LeRoux v. Secretary of State

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan

Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED MARCH 25, 2002

DAVID LeROUX, MICHAEL GRAY,

and ROBERT L. ELLIS,

Plaintiffs,

v No. 120338

SECRETARY OF STATE and

DIRECTOR OF ELECTIONS,

Defendants,

and

SUZANNE L. ANDERSON, SHARON

YENTSCH, and BRADLEY

VAN HAITSMA,

Intervening Defendants.

________________________________

PER CURIAM

In this original action, plaintiffs challenge the plan

for redistricting Michigan’s fifteen seats in the

United States House of Representatives adopted by 2001 PA 115.

Plaintiffs claim that the statute was not validly enacted

because the bill passed by the Legislature was changed by the

Secretary of the Senate before presentation to the Governor

for his approval. Second, they contend that the plan fails to

comply with Michigan statutory requirements for congressional

redistricting established by 1999 PA 221. We conclude:

(1) 2001 PA 115 was validly enacted because the changes made

before submission to the Governor were technical corrections

that do not violate the provisions of the Michigan

Constitution regarding enactment of legislation; (2) the

redistricting guidelines of MCL 3.63(c), as enacted by 1999 PA

211, were not binding on the Legislature’s redistricting of

Michigan’s congressional seats in 2001; and (3) the reference

to the 1999 guidelines in the 2001 redistricting act does not

indicate an intention by the Legislature to make the

redistricting plan reviewable using those guidelines. We

therefore deny the application for review of the congressional

redistricting plan.

I. Federal Framework for Congressional Districting

The Constitution provides that representatives in

Congress are to be apportioned among the states according to

their populations,1 with the allocation to be made according

to the decennial census.2 In general, the United States

Constitution leaves to the states the manner of electing

representatives. US Const, art I, § 4 provides:

The Times, Places and Manner of holding

Elections for Senators and Representatives, shall

be prescribed in each State by the Legislature

thereof; but the Congress may at any time by Law

make or alter such Regulations, except as to the

Places of choosing Senators.

However, the Congress and the federal courts have imposed

several limitations on the states’ authority in the area of

congressional districting. In a series of decisions, the

1
US Const, Am XIV, § 2.

2
US Const, art I, § 2.

United States Supreme Court has established the primacy of the

principle of “one person, one vote.” Wesberry v Sanders, 376

US 1, 7-8; 84 S Ct 526; 11 L Ed 2d 481 (1964); Reynolds v

Sims, 377 US 533, 562-564; 84 S Ct 1362; 12 L Ed 2d 506

(1964). That principle requires that congressional districts

must be constructed so that “as nearly as practicable one

man’s vote in a congressional election is . . . worth as much

as another’s.” Wesberry, 376 US 7-8. That standard has been

refined to require that good-faith efforts be made to achieve

precise mathematical equality. Kirkpatrick v Preisler, 394 US

526, 530-531; 89 S Ct 1225; 22 L Ed 2d 519 (1969). Thus, to

justify any deviation from mathematical equality, it must be

demonstrated that the deviation was either unavoidable despite

good-faith efforts or was necessary to achieve some legitimate

state goal. Karcher v Daggett, 462 US 725, 731; 103 S Ct

2653; 77 L Ed 2d 133 (1983).

Second, Congress enacted the voting rights act of 1965,3

which, among other things, prohibits state election practices

or procedures that result in “a denial or abridgement of the

right of any citizen of the Untied States to vote on account

of race or color . . . .” 42 USC 1973(a). See, generally,

Thornburg v Gingles, 478 US 30; 106 S Ct 2752; 92 L Ed 2d 25

(1986); Growe v Emison, 507 US 25; 113 S Ct 1075; 122 L Ed 2d

388 (1993); Reno v Bossier Parish Sch Bd, 520 US 471; 117 S Ct

1491; 137 L Ed 2d 730 (1997): Beer v United States, 425 US

130, 141; 96 S Ct 1357; 47 L Ed 2d 629 (1976).

Third, Congress has imposed a requirement for use of

3
PL 89-110, 42 USC 1973 et seq.

single-member districts for the election of representatives.

2 USC 2c.

II. Recent History of Congressional Redistricting

in Michigan

Unlike the constitutions of a number of states,4

Michigan’s Constitution does not include any provisions

regarding the procedure or standards for congressional

redistricting.5 Thus, the Legislature has been free to adopt

redistricting plans in any manner it chose, consistent with

federal requirements. However, before 2001 PA 115, the

Michigan Legislature last enacted a congressional districting

plan in 1964. 1964 PA 282. The Legislature failed to

redistrict the state following the next three censuses, and

the federal courts ultimately adopted plans that have been

used since 1972. See Dunnell v Austin, 344 F Supp 210 (ED

Mich, 1972); Agerstrand v Austin, No. 81-50256 (ED Mich,

unpublished opinion issued May 20, 1982); Good v Austin, 800

F Supp 557 (ED & WD Mich, 1992).

III. Michigan Redistricting Legislation

Three Michigan statutes are relevant to the issues raised

in this case—1999 PA 221 and 222, passed in anticipation of

the redistricting process following the 2000 census, and 2001

PA 115, the redistricting plan at issue in this case.

A. 1999 PA 221—The Substantive Statute

4
E.g., Ariz Const, art IV, § 1; Cal Const, art XXI, § 1;

Mo Const, art III, § 45; Wash Const, art 2, § 43.

5
Proposals to include such provisions were considered at

the Constitutional Convention, but were not adopted. See 2

Official Record, Constitutional Convention 1961, pp 2392,

2409-2410, 2412-2414.

1999 PA 221 provided a legislative process for

redistricting congressional seats. It set November 1, 2001,6

as the deadline for legislative action, MCL 3.62, and then, in

MCL 3.63, established standards to be used in drawing

districts. MCL 3.63(a) and (b) incorporated the federal

constitutional and statutory requirements.7 In this action,

plaintiffs do not claim that the legislative plan fails to

comply with those provisions.8 MCL 3.63(c) then created

6
And every 10 years thereafter.

Except as otherwise required by federal law

for congressional districts in this state, the

redistricting plan shall be enacted using only

these guidelines in the following order of

priority:

(a) The constitutional guideline is that each

congressional district shall achieve precise

mathematical equality of population in each

district.

(b) The federal statutory guidelines in no

order of priority are as follows:

(i) Each congressional district shall be

entitled to elect a single member.

(ii) Each congressional district shall not

violate section 2 of title I of the voting rights

act of 1965, Public Law 89-110, 42 USC 1973.

