Motion to affirm — Michael Banerian, et al., Appellants v. Jocelyn Benson, Michigan Secretary of State, et al.

No. 22-92

IN THE

Supreme Court of the United States

____________________

MICHAEL BANERIAN, et al.,

v.

Appellants,

JOCELYN BENSON, IN HER OFFICIAL CAPACITY AS

SECRETARY OF STATE OF MICHIGAN, et al.,

Appellees.

____________________

On Appeal from the United States District Court

for the Western District of Michigan

____________________

MOTION TO AFFIRM

____________________

Andrea L. Hansen

Andrew M. Pauwels

HONIGMAN LLP

222 N. Washington

Square, Ste. 400

Lansing, MI 48933

(517) 484-8282

Paul M. Smith

Counsel of Record

Mark P. Gaber

Jonathan M. Diaz

Aseem Mulji

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2200

psmith@campaignlegal.org

Counsel for Intervenor-Appellee Voters Not Politicians

September 30, 2022

i

QUESTIONS PRESENTED

1. Did the three-judge district err in concluding

that Appellants’ malapportionment challenge to small

population deviations in Michigan’s congressional

districting plan lacks a strong likelihood of success on

the merits?

2. Did the three-judge district court abuse its

discretion in denying Appellants’ request for

preliminary relief?

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Intervenor-Appellee

Voters Not Politicians states that it has no parent

corporation and no publicly held corporation holds

10% or more of its stock.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

CORPORATE DISCLOSURE STATEMENT ........... ii

TABLE OF AUTHORITIES........................................ v

STATEMENT OF THE CASE ....................................2

SUMMARY OF ARGUMENT .....................................5

STANDARD OF REVIEW ..........................................8

ARGUMENT ............................................................. 10

I.

The district court did not err in concluding

that Appellants’ malapportionment claim

lacked a strong likelihood of success on the

merits. .............................................................. 10

A. The Chestnut Plan’s deviation from

perfect population equality is small. ........ 13

B. The Commission’s interest in preserving

communities of interest is legitimate and

important. .................................................. 13

C. The district court did not clearly err in

finding that the Chestnut Plan

consistently reflects the Commission’s

communities-of-interest goals. .................. 19

D. The district court did not clearly err in

finding that the Commission lacked

alternative plans that would balance

population more closely while preserving

its interests. ............................................... 21

iv

E. The district court did not err in finding

that the Chestnut Plan’s small deviation

was

necessary

to

achieve

the

Commission’s

communities-of-interest

goals. .......................................................... 22

II. The equities support the district court’s

denial of a preliminary injunction. ................. 26

CONCLUSION .......................................................... 27

v

TABLE OF AUTHORITIES

Cases :

Page

Abrams v. Johnson, 521 U.S. 74 (1997).............. 14, 16

Ashcroft v. American Civil Liberties Union,

542 U.S. 656 (2004) ................................................ 9

Benisek v. Lamone, 138 S Ct. 1942 (2018).................. 9

Bethune-Hill v. Virginia State Board of Elections,

137 S. Ct. 788 (2017) ............................................ 14

Bethune-Hill v. Virginia State Board of Elections,

141 F. Supp. 3d 505 (E.D. Va. 2015) ................... 17

Carstens v. Lamm,

543 F. Supp. 68 (D. Colo. 1982) ........................... 15

Cooper v. Harris, 137 S. Ct. 1455 (2017) .................... 9

Easley v. Cromartie, 532 U.S. 234 (2001) ................. 26

Favors v. Cuomo, No. 11-CV-5632,

2012 WL 928223 (E.D.N.Y. 2012) ....................... 17

Karcher v. Daggett, 462 U.S. 725 (1983) .......... passim

Kirkpatrick v. Preisler, 394 U.S. 526 (1969)....... 11, 25

League of United Latin American Citizens v. Perry,

548 U.S. 399 (2006) .............................................. 14

Mazurek v. Armstrong, 520 U.S. 968 (1997) .............. 9

Purcell v. Gonzalez, 549 U.S. 1 (2006) ........................ 9

Stone v. Hechler, 782 F. Supp. 1116 (N.D.W. Va.

1992) ..................................................................... 13

Tennant v. Jefferson County Commission,

567 U.S. 758 (2012) ................ 4, 6, 7, 11, 13, 14, 23

vi

Wesberry v. Sanders, 376 U.S. 1 (1964) ................ 6, 10

White v. Weiser, 412 U.S. 783 (1973) ........................ 11

Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008) ................................................ 5, 9

Statutory Provisions:

Fed. R. Civ. P. 52 ......................................................... 9

Mich. Const. art. IV .................................................... 2

§ 6 .......................................................................... 2

§ 6(1)(b) .................................................................. 2

§ 6(1)(c) .................................................................. 2

§ 6(2) ...................................................................... 2

§ 6(8) ................................................................ 3, 16

§ 6(9) ................................................................ 3, 16

§ 6(10) .................................................................. 16

§ 6(11) .................................................................... 3

§ 6(13) .................................................................... 3

§ 6(13)(c) .............................................................. 15

§ 6(14)(b) .............................................................. 16

§ 6(14)(c) ................................................................ 3

Other Materials:

11A C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure § 2948 (2d ed.1995) ........ 9

