Running till he can’t

The popular opinion in town is that if Michigan must hold court-ordered special state Senate elections in 2020, East Lansing Democrat Curtis Hertel Jr. will be ineligible to run for his seat.

That’s not how Hertel intends to let it go down, though.

If the federal appellate court decision on gerrymandered legislative and congressional districts stands, Hertel said he would file to run again in the 23rd Senate District seat in 2020 on the grounds that he was only allowed to serve a half of his second term. Hertel was just reelected last year.

If another perspective candidate would like to sue him over his constitutional interpretation, they can feel free to do it.

But Hertel is prepared to go to state Supreme Court to defend his position.

“If the district opened and my term is cut short, I’m running until the highest court tells me I can’t,” Hertel said. “After speaking with attorney, I believe firmly the Michigan Constitution is on my side.”

Under the state’s term-limit law, Michigan’s Constitution reads: “No person shall be elected to the office of state senate more than two times.” Hertel was elected in 2014 and, again, in 2018. 

However, if the federal appellate court decision on gerrymandered legislative and congressional districts stands, Hertel said his second term would, effectively, be cut in half, which activates a second part of the Constitution.

“Any person appointed or elected to fill a vacancy in the house of representatives or the state senate for a period greater than one half of a term of such office, shall be considered to have been elected to serve one time in that office for the purposes of this section,” it reads.

In this case, Hertel and, presumably, the other seven two-term senators will have served exactly half of a term, not more than one term, making this period between noon Jan. 1, 2019, and midnight Dec. 31 2020, less than a full term.

“An abrogated term is not a full term and creates a vacancy I am eligible to run for,” Hertel said.

Under this theory, it’s possible to argue that if Hertel, or any other senator, serves two abrogated two-year terms that they could run again in 2022, but Hertel didn’t go there when asked.

Legislative Republicans are hoping to convince the U.S. Supreme Court to either pause or kill the appellate court decision ruling that the 2011-approved legislative and congressional maps were gerrymandered and must be redrawn by Aug. 1.

According to an attorney who specializes in constitutional and civil rights litigation, the U.S. Supreme Court must consider Michigan’s gerrymandering appeal, but it likely won’t do so until after it rules on pending cases in Maryland and North Carolina.

Sam Bagenstos, a University of Michigan law professor, said the lawmakers’ appeal of the League of Women Voters’ case is a direct appeal, which means the Supreme Court doesn’t have discretion to decide whether to consider the case.

“It doesn’t mean that they have to hear oral arguments on the case,” he said. “They could issue an order affirming the lower court’s decision; they could issue an opinion reversing or they could do something else in between, but they can’t just sidestep the case the way they can with most stuff on their docket,” he said.

On April 25, a three-judge Court of Appeals panel ruled that special elections would need to be held in 2020 in congressional, state Senate and House districts because current maps drawn by Republicans represent a political gerrymander “of historical proportions.”

Republican lawmakers, including House Speaker Lee Chatfield, R-Levering, filed a notice of intent April 30 to appeal the ruling.

They are expected to ask the Supreme Court to stay the lower court’s ruling to allow that appeal process to move forward.

Bagenstos, who ran unsuccessfully for Michigan Supreme Court justice in November, wouldn’t speculate on how the U.S. Supreme Court might rule, but he noted that arguments likely will be addressed to target the court’s newest justice, Brett Kavanagh , who was confirmed in 2018 to replace Justice Anthony Kennedy who retired.

Kennedy oftentimes was the swing vote to break a tie between liberal justices who want to apply some scrutiny to gerrymandering and conservatives who believe the issue isn’t appropriate for federal court review.

But if those efforts fail, Hertel wants to make it clear now that he fully intends to file to run again in the 23rd Senate District and that he will “until the highest court tells me I can’t.”

So, in short, Hertel quipped, “I’m not dead, yet.”

(Kyle Melinn of the Capitol news service MIRS is at melinnky@gmail.com.)