The inclusion of the federal guidelines for districting

in MCL 3.63(a), (b) represents an appropriate recognition of

the controlling federal law. However, those guidelines derive

their force not from the act of the Michigan Legislature, but,

rather, from the underlying federal constitutional and

statutory provisions.

8
The parties have informed the Court that an action has

been filed by other plaintiffs against the Secretary of State

in the United States District Court for the Eastern District

of Michigan that does raise federal challenges to the

redistricting statute. O’Lear v Secretary of State,

No. 01-72584. They report that a three-judge panel has been

convened and that the district court has denied a motion to

expedite the scheduling of a conference, but that no further

“secondary” guidelines. The first priority was contiguity of

districts, followed by provisions involving breaking county

and municipal lines. MCL 3.63(c) provides:

The secondary guidelines in order of priority

are as follows:

(i) Each congressional district shall consist

of areas of convenient territory contiguous by

land. Areas that meet only at points of adjoining

corners are not contiguous.

(ii) Congressional district lines shall break

as few county boundaries as is reasonably possible.

(iii) If it is necessary to break county lines

to achieve equality of population between

congressional districts as provided in subdivision

(a), the number of people necessary to achieve

population equality shall be shifted between the 2

districts affected by the shift.

(iv) Congressional district lines shall break

as few city and township boundaries as is

reasonably possible.

(v) If it is necessary to break city or

township lines to achieve equality of population

between congressional districts as provided in

subdivision (a), the number of people necessary to

achieve population equality shall be shifted

between the 2 districts affected by the shift.

(vi) Within a city or township to which there

is apportioned more than 1 congressional district,

district lines shall be drawn to achieve the

maximum compactness possible.

(vii) Compactness shall be determined by

circumscribing each district within a circle of

minimum radius and measuring the area, not part of

the Great Lakes and not part of another state,

inside the circle but not inside the district.

(viii) If a discontiguous township island

exists within an incorporated city or discontiguous

portions of townships are split by an incorporated

city, the splitting of the township shall not be

considered a split if any of the following

circumstances exist:

action has been taken in the federal litigation.

(A) The city must be split to achieve equality

of population between congressional districts as

provided in subdivision (a) and it is practicable

to keep the township together within 1 district.

(B) A township island is contained within a

whole city and a split of the city would be

required to keep the township intact.

cannot be included in the same district with

another portion of the same township without

creating a noncontiguous district.

(ix) Each congressional district shall be

numbered in a regular series, beginning with

congressional district 1 in the northwest corner of

the state and ending with the highest numbered

district in the southeast corner of the state.

B. 1999 PA 222—The Procedural Statute

1999 PA 222 created a mechanism for involving this Court

in the redistricting process. MCL 3.71 said that the Supreme

Court has exclusive jurisdiction over state claims regarding

congressional redistricting:

The supreme court has original and exclusive

state jurisdiction to hear and decide all cases and

controversies in Michigan's 1 court of justice

involving a congressional redistricting plan. A

case or controversy in Michigan's 1 court of

justice involving a congressional redistricting

plan shall not be commenced in or heard by the

state court of appeals or any state trial court.

If a case or controversy involves a congressional

redistricting plan but an application or petition

for review was not filed under section 2 or 3, the

supreme court may, but is not obligated to,

undertake all or a portion of the procedures

described in section 4.

The statute then provided two ways for actions to be

brought. First, MCL 3.72 says that if the Legislature passes

a redistricting plan by November 1, 2001, any voter may seek

review of the plan:

Upon the application of an elector filed not

later than 60 days after the adoption of the

enactment of a congressional redistricting plan,

the supreme court, exercising original state

jurisdiction may review any congressional

redistricting plan enacted by the legislature, and

may modify that plan or remand that plan to a

special master for further action if the plan fails

to comply with the congressional redistricting act.

On the other hand, if the Legislature fails to act by the

deadline, under MCL 3.73, a political party or member of the

House of Representatives may request this Court to develop a

redistricting plan:

Unless legislation enacting a redistricting

plan for congressional districts is approved on or

before the deadline established in the

congressional redistricting act, a political party,

or a member of the United States house of

representatives on or after November 2 immediately

following the deadline established in the

congressional redistricting act, may petition or

otherwise file pleadings or papers with the supreme

court requesting that the supreme court prepare a

redistricting plan for congressional districts in

compliance with the redistricting guidelines

provided in the congressional redistricting act.

If an action is filed under either of those provisions,

MCL 3.74 sets forth procedures to be followed:

If an application or petition for review is

filed in the supreme court under section 2 or 3,

the supreme court shall do all of the following:

(a) Exercising original state jurisdiction or

other state jurisdiction pursuant to Michigan court

rule 7.301(A)(7) or any successor court rule,

undertake the preparation of a redistricting plan

for congressional districts.

(b) Appoint and utilize a special master or

masters as the court considers necessary.

proposed redistricting plans by political parties

and other interested persons who have been allowed

to intervene. Political parties shall be granted

intervention as of right.

(d) After hearing oral argument or appointing

special masters, propose 1 plan for consideration

of the parties and the public, and make that plan

available for public inspection at least 30 days

before the time set for hearing in subdivision (f).

(e) Prescribe, by order or otherwise, the

procedure for and the deadlines pertaining to

filing objections and rebuttal to the proposed plan

in advance of the hearing scheduled in

subdivision (f).

(f) Hold a hearing on the proposed plan at a

time determined by the court but not later than

March 1 immediately following the deadline

established in the congressional redistricting act.

(g) In order to provide for the orderly

election process and for candidates to meet

statutory deadlines for filing and residency, and

after making any revisions to the proposed plan

that the supreme court considers necessary, order a

redistricting plan for congressional districts not

later than April 1 immediately following the

deadline established in the congressional

redistricting act.

C. 2001 PA 115—The Redistricting Act

Following the release of the 2000 census data and the

federal reapportionment of representatives to the states, in

June 2001, the Legislature took up the question of districting

the fifteen seats allocated to Michigan. The Senate passed a

redistricting plan (SB 546) on June 26, 2001. During House

consideration of the bill, two alternative plans were

introduced, but were rejected.9

After final action by the Legislature,10 it adjourned for

9
As one might expect, much of the dispute in the

Legislature was over the political “fairness” of the several

plans. In this Court, plaintiffs also argue that the

legislatively adopted plan is politically unfair, in the sense

of favoring one of the major political parties over the other.

