Roots of State Gridlock Tied to 1961-62 Constitutional Convention

Con-con politics failed to resolve legislative boundary issues

by Dick Olson
April 16, 2010

The legislative gridlock gripping Michigan state government has its origins in the failures of our last state constitutional convention in 1961–62.

Recent budget breakdowns and reapportionment impasses over the past 40-plus years are prime examples of how the politics of the previous con-con failed to provide a good working structure for the future.

A good constitution should stand the test of time, but the constitution adopted by voters in 1963 — Michigan’s fourth — failed in critical areas. Two of the biggest were in the areas of apportioning the Senate and in deciding how all legislative districts would be reapportioned every decade following new census figures.

For example, the new constitution set forth a complicated plan to overcount rural voters and undercount urban voters in apportioning the state Senate: an 80-20 split between population and land. That effort didn’t survive 15 months before the U.S. Supreme Court invalidated the whole scheme.

The U.S. Supreme Court’s ruling in Reynolds v. Sims in June 1964 threw the upcoming Michigan elections into chaos and left election officials shell-shocked. Less than five months before the November elections, district lines had to be redrawn and candidates had to figure out their new districts.

The state Supreme Court, which a few weeks earlier had approved an apportionment based on undercounting urban voters, reversed gears: on June 22, 1964, it approved the Democratic redistricting plan (Austin-Kleiner) based entirely on population.

“The obvious moral,” reflected Dr. Alfred Kelly, a co-director of research at the 1961–62 state convention, is that “ a constitutional convention has to be technically abreast of the latest in constitutional law and, above all, alert to its potential drift and political importance: otherwise much of its work may be swept away.” (Dr. Kelly, a professor of history at Wayne State University, made these comments in a 1996 letter to Professor Albert J. Sturm, co-author of Implementing A New Constitution: the Michigan Experience.)

Remarkably, the language in the Michigan Constitution pertaining to Senate apportionment — the issue that drove the call for the convention in the first place and then consumed more energy than any other — has never been replaced.

Failure to reapportion
To understand the last convention, you have to understand a bit of Michigan constitutional history.

Under the Michigan Constitution of 1908 the legislature was required every 10 years to “rearrange the senatorial districts and apportion anew the representatives among the counties and districts according to the number of inhabitants.”

But in the decades that followed, the state legislature failed to reapportion seats every decade, and as the population shifted from rural to urban areas, huge disparities grew.

Unhappy with the legislature’s failure to redistrict, Michigan labor leader Gus Scholle pushed for a constitutional amendment in 1952 to require enforcement of the 1908 constitution’s call for new apportionment every decade. But Scholle’s plan provoked a counter proposal from the Michigan Farm Bureau, Michigan Chamber of Commerce and Michigan Manufacturers Association to largely freeze the current Senate districts regardless of future population shifts.

Michigan voters in 1952 approved the constitutional amendment to permanently fix the boundaries of Senate districts, which even then had population variances as great as 8 to 1, and rejected the Scholle plan.

In 1958 Democrat G. Mennen Williams won re-election as governor, but his sixth term was soon to be undermined because of what voters had done in 1952.

On a one-person, one-vote standard, Gov. Williams should have been working with a Democratic legislature. Democratic candidates for state Senate had won 1,169,875 votes compared to 1,024,724 for the Republicans, but because of the overweighting of rural voters that was enshrined in the constitution, Republicans held a 22–12 majority in the Senate (there were only 34 Senate districts at the time). And the House, which Democrats statewide had carried by a 58–42 percent margin with over half a million more votes, was tied: each party held 55 seats. This was democracy turned on its head.

Voters Decide on Con-Con
Every 16 years since 1850, Michigan voters have had the right to vote for a convention to discuss, debate and then propose constitutional changes for voter ratification.

This November we get this chance of a generation to rework how Lansing runs.

If we vote yes, we’ll be electing 148 constitutional convention delegates, probably next spring — one from each House and Senate district.

Any revisions that it endorses need to be ratified in a statewide referendum on adopting the new constitution.

