of Suzanne Miller, Chief of

Staff to Speaker Bolger (Bolger Dep. at 138:20—25);

Laura Dubreuil, Executive Assistant to Speaker Bolger

(Bolger Dep. at 149:7—23); Jordan Hankwitz, aide to

Senate Majority Leader Richardville (Bolger Dep. at

127:20—22); Keli Saunders, a staffer in Republican

Governor Rick Snyder’s administration (Bolger Dep. at

126:6-18); and Laurie Rospond, a staffer for Lieutenant

Governor Dick Posthumus (Bolger Dep. at 126:19-

127:4)); Pls.” Trial Ex. 463 (Speaker Bolger using per-

17a

sonal email address to communicate with his top

assistant about the April 19, 2011 redistricting meeting).)

Majority Leader Richardville explained the significance of communicating over personal email; he and

his staff “were very sensitive” to “doing something

with or on government property if there are potential

political discussions going on|[,]” and he and his staff

used non-governmental email addresses for any conversation that was “going to be political.” (Richardville

Dep. at 99:10-100:5; see also id. at 169:11-170:7.)

Furthermore, the agendas for each of these meetings

were labeled “confidential.” (Pls.’ Trial Ex. 274.) Democrats were not invited to attend the meetings until

June 2011, i.e., after the maps had already been voted

out of committee by the Michigan legislature. (Timmer

Trial Tr., ECF No. 250 at PageID #9341:1-12; see

Schostak Dep. at 48:25—49:23.)

In addition to the leadership meetings, map-drawer

meetings regularly took place at Dickinson Wright.

(Timmer Dep. at 56:2—25; 256:18—257:2.) Map-drawer

meetings occurred “[p]erhaps as often as weekly.” Ud.

at 56:17-18.) Timmer, Marquardt, McMaster, and

Began frequently attended. (McMaster Dep, at 52:9-

54:8.) Robert LaBrant also attended some in his capacity as president of MRRI. (Timmer Dep. at 258:11—20.)

Attorneys from Dickinson Wright would also attend as

legal counsel. (McMaster Dep. at 53:14—23; Marquardt

Dep. at 88:12—-89:1.) The map-drawers shared maps

with each other, gave “report[s] of where we are, what

problems we're having|,]” strategized about the mapmaking process, discussed technical questions, and

worked with counsel to confirm that their maps complied with what they believed to be the relevant legal

requirements. (McMaster Dep. at 52:8-19; Marquardt

Dep. at 82:18—22.) Like the leadership meetings, the

18a

map-drawer meetings were “confidential.” (Timmer Dep.

at 256:21—23.) No representative from the Democratic

Party, or member of any Democratic interest group,

ever attended. Ud. at 56:19—25.)

Throughout the redistricting cycle, the map-makers

regularly met with legislative leaders and incumbent

Republican legislators. During these meetings, the

map-makers presented incumbent Republicans with

drafts of each legislator’s proposed district, discussed

the boundaries and partisan makeup of each legislator’s proposed district, and solicited the incumbent’s

preferences and/or desired changes to his or her district. Map-makers held these conversations even though

they—and the Republican leadership for whom they

worked—knew that protecting incumbents was not a

permissible standard under the Apol criteria. (See Pls.’

Trial Ex. 274.)

Marquardt, drawer of the Senate maps, held “meetings [with] and called” each Republican senator between

April and June 2011 to show them the partisan composition of their new district compared to their existing

district. (Marquardt Dep. at 82:23—84:20.) Marquardt

never met with Democrats. (Ud. at 84:17—20.) Marquardt

brought two maps with him to every meeting, which

he presented side-by-side on a single piece of paper:

one that depicted the senator’s “Current Senate District”

and one that depicted the senator’s “Proposed Senate

District.” dd. at 100:21—106:15.) Marquardt displayed

two sets of political data underneath the map of each

senator’s current and proposed district: the percentage

of votes cast within that district for the Republican

gubernatorial candidates in the last three elections

and the percentage of votes cast within that district for

Republican candidates in the last three elections for

19a

the Michigan Board of Education.'' Marquardt displayed this political data on each senator’s current and

proposed district map “[b]ecause the senators obviously

would be interested in knowing whether their district

got better or worse|,]” better meaning more Republican and “worse being either less Republican or more

Democrat.” Ud. at 103:23—-104:15; see, e.g., Pls.’ Trial

Exs. 331-56 (side-by-side maps Marquardt prepared

for each Republican senator showing the political

composition of each senator’s current and proposed

districts); see also Richardville Dep. at 232:19—235:14

(discussing meetings with Marquardt and incumbent

Republican senators).)