However, at oral argument they concede that such questions of

political fairness are not incorporated in the statutory

guidelines by which they claim that the plan should be

reviewed.

10
After initial passage of the bill, on July 11 each

house approved an amendment correcting omission of several

census tracts from the description of the districts.

the summer recess. As the bill was being prepared for

submission to the Governor, it was discovered that two census

tracts, including 4,578 people, had been omitted from the

bill’s description of the districts. The Secretary of the

Senate (the originating house) corrected the language by

inserting the two tracts in the description of District 15 in

the enrolled version of the bill that was presented to the

Governor. He approved it on September 11, 2001, and it was

filed with the Secretary of State on that date.11

After the Legislature returned from its recess, on

October 17, 2001, another proposed plan, which plaintiffs

claim is superior to the 2001 PA 115 plan, was introduced.

However, it was never reported out of committee.

IV. Proceedings in This Case

Plaintiffs filed this action on November 6, 2001, seeking

to invoke the procedures set forth in 1999 PA 222. They

alleged that 2001 PA 115 was void because the bill signed by

the Governor was not the same one passed by the Legislature,

and that the act violated the redistricting guidelines of

MCL 3.63(c). The named defendants were the Secretary of State

and the Director of Elections. On November 29, 2001, we

granted the motion to intervene by defendants Anderson,

Yentsch, and Van Haitsma.12 In that order, we directed the

filing of briefs and included a number of questions that the

11
The Legislature did not vote to give the act immediate

effect, and thus, under Const 1963, art 4, § 27, it will be

effective March 22, 2002.

12
The plaintiffs and the intervening defendants are

individual Michigan voters. However, they are surrogates for

the Democratic and Republican parties, respectively.

parties were to address.13 The parties appeared for oral

argument on January 23, 2002.

13
The questions were:

(1) Is this action properly brought under

MCL 3.72?

(2) Is review of the congressional

redistricting plan by this Court discretionary or

compulsory under 1999 PA 222?

(3) What deference, if any, should this Court

give to the redistricting plan adopted by the

Legislature?

(4) Under separation of powers principles set

forth in Const 1963, art 3, § 2, may this Court

modify or reject the redistricting plan adopted by

the Legislature and adopt its own redistricting

plan?

(5) Do the provisions of MCL 3.74, specifying

the procedures this Court is to follow in reviewing

a congressional redistricting plan, violate Const

1963, art 3, § 2, or art 6, § 5?

(6) Do the standards of MCL 3.63 apply to

review of the redistricting plan adopted in 2001 PA

115?

(A) If the standards of MCL 3.63 apply, are

those standards exclusive?

(i) If they are exclusive, does the provision

of MCL 3.63(c) that the secondary guidelines are

“in order of priority” mean that one does not

consider a criterion of lower priority unless two

plans are equivalent with respect to all of the

criteria of higher priority?

(ii) If they are not exclusive, what other

criteria are applicable?

(B) If the standards of MCL 3.63 do not apply,

what criteria should be used to review a

redistricting plan?

(7) How does one define a “break” of a county

boundary?

(8) How does one define a “break” of a city or

township boundary?

V. Jurisdiction

Plaintiffs premise the jurisdiction of this Court on

MCL 3.71. However, the intervenors argue that the

Legislature’s attempt to confer jurisdiction on this Court is

unconstitutional because the Legislature lacks the authority

to extend our jurisdiction by statute. The constitutional

provision regarding Supreme Court jurisdiction is Const 1963,

art 6, § 4:

The supreme court shall have general

superintending control over all courts; power to

issue, hear and determine prerogative and remedial

writs; and appellate jurisdiction as provided by

rules of the supreme court. The supreme court

shall not have the power to remove a judge.

The intervenors cite cases decided under the

corresponding language of the previous Constitution14 holding

that the Legislature lacks the authority to expand Supreme

Court jurisdiction. E.g., In re Manufacturer’s Freight

Forwarding Co, 294 Mich 57, 69; 292 NW 678 (1940).

However, it is unnecessary for us to decide this issue.

As even the intervenors concede, Const 1963, art 6, § 4,

retains our authority to issue prerogative and remedial writs,

such as mandamus. This has been the traditional vehicle for

challenging redistricting and apportionment schemes. E.g., In

re Apportionment of the State Legislature—1992, 439 Mich 715,

14
Const 1908, art 7, § 4:

The supreme court shall have a general

superintending control over all inferior courts;

and shall have power to issue writs of error,

habeas corpus, mandamus, quo warranto, procedendo

and other original and remedial writs, and to hear

and determine the same. In all other cases it

shall have appellate jurisdiction only.

717; 486 NW2d 639 (1992); Stenson v Secretary of State, 308

Mich 48, 51; 13 NW2d 202 (1944). As a general rule,

MCR 3.301(A) provides that complaints for mandamus may not be

considered by the Supreme Court if a lower court has

jurisdiction. However, MCL 3.71 expressly provides that the

Court of Appeals and state trial courts do not have

jurisdiction of such cases, making an action in this Court

appropriate regardless of whether the Legislature’s effort to

confer jurisdiction on this Court would otherwise be

effective.15

VI. Was 2001 PA 115 Validly Enacted?

In keeping with the one-person, one-vote principles, the

Legislature sought to minimize the population disparity among

districts to the greatest extent possible. In § 4(e)(i) of

2001 PA 115, it said the following about the population of the

districts:

The population of districts 1-9 and 11-15 is

662,563. The population of district 10 is 662,562.

However, after passage of SB 546 by both houses, it was

discovered that two census tracts16 had been omitted from the

15
As explained later, the state statutory guidelines for

redistricting found in MCL 3.63(c) are inapplicable. Thus,

the procedural provisions that the Legislature included in

MCL 3.74 need not be followed, because they are linked to

challenges based on those criteria. Instead, this case has

been processed under our rules for original actions and the

general provisions governing proceedings in this Court, which

permit the use of whatever procedure is appropriate in the

circumstances. MCR 7.304(E), 7.316(A)(7).

16
Census Tracts 416200 and 422900 in Pittsfield Township,

Washtenaw County.

bill’s description of the districts.17 Those tracts include

4,578 people. It is undisputed that totaling the populations

of the districts as described in SB 546, Districts 1-14 had

the totals specified in § 4(e)(i). However, the description

of District 15 included exactly 4,578 fewer people than the

population of the district stated in that section.