2018 Michigan Election Results, Michigan Secretary

of State (Nov. 26, 2018),

https://mielections.us/election/results/2018GEN_C

ENR.html .............................................................. 2

Redistricting Criteria, National Conference of State

Legislatures (July 16, 2021),

https://www.ncsl.org/research/redistricting/redist

ricting-criteria.aspx ............................................ 15

vii

Redistricting Public Comment Portal, Michigan

Independent Redistricting Commission,

https://www.michigan-mapping.org ................... 20

Who applied?, Michigan Independent Redistricting

Commission, https://www.michigan.gov/micrc//media/Project/Websites/MiCRC/MISC1/Whosapplying.jpg?rev=0787ca5af1e94068a2d2b5

c60d5db29e&hash=0B8D9CCD7F614A2695A191

4820954F96 ........................................................... 2

1

INTRODUCTION

In 2018, the people of Michigan overwhelmingly

approved a constitutional amendment sponsored by

Intervenor-Appellee Voters Not Politicians creating

an independent redistricting commission. The

amendment eliminated the influence of selfinterested politicians and instead placed the power to

draw lines in the hands of thirteen Michigan

citizens—selected at random—from across the

political spectrum. The amendment required a robust

public

input

process,

prohibited

partisan

gerrymandering, and required careful attention to

communities of interest.

That groundbreaking reform resulted in one of the

most transparent and responsive redistricting

processes in history, yielding a congressional map

drawn with the primary goal of responding to as many

public comments regarding communities of interest as

feasible—a map that achieved support from all

corners of the political spectrum among the

commissioners. It is a model for the rest of the

country.

Unhappy with that outcome, Appellants filed suit

in federal court, seeking to create a federal cause of

action from their disagreement with how the

Commission applied the state law redistricting

priorities and alleging that the 0.14% overall

population deviation violates the federal Constitution.

The district court properly dismissed the first claim

and did not err in denying a preliminary injunction

regarding the second. Appellants have offered no

argument to show how the district court erred as

2

matter of law or clearly erred in its factual

determinations. The Court should summarily affirm

the decision of the district court.

STATEMENT OF THE CASE

1. In 2018, Michigan’s voters approved—by a wide

margin1—a constitutional amendment establishing

an independent redistricting commission sponsored

by Intervenor-Appellee Voters Not Politicians. App.

240a. The Commission consists of thirteen randomly

selected registered voters, including four who identify

as Democrats, four who identify as Republicans, and

five who identify as unaffiliated with either major

political party. Mich. Const. art. IV, § 6. The

amendment ensured a robust recruitment effort so

that all areas of the state would be represented among

the applicants. Id. § 6(2). This cycle, more than 9,000

Michiganders applied to serve as commissioners. 2 The

amendment prohibited those with conflicts of interest

related to redistricting—e.g., candidates, legislators,

lobbyists, and their close family members—from

serving on the Commission. Id. § 6(1)(b)-(c).

After the thirteen commissioners were selected,

the Commission was required to hold ten public

1 2018 Michigan Election Results, Mich. Sec’y of State (Nov. 26,

2018), https://mielections.us/election/results/2018GEN_CENR.

html (reporting 61.28% approval for State Proposal 18-2: Voters

Not Politicians).

Who applied?, Mich. Indep. Redistricting Comm’n,

https://www.michigan.gov/micrc/-/media/Project/Websites/MiC

RC/MISC1/Whos-applying.jpg?rev=0787ca5af1e94068a2d2b5

c60d5db29e&hash=0B8D9CCD7F614A2695A1914820954F96

(last visited Sept. 22, 2022).

2

3

hearings throughout the state prior to drafting any

redistricting plan proposals. Id. § 6(8). At least five

additional public hearings about the proposed plans

were required, id. § 6(9), and the commissioners were

prohibited from discussing redistricting matters

outside the context of public hearings. Id. § 6(11). The

amendment

established

redistricting

criteria,

including complying with federal law, geographic

contiguity, respecting communities of interest—

including “populations that share cultural or

historical characteristics or economic interests,”

avoiding maps with a disproportionate advantage to

any political party, rejecting incumbent protection,

adherence to political subdivision boundaries, and

reasonable compactness. Id. § 6(13).

The amendment’s voting system ensures that the

plans ultimately selected by the Commission have

broad support. To be adopted, a plan must have

majority support—including by receiving the votes of

at least two commissioners from each group—

Democratic, Republican, and unaffiliated. Id.

§ 6(14)(c).

2. Before drawing any plans, the Commission

held sixteen public hearings across Michigan. App.

241a. After the drawing began, more than 120

additional public hearings were held. App. 241a. The

Commission took public testimony and amassed a

record of thousands of pages. App. 241a. Five

proposed

congressional

plans

drafted

by

commissioners were considered, and the Commission

ultimately adopted the “Chestnut Plan” proposed by

Commissioner Anthony Eid by an 8-5 vote. App. 241a.

4

Commissioner Eid drew the plan with the purpose of

maximally responding to the public comments

received by the Commission in order to respect

communities of interest. App. 241a. That plan had the

smallest overall population deviation of any of the

considered plans—a deviation of 0.14% from the ideal

distribution. App. 242a.

