Politics & Policy

How to Steal A State Supreme Court

Goo-goo reforms are hardball partisan politics in disguise.

This November, voters in Michigan may be asked to consider a lengthy ballot initiative to revise the state’s constitution. Proposed by a group called Reform Michigan Government Now, the initiative’s ostensible purpose is to restore efficiency and accountability to Michigan government. A look at the fine print, and a recently disclosed strategy document, reveals something altogether different: A stealth campaign to restructure all three branches of government, including the state judiciary, for partisan advantage.

At first glance, the reform initiative is simply a populist reform. The bullet points on the Reform Michigan Government Now homepage say that the proposal will 1) “Reduce the salaries of executive branch officials, legislators and judges”; 2) “End free lifetime health care for lawmakers and bring their retirement benefits in line with other state workers”; and 3) “Increase transparency by requiring elected officials to disclose their income and assets every year.” So far so good, but this is hardly all the initiative would accomplish.

Buried in the text of the 19,500-word ballot initiative are provisions designed to shift partisan control of every branch of Michigan government, including the state courts. Among other things, the initiative would eliminate two seats on the Michigan supreme court and several more seats on the state Courts of Appeals. The constitutional revisions would also cut the size of the Michigan legislature, rewrite the standards for legislative districting, and adopt controversial election reforms, such as no-excuse absentee voting, which has the potential to increase voter fraud within the state. In all, the initiative would rewrite over two dozen provisions in the Michigan state constitution.

Proponents proclaim the ballot initiative is a bipartisan effort to improve Michigan government, but a recently disclosed strategy document revealed a more partisan agenda. According to a PowerPoint presentation drafted by political consultants working for initiative proponents, the ballot initiative’s primary virtue is its potential to hand control of Michigan government over to the Democratic party for at least a decade.

The presentation was delivered to a union leadership conference this past spring. A graduate student intern at the Mackinac Center for Public Policy, a Michigan-based free-market think tank, discovered the slides on the United Auto Workers Region 1-C website. This discovery revealed a breathtakingly cynical stealth campaign to rewrite the state constitution. As the title slide explains, the plan’s true purpose is “Changing the rules of politics in Michigan to help Democrats.”

Reform Michigan Government Now presents itself as a bipartisan good government initiative that seeks to make government more accountable and efficient. Yet according to the presentation, the real problem facing Michigan is not bloated or inefficient government, but the Democratic Party’s failure to control the state legislature and governor’s office.

In order to ensure pro-Democrat redistricting in 2011-12, the presentation explains, the Democratic party will need to control all three branches of government: the governor’s office, state legislature and the judiciary. According to one slide, control of the supreme court is the “most important,” as the court “can overturn redistricting” done by the political branches. It seems judicial oversight is a particular concern because the traditional state redistricting criteria, such as keeping communities together, are “systematically biased against Democrats.”

Most distressing, and revealing, is how the Reform Michigan Government Now plan “reforms” the state judiciary. Specifically, the ballot initiative selectively alters the composition of Michigan state courts at every level — trial courts, appellate courts, and the supreme court — each by a different standard. The only unifying theme is that each reform will increase the proportion of Democrat-appointed judges.

As in many states, Michigan’s supreme court justices are subject to re-election, giving court critics ample opportunity to seek change through traditional political means. But, the presentation explains, defeating incumbent justices would be costly and difficult. So, rather than promote candidates for the Court who would rubber stamp a pro-Democrat redistricting effort, and seek to have them elected fair and square, initiative proponents want to seize partisan control of the Court in one fell swoop by eliminating two seats and removing two Republican appointees from the Court. This is no accident, as the presentation makes clear when describing the relevant plank in the proposal: “Reduce the number of Supreme Court justices from seven to five; two GOP justices eliminated” (emphasis added).

The proposal would also eliminate eight seats on the state courts of Appeals, six of which are held by Republicans. This, too, is no coincidence, as the slides trumpet that “most” of the judges who would lose their jobs were appointees of former Republican Governor John Engler. But the plan is not about shrinking government down to size, as it would allow the state’s current Democratic governor to place ten new trial judges on the bench.

The PowerPoint presentation explains how the initiative’s cynically hope to exploit voter discontent in order to advance a narrow partisan agenda: “In 2008, use the public’s very negative mood and high level of discouragement about state government (the worst in 25 years) to enact a ballot proposal which comprehensively reforms state government, including changing control of the structural obstacles to Democratic control of state government in 2012-2021.”

Somewhat ironically, the presentation reports that the “very negative mood” among Michigan voters is partly due to tax increases pushed through by the state’s Democratic governor, Jennifer Granholm. Indeed, it is these tax increases, and resulting public upset, that makes Michigan Democrats’ near-term electoral prospects so dim. Hence the need for the stealth strategy outlined in the UAW slides. The presentation explains how key measures can be packaged successfully with more popular reforms — such as cutting politicians’ pay — so as to ensure its passage.

A populist campaign that focuses on “accountability” and “reform,” the presentation’s authors note, should cost only $5 million, “Less than half the cost of trying to beat an incumbent GOP justice.” Yet the plan is also so brazen that it has some Democratic lawmakers upset. One Democrat-appointed judge even called the plan “reverse court packing,” and he did not mean that as a compliment.

Another irony about the Reform Michigan Government Now campaign is that it may have violated state campaign laws, as well. The presentation was prepared in 2007, and utilized polling and focus-group data commissioned earlier that year. Yet the ballot initiative campaign committee did not file with the state until 2008. This violates state campaign finance law disclosure requirements, according to the Michigan Chamber of Commerce, which is planning to file a formal complaint.

Hardball politics and partisan redistricting are nothing new. Republicans have certainly done their fair share. There is also no novelty in pushing redistricting proposals through ballot initiative, or in hard-fought judicial campaigns. What is remarkable here is the brazen effort to sidestep the traditional political process and seize control of the state judiciary so as to advance a blatantly partisan agenda.

There may well be a need for governmental reforms in Michigan, and many of the specific “Reform Michigan Government Now” proposals appear to have some merit. But it also seems quite clear that union activists and others are using this reform initiative to seize a partisan advantage they have been unable to achieve through politics as usual. They are intent on seizing control of Michigan government, including the courts, even if they have to rewrite the state constitution to do it.

– Contributing Editor Jonathan H. Adler is Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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