County Clerk Outlines Redistricting Process

Washtenaw County board of commissioners working session (Feb. 3, 2011): Last Thursday commissioners got a primer on the history of apportionment from county clerk Larry Kestenbaum, as background to the upcoming redistricting of the county board. Redistricting takes place every 10 years, keyed to U.S. Census results.

When block-by-block data is released from the 2010 census next month, Kestenbaum will convene a five-member apportionment commission that will craft a plan to redraw district lines, based on population shifts. Currently there are 11 districts for the county board, including four in Ann Arbor.

For a county the size of Washtenaw, it’s possible to have as few as five districts, or as many as 21. Kestenbaum said he didn’t think it would be politically viable to talk about an increase in the number of commissioners. Maintaining the current number – or having fewer districts – would be the likely outcome, he said, but that’s a decision the apportionment commission will make, with public input.

Kestenbaum’s own political career has been influenced by redistricting. He served on the county board from 2000-2002, but decided not to run for reelection when redistricting landed him in the same district as fellow incumbent Democrat Leah Gunn. Instead, he ran for county clerk in 2004 and was elected to that position, winning re-election in 2008.

Prior to Kestenbaum’s presentation, the board heard from Roger Rayle during public commentary time. Rayle, a leader of Scio Residents for Safe Water, gave an update on the Pall-Gelman 1,4-dioxane plume, calling it “the gift that keeps on giving.”

Public Commentary: Pall-Gelman 1,4-Dioxane Plume

Roger Rayle, a resident of Scio Township, said he’d come to give the board an update on the Pall-Gelman 1,4-dioxane plume. He has been tracking this issue for more than a decade.

[By way of brief background, in the 1960s Gelman Sciences, which manufactured medical filters and other microfiltration products, began pumping industrial wastewater into holding lagoons behind its factory at 600 Wagner Road in Scio Township. By 1985, tests showed some local residential wells were contaminated with 1,4-dioxane, a substance that's considered a carcinogen. In 1988, the state filed a lawsuit against the company to force a cleanup.

In 1997, Gelman Sciences was sold to Pall Corp., which is headquartered in East Hills, N.Y. The city of Ann Arbor filed a separate lawsuit in 2004. In 2007, Pall closed the plant on Wagner Road where the contamination originated. However, the groundwater treatment facility continues to operate there, as part of a court-ordered cleanup effort that's directed by the state Dept. of Natural Resources and Environment (formerly the Dept. of Environmental Quality).]

On Thursday, Rayle told commissioners that “something bad is about to happen” – the state is about to approve a plan that 1.5 years ago wasn’t acceptable, he said. The plan would allow the company to reduce its cleanup efforts and expand the well prohibition zone – the area in which property owners are banned from using wells for drinking water. Properties in the zone are also required to attach deed restrictions related to the contamination. People who can’t use their wells are required to hook up to the city water and sewer system, Rayle said, and they incur a cost for that. They also might be required to pay city taxes, which are significantly higher than township taxes, he noted.

[City taxes would be paid only if the properties are annexed into the city of Ann Arbor. In a subsequent phone interview with The Chronicle, Wendy Rampson – head of Ann Arbor's planning staff – said that to date, the township properties affected by the plume, unless they are unbuilt land, have been annexed. That's because they've been located within a sewer service agreement area that Scio Township previously struck with the city. (Ann Arbor has similar agreements with Pittsfield and Ann Arbor townships.) If properties are located outside of that service agreement area, it's not necessarily the case that they'd be annexed in order to receive city water and sewer – Ann Arbor also sells those services to Scio Township, in some areas.]

At Thursday’s working session, Rayle said the real danger is the migration of the plume northward, possibly toward Barton Pond – a source of Ann Arbor’s drinking water. Why take that risk? he asked. There’s no reason, he added, other than the cleanup is inconvenient for the company.

[For additional background, see Chronicle coverage: "Concerns Raised over Dioxane Cleanup." Also, here's a link to a video of the May 27, 2009 public meeting held by the Michigan Dept. of Environmental Quality (MDEQ) about proposed changes to the cleanup plan.]

Public Commentary: Commissioner Response

Several commissioners thanked Rayle for the update, and for his ongoing work in tracking the situation. Leah Gunn said she remembers when Rayle would come to board meetings years ago with large paper maps showing the plume. He noted that Google Earth has helped his task considerably.