3. Appellants filed suit, alleging two causes of

action: (1) that the plan was malapportioned in

violation of the one-person, one-vote principle because

of its 0.14% overall population deviation, and (2) that

the plan violated the Equal Protection Clause by the

manner in which it aimed to comply with the state

constitution’s requirement that communities of

interest be respected. App. 242a. The district court

concluded that Appellants’ second cause of action—

which bootstrapped state law objections into a federal

Equal Protection claim—presented a nonjusticiable

political question because it “rest[ed] upon the

plaintiffs’ own notions of political fairness.” App. 238a.

Appellants moved for a preliminary injunction on

their malapportionment claim, which the district

court denied. App. 251a. Applying the legal

framework articulated by this Court in Tennant v.

Jefferson County Comm’n, 567 U.S. 758 (2012) (per

curiam) and Karcher v. Daggett, 462 U.S. 725, 730

(1983), the district court first concluded that the

0.14% deviation was small—five times smaller than

the deviation approved by this Court in Tennant. App.

245a. Moreover, the court concluded that the

Commission’s aim to preserve communities of interest

was legitimate and a goal “employed by more than 20

5

states.” App. 246a. In addition, the district court

reasoned that the record evidence proved that the

Chestnut Plan advanced the Commission’s interest in

preserving communities of interest, with detailed

testimony and supporting public record comments

supporting that factual finding. App. 246a. Finally,

the court observed that Appellants had not shown any

alternative plan that would preserve communities of

interest while achieving a lower population deviation.

App. 248a. Indeed, Appellants acknowledged their

alternative map paid no heed to the Commission’s

communities-of-interest priorities. Supp. App. 19;

App. 248a. 3

The court weighed the facts in light of the

Karcher-Tennant framework and concluded that

Appellants had not shown a likelihood of success on

the merits. App. 250a. Moreover, the court concluded

that the public interest weighed in favor of denying a

preliminary injunction. App. 251a.

SUMMARY OF ARGUMENT

Appellants failed to carry their burden in the

district court to obtain the “extraordinary remedy”

they sought. Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 24 (2008).

The three-judge district court did not err in

concluding that Appellants’ malapportionment claim

lacked a strong likelihood of success on the merits.

The U.S. Constitution requires “equal representation

for equal numbers of people” in the apportionment of

3 “Supp. App.” in this brief refers to the Supplemental Appendix

being submitted with the brief filed by the Commission.

6

congressional districts. Wesberry v. Sanders, 376 U.S.

1, 18 (1964). However, the one-person, one-vote

principle does not mandate “precise mathematical

equality,” requiring only that “districts be apportioned

to achieve population equality as nearly as

practicable.” Karcher v. Daggett, 462 U.S. 725, 730

(1983) (quoting Wesberry, 376 U.S. at 18). A state may

justify slight deviations by showing that they are

necessary to achieve a legitimate state objective. Id.

at 730-31. Courts, including this one, have long

deferred to state policy decisions when fashioning

congressional districts, “so long as they are consistent

with constitutional norms, even if they require small

differences in the population of congressional

districts.” Karcher, 462 U.S. at 740.

To that end, this Court has set out a two-part test

to determine whether a congressional map satisfies

the one-person, one-vote requirement: first, plaintiffs

must show that population differences “could

practicably be avoided,” and if plaintiffs carry that

burden, then the state must “show with some

specificity that the population differences were

necessary to achieve some legitimate state objective.”

Tennant v. Jefferson Cnty. Comm’n, 567 U.S. 758, 760

(2012) (internal quotation marks omitted). The state’s

burden under the second prong is “flexible” and

depends on four factors: “[1] the size of the deviations,

[2] the importance of the State’s interests, [3] the

consistency with which the plan as a whole reflects

those interests, and [4] the availability of alternatives

that might substantially vindicate those interests yet

approximate population equality more closely.”

Karcher, 462 U.S. at 741. “[W]hether deviations are

7

justified requires case-by-case attention to these

factors.” Id. The district court’s denial of the motion

for preliminary relief should be affirmed.

First, the district court below correctly applied

this standard and found that all four factors weighed

in favor of deference to the Commission’s decision to

adopt a plan with minor population deviations to

achieve its legitimate policy objectives. The adopted

congressional districting plan’s deviation from perfect

population equality—a mere 0.14%—is at least five

times smaller than the 0.79% deviation this Court

deemed “small” in Tennant. 567 U.S. at 765.

Second, as the district court correctly concluded,

the Commission’s goal to preserve communities of

interest is among the “undisputedly legitimate”

objectives, App. 246a, that can justify minor

population deviations “consistent with constitutional

norms.” Karcher, 462 U.S. at 740.

Third, after extensive review of the Commission’s

record, including hundreds of the public comments

submitted by Michiganders, the three-judge court in

this case found that the Commission’s “commentdriven” process for identifying and considering

communities of interest was neutral and systematic,

and the plan adopted by the Commission identified

specific community-of-interest goals that motivated

the composition of each of the state’s thirteen

congressional districts, and that the plan was

“consistent throughout in its emphasis on

communities of interest identified in comments.” App.

246a-48a.