Like Marquardt, McMaster, the principal architect

of the House map, showed incumbent legislators the

boundaries and political composition of their proposed

districts before the maps were introduced into the

legislature. (McMaster Dep. at 65:19-67:13; 71:9-19;

Began Dep. at 45:17—25.) McMaster met with Republican House members in May 2011. (McMaster Dep. at

65:19-67:13.) During these meetings, McMaster presented Republican House members with various

“choices” for the boundaries of their districts. Ud. at

65:19-67:13.) For example, if McMaster had identified

multiple ways of splitting a county into two House

districts, he would ask, “So, what do you guys want?

Do you want this one? Do you want this one? Do you

want to flip a coin?” Ud. at 66:11—-18.) The maps that

McMaster brought to the meetings contained historical election data from approximately ten previous

elections and allowed incumbent Republican House

members to gauge the partisan composition of their

1! As noted above, education board averages are commonly

used as proxies for partisanship. (Timmer Trial Tr., ECF No. 250

at PageID #9324; Marquardt Dep. at 103:2—22.)

20a

proposed districts. Ud. at 71:9-19.) After one of

these meetings, McMaster made changes to the House

map to accommodate the concerns that an incumbent

Republican House member expressed about the “political makeup” of his proposed district and, specifically,

“how hard he thought it would be for him to win” in

the new district. Ud. at 86:1—89:22.)

In late February 2011, Timmer traveled to Washington,

D.C., to meet with the Republican members of Michigan’s

congressional delegation and present them with draft

maps of Michigan’s congressional districts. (Pls.’ Trial

Ex. 398; Timmer Trial Tr., ECF No. 250 at PageID

#9324:16—9325:6.) Prior to his trip, Timmer sent the

proposed congressional districts to LaBrant, the president of MRRI and the person who hired Timmer, and

the two discussed the “potential options” that Timmer

planned to present to the congresspersons with whom

he was scheduled to meet. (See Pls.’ Trial Ex. 398.)

Timmer did not meet with any Democrats during his

trip or provide any proposed maps to Democrats during the 2011 redistricting cycle. (Timmer Dep. at

110:2—25.)

When Timmer arrived in Washington, D.C., he met

with the Republican members of Michigan’s congressional delegation and presented several different

configurations of Michigan’s statewide congressional

map. (See Pls.’ Trial Exs. 398-99.) Each iteration estimated the political composition of each congressional

district based on historical election results from ten

recent statewide races. (See id.) In this way, each

congressperson could evaluate the partisanship of his

or her proposed district in each possible configuration,

as well as the partisanship of each congressional

district in the overall map. (See id.) Timmer discussed

the potential districts with the incumbent Republican

2la

congresspersons and asked them what portions of

their current districts they would most like to continue

to represent. (Timmer Dep. at 169:7—11.)

After returning from Washington, D.C., Timmer

revised the congressional map to accommodate the

preferences expressed by the incumbent Republican

congresspersons with whom he had met. (Timmer

Trial Tr., ECF No. 250 at PageID #9325:19—-9327:17;

see Pls.’ Trial Ex. 399.) On March 6, 2011, he emailed

LaBrant an updated version of the congressional map.

(See Pls.’ Trial Ex. 399.) The map contained political

data for each proposed district. Ud.) Timmer told LaBrant

that the map “captures the bulk of what we heard the

[congressional delegation] indicate they'd like to see.”

(Id.) Two days later, Timmer emailed LaBrant “the map

we discussed yesterday with separate maps for the

individual districts.” (Pls’ Trial Ex. 400.) The map for

each district contained the same set of political data

that Timmer had included in his statewide maps. (d.)

The map-makers also shared draft maps with each

other and strategized about how to best draw maps

that advantaged Republicans. For example, in one

email exchange from May 9, 2011, Marquardt asked

Timmer to send him a plan that Timmer had proposed

for Senate districts covering Oakland and Genesee

counties. (Pls.’ Trial Ex. 358.) After Timmer replied,

Marquardt said that one of the proposed Senate

districts “would be a little vulnerable under this plan.”

(UId.) By “a little more vulnerable,” Marquardt meant

that the district was “more competitive, maybe a little

more Democratic.” (Marquardt Dep. at 137:22—-138:6.)

Marquardt asked Timmer for the “McCain numbers”

for the proposed district because Marquardt wanted to

know where the district “landed on the political scale.”

Ud. at 140:4—5.)

22a

Emails between the map-makers and Republican

leaders, legislators, and legislative staff further reveal

that the motivating factor behind the map-making

process was a desire to construct districts that favored

Republicans and disadvantaged Democrats.