Gunn told him that the area’s state legislators need to be informed of the situation, though she added that they are no doubt aware of it already. Former county commissioner Jeff Irwin – a Democrat who now is the state representative for District 53, which covers Ann Arbor – would be the first person to contact, she said. Other local legislators to contact, Gunn said, are state Sen. Rebekah Warren (D-District 18), Rep. Mark Ouimet (R-District 52, and a former county commissioner from Scio Township), and Rep. David Rutledge (D-District 54). Gunn urged residents to contact their state legislators and tell them it’s the wrong decision. The state needs to protect its citizens, she said.

Barbara Bergman asked whether the county’s website could link to Rayle’s online information. Rayle reported that the information is already available on the site for the Coalition for Action on Remediation of Dioxane (CARD), which is hosted by the county. CARD is a coalition of citizens and local governments – including the county – that’s focused on addressing the dioxane problems. [Yousef Rabhi, a new commissioner who is now chair of the board's working sessions, was recently appointed as the board's representative to CARD.] Additional information is on the Scio Residents for Safe Water website, Rayle said. The state also maintains a website related to the plume.

One problem, Rayle said, is that many people who are making these decisions don’t live in this area. He also noted that negotiations between the state and the company have been happening behind closed doors, and privately in the judge’s chambers. [The litigation is being handled by Judge Donald Shelton of the 22nd Circuit Court in Ann Arbor. Shelton is chief judge of the Washtenaw County Trial Court, which includes the circuit court.]

Rayle doesn’t think that Shelton has seen the Google Earth mash-ups of the dioxane plume – it’s not clear why the state won’t introduce them to the court, he said, adding that it’s obvious why the company doesn’t want that information shown.

Kristin Judge asked whether it would be helpful for the board to pass a resolution opposing the deal. Rayle reported that unless the state and Pall reach an agreement, Shelton has ordered an evidentiary hearing for Feb. 14. Rayle said he doesn’t know why the state wouldn’t want the hearing – there hasn’t been one in several years. He suggested that if the board were to pass a resolution in support of an evidentiary hearing, that would be helpful. [The board's next regular meeting is Feb. 16 – two days after the possible hearing date.]

Judge asked Rayle to help them with details in crafting a resolution of support. She said the situation doesn’t affect her district – Judge represents District 7, in Pittsfield Township – but that she’s concerned about Ann Arbor’s water supply.

Rayle earlier had told commissioners that they should all be concerned: “If it doesn’t involve your district now, it will.”

County Redistricting: History, Process

Every 10 years, following completion of the U.S. Census, districts for the county board of commissioners are redrawn, as part of a broader redistricting that occurs at the local, state and federal levels. At Thursday’s working session for the county board, Washtenaw County clerk Larry Kestenbaum briefed commissioners about the county redistricting process – known as reapportionment – giving it historical context as well as outlining possible outcomes. Among other things, Kestenbaum, a Democrat, is also a political historian and creator of The Political Graveyard website.

County Redistricting: Historical Perspective

Kestenbaum spent much of his talk providing background about the county system of government, set against the larger stage of state and national events. Many settlers in Michigan came from New York, he said, and essentially transplanted the eastern state’s place names and government, among other things. Counties were divided into townships, and every township supervisor was a member of a board of supervisors, which handled countywide matters. At the time, it made sense that every township got one vote. Over time, as more urban areas developed, the state statute was changed to reflect that population shift, and cities got an increasing number of representatives on the board. By the time the board of supervisors system was discontinued, Ingham County’s board, for example, had an unwieldy 42 members, he said.

Malapportionment was common by the late 1800s, and was addressed with the passage of the 14th Amendment in 1868 – part of the post-Civil War Reconstruction Amendments. In relevant part:

Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Apportionment also reflected rural/urban tensions, Kestenbaum said. The 1920 census found, for the first time, that the majority of Americans lived in urban areas. This was shocking news, he said, but there was no attempt to acknowledge the change by reapportioning districts. That finally happened after the 1930 census, when congressional districts were redrawn. In Michigan, members of the U.S. House of Representatives increased from 13 to 17 – all added in the Detroit area. [District 17 was later dissolved after the 1990 census results; District 16 was eliminated after the 2000 census.]