Fourth, the Commission lacked alternative plans

8

that would “approximate population equality more

closely” while preserving its communities-of-interest

goals—and Appellants proposed only one alternative

with a lower population deviation, which did not even

attempt to achieve the Commission’s other

constitutionally-mandated objectives. See Karcher,

462 U.S. at 741. In summary, the three-judge district

court correctly concluded that the Commission’s

adopted plan’s population deviations were necessary

to achieve the Commission’s community-of-interest

goals.

Finally, as the district court observed, the public

interest is best served by giving effect to the results of

the districting process that Michigan voters

overwhelmingly supported at the ballot box in 2018.

That process, undertaken by thirteen ordinary

Michiganders of varied political views with input from

hundreds of their fellow citizens, is perhaps the most

transparent in redistricting history, and its results

are consistent with the Constitution’s requirements.

The district court applied the correct legal test,

afforded the Commission appropriate deference, and

its factual findings do not come close to the clear error

standard. The Court should summarily affirm the

district court’s denial of preliminary relief.

STANDARD OF REVIEW

The district court’s denial of preliminary relief is

reviewed for abuse of discretion. Although Appellants

omit any discussion of the standard of review

governing this Court’s consideration of this case, it is

central to this appeal. “A preliminary injunction is an

extraordinary remedy never awarded as of right.”

9

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

24 (2008). A plaintiff is not entitled to a preliminary

injunction, and a district court should not order one,

“unless the movant, by a clear showing, carries the

burden of persuasion.” Mazurek v. Armstrong, 520

U.S. 968, 972 (1997) (quoting 11A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure

§ 2948, pp. 129–130 (2d ed.1995)).

To obtain this “drastic remedy,” id., a plaintiff

must “establish that he is likely to succeed on the

merits, that he is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in

the public interest.” Winter, 555 U.S. at 20. In

election-related cases, other considerations, like the

potential for confusion and disruption to the electoral

process, also factor into the analysis. Purcell v.

Gonzalez, 549 U.S. 1 (2006).

A district court’s denial of a preliminary

injunction is well within its “equitable discretion” and

is reviewed only for an abuse of discretion. Benisek v.

Lamone, 138 S Ct. 1942, 1943 (2018) (per curiam);

Ashcroft v. American Civil Liberties Union, 542 U.S.

656, 664 (2004). This Court may, of course, correct

errors of law, but the district court’s factual

determinations are subject to review only for clear

error and afforded substantial deference. See Fed. R.

Civ. P. 52; Cooper v. Harris, 137 S. Ct. 1455, 1464-65

(2017) (“A district court’s assessment of a districting

plan . . . warrants significant deference on appeal to

this Court.”).

10

ARGUMENT

I.

The district court did not err in concluding

that Appellants’ malapportionment claim

lacked a strong likelihood of success on the

merits.

The district court did not err in concluding that

Appellants were unlikely to succeed on their

malapportionment claim. Article I, section 2 of the

U.S. Constitution “establishes a ‘high standard of

justice and common sense’ for the apportionment of

congressional districts: ‘equal representation for

equal numbers of people.’” Karcher v. Daggett, 462

U.S. 725, 730 (1983) (quoting Wesberry v. Sanders,

376 U.S. 1, 18 (1964)). This one-person, one-vote

principle does not, however, mandate “precise

mathematical equality” among congressional district

populations. Id. It requires “only . . . that districts be

apportioned to achieve population equality ‘as nearly

as is practicable.’” Id. (quoting Wesberry, 376 U.S. at

7-8). In other words, the standard demands not

perfection but a “good-faith effort to achieve

equality”—so slight deviations from absolute equality

are allowed if the state can show that the deviations

were necessary to achieve a legitimate state objective.

Id. at 730-31 (emphasis added).

This focus on practicability and good faith makes

sense. Perfect mathematical equality, though ideal,

“may be impossible to achieve in an imperfect world.”

Id. at 730. And even when achieving absolute equality

is possible, it may not be practicable. State law often

requires map drawers to weigh and evaluate multiple

(sometimes competing) goals when fashioning

11

congressional districts. In keeping with a desire not to

“intrude upon state policy any more than necessary,”

White v. Weiser, 412 U.S. 783, 795 (1973) (internal

citation omitted), this Court has long committed to

“defer to [such] policies, so long as they are consistent

with constitutional norms, even if they require small

differences in the population of congressional

districts.” Karcher, 462 U.S. at 740 (citing White, 412

U.S. at 795-97).

For similar reasons, this Court has declined to

specify a de minimis population variance that would

per se satisfy the one-person, one-vote standard. Id. at

731-35. One concern, of course, is that picking a

specific value would condition states to strive for some

arbitrary number other than equality. Id. at 731.

Another is that a de minimis rule would “excuse

population variances without regard to the

circumstances of each particular case.” Id. at 731

(quoting Kirkpatrick v. Preisler, 394 U.S. 526, 530

(1969)). And “[t]he extent to which equality may

practicably be achieved may differ from State to State

and from district to district.” Kirkpatrick, 394 U.S. at

530.

This Court thus set out a “two-prong test” to

assess whether a congressional map satisfies the oneperson, one-vote requirement. Tennant v. Jefferson

Cnty. Comm’n, 567 U.S. 758, 760 (2012) (citing

Karcher, 462 U.S. at 734). First, the plaintiffs “bear

the burden of proving the existence of population

differences that ‘could practicably be avoided.’” Id.