For example, on May 17, 2011, Jim Brandell, Chief

of Staff to Republican Congressman Dave Camp, used

his personal yahoo email address to email Timmer and

LaBrant about Camp’s concerns with the “[llatest

[djraft” of Camp’s district.” (Pls.’ Trial Ex. 579.)

LaBrant—who had hired Timmer to draw the congressional maps—replied that “[wle will accommodate

whatever Dave wants in his district... .” dd.) LaBrant

also assured Brandell that “[w]e’ve spent a lot of time

providing options to ensure we have a solid 9-5 delegation in 2012 and beyond|,]” @d.), meaning a congressional

delegation of nine Republicans and five Democrats.

(Timmer Trial Tr., ECF No. 250 at PageID #9318:2-7.)

Another example is an email exchange from May 16,

2011, where LaBrant told Timmer that he had just

received a call from Jack Daly, Chief of Staff to incumbent Republican Congressman Thad McCotter. (Pls.’

Trial Ex. 409.) LaBrant had “walked [Daly] through

Thad’s proposed district.” (/d.) LaBrant reported that,

according to Daly, “Dale at the RNC has drawn a 10-4

map.” (/d.) LaBrant told Daly “I suppose you could

[draw a map that likely produces a 10-4 Republican/

Democratic split] if you broke a [sic] sorts of counties

and MCD’s....” Ud.) But LaBrant told Daly that “we

need for legal and PR purposes a good looking map

2 Brandell also sent the email to Jamie Roe, a staffer for

Republican incumbent Congresswoman Candace Miller. (Pls.’ Trial

Ex. 579; Timmer Trial Tr., ECF No. 250 at PageID #9318:16—23.)

Brandell sent the email to Roe’s personal yahoo email address.

(Pls.’ Trial Ex. 579.)

23a

that [does] not look like an obvious gerrymander.” (/d. )

LaBrant complimented Timmer on his latest draft of

the congressional map, stating that it “protects all

nine [Republican] incumbents and it looks good.” (/d.)

In a separate email exchange, Daly requested that

Timmer evaluate additional district configurations

using newly-available population and elections data.’

(See Pls.’ Trial Ex. 401.) Timmer responded, “[i]nteresting numbers overall. Detroit being 150k less than

projected shakes things up.” Ud.) Daly replied that it

was “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.” Ud.)

Daly also asked, “Is there anyone on our side who

doesn’t recognize that dynamic?” (/d.) Timmer admitted

that the only way to interpret Daly’s comments was

as a request that Timmer pack Democratic voters.

(Timmer Trial Tr., ECF No. 250 at PageID #9327:18—

9329:11.)

Yet another example is a June 22, 2011 email

exchange that began with a Republican operative

informing Timmer that he was “[wlorking on damage

control” in the Third Congressional District because

incumbent Republican Congressman Justin Amash

had concerns about the political makeup of his new

district. (Pls.’ Trial Ex. 432.) Timmer responded that,

under the new maps, the Third Congressional District

“is a bit less GOP, but not so much less so that it is in

jeopardy of going south on us.” Ud.) Timmer further

explained that “the new 3rd would become slightly less

Republican” to allow the district held by incumbent

13 Daly used his personal yahoo email address for this

exchange. (See Pls.’ Trial Ex. 401.)

24a

Republican Congressman Tim Walberg “to become

slightly more so.” Ud.)

In a different email, Jamie Roe, a staffer for incumbent Republican Congresswoman Candice Miller,

expressed his approval of one of Timmer’s proposed

maps, saying it was “perfect” because “it’s giving the

finger to [S]andy [Llevin,” a long-time Democratic United

States congressman. (Pls.’ Trial Ex. 426; Timmer

Dep. 127:2—10.)

Schostak served as a liaison between incumbent

Republican congresspersons and Timmer throughout

the 2011 redistricting cycle. Congresspersons contacted

Schostak—the Chairman of the Michigan Republican

Party—and expressed preferences or concerns about

the contours of their districts, and Schostak conveyed

these concerns to Timmer, who revised the congressional maps accordingly. (Schostak Dep. at 89:1—94:20.)

For example, in June 2011, Timmer emailed Schostak

and explained changes that he had made to Congressional District 2 and Congressional District 3 based on

concerns that Schostak had relayed from Bill Huizenga

and Justin Amash, the incumbent Republican congressmen that represented those districts. (Pls.’ Trial

Ex. 387.) In another email, Timmer informed Stu

Sandler, an outside consultant working for Schostak,

that despite incumbent Republican congressmen Thad

McCotter’s disapproval of his new district, “it’s hard to

envision a Dem winning this seat even in a year like

2008.” (Ex. 65 to Timmer Dep.)