The Secretary of the Senate, in reliance on Rule 12 of

the Joint Rules of the Senate and House of Representatives,18

corrected the bill by inserting references to those census

tracts in the description of District 1519 in the enrolled

bill that was submitted to the Governor, and that he approved.

Plaintiffs argue that because of these events, 2001 PA

115 was not validly enacted, citing Const 1963, art 4, §§ 120

17
The enrolled bill is forty-two pages long. Forty-one

of those pages consist of descriptions of the districts.

Where whole counties, cities, or townships are contained

within a district, there is simply a reference to the county,

city, or township. However, where cities or townships are

split, the act enumerates the census tracts and blocks within

each district. The bulk of the bill consists of lengthy lists

of the census units found within each district.

18
That rule includes the following:

[T]he Secretary of the Senate and Clerk of the

House of Representatives, as the case may be, shall

correct obvious technical errors in the enrolled

bill or resolution, including adjusting totals,

misspellings, the omission or redundancy of

grammatical articles, cross-references,

punctuation, updating bill or resolution titles,

capitalization, citation formats, and plural or

singular word forms.

19
There is no dispute that the two tracts are contiguous

to the rest of District 15.

The legislative power of the State of Michigan

is vested in a senate and a house of

representatives.

and 26.21 In addition, this theory implicates Const 1963,

art 4, § 33, which provides:

Every bill passed by the legislature shall be

presented to the governor before it becomes law,

and the governor shall have 14 days measured in

hours and minutes from the time of presentation in

which to consider it. If he approves, he shall

within that time sign and file it with the

secretary of state and it shall become law.

The parties disagree about whether this was a mere

technical error, which came within the language of Joint

Rule 12. However, that is not the question. The courts do

not review claims that actions were taken in violation of a

legislative rule. As we explained in Anderson v Atwood, 273

Mich 316, 319; 262 NW 922 (1935):

Rules of legislative procedure, adopted by the

Legislature and not prescribed by the Constitution,

may be suspended and action had, even if contrary

thereto, will not be reviewed by the courts.[22]

Thus, whether the action by the Secretary of the Senate

in correcting the omission of the two census tracts was

No bill shall become a law without the

concurrence of a majority of the members elected to

and serving in each house.

22
See also State ex rel Spaeth v Meiers, 403 NW2d 392,

394 (ND, 1987); Carlton v Grimes, 237 Iowa 912, 923; 23 NW2d

883 (1946):

With the exception of the few mandatory

provisions noted the Constitution of Iowa has given

the General Assembly a free hand in determining its

rules of procedure. Whether either chamber

strictly observes these rules or waives or suspends

them is a matter entirely within its own control or

discretion, so long as it observes the mandatory

requirements of the Constitution. If any of these

requirements are covered by its rules, such rules

must be obeyed, but the observance or nonobservance

of its remaining rules is not subject to review by

the courts.

authorized by Joint Rule 12 is irrelevant. The question is

whether the change violates the constitutional provisions

governing the enactment of legislation. If it does,

compliance with Joint Rule 12 will not save the statute;23 if

it does not, a violation of the legislative rule is not a

basis for finding 2001 PA 115 not to have been validly

enacted.24

The issue is whether the correction by the Secretary of

the Senate was a change that invalidates the statute under the

governing constitutional provisions. Plaintiffs rely

particularly on language from Beacon Club v Kalamazoo Co

Sheriff, 332 Mich 412; 52 NW2d 165 (1952). There, through

clerical error, the version of the bill initially presented to

the Governor omitted from the title a reference to an added

section.25 We said:

The inclusion of the reference to the added

section in the title of the measure here involved

was essential to its validity. Its omission in the

original draft of the enrolled act was more than a

mere clerical error. We think it may be assumed

that the legislature considered the section in

question as a material part of the bill. As a

result of the error in printing, the enrolled act

submitted to the governor differed materially in

substance from the draft of the measure as passed

by the legislature. [332 Mich 418 (emphasis in

23
See United Ins Co v Attorney General, 300 Mich 200,

206; 1 NW2d 510 (1942).

24
The flaw in the reasoning of the dissent is that it

treats the case as involving review of the Secretary of the

Senate’s action under Joint Rule 12, discussing at length

whether the change made was to correct “obvious technical

errors.” However, as even the dissent recognizes at the end

of that lengthy discussion, the question is “whether the

action is proscribed by the constitution.”

25
The bill as passed by both houses of the Legislature

had the correct, amended title.

original).]

The facts of Beacon Club are quite different from those

of this case.26 The language from that case on which

plaintiffs rely merely stands for the generally accepted

proposition that a material variation between a bill as

enacted by the Legislature and approved by the Governor

invalidates the legislation.27 That begs the question

presented here—whether the addition of the two inadvertently

omitted census tracts constitutes a material change in the

bill.

On several occasions we have permitted correction of

discrepancies in statutes where the legislative intent was

26
The Governor returned the bill to the House of

Representatives with a message indicating that he had not

signed it because of doubts about the constitutionality of the

added section. The Clerk of the House then determined that

the amended title had been inadvertently omitted and had a

correct version printed, which was returned to the Governor,

who signed it.

The issue in Beacon Club was whether the Governor’s

initial return of the document to the House precluded the

Clerk from resubmitting the corrected bill. This Court

concluded that the previous submission of the incorrect bill

was a nullity and that the legislation should not be

invalidated on the basis of an error that was properly

corrected.

27
For example, in Rode v Phelps, 80 Mich 598; 45 NW 493

(1890), significant amendments of the bill, originally

approved by the Senate, but deleted as a result of conference

committee action and subsequent passage by both houses, were

nonetheless included in the bill as signed by the Governor.

We held that the bill was not validly enacted. See also

Foster v Naftalin, 246 Minn 181; 74 NW2d 249 (1956); Kenyon v

Kansas Power & Light Co, 254 Kan 287; 864 P2d 1161 (1993).

The corollary of that principle is that immaterial errors

can be corrected without invalidating the enactment. E.g.,

Application of Fisher, 80 NJ Super 523, 527-528; 194 A2d 353

(1963), and Childers v Couey, 348 So 2d 1349, 1351 (Ala,

1977).

clear. For example, in People ex rel Gale v Supervisor of

Onondaga, 16 Mich 254 (1867), the title of the bill as enacted

by the Legislature referred to the levying and collecting of

a “bounty” tax in the Township of Onondaga. After passage,

through a clerical error, the word “county” was substituted

for “bounty,” and the bill was signed by the Governor with

that mistake. We rejected the argument that the discrepancy

invalidated the bill, because it was not a mistake that could

mislead anyone who read the act. 16 Mich 258.