(quoting Karcher, 462 U.S. at 734). “If they do so, the

burden shifts to the State to ‘show with some

12

specificity’ that the population differences ‘were

necessary to achieve some legitimate state objective.’”

Id. (quoting Karcher, 462 U.S. at 741, 740).

The state’s burden under the second prong is

“flexible” and depends on four factors: “[1] the size of

the deviations, [2] the importance of the State’s

interests, [3] the consistency with which the plan as a

whole reflects those interests, and [4] the availability

of alternatives that might substantially vindicate

those interests yet approximate population equality

more closely.” Karcher, 462 U.S. at 741. “[W]hether

deviations are justified requires case-by-case

attention to these factors.” Id.

Appellants do not—nor could they—contend that

the three-judge district court employed the wrong

legal standard. See App. 244a-45a. Indeed, the court

examined each step of the analysis set forth in

Karcher and Tennant, first assuming (to plaintiffs’

benefit) that they had satisfied the first prong. App.

245a. The district court then found that each of the

four factors above weighed in the Commission’s favor,

warranting a deferential view of the Commission’s

justifications for the minor population deviation in the

map. App. 245a. And finally, after closely reviewing

the evidence, the district court found that plaintiffs

lacked a strong likelihood of success on the second

prong because the “overwhelming weight of the

record” showed the Chestnut Plan’s slight population

deviations were “necessary to achieve” the

Commission’s legitimate goal of maintaining

communities of interest. App. 250a.

Appellants object to certain factual findings of the

13

three-judge court, namely that the Chestnut Plan

reflects consistent application of the Commission’s

legitimate goal to preserve communities of interest,

and that the Plan’s minor population variation was

necessary to achieve the goal. Neither objection merits

reversal.

A. The Chestnut Plan’s deviation from

perfect population equality is small.

First, Appellants do not dispute the district

court’s finding, as to the first factor, that the Chestnut

Plan’s population deviation of 0.14% is small. App.

245a. As the district court explained, 0.14% is at least

five times smaller than the 0.79% deviation this Court

deemed “small” in Tennant. 567 U.S. at 765. In that

case, this Court unanimously reversed the district

court’s decision enjoining West Virginia’s 2012

congressional map because the lower court “had failed

to afford appropriate deference” to the state’s

justifications for such a minor deviation. Id. at 759.

Because the size of the Chestnut Plan’s deviation here

is smaller still, “the [Commission’s] burden to justify

the population deviations is correspondingly light.”

Stone v. Hechler, 782 F. Supp. 1116, 1128 (N.D.W. Va.

1992) (citing Karcher, 462 U.S. at 741) (upholding a

congressional plan with population deviance of

0.09%).

B. The Commission’s interest in preserving

communities of interest is legitimate and

important.

Second, the three-judge district court correctly

concluded that the Commission’s goal to preserve

communities of interest is among the “undisputedly

14

legitimate” objectives that can

population deviations. App. 246a.

justify

minor

Legitimate goals that can justify minor population

deviations include valid neutral redistricting criteria

that are “consistent with constitutional norms.”

Karcher, 462 U.S. at 740-41. “Any number of

consistently applied legislative policies might justify

some variance, including, for instance, making

districts compact, respecting municipal boundaries,

preserving cores of prior districts, and avoiding

contests between incumbent[s].” Id. at 740. This list is

“not exclusive.” Tennant, 567 U.S. at 764.

The Commission’s goal to preserve communities of

interest is a neutral redistricting criterion well within

constitutional norms. Indeed, this Court has

repeatedly

identified

communities-of-interest

preservation as among the “traditional redistricting

criterion” that are legitimate goals in drawing

districts. See, e.g., Bethune-Hill v. Virginia State Bd.

of Elections, 137 S. Ct. 788, 795 (2017); League of

United Latin Am. Citizens v. Perry, 548 U.S. 399, 433

(2006). And more to the point, in Abrams v. Johnson,

this Court held that a court-drawn congressional

plan’s 0.35% population deviation could be justified in

part by adherence to traditional redistricting criteria,

including “communities of interest.” 521 U.S. 74, 99100 (1997).

The importance of preserving communities of

interest is apparent from the fact that at least 20

states, including Michigan, require some attention to

15

this goal in devising congressional districts. 4 This is

because respecting communities of interest is good

redistricting policy. When a state strives to identify

and keep whole communities that “share common

concerns,” it helps to ensure that Congress reflects the

diverse array of interests in that state and thereby

advances the Constitution’s fundamental goal of fair

and effective representation. See, e.g., Carstens v.

Lamm, 543 F. Supp. 68, 91 (D. Colo. 1982) (“[A] plan

which provides fair and effective representation . . .

must identify and respect the most important

communities of interest in the state.”). In Michigan,

the state constitution requires the Commission to

consider “the state’s diverse population and

communities of interest” as one of several districting

criteria, following, in priority order, compliance with

federal law (i.e., the one-person, one-vote rule and the

Voting Rights Act) and contiguity. Mich. Const. art.

IV, § 6(13)(c). The state constitution defines

communities of interest as “populations that share

cultural or historical characteristics or economic

interests.” Id.