Republican donors also inserted themselves into the

map-drawing process through Schostak. For example,

Schostak forwarded Timmer an email in which a

Roe sent this email from his personal yahoo address. (See

Pls.’ Trial Ex. 426.)

20a

Republican donor had asked Schostak if the mapdrawers could “draw a favorable Republican district

with the Pointes all together[,]” an apparent reference

to the five communities in the Grosse Pointes area.

(Pls.’ Trial Ex 389.) A few weeks later, Timmer sent

Schostak a new set of maps. (See Pls.’ Trial Ex. 438.)

Timmer told Schostak that “as part of the maps I’ve

redrawn, I’ve come up with a configuration which

likely also satisfies the Grosse Pointes wrinkle you’ve

been dealing with.” Ud.) Timmer told Schostak to

“([kleep this all under hat” given the “possibility that

this fizzles.” Ud.) But Timmer reassured Schostak that

“you may be able to deliver a vistory [sic] to the

G[rosse] P[ointes] $$ folks.” Ud.)

Schostak did not merely act as an intermediary

through which Republican donors and Timmer would

communicate. On one occasion, in response to a request

from a Republican donor, Schostak had Timmer speak

directly to the donor to “[tJell them [sic] what’s possible.” (Schostak Dep. at 109:1-13.)

Even after they formally introduced the redistricting legislation, the Republican-controlled legislature

concealed the contents of the redistricting plan and

expedited its progression through the legislative process to prevent it from being subject to meaningful

public scrutiny.

Shortly after the proposed district maps were introduced in June 2011, the House Elections Committee

held a public hearing on redistricting. (See Smith Trial

Tr., ECF No. 248 at PageID #8771:1-10.) Susan Smith

attended the hearing in her capacity as president of

the League. Ud. at PageID #8771:10-15.) When Smith

arrived, she picked up a copy of the bill so that she

could follow along during the hearing. (Ud. at PageID

#8771:10—-24.) When Smith opened up the bill, she

26a

realized that it was a “shell bill”—a “cover and a back

sheet, and ending sheet[,] but nothing in between.” (Ud.

at PageID #8771:19—24.)

The members of the House Elections Committee

entered the room. A staff member brought an additional stack of bills and placed them on a back table.

Smith retrieved a copy of the bill, and returned to her

seat to read it, “expecting to see a description of the

maps[.]” Ud. at PageID #8772:6-8.) But the bill did not

contain any maps, only rows of census data, “like you

see when you get your tax bill... .” Ud. at PageID

#8772:8-10.) It was impossible for Smith to figure out

what district she lived in. Ud. at PageID #8772:10-11.)

Shortly thereafter, a staff person set up three easels,

one for each map. Ud. at PageID #8772:11—-15.) Each

map was approximately 30 by 36 inches and portrayed

the entire state of Michigan. (/d. at PageID #8772:17—

19.) Smith approached the maps for a closer examination but, like many other attendees, could not tell with

any particularity what districts she lived in. Ud. at

PageID #8772:20-8773:10.) Despite many attendees

at the hearing voicing their complaints about the lack

of transparency and public involvement, the bill made

it out of committee after a vote along party lines, with

Democrats voting against the bill and Republicans

voting for it. dd. at PageID #8772:20—-8773:10.)

Within approximately two weeks of the hearing,

both chambers of Michigan’s Republican-controlled

legislature had voted to pass bills containing the

redistricting legislation. The bills went to Governor

Snyder, a Republican, who signed the legislation into

law on August 9, 2011."

15 See Public Acts 128 and 129, available at http:/(www.legis

lature.mi.gov/(SGarreokedO0nkcgalxktqkOlv))/documents/2011-20

2a

Democrats played no meaningful role in the 2011

redistricting process. On one occasion, Marquardt

showed Mike Vatter, the Democratic map-drawer, a

Senate map that Marquardt had drawn for the Detroit

area. But according to Vatter, Marquardt was not

soliciting his input but rather telling him that “these

were the districts that were going to be drawn in the

City of Detroit,” a Democratic stronghold. (Vatter

Trial Tr., ECF No. 249 at PageID #8994:20-8995:15.)