In this case, plaintiffs concede that the Legislature

intended to include the two census tracts in District 15.

That conclusion is inescapable given the undisputed population

of the tracts and the population of the districts stated in

2001 PA 115.28 In that sense, the case is like Michigan State

Prison Bd of Control v Auditor General, 149 Mich 386; 112 NW

1017 (1907). There, a bill appropriated

the sum of one hundred seventy-five thousand

dollars for the purpose of carrying out the

provisions of this act: Provided, That of the one

hundred seventy-five [thousand] dollars so

appropriated fifty thousand dollars is hereby

appropriated for the purpose of purchasing,

erecting and equipping the necessary buildings,

machinery, boilers and equipment to be used in the

manufacturer of twine and cordage, together with a

warehouse at the State prison at Jackson, Michigan,

28
As explained earlier, the question is not whether the

Secretary of the Senate’s action was authorized by Joint Rule

12. However, even if one analyzes the issues from that

viewpoint, the dissent can hardly be taken seriously in its

claim that the correction of the bill at issue by the

Secretary of the Senate under Senate Rule 12 was nontechnical

and did not involve adjusting totals. The simple reason is

that § 4(e)(i) of 2001 PA 115 states the exact population for

each district. District 15 was, in short, the only place to

which these census tracts could have been allocated in order

to meet the constitutional population requirements. The

plaintiffs themselves acknowledged as much at oral argument.

and the remaining sum of one hundred twenty-five

thousand dollars is hereby appropriated to

constitute a “revolving fund” to be disposed of in

such manner as herein provided. [149 Mich 387
388.]

The word “thousand” in brackets was not in the bill as

enrolled and signed by the Governor, but was contained in the

bill as passed by both houses of the Legislature.29 As in the

instant case, we found the mathematical equivalence of the

numbers to allow correction of the bill:

It is perfectly manifest that the legislature

by this proviso appropriated $50,000 for the

purpose of purchasing, erecting, and equipping the

necessary buildings, and it is equally obvious that

that $50,000 could not be subtracted from $175, and

that the $175 was plainly intended to mean $175,000

is again made manifest by the fact that in the same

clause after appropriating $50,000 the legislature

further appropriated a remaining $125,000 which

must be a remainder after deducting $50,000 from

$175,000. It is a clerical error which corrects

itself and leaves nothing doubtful. Such clerical

errors will not be permitted to defect the plain

intent of the legislature. [149 Mich 388 (emphasis

in original).]

Plaintiffs’ response is that this principle does not

apply because one must look beyond the face of 2001 PA 115 to

identify the correct placement of the census tracts. That is,

because the act itself does not include the population figures

29
The dissent attempts to extract from Board of Control

the principle that the only corrections that can be made are

those that “(1) are not essential to the substance of the bill

and (2) mislead no one.” However, some errors are such that,

if uncorrected, they would render a bill internally incoherent

and illogical. Where the intent is clear, such clerical

errors can be corrected. Board of Control itself is a good

example. The word “thousand” can certainly be said to be

essential to the substance of the bill: without its

insertion, the appropriation intended by the Legislature could

not have been implemented. The point is that, from the

context, it was clear that the word was meant to be included,

just as it is clear in this case that the two census tracts

were intended to be included in District 15.

for each census tract, one must resort to external sources to

find that data.30 However, the need to resort to census data

does not invalidate the statute. The information that one

must examine is the official government data that are required

to be used in congressional redistricting, of which judicial

notice may be taken under MRE 201.31 Further, we have allowed

correction of errors in the text of statutes to reflect the

actual legislative intent, even where that required resort to

sources outside the face of the statute itself. In Stow v

Grand Rapids, 79 Mich 595, 597; 44 NW 1047 (1890), we examined

several other statutes to ascertain the Legislature’s

intention in the reference to a local act in the title of the

statute in question.

We therefore conclude that the correction of SB 546 by

the Secretary of the Senate to include the two omitted census

tracts in District 15 implemented the clear intent of the

Legislature that the tracts be included in that district and

does not invalidate the statute.32

30
As noted, § 4(e)(i) does include the total population

of each district.

31
See, e.g., Goins v Allgood, 391 F2d 692, 697 (CA 5,

1968); Barnett v Daley, 32 F3d 1196, 1198 (CA 7, 1994).

32
We have located only one other case in which the

question of invalidating a legislative redistricting plan has

arisen because of omission of a portion of the population from

any district. In Harris v Shanahan, 192 Kan 183; 387 P2d 771

(1963), the legislature passed a bill apportioning the state

senate, but, through clerical error, the version of the bill

presented to the governor and signed did not include a city

(with approximately 8,800 people) in any district. The Kansas

Supreme Court declined to insert a reference to the city in

the district in which the legislature apparently intended to

include it.

Without commenting on the correctness of the Harris

VII. Applicability of 1999 Redistricting Guidelines

As set forth above, 1999 PA 221 included guidelines for

future congressional redistricting plans. Similarly, the

procedural provisions of 1999 PA 222 purport to direct us to

review any enacted redistricting plan for compliance with

those guidelines.

Plaintiffs claim that 2001 PA 115 must be struck down

because it does not comply with the secondary guidelines of

MCL 3.63(c). Particularly, plaintiffs assert that it does not

break as few county boundaries as is “reasonably possible.”

They argue that the alternative plans introduced in the

Legislature in July and October 2001 better meet the “county

break” criterion, establishing the invalidity of the

legislatively adopted plan. However, we need not reach the

question of 2001 PA 115's compliance with those secondary

guidelines, because we find that the MCL 3.63(c) guidelines

are not applicable.

It is a fundamental principle that one Legislature cannot

bind a future Legislature or limit its power to amend or

repeal statutes. Absent the creation of contract rights, the

decision under Kansas law, we note that it lacks a critical

feature that is present in this case. In the Kansas case,

state legislative districts were being apportioned, which do

not require the exactness of population equality that must be

used in congressional redistricting. The Kansas plan

apparently had districts that ranged approximately ten percent

above or below the average population figure. 192 Kan 189.