This communities-of-interest criterion holds

special importance in Michigan’s unique system of

congressional redistricting, not only because it takes

priority over most other criteria, see id., but also

because of its relationship to the extensive public

input and participation that must be solicited during

the process. The Michigan Constitution requires that

4 See Redistricting Criteria, Nat’l Conf. State Legislatures (July

16, 2021), https://www.ncsl.org/research/redistricting/redistrict

ing-criteria.aspx.

16

the Commission hold at least 10 public hearings

throughout the state to gather input on potential

plans before drafting any maps. Id. § 6(8). After

developing proposed plans, the Commission must

solicit public comment at another five hearings

throughout the state. Id. § 6(9). And before voting to

adopt a plan, the Commission must provide another

45 days for public comment. Id. § 6(14)(b). No

Commission business can occur outside of open

meetings, and all hearings must be conducted “in a

manner that invites wide public participation

throughout the state.” Id. § 6(10). Unsurprisingly, the

district court found that the Commission received

thousands of public comments solicited at more than

135 meetings, which it used to identify and prioritize

communities of interest to keep whole. See App. 241a;

247a (finding that Michigan conducted a “commentdriven redistricting process”).

Contrary to the foregoing authority establishing

the importance of communities-of-interest criteria in

Michigan and elsewhere, Appellants appear to

contend that no communities-of-interest criterion can,

as a matter of law, justify population variation

because courts are unable to ascertain whether the

criterion has been applied consistently. This

argument defies relevant precedent and common

sense.

As an initial matter, this Court has already held

that preserving communities of interest is among the

valid, neutral policies that can justify minor

population deviations. See Abrams, 521 U.S. at 99100. This is in accordance with the Court’s express

17

command in Karcher to keep the field of possible

justifications open and flexible. See 462 U.S. at 740.

The only legal authorities Appellants cite on this

point are two lower court decisions—one unreported,

and neither groundbreaking. In Favors v. Cuomo, the

three judge-district court reviewing New York’s 2010

court-drawn

congressional

plan

noted

that

communities-of-interest choices are less “evident on a

map” and more subject to political judgment but did

not suggest they are unascertainable. To the contrary,

the court acknowledged its ability to verify that the

court-drawn plan had achieved its limited goal to

respect “certain widely recognized, geographically

defined communities.” No. 11-CV-5632, 2012 WL

928223, at *5 (E.D.N.Y. 2012). The three-judge court

in Bethune-Hill v. Virginia State Board of Elections

explained, while evaluating a racial gerrymandering

claim, that the boundaries of a community of interest

may be more or less discernable depending on how

concretely and objectively communities are defined

and identified. Bethune-Hill v. Virginia State Bd. of

Elections, 141 F. Supp. 3d 505, 539 (E.D. Va. 2015),

vacated and affirmed in part, 580 U.S. 178

(nonetheless affirming

that

preservation of

communities of interest is a neutral traditional

redistricting criterion).

Furthermore, communities-of-interest criteria are

not, as Appellants claim, “inherently susceptible to

inconsistent application.” To be sure, communities-ofinterest criteria (like other redistricting criteria) can

be defined and applied in a way that is unclear,

inconsistent, or discriminatory, but they can also be

18

applied clearly, systematically, and fairly. Courts are

well equipped to tell the difference based on an

evidentiary record that includes information about

how the map drawer defined and considered

communities of interest. Indeed, the three-judge court

in this case was able to do just that, based on evidence

regarding the Commission’s use of public comments to

systematically identify and prioritize communities of

interest. See infra. The evidence used to evaluate a

map drawer’s application of communities-of-interest

criteria may be less quantitative than evidence used

to assess other redistricting criteria (e.g.,

compactness), but this does not render communitiesof-interest

determinations

inherently

unascertainable.

Respecting communities of interest is not unlike

the other neutral criteria that this Court has held may

legitimately justify minor population deviations.

Consider, for example, the interest in preserving

district cores. See Karcher, 462 U.S. at 740. What

qualifies as the core of a prior district? How is a

district’s core identified? Given shifting populations,

how did the legislative map drawer identify which

district cores to preserve? The fact that these

questions may demand answers that are within the

map drawer’s knowledge and discretion does not

disable a court from accessing this information

(through testimony, for example) and reasonably

ascertaining whether the interest was applied

consistently

and

justifies

minor

population

deviations.

In sum, Appellants’ objections to considering

19

communities of interest a legitimate state objective in

one-person, one-vote claims fails. The district court’s

determination on the second factor was not in error.

C. The district court did not clearly err in

finding

that

the

Chestnut

Plan

consistently reflects the Commission’s

communities-of-interest goals.

As to the third factor, the district court did not

clearly err in finding that the Commission

consistently applied its communities-of-interest

criterion and that the Chestnut Plan consistently

reflects this goal. See App. 246a; Karcher, 462 U.S. at

741.

The Commission’s “comment-driven” process for

identifying and considering communities of interest

was neutral and systematic. App. 247a-48a. As the

district court found, the Commission identified and

defined communities of interest based on the weight

of public comments submitted to the Commission

during the redistricting process. App. 241a, 243a. In

accordance with its obligations under the Michigan

Constitution, the Commission held sixteen public

hearings around the state before drawing any

congressional maps to collect such input, and “upward

of 120 . . . more” while drafting maps. App. 241a.