While Richardville, the Republican Senate Majority

Leader, once met with Vatter and then-Democratic

Senate Minority Leader Gretchen Whitmer, this meeting did not occur until after the Republican maps were

already published. (Timmer Trial Tr., ECF No. 250 at

PageID #9320:22—9321:12.) And while Republicans

briefly entered into negotiations with the legislative

black caucus, these negotiations took place after the

Michigan legislature had already approved the Enacted

Plan and did not result in any change to the maps.

(Timmer Dep. at 149:20—-150:1.)

The Enacted Plan proved tremendously successful

in advantaging Republicans and disadvantaging Democrats throughout several election cycles. In each of

the three statewide elections held under the Enacted

Plan between 2012 and 2016, Republicans won 64%

of Michigan’s congressional seats (i.e., 9 of 14) even

though they never earned more than 50.5% of the statewide vote.’® During this same period, Republicans won

12/publicact/pdf/2011-PA-0128.pdf, last accessed April 19, 2019;

http://www.legislature.mi.gov/(SGarreokedO0nkcgalxktqkOlv))/doc

uments/2011-2012/publicact/pdf/2011-PA-0129.pdf, last accessed

April 19, 2019.

16 See https://mielections.us/election/results/2016GEN_CENR.

html (2016); https://mielections.us/election/results/14GEN/ (2014);

https://mielections.us/election/results/12GEN/ (2012).

28a

at least 53.6% of Michigan’s House Districts while

never earning more than 50.3% of the total vote.” In

Michigan’s 2014 Senate election, Republicans earned

only 50.4% of the vote but won 71.1% of the seats."®

The partisan bias in Michigan’s legislative maps

continued in the 2018 midterm elections. Democrats

earned approximately 55.8% of the vote in congressional elections but gained only 50% of the congressional

seats;’? 52.6% of the vote in the House but only 47% of

the House seats,?° and over 50% of the vote in the

Senate but only 42% of the Senate seats.”! In other

words, despite earning a sizable majority of aggregate

votes for congressional candidates, Democrats merely

pulled even with Republicans in terms of seats won.

And despite earning a majority of the votes cast in the

House and Senate elections, Democrats remained

decidedly in the minority in both chambers of the state

legislature.

B. Plaintiffs’ Expert Evidence

The Court finds that Plaintiffs have proven that the

Enacted Plan is a partisan gerrymander. Plaintiffs’

expert evidence overwhelmingly supports this conclusion.

Plaintiffs introduced testimony from three witnesses,

each of whom employed several different statistical analyses and metrics to evaluate the partisan outcomes

7 See https://mielections.us/election/results/2016GEN_CENR.

html (2016); https://miele ctions.us/election/results/14GEN/ (2014);

https://mielections.us/election/results/12GEN/ (2012).

18 See https://mielections.us/election/results/14GEN/ (2014).

19 See https://mielections.us/election/results/2018GEN_CENR.

html (2018).

20 See id.

21 See id.

29a

resulting from the Enacted Plan, clearly demonstrates

that the Enacted Plan strongly and systematically

advantages Republicans and disfavors Democrats.

In reaching this conclusion, the Court does not rely

primarily on any individual expert’s testimony or on

any particular statistical measure; rather, the Court

reaches this determination after considering the totality

of Plaintiffs’ wide-ranging and extensive expert evidence. All of this evidence points to the same conclusion:

the Enacted Plan gives Republicans a strong, systematic, and durable structural advantage in Michigan’s

elections and decidedly discriminates against Democrats.

1. Dr. Jowei Chen”?

Plaintiffs’ first expert, Jowei Chen, Ph.D. (““Dr. Chen”),

analyzed Michigan’s congressional, Senate, and House

districts to determine whether the Enacted Plan produced “an extreme partisan outcome that diverges

from possible alternative maps.” (Chen Report at 2, 6.)

Dr. Chen compared the Enacted Plan to computersimulated districting plans drawn without partisan

intent that adhere to “traditional districting criteria,”

such as “equalizing population, maximizing geographic

compactness, and preserving county, municipal, and

ward boundaries.” Ud. at 3.) Dr. Chen created an

algorithm that used these traditional, non-partisan

criteria to produce randomly-generated districting plans.

His algorithm generated 1,000 alternative congres-

22 Dr. Jowei Chen is an Associate Professor in the Department

of Political Science at the University of Michigan. He received his

B.A. in Ethics, Politics, and Economics from Yale University, his

M.S. in Statistics from Stanford University, and his Ph.D. in

Political Science from Stanford University. He has published

several academic articles regarding redistricting in peer-reviewed

journals and has provided expert reports in approximately nine

redistricting cases. (See Chen Report at 89-93.)

[OCR skipped on page(s) 31-179]

[Read from a scan; the first 30 pages.]