In 1959 the resulting gridlock in Lansing led to a huge budget fiasco as the state struggled with an economic recession. Seeing a chance to embarrass Williams, Senate Republicans blocked the governor’s agenda, which included business tax increases, and Michigan faced a cash-flow crisis that led to payless paydays for state employees and brought nationwide scorn to the state.

Michigan voters had not opted for divided government, but that’s what they got. And it didn’t work very well.

Call for convention
That was the political climate in 1961 when huge majorities in Wayne, Macomb, Oakland and Genesee counties (the largest victims of undercounting) overcame the opposition of voters in every other county to call for a constitutional convention.

Leading the fight for the convention was George Romney, then head of American Motors, who formed Citizens for Change with a diverse membership that included Leonard Woodcock from the UAW and Robert McNamara, then a whiz kid at Ford Motor Company. The Junior Chamber of Commerce and the League of Women Voters helped collect signatures to place the call for a con-con on the ballot.

As an industrialist, Romney might seem to have been playing an odd role as a reformer. But Oakland County, where he lived, was as seriously disenfranchised as Wayne County by the apportionment of the Senate. And Romney had big political ambitions.

Opposed to the convention were the manufacturers group, rural interests, and the conservative wing of the Republican Party. The state AFL-CIO, led by Scholle, had a cautious view. It was already behind the court challenge (Scholle v. Hare) arguing that the Senate districts violated the Equal Protection Clause of the U.S. Constitution. While the Michigan Supreme Court had rejected Scholle’s argument in 1960, the case had been appealed to the U.S. Supreme Court, which was indicating interest in taking on the issue (and would render its bombshell verdict in 1964).

The state AFL-CIO was also concerned about the method that would be used to select delegates to the convention. The ballot measure stipulated that there would be 144 delegates; one from each legislative district. But if the districts weren’t set up to reflect the majority will of Michigan voters, then neither would the convention. Labor didn’t want to support a con-con that would end up rejecting major reform efforts.

On April 3, 1961, Michigan voters called for a constitutional convention. Five months later when the delegates were elected, Republicans held control by a margin of 99–45 — even more than the division of the legislature might have indicated.

The convention began October 1, 1961, in Lansing. Romney, elected from Oakland County’s huge, single Senate district, had hoped to become chairman of the convention. At his peak, however, he only had support of about one-third of the Republican delegates, and he ended up as one of three vice chairmen along with Edward Hutchinson, a leader of the rural Republicans, and the lone Democrat, Tom Downs, an attorney for the state AFL-CIO.

In many ways, Romney’s most important ideological adversary wasn’t even a delegate at the convention. It was Scholle, then president of the state AFL-CIO. Scholle had been the driving force for a decade behind the campaign for one man, one vote in Michigan. Romney and Scholle met in a showdown debate on January 9, 1962, in a Lansing forum outside the constitutional convention called by the Central Michigan Chapter of Sigma Delta Chi, the professional society of journalists.

Romney and Scholle didn’t like each other, but they were both pragmatic and effective leaders who played major roles in shaping and defining their respective parties. Romney recognized that apportionment needed to be improved; his constituents in fast-growing Oakland County were badly shortchanged by the 1952 constitutional amendment. But Romney argued that Scholle’s advocacy of one man, one vote was an “extremist” viewpoint. Instead, Romney wanted the House apportioned by population and the Senate apportioned by population and land.

In February 1962 Romney announced his candidacy for the Republican nomination for governor that November, but within a few months he cut a deal with the conservative Republicans that included abandoning his support for apportioning the House by population. Under the terms of that deal, neither legislative chamber would be apportioned strictly by population.

Even before the convention began debating the controversial section on organizing the state Senate, the U.S. Supreme Court on March 26 issued its Baker v. Carr decision announcing it was ending its longstanding hands-off policy on the apportionment of state legislatures.

Most Republicans, including Romney, wanted to replace the 1952 amendment that froze Senate districts with a formula that counted population for 80 percent and area for 20 percent.

In early April, Democrats offered a myriad of alternatives, some constitutionally creative and others that were modifications of existing formulas. They included:

• A proposal for a Senate composed of districts with at least two senators — one from each major party and maybe a third if a new party was able to get 25 percent of the vote — with their voting power in the legislature equal to the percentage of votes they received in the election
• A unicameral legislature
• Reduction of the allowable variation in Senate districts — the Republican plan allowed districts from 75 percent to 125 percent of the norm.