During this time, Michigan residents from across the

state could also submit comments identifying

communities of interest on the Commission’s online

public comment portal, which included a feature that

enabled commenters to draw a geographic boundary

for the community in question and provide a narrative

20

description. App. 151a, ¶ 7. 5

Before drawing congressional maps, the

Commission hired the MGGG Redistricting Lab to

produce a report summarizing community-of-interest

information in public comments received between

March and August of 2021. See ECF 61-10,

PageID.1796. The report included a description of

community-of-interest “clusters” that emerged from

grouping similar public comments, a link to those

submissions, and a heat map indicating the

geographic area of the identified community. See, e.g.,

ECF 61-10, PageID.1798. The report was intended to

provide commissioners an easy-to-reference synthesis

of the communities identified by the Michigan public

while drawing maps.

The Commission relied on this report and the

underlying

public

commentary

to

identify

communities of interest while drawing and editing

congressional plans. Commissioner Eid attested to

using the community-of-interest heat maps to draft

the Chestnut Plan, App. 140a, ¶ 4, and referred to

community-of-interest

clusters

repeatedly

in

discussing the Chestnut Plan with his fellow

commissioners. See ECF 61-11, PageID.1968-79.

In reviewing Commissioner Eid’s declaration in

this case, the district court found that he had

identified specific communities-of-interest goals that

motivated each of the state’s thirteen districts in the

See Redistricting Public Comment Portal, Mich. Indep.

Redistricting Comm’n, https://www.michigan-mapping.org (last

visited Sept. 22, 2022).

5

21

Chestnut Plan. App. 246a; see also App. 140a-48a, ¶¶

5-28. The court acknowledged that the Chestnut Plan

could not preserve every community of interest and

necessarily reflected tradeoffs, but found that the

Commission reasonably prioritized preserving

communities of interest in every region of the state

based on the weight of comments behind them. App.

247a (noting that “in different districts, different

types of communities might predominate”). Thus, the

court found that the Chestnut Plan was “consistent

throughout in its emphasis on communities of

interest[] identified in comments.” App. 247a-48a. The

record strongly supports this finding, and Appellants

do not identify how the district court’s conclusion in

this regard was the product of clear error.

D. The district court did not clearly err in

finding that the Commission lacked

alternative plans that would balance

population

more

closely

while

preserving its interests.

Fourth, the district court did not clearly err in

finding that the Commission lacked alternative plans

that would “approximate population equality more

closely” while preserving its communities-of-interest

goals. Karcher, 462 U.S. at 741. In addition to the

Chestnut Plan, the Commission drafted and

published for notice and comment four other plans

(the Apple, Birch, Lange, and Szetela Plans). ECF 6111, PageID.1992. Each of these alternatives had

substantially larger population deviations, ranging

from 0.22% to 0.48%. Id.

Plaintiffs, for their part, offered only one

22

alternative plan at the time they filed suit. Though

their plan had a lower population deviation, it bore

very little resemblance to the Commission’s enacted

plan. See App. 157a, 175a-89a. In his declaration,

Commissioner Eid noted significant departures in this

alternative plan from the Commission’s specific

community-of-interest goals for eleven out of thirteen

districts. App. 141a-48a, ¶¶ 7, 9, 11, 13, 15, 17, 19, 21,

23, 25, 27. Commissioner Eid went on to attest, and

the district court agreed, that the Plaintiffs’

alternative plan made no effort whatsoever to achieve

the Commission’s communities-of-interest goals. App.

148a, ¶ 32; App. 248a. Indeed, at oral argument,

counsel for Appellants acknowledged that their

alternative plan was submitted in connection with the

legal claim the district court dismissed (which is not

the subject of this appeal), and not in support of their

malapportionment claim. See Supp. App. 48. The

district court therefore correctly found that the fourth

and final factor in the Karcher analysis, like the

others, favored deference to the Commission’s

legitimate communities-of-interest objectives.

E. The district court did not err in finding

that the Chestnut Plan’s small deviation

was

necessary

to

achieve

the

Commission’s

communities-of-interest

goals.

The district court did not err in finding that the

plan’s small population deviation was necessary to

achieve the Commission’s communities-of-interest

goals. Under Karcher and Tennant, the state must

“show with some specificity” that the population

23

differences “were necessary to achieve some

legitimate state objective.” Karcher, 462 U.S. at 74041. The state cannot “simply rely[] on general

assertions,” but the required weight and specificity of

the state’s showing ultimately depends on the court’s

analysis of the four factors discussed above. Id. at 741.

The state bears a lighter burden (and a court is thus

more willing to defer) when the deviations are small;

the state’s interests are important and consistently

applied across the plan as a whole; and the state

lacked alternatives that could achieve those interests

with lower population deviation. See Tennant, 567

U.S. at 760, 765.

In Tennant, this Court unanimously reversed a

three-judge district court where it “failed to afford

appropriate deference to West Virginia’s reasonable

exercise of its political judgment.” 567 U.S. at 759.