Thus, it would have been possible to place the omitted city

and its approximately 8,800 people in one of several

districts. By contrast, in this case, the exact

correspondence of the population of the omitted census tracts

with the population deficit of District 15 makes inescapable

the conclusion that the Legislature intended to place those

tracts in that district.

later Legislature is free to amend or repeal existing

statutory provisions. See Detroit v Detroit & Howell Plank Rd

Co, 43 Mich 140, 145; 5 NW 275 (1880); Stone v Mississippi,

101 US 814, 816-818; 25 L Ed 1079 (1879). As we explained in

Atlas v Wayne Co Bd of Auditors, 281 Mich 596, 599; 275 NW 507

(1937):

The act of one legislative body does not tie

the hands of future legislatures. Cooper, Wells &

Co v City of St Joseph, 232 Mich 255 [205 NW 86

(1925)]. The power to amend and repeal legislation

as well as to enact it is vested in the

legislature, and the legislature cannot restrict or

limit its right to exercise the power of

legislation by prescribing modes of procedure for

the repeal or amendment of statutes; nor may one

legislature restrict or limit the power of its

successors. . . . One legislature cannot enact

irrepealable legislation or limit or restrict its

own power, or the power of its successors, as to

the repeal of statutes; and an act of one

legislature is not binding on, and does not tie the

hands of, future legislatures.

We recently reiterated this principle in Ballard v

Ypsilanti Twp, 457 Mich 564, 569; 577 NW2d 890 (1998):

[T]he Legislature, in enacting a law, cannot

bind future Legislatures. Malcolm v East Detroit,

437 Mich 132, 139; 468 NW2d 479 (1991); citing

Harsha v Detroit, 261 Mich 586; 246 NW 849 (1933).

Thus, as even plaintiffs concede, the 2001 Legislature was not

bound to follow the guidelines in MCL 3.63(c) adopted by the

1999 Legislature. It could repeal, amend, or ignore them, as

it pleased.

However, plaintiffs rely on § 4(a) of 2001 PA 115, which

they believe constitutes an incorporation of the 1999

standards in the 2001 districting act:

In adopting the redistricting plan for

congressional districts, it is the intention of the

legislature to comply fully with section 3 of the

congressional redistricting act, 1999 PA 221, MCL

3.63.

The paramount rule of statutory interpretation is to give

effect to the intent of the Legislature. Tryc v Michigan

Veterans' Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).

We begin with the language of the statute itself, In re MCI

Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164

(1999), and also consider the context in which the language is

used, Crowe v Detroit, 465 Mich 1, 6-7; 631 NW2d 293 (2001).

The parties have not cited any authority relevant to

interpreting an unusual statutory provision such as this one,

in which it is essentially claimed that the substantive

provisions of a statute may be challenged on the ground that

they fail to meet standards set by the statute itself. In our

view, § 4(a) does not incorporate the 1999 guidelines as an

enforceable provision of 2001 PA 115 that would permit review

of the redistricting plan adopted by that statute.33 Rather,

§ 4(a) is merely part of the Legislature’s explanation of the

principles it used in developing the plan. This

interpretation is reinforced by the remainder of § 4, which

contains a number of such explanatory provisions that in no

sense could create bases for challenges to the redistricting

plan. In its entirely, § 4 reads:

All of the following apply to the

redistricting plan in section 1:

(a) In adopting the redistricting plan for

congressional districts, it is the intention of the

legislature to comply fully with section 3 of the

33
Significantly, neither 2001 PA 115 nor House Concurrent

Resolution 34, which further explains SB 546, makes any

reference to review of the plan by this Court or to 1999 PA

222.

congressional redistricting act, 1999 PA 221, MCL

3.63.

(b) The number of county breaks in the

redistricting plan is determined by the following

principles:

(i) Breaking a county line means assigning

part of the population of a county to 1 or more

counties in the formation of a district.

(ii) If population is shifted from a county to

a single election district, including a district

from 2 geographically-separate areas, there is 1

break. Except as provided in subparagraph (iii),

if population from a county is shifted to 2 or more

election districts, there are 2 or more breaks.

(iii) If 1 part of a county is shifted to a

district and the rest of the county is shifted to

another district, there is 1 break.

comply fully with both section 2 of the voting

rights act of 1965, Public Law 89-110, 42 USC

1973, and the requirements of the equal protection

clause of amendment XIV of the constitution of the

United States, as set forth in Shaw v Reno, 509 US

630 (1993), and subsequent cases concerning racial

gerrymandering. In light of these dual

obligations, the plan avoids any practice or

district lines that result in the denial of any

racial or ethnic group's equal opportunity to elect

a representative of its choice and, at the same

time, does not subordinate traditional

redistricting principles for the purpose of

accomplishing a racial gerrymander or creating a

majority-minority district. As a consequence, the

plan does not result in retrogression or dilution

of minority voting strength, particularly in light

of the demographic limitations caused by relative

population losses and the neutral criteria set

forth in section 3 of the congressional

redistricting act, 1999 PA 221, MCL 3.63. However,

the plan does not sacrifice traditional neutral

principles, such as, most importantly, preservation

of county and municipal boundaries, for the purpose

of engaging in a gerrymander that unnecessarily

favors 1 racial group over others.

(d) The plan furthers the underlying purpose

of the state constitution of 1963 by facilitating

effective representation in the legislature where

elected representatives can advance the shared

interests of unified municipalities or counties.

It does so without sacrificing voting rights act of

1965 principles, equal electoral opportunities, or

racial fairness.

(e) The redistricting plan for congressional

districts consists of 15 single member districts

comprised of convenient territories contiguous by

land. All of the following apply to the plan:

(i) The population in each of districts 1-9

and 11-15 is 662,563. The population of district

10 is 662,562.

(ii) The number of breaks in county boundaries

is 11.

(iii) The number of breaks in city and

township lines is 14.

(iv) No congressional district is wholly

contained within a city.

For example, if the population totals in § 4(e)(i) turned

out to be wrong, that would not be a basis for overturning the

redistricting plan. Rather, the question would be whether the

plan itself meets the federal equal population requirement.

Thus, in context, § 4(a) of 2001 PA 115 constitutes the

Legislature’s announcement of its conclusion that the

redistricting plan it was adopting is in compliance with all

applicable guidelines for redistricting.

Election redistricting is principally a legislative

function.34 Legislative action is entitled to great deference

in such matters, and the courts should only intervene when the

Legislature has failed to perform its function in a

constitutional manner.35 The Legislature was not bound to

34
Gaffney v Cummings, 412 US 735, 749; 93 S Ct 2321; 37

L Ed 2d 298 (1973); Cotlow v Growe, 622 NW2d 561 (Minn, 2001).