Then on April 23 the Warren Court told the Michigan Supreme Court that in light of Baker v. Carr, the state court should reconsider its 1960 decision rejecting Gus Scholle’s argument for one man, one vote.

The Democrats had one last card to play. On May 11 — the climactic day of the convention — they presented their alternative constitution, which laid out a plan for one man, one vote.

“All of us realize the substitute document submitted today by some Democrats is purely and simply a Gus Scholle attempt to write a constitution with… [a minority] of the delegates to this convention,” complained Republican delegate Robert Blandford from Kent County.

“We all know the actual writing of the AFL-CIO ghost document took place in Detroit. In fact, Gus Scholle is here today seeing to it,” Blandford continued.

While the convention had been civil up to that point, tempers flared. “If Mr. Blandford continues those remarks, I’m going to either punch him in the nose or take him to court. I will not have my integrity impugned,” retorted Melvin Nord, an attorney from Detroit who had done most of the heavy lifting for the Democrats on apportionment issues.

“He looks bigger than me, but I believe I am right,” Nord said.

Blandford responded: “He’d lose on both counts.”

A few moments later Edward Hutchinson, the rural Republican leader, offered a more measured assessment. While he wholly disagreed with the substitute, he complimented the sponsors for offering it because it would set forth on the record what the alternative would have been.

“I know they are not believing that it will be adopted. I know that they offer it in the belief that it will express their views, and I think it should be accepted in that light,” Hutchinson said.

To no one’s surprise, the Democratic substitute lost, 43 ayes to 100 nays. Then Romney arose to sum up the case for the constitution. Summoning the blessing of Benjamin Franklin, he argued that the proposed constitution was an improvement on the old one, and he pointed out that there were substantial areas of agreement between the two proposals. Except, of course, on the makeup of the legislature. When the speechmaking was finally over, the convention voted 99-44 to adopt the proposed new constitution, then adjourned until August 1.

But more drama lay ahead. On July 18, the Michigan Supreme Court, with its new marching orders from the U.S. Supreme Court and defying threats of impeachment from worried Republicans, reversed itself and ruled in favor of Scholle. U.S. Justice Potter Stewart stayed that decision.

As the delegates reconvened on August 1 for one final wrap-up, they had to consider the issue one more time. But after a short discussion of the new legal climate — and a warning from Attorney General Frank Kelley that the language would be “continuing the senatorial districts that our court has struck down as invidiously discriminatory” — they reaffirmed their support for the new constitution.

The document still had to go before the voters. The Republican Party, the League of Women Voters and many groups behind the original campaign for a convention urged a yes vote. The Democratic Party and the Michigan AFL-CIO campaigned against it.

Romney, having been elected governor the previous November, stumped the state for ratification and on April 1, 1963, Michigan voters approved the new constitution 810,860 to 803,436 — a narrow margin of 7,424 votes.

Many rural counties, which had opposed the convention, voted for the constitution. But voters in Wayne County, which had supplied 42 percent of the vote to call the convention in the first place, voted against the final product by almost 50,000 votes. Voters in Oakland County followed Romney’s lead.

But the final bell had not sounded.

One man, one vote
Fifteen months later, of course, the U.S. Supreme Court ruled in its landmark Reynolds v. Sims that both houses of a state legislature must be apportioned by population. “Legislators represent people, not trees or acres,” wrote Chief Justice Earl Warren. “To sanction minority control of state legislative bodies would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result,” he wrote.

Romney and others who wanted rural voters to be overcounted pointed to the U.S. Senate to justify their position. But Warren argued that the federal analogy was irrelevant. While the composition of Congress reflected a necessary compromise in the creation of the country, he said, “Political subdivisions of States — counties, cities, or whatever — never were and never have been considered as sovereign entities.”

Finally a winner could be declared in the debate that had raged for so many months in Lansing. The court decision “amounted to complete victory for state AFL-CIO President August Scholle and his one-man, one-vote philosophy,” declared the Detroit Free Press.