Nationwide, many states weren’t taking the reapportionment mandate seriously, Kestenbaum said. In 1962, the U.S. Supreme Court finally weighed in with a ruling on the Baker v. Carr case, involving the Tennessee legislature. The ruling determined that the courts could intervene in reapportionment cases – the issue wasn’t a political question, but a judicial one – and that states must create districts with roughly equal populations. A subsequent 1964 ruling in Reynolds v. Sims established the principle of one man, one vote. The same logic applied to state legislatures, Kestenbaum said, and in turn, the Michigan legislature began looking at the system of county boards of supervisors.

Michigan lawmakers created the current system of county apportionment with Act 261 of 1966. Though it was initially thrown out by the state supreme court as unconstitutional, Kestenbaum said, the U.S. Supreme Court later validated the concept that the principle applying to state and federal districts also applied at the local level. Districts were redrawn in 1968, and again after the 1970 census.

At that time, the principle of equal populations was taken very seriously, Kestenbaum said, which created districts with very ragged, complicated boundaries. That problem was ultimately addressed in the 1970s and early 1980s, resulting in what’s known as the “Apol rules” – criteria developed by Bernie Apol, who served as state elections from 1967-1980. The rules were based on the notion of not splitting precincts or jurisdictions, whenever possible.

A 1982 state supreme court decision – involving apportionment plans in Wayne and Ingham counties – affirmed those general principals. Kestenbaum provided a copy of the ruling to commissioners. An excerpt:

An apportionment plan for a county board of commissioners must be drawn both to preserve city and township boundary lines and to accord with other statutory apportionment guidelines to the extent possible without violating equal protection guarantees of the United States Constitution.

Those same principals still apply today, Kestenbaum said.

[A commentary written by Apol in 1987 and published by Public Sector Consultants Inc. provides a more detailed history of reapportionment, which included considerable litigation and political machinations. .pdf file of Apol's column]

County Redistricting: How It Works Today

For Washtenaw County’s upcoming redistricting, the process will begin when block-by-block census data is released, Kestenbaum told commissioners. That happens no later than April 1, but will likely happen sometime in March. At that point, Kestenbaum, as county clerk, will convene a five-member county apportionment commission. In addition to the clerk, members are the county treasurer (Catherine McClary), prosecuting attorney (Brian Mackie), county Democratic Party chair (Cleveland Chandler), and Republican Party chair (Mark Boonstra). [The clerk, treasurer and prosecuting attorney are all positions elected by the general public. Kestenbaum, McClary and Mackie are Democrats. Kestenbaum and McClary are former county commissioners.]

After the census data is released, the group has 60 days to adopt an apportionment plan. For a county the size of Washtenaw – counties with a population between 50,001 and 600,000 residents – by law, the number of commissioners can range from five to 21, Kestenbaum said. In Washtenaw, there are currently 11 county commissioners – a number that was set after the 2000 census. For the 10 years prior to that, there were 15. In the 1980s, there were nine commissioners.

The plan must determine the number of county commissioners, as well as the boundaries of each district, Kestenbaum said. To do this, they must follow two criteria: (1) preserve, as much as possible, the boundaries of cities, townships, villages and precincts; and (2) keep each district’s population size within the range of 94.05% to 105.95% of the “ideal” population. The “ideal” district population is calculated by dividing the county population by the number of districts. [The statute that dictates the apportionment process for county boards is Act 261 of 1966.]

If for some reason the commission doesn’t adopt a plan by the 60-day deadline, then anyone can submit a plan, and the commission must choose one of those. Legal challenges to the adopted plan go directly to the state court of appeals. In the past, the only challenges that have been entertained by the court are those related to district boundaries, not to the number of districts, assuming that those districts are within the legal range.

Kestenbaum said he didn’t think it would be politically viable to talk about an increase in the number of commissioners. He thought that having 5, 7, 9 or 11 districts would be the likely choices, noting that an uneven number is preferable.

McClary, he said, is interested in having as few commissioners as possible. But his feeling is that if there’s only five commissioners, those people would be very powerful. And because they’d be representing larger districts, he didn’t think the representation would be as strong – their districts would cover too much territory. Kestenbaum said his inclination is towards having more districts.