35
Wise v Lipscomb, 437 US 535, 539-540; 98 S Ct 2493; 57

L Ed 2d 411 (1978); Wesch v Hunt, 785 F Supp 1491, 1497 (SD

Ala, 1992), aff’d 504 US 902; 112 S Ct 1926; 118 L Ed 2d 535

(1992); State ex rel Lockert v Crowell, 631 SW2d 702, 706

(Tenn, 1982)

follow MCL 3.63(c). It was, of course, free to consider

those principles that have been historically used by courts in

cases of legislative impasse.36 However, its choice to

consider those principles does not signal an intention to

convert the nonbinding guidelines into a rigid test under

which the plan can be challenged by anyone who claims that

some other plan better meets the guidelines.

VIII. Conclusion

Congressional redistricting is primarily a function of

the Legislature. Its exercise of that power can be challenged

on the basis of federal requirements for congressional

redistricting, which derive their authority from the

underlying federal constitutional and statutory provisions,

rather than the Michigan Legislature’s references to them.

However, in this litigation, plaintiffs do not allege that the

redistricting plan adopted by 2001 PA 115 fails in any respect

to comply with applicable federal guidelines. Whether the

statute was validly enacted is a question that can be raised

as a challenge under the Michigan Constitution, but, on the

facts of this case, the correction of the enrolled bill before

submission to the Governor does not invalidate the statute.

The redistricting guidelines in 1999 PA 221 were not binding

on the Legislature in adopting the 2001 redistricting plan,

and its reference to MCL 3.63(c) does not incorporate those

guidelines into 2001 PA 115 so as to create a basis for

challenging the plan. Accordingly, the application for review

36
See, e.g., Good v Austin, supra, 800 F Supp 563; In re

Apportionment of State Legislature—1982, 413 Mich 96, 140-142;

321 NW2d 565 (1982).

of the redistricting plan is denied.

CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,

concurred.

S T A T E O F M I C H I G A N

SUPREME COURT

DAVID LeROUX, MICHAEL GRAY,

and ROBERT L. ELLIS,

Plaintiffs,

v No. 120338

SECRETARY OF STATE and

DIRECTOR OF ELECTIONS,

Defendants,

SUZANNE L. ANDERSON, SHARON

YENTSCH, and BRADLEY VAN HAITSMA,

Intervening Defendants.

___________________________________
CAVANAGH, J. (concurring).

As the arguments by the majority and the very able

dissent demonstrate, it is a close question whether the

variance between the bill as passed by the Legislature and as

approved by the Governor is sufficiently great to prevent 2001

PA 115 from having been validly enacted. In a sense, as the

dissent notes, the variance is an important one, because

inclusion of the two omitted census tracts is essential to the

constitutionality of the districting plan. On the other hand,

the intent that these two tracts be included in District 15 is

clear, given that their inclusion makes the populations of the

districts correspond exactly to those stated in § 4(e)(i) of

the bill.

The majority correctly notes that redistricting is

primarily a legislative function, and the courts are extremely

reluctant to intervene in the process. Where we have become

involved in the past, it was because the Legislature and

Governor failed to adopt apportionment plans, and, even as we

developed plans in order to provide for the continuity of

government by ensuring that a constitutionally apportioned

Legislature could be elected, we have given them every

opportunity to act. See In re Apportionment of the State

Legislature—1992, 439 Mich 715, 722, 724; 486 NW2d 639 (1992);

In re Apportionment of State Legislature—1982, 413 Mich 96,

142; 321 NW2d 565(1982).

In recognition of the inappropriateness of judicial

intervention into the redistricting process, the disruption

that would occur in the upcoming election if the matter were

to be returned to the Legislature for reenactment of the plan,

with a return trip to this Court a very real probability, and

the fact that the correction of the bill by the Secretary of

the Senate conformed the bill to the clear intention of the

Legislature, I concur in the result reached by the majority.

S T A T E O F M I C H I G A N

SUPREME COURT

DAVID LeROUX, MICHAEL GRAY,

and ROBERT L. ELLIS,

Plaintiffs,

v No. 120338

SECRETARY OF STATE and

DIRECTOR OF ELECTIONS,

Defendants,

SUZANNE L. ANDERSON, SHARON

YENTSCH, and BRADLEY VAN HAITSMA,

Intervening Defendants.

___________________________________
KELLY, J. (dissenting).

Public Act 115 of 2001 suffers from fatal flaws inflicted

on it by the Secretary of the Senate. As a consequence of her

actions, the bill presented to and signed by the Governor was

never voted on by the Legislature. Hence, it violated the

Michigan Constitution and cannot become law. In addition, the

bill that the Legislature passed was never submitted to the

Governor. Hence, it too violated the constitution and never

became law.

The majority's finding that the addition of two census

tracts by the Secretary of the Senate was permissible is

erroneous. The legal issue regarding it is not accurately

stated in the per curiam opinion. It is not a question

whether the Court will review the Legislature’s violation of

its own rules. Rather, it is a question whether, in violating

the Legislature’s rules, the Secretary of the Senate exceeded

her authority and violated the state constitution.

I would hold that the additions rendered the act invalid.

The Legislature should be instructed to pass a new act,

following the precepts laid down in the Michigan Constitution.

It is for the Legislature, not this Court and not the

Secretary of the Senate, to fashion the bill so as to be

legally valid.

The Background

The enrolled bill that the Legislature passed, 2001 PA

115, describes which state governmental units are to be within

which congressional districts. The act refines the

description where a county or a municipality is split,

explicitly stating which census tracts and census blocks

belong in which district.1

The Senate passed the bill and sent it to the House of

Representatives. The House amended and passed the bill, but

later that day, recalled it to make five additions.2 2001

Journal of the House 1575. The House passed the amended bill

1
For example, the description of the Second

Congressional District begins as follows:

DISTRICT 02

Allegan County (part)

Dorr twp (part)

TRACT 030401 including block(s)

1006, 1007, 1008, 1009 . . . .

2
It was discovered that five census tracts had not been

included. The procedure used to insert them is the one that

should have been used for the two tracts in question here.

and the Senate concurred in the amendment. The Senate ordered

the bill enrolled.

After the House and the Senate adjourned, the Secretary

of the Senate added two additional census tracts to the

enrolled bill.3 The two tracts contain 4,578 persons.

Therefore, the bill the Governor signed allocated 4,578

persons in two census tracts to a congressional district the

constituency of which had not been approved by the

Legislature.

"Obvious Technical Errors"

Defendants and intervenors defend the action of the

Secretary of the Senate, arguing that Rule 12 of the Joint

Rules of the Senate and House of Representatives permitted it.