There was no need to feel sorry for Romney. Though he had not ultimately prevailed on the one-man, one-vote debate, he was governor, soon to be elected to a second term, and in position to launch a bid for the presidency itself.

So how did things turn out under the one-man, one-vote rule?

The political changes were major and swift. Yet in a few years it was clear that apportionment is not destiny.

The Democratic redistricting plan (Austin-Kleiner) finally adopted by the Michigan Supreme Court created ultra-equal Senate districts beginning in 1964; the largest included 207,094 people, the smallest had 205,069. That was in sharp contrast to the 1962 elections, where the largest district (Oakland County) had 690,603 people, the smallest (Baraga, Houghton, Keweenaw and Ontonagon counties) had a mere 55,806.

And the Austin-Kleiner plan proved fair not just to Democrats in 1964 when they won 57.9 percent of the popular vote and 58.0 percent of the Senate seats, but fair to Republicans in 1966 when they took 51.3 percent of the statewide popular vote and earned 52.6 percent of the Senate seats.

Apportionment
Intertwined with the state Senate issue was the apportionment process. The new constitution set up a commission to make the decision. But continually, this commission was unable to decide and tossed the controversy to the Michigan Supreme Court. That happened in 1964, as well as after the 1970 census and again after the 1980 census.

Asking the Supreme Court to handle apportionment turned elections to the Supreme Court into all-out partisan war.

Unconstitutional Sections
Besides the sections dealing with the state Senate and reapportionment of the state legislature, other parts of the Michigan Constitution violate the U.S. Constitution:

• Voting age. Michigan’s constitution says the minimum voting age is 21. The 26th Amendment to the U.S. Constitution now says it’s 18.
• County board apportionment. Requiring one county board member from each organized township violates the equal protection clause of the U.S. constitution.
• Property ownership requirement. Article II, Section 6 restricts the right to vote on certain tax limitations and bond issues to property owners. This section violates the equal protection clause of the 14th amendment to the U.S. Constitution.
• Prohibition of public aid to nonpublic schools. The Michigan Supreme Court has ruled that part of the 1970 amendment violates free exercise of religion and equal protection of laws.
• Exclusionary rule. Constitutional delegates in 1962 were warned that part of Article I, Section 11, dealing with evidence obtained by law enforcement, was unconstitutional, but they passed it anyway.
• Term limits on federal officials. This unconstitutional section was added by Michigan voters in a referendum in 1992. Only an amendment to the U.S. Constitution can impose such limitations.

Finally, in 1982 the Michigan Supreme Court invalidated the reapportionment commission and threw the issue back to the state legislature. Thus, like the Senate provisions of the constitution, the apportionment language is deadwood within the document.

Along with budget issues, reapportionment issues are prone to gridlock when each house of the legislature is controlled by a different political party. That happened again in 1991–92 when John Engler was governor.

But what happens instead when one party controls the governor’s office, the House and the Senate during apportionment? That happened after the 2000 census when Republicans were in complete control, and the results were extremely partisan — violating what James Madison called the vital principle of republican government: “the will of the majority.”

In 2006 Jennifer Granholm coasted to re-election with over 56 percent of the vote statewide. Almost 54 percent of Michigan voters chose Democrats for the Michigan Senate in 2006, yet Republicans won 21 of 38 seats, giving them the power to throw government into gridlock — which they did.

The situation is eerily similar to 1958 when Michigan voters overwhelming voted for G. Mennen Williams and a Democratic Senate but ended up with Republican control of the upper chamber.

New convention
If Michigan’s political crisis has its roots in the failures of the 1963 constitution, what issues could a new convention address?

The simplest response to the unconstitutional sections still within the current constitution would be to codify in the constitution the statutes and court decisions that are substituting for constitutional language. Yet that would be missing an opportunity to really fix Lansing gridlock.

Last October in his column in Dome, Craig Ruff courageously and provocatively argued for Michigan adopting a parliamentary system as a cure for “the tyranny of paralysis.” Short of totally throwing out the American system of checks and balances, a Michigan constitutional convention might want to consider a modification of the checks-and-balances approach by revisiting the issue of a unicameral legislature (see Ruff’s earlier Dome column: “Abolish One Legislative Chamber”).  