The electoral system is demanding on voters, Kestenbaum said. As an Ann Arbor resident, he said he votes on 97 different positions, everything from state supreme court justices to the local library board. Even though he’s county clerk, he said, he couldn’t name all those elected officials off the top of his head. Given the demands on voters, they deserve to have a system that’s as simple, straightforward and transparent as possible, he said. The more complicated it is, the more suspicious people become, he added. So there’s a public interest in the redistricting process.

It’s also important that the districts reflect the communities they represent. Kestenbaum noted that both districts he’s served as county commissioner – first in Ingham County, then in Washtenaw – were long and skinny, spanning areas that had nothing in common with each other. That also does a disservice to voters.

They’ll have a lot more information when the census data is released, he said, which will show if there have been any population shifts over the past 10 years. The census was conducted during a recession, so the U.S. Census Bureau was able to hire a higher caliber of worker, he said. Because of that, coupled with the fact that it was a short form to complete (the shortest form since 1790), “this is probably the best census we’ve had in a long time,” Kestenbaum said. He noted that Bob Groves, a University of Michigan professor, had overseen the process, as head of the census bureau. [Groves was appointed to the position in 2009 by President Barack Obama.]

Kestenbaum noted that this process of reapportionment will influence policy-making for the next 10 years. He said that though he’s friends with all of the commissioners, he’ll be setting politics and personalities aside. He doesn’t want anyone to feel indebted to him, nor does he seek to antagonize them. But it’s his duty to take part in this process, he said.

“I’m looking to create districts that work for the community,” Kestenbaum said, “and this is really a community decision.”

County Redistricting: Commissioner Questions, Comments

Conan Smith, the board’s chair, asked what the board’s role should be in this process. Kestenbaum replied that he was sure they’d offer input, and he hoped to keep everyone informed via email and other means. All meetings of the apportionment commission are open to the public, he said.

Smith then asked what kind of public engagement would be involved. That will be up to the entire commission to decide, Kestenbaum said, but he expected they would have public hearings as they move through the process. However, he said he could already sense that there are differing opinions among commission members about how to handle that, so it was still unclear what they’ll ultimately do. For his part, Kestenbaum said he sees redistricting as a community decision, and public input is part of that.

Smith suggested that as the process progresses, they might schedule another working session to get an update from Kestenbaum.

Barbara Bergman said she is in favor of a larger board, or at the least keeping 11 commissioners. She reported that she has decided not to seek reelection in 2012, so she won’t be affected by the decision. “If we went back to 15, I’d be a very happy citizen,” she said.

Wes Prater told Kestenbaum that “you’re in the hot seat.” He clarified with Kestenbaum that the redistricting is based on population, not the number of registered voters. He asked whether the apportionment commission has met yet. No, said Kestenbaum, he hasn’t convened the commission. When he does, they’ll elect a chair and move forward. Kestenbaum said his preference is to start as early as possible, get maximum public input, and resolve the redistricting in a way that does not result in litigation.

Leah Gunn concluded the commissioners’ remarks by thanking Kestenbaum for not running against her, following the last redistricting. The changes put both of them – who were both incumbants – into the same district, and she recalled that Kestenbaum had called her to say he wouldn’t seek re-election. She said she subsequently supported him in his run for county clerk, and that now he’s “in a much better place.”

Present: Barbara Levin Bergman, Leah Gunn, Kristin Judge , Ronnie Peterson, Alicia Ping, Wes Prater, Yousef Rabhi, Rolland Sizemore Jr., Conan Smith, Dan Smith, Rob Turner.

Next meeting: The board’s administrative briefing, to preview the Feb. 16 agenda, will be held on Wednesday, Feb. 9 at 5:30 p.m. in the offices of the county administration building, 220 N. Main St. That meeting will be followed by a special meeting focused on the budget, from 6-9 p.m. The board’s next regular meeting is on Wednesday, Feb. 16, 2011 at 6:30 p.m. at the county administration building, 220 N. Main St. The Ways & Means Committee meets first, followed immediately by the regular board meeting. [confirm date] (Though the agenda states that the regular board meeting begins at 6:45 p.m., it usually starts much later – times vary depending on what’s on the agenda.) Public comment sessions are held at the beginning and end of each meeting.