That rule states that the Secretary shall correct "obvious

technical errors."

[T]he Secretary of the Senate and Clerk of the

House of Representatives, as the case may be, shall

correct obvious technical errors in the enrolled

bill or resolution, including adjusting totals,

misspellings, the omission or redundancy of

grammatical articles, cross-references,

punctuation, updating bill or resolution titles,

capitalization, citation formats, and plural or

singular word forms.

However, by no stretch of logic did the addition here

involve an obvious technical error. First, the error is not

in the nature of those listed in the rule. Where, as in Rule

12, the Legislature describes a concept by using a general

3
The two census tracts are 416200 and 422900. At oral

argument, the intervening defendants informed us that these

tracts lie between Districts 7 and 15. The plaintiffs have

not agreed that these tracts belong where the Secretary of the

Senate placed them.

term followed by specific examples, this Court applies the

rule of statutory construction called "ejusdem generis."

Huggett v Dep't of Natural Resources, 464 Mich 711, 718; 629

NW2d 915 (2001).

Under ejusdem generis, general terms are interpreted to

include only items that are "of the same kind, class,

character, or nature as those specifically enumerated." Id.

at 718-719. Here the general term is "obvious technical

errors." The specific terms describe minor, nonsubstantive

clerical or grammatical errors. While more errors than those

specified are envisioned, when ejusdem generis is applied,

they should include solely errors of the same class as those

that are listed.

The omission of census tracts does not involve a

misspelling, a grammatical article, punctuation, a title,

capitalization, citation format, or plural or singular word

forms. It does not involve adjusting totals. It should be

noted that the bill fails to contain a number representing the

population in each listed census tract. Hence, one cannot

tabulate the total population in any district by totaling the

population of each tract appearing there. Presumably if, as

defendants assert, 4,578 people were missing from District 15,

one could have ascertained that fact if the tracts listed had

included a number representing the population in each.

However, even then, one could not have ascertained from the

face of the bill that the missing tracts were 416200 and

422900. Therefore, the error does not involve cross

references, either.

What it does involve is the utter omission of vital,

substantive information. This is an error of a different kind

and class from the "obvious technical errors" listed in Rule

12.

Second, not only does the error here not pass legal

scrutiny as an obvious technical error, it does not pass a

plain language reading either. "Obvious" means "easily seen,

recognized, or understood; open to view or knowledge . . .

lacking in subtlety." Random House College Dictionary (1988).

A perusal of the bill as passed would never reveal that the

tracts in question were missing. Documents outside the bill

would have to be consulted to show it. Hence, as the error is

not open to view or lacking in subtlety, it is not "obvious"

in the commonly understood meaning of the word.

Defendants argue that the error was obvious because the

total population in all the tracts intended for District 15

was listed in the act, 662,563 persons. They consider the

error obvious because one can discover it by (1) consulting

documents showing the number of people in each of District

15's census tracts, figures not listed in the bill, then (2)

totaling them to determine if they reach 662,563. If they do

not, one knows that an error was made.

This argument confuses what is obvious with what is

ascertainable. One must consult the census data for one

county, eight cities, eight townships, and fifty-one census

tracts to learn that the population figure stated in the bill

for District 15 is not met. Once that has been completed, one

knows only that an error has been made. It could be that the

Legislature miscalculated the total population in District 15.

It could be that one or more tracts are missing. One could

then search and compare against the bill lists of thousands of

tracts to determine whether certain tracts are not included

and which ones they are. Hence, even if the Court could

ascertain that tracts 416200 and 422900 belong in District 15,

it can scarcely be said that the mistake is an "obvious"

technical error.

ANDERSON v ATWOOD DISTINGUISHED

The majority cites Anderson v Atwood4 for the proposition

that this Court will not review the Legislature's failure to

comply with its own rules of procedure. It is true that in

Anderson we did not order recognition of an act that died

after the Legislature withdrew it from the Governor. However,

Anderson is inapposite to the case before us.

Here, the bill did not die because of an alleged

violation of the rules. Rather, Rule 12 was used to alter the

enrolled bill without the approval of the Legislature. As a

consequence of the distinctly differing facts in the two

cases, the legal question in this case is quite different. It

is whether either a legislative rule or the constitution

authorizes the Secretary of the Senate to add to an enrolled

bill vital, substantive information not ascertainable from

the bill that the Legislature omitted.

Anderson does not stand for the proposition that this

Court will not review an action taken under a rule of

273 Mich 316; 262 NW 922 (1935).

legislative procedure when the action is proscribed by the

constitution. The addition of substantive items to the bill

in question by the Secretary of the Senate was an action

proscribed by the constitution.

THE APPLICABILITY OF ART 4,

§ 33 OF THE CONSTITUTION

The Michigan Constitution provides that no bill becomes

law without the consent of a majority of the members elected

to and serving in each house. Const 1963, art 4, § 26. It

also provides that every bill passed by the Legislature must

be presented to the Governor before it becomes law. Const

1963, art 4, § 33. It follows that, since the bill presented

to the Governor in this case was not the one passed by the

Legislature, the constitution was violated.

The majority finds that the changes made in the enrolled

bill were technicalities; hence, they did not substantially

alter the bill passed by the Legislature. The precedent of

this Court does not support that finding. Rather, it

establishes that the only changes permissible in the text of

a bill between passage and submission to the Governor are the

addition of words that (1) are not essential to the substance

of the bill and (2) mislead no one. Michigan State Prison Bd

of Control v Auditor General, 149 Mich 386; 112 NW 1017

(1907).5

5
In Board of Control the enrolled bill accidentally left

out the word "thousand" in one place when designating $175,000

for the construction of a binder-twine plant at Jackson

prison. The bill passed by the Legislature correctly cited

the amount. This Court found the omission to be unsubstantial

because the word "thousand" was nonessential. It was clear

(continued...)

As has been demonstrated herein, the addition of two

census tracts was essential to the substance of the bill. It

is without contest that, without the addition, District 15 was

incomplete and 4,578 people were left without a congressional

district. Also, the addition is misleading. It causes one to

believe that the Legislature intended the tracts to be in

District 15. The truth appears to be that the Legislature had

no position with respect to these tracts. It simply overlooked

them.

A holding that the action of the Secretary of the Senate

was unconstitutional would be in accord with our decision in

Rode v Phelps6 where we observed, relative to the role of the

Legislature in lawmaking:

The people speak, in the enactment of laws,

through the Legislature, acting within the limits

of the Constitution; and any holding which would

authorize or permit laws, or