While the 1961–62 convention considered and rejected a unicameral legislature, that was before the 1964 U.S. Supreme Court ruling that both houses of a state legislature must be apportioned by population.

In 1962 George Romney argued it would be “ridiculous” for both houses of a bicameral legislature to be apportioned identically. Given that now both houses of a state legislature must be apportioned by population, Romney’s argument can be stood on its head. Why now have two?

But if Michigan voters are unwilling to break with tradition this dramatically, there are ways to modify the bicameral model. We could change the constitution so that a governor could call a joint session of the legislature to resolve a budget impasse — each legislator would have one vote, and the lieutenant governor would both preside and have the ability to break a tie. But this is a question for a convention to consider.

Michigan’s lack of fair standards for apportionment has undermined the basic concept of majority rule. The biggest problem with gerrymandering is not funny-shaped districts or even incumbent protection. Instead, it is legislatures that do not reflect the majority of voters on election day.

In Michigan that happens too often. Besides the 2006 Senate elections, Republicans gained control of the House in 2000 and 2004 despite receiving fewer votes statewide than Democratic candidates.

Unlike other states, Michigan’s constitution is deficient in another area. It provides no procedures or standards for congressional redistricting.

Because of gerrymandering, Republicans kept control of the Michigan congressional delegation in 2002 and 2006 despite more votes statewide for Democratic candidates. Aside from the impact on votes in Washington, D.C., this is significant because if no candidate for U.S. president receives a majority of electoral votes, the election is decided by the House of Representatives. Each state gets one vote. So a congressional delegation elected with a minority of votes statewide could throw Michigan’s vote behind the candidate who ran second. Through the alchemy of gerrymandering, losers become winners.

And gerrymandering is hardly the province of one party. Already there are maps being drawn to show how Democrats could take all but three congressional districts in Michigan after the current census.

Will it happen?
What are the chances Michigan voters will approve a constitutional convention?

The Michigan Chamber of Commerce and the Michigan Education Association both oppose another convention. And the Chamber successfully led campaigns in 1978 and 1994 to not hold constitutional conventions when the issue was on the ballot.

The Chamber raises issues like the cost of holding a convention, but a constitution that created a unicameral legislature would easily pay for itself in a year or two. Other reform proposals, such as Clarkson attorney Henry Woloson’s support for a part-time legislature, also would easily pay for the one-time cost of a convention.

The Chamber seems most worried that a constitutional convention would overturn the current constitutional prohibition of a graduated income tax. Organized labor worries about right-to-work changes. But neither seems probable. Michigan voters have soundly defeated efforts to allow for a graduated income tax, and even the 1962 largely Republican convention didn’t advocate right-to-work changes.

A convention in 2011 would have advantages over the 1962 convention. The constitutional principle of one person, one vote is firmly established. That debate, which so bitterly divided the last convention, is settled.

While there is no one dominant personality like Romney to embody the call to convention, that also has a plus side. In 1962 Romney’s political ambitions, and the deal he made with the old-guard Republican leaders, got in the way of constitution making.

In the long run, fair rules for apportionment don’t favor either party. And swing voters are particularly harmed by apportionment schemes that lock in one party’s dominance even as it loses support among independent voters.

How would control of a constitutional convention be split? Compared to the 1962 convention, a convention in 2011 probably would be more evenly balanced between parties. Right now, Democrats have more legislative seats, but the districts were carved up originally to favor Republicans.

With the parties more evenly balanced, this might be the perfect time to hold a convention, and the reasons to vote “yes” are strong. Michigan government is broken, and our constitution is broken.

And the changes that are needed are so interconnected and in need of a full discussion that the simple process of amendment by referendum falls short, and amendment by a gridlocked legislature seems improbable.

Most voters are fed up with the political paralysis as Michigan struggles. Thoughtful voters know that changes are needed. They don’t want to flail at government but to make it work better. So even if powerful forces in Michigan fight against a constitutional convention, this could be the year that doesn’t matter.

Dick Olson is a retired labor union editor in Wisconsin and Michigan and lifelong political activist from Grosse Pointe Park. He supports a new constitutional convention for Michigan, a unicameral legislature and reforms in the apportionment language of the constitution.