There, West Virginia argued that its minor 0.79%

deviation was necessary to keep counties whole, avoid

pairing incumbents, and retain prior district cores. Id.

at 761-62, 764. The Court faulted the district court for

questioning these legitimate objectives “given the

small ‘size of the deviations’” and the apparent

consistency with which the state’s plan reflected its

desire to preserve cores and keep counties whole. Id.

at 765.

Here, having found that the Chestnut Plan’s even

smaller deviations resulted from adherence to

similarly important state interests that were

meticulously and systematically applied across the

whole plan with no better alternatives, the district

court appropriately concluded that Commission was

24

entitled to at least the same level of deference applied

in Tennant. App. 249a.

That said, the district court did not really defer in

practice. The court closely examined Commissioner

Eid’s declaration, finding that it had “specifically

identified the communities of interest that it sought

to maintain in each district.” App. 249a. And although

the declaration was sufficient evidence of the

Commission’s goals, the district court directed the

parties to produce further record evidence supporting

or refuting Commissioner Eid’s representations,

including every single public comment that identified

the communities that the Commission sought to

preserve in each district. App. 243a. The Commission

produced a 787-page appendix that includes 546 such

comments, as well as several legislative record

documents and meeting transcripts showing how the

Commission defined communities of interest and used

communities-of-interest data in real time to draft and

consider the Chestnut Plan. See ECF 61, PageID.1161

(identifying parts of the record).

The Commission’s robust record stands in

contrast to the records found lacking in Karcher and

Kirkpatrick. In Karcher, the New Jersey legislature

failed to justify a 0.698% population deviation based

on its stated desire to protect minority voting

strength. 462 U.S. at 742. New Jersey offered evidence

of its desire to advance this goal in just a single

district, and the record was “silent” as to why

preserving minority voting strength in that district

required population deviations in far-away districts.

Id. at 743. By contrast, the Commission provided the

25

district court testimonial and documentary evidence

explaining how it defined communities of interest

based on the weight of public comments and explained

with specificity how those comments led it to prioritize

certain communities in every district that had slight

population deviations. The Commission’s record is

also plainly better than Missouri’s in Kirkpatrick,

where the state “made ‘no attempt’ to account for the

same factors in all districts” to explain its whopping

5.97% deviation, and “generally failed to document its

findings thoroughly and apply them ‘throughout the

State in a systematic, not an ad hoc manner.’”

Karcher, 462 U.S. at 741, 767 (quoting Kirkpatrick,

394 U.S. at 535).

The district court did not shy away from this

record. The court scrutinized every single public

comment submitted by the Commission and found

that the weight of the comments in the legislative

record largely corroborate the communities-ofinterest goals identified in Commissioner Eid’s

declaration. App. 250a. In eight districts where the

Plaintiffs disputed the Commission’s determinations

about which communities to prioritize, the district

court likewise found that the lion’s share of public

input supported those determinations. App. 250a.

Based on “the overwhelming weight of the record”

before it, the district court reasonably concluded that

the Chestnut Plan’s population deviations were

necessary to achieve the Commission’s community-ofinterest goals. App. 250a. To the extent Appellants

dispute this conclusion, they point to no evidence in

the record showing that the district court’s factual

26

findings or evaluation of the record at this early stage

of litigation were clearly erroneous. Easley v.

Cromartie, 532 U.S. 234, 259 (2001) (Thomas, J.,

dissenting) (“Where there are two permissible views

of the evidence, the factfinders choice between them

cannot be clearly erroneous.”) (citation omitted). On

this record, the district court did not abuse its

discretion in denying interlocutory relief for the

Plaintiffs’ failure to show a strong likelihood of

success on the merits.

II. The equities support the district court’s

denial of a preliminary injunction.

Consideration of the equities supports the district

court’s denial of a preliminary injunction. As the

district court observed, the public interest supports

the use of the Chestnut Plan. App. 251a. The people

of

Michigan

overwhelmingly

supported

the

constitutional amendment proposed by Voters Not

Politicians entrusting an independent citizen’s

commission with redrawing congressional lines.

Thirteen ordinary Michiganders of all political views

then embarked on perhaps the most transparent

process in redistricting history, with districts drawn

in direct response to public input. The public interest

is served by giving effect to the results of that process.

This is particularly so when weighed against the

exceedingly minor population deviation to which

Appellants object. Indeed, the deviation is so small

that, in reality, the mere passage of time since the

Census was conducted in 2020 all but guarantees that

a map with zero population deviation would be at least

as unbalanced today. The balancing of the equities

27

tilts decidedly against Appellants.

***

The Court should summarily affirm the district

court’s denial of preliminary relief. There is no

question that the district court applied the correct

legal test and its factual findings do not come close to

the clear error standard. The phrase “don’t make a

federal case out of it” seems tailor-made for this

lawsuit.

CONCLUSION

For the foregoing reasons, the district court’s

decision should be summarily affirmed.

September 30, 2022

Respectfully submitted,

Paul M. Smith

Counsel of Record

Mark P. Gaber

Jonathan M. Diaz

Aseem Mulji

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2200

psmith@campaignlegal.org

Andrew M. Pauwels

Andrea L. Hansen

HONIGMAN LLP

222 N. Washington

Square, Ste. 400

28

Lansing, MI 48933

(517) 484-8282

Counsel for Intervenor-Appellee Voters Not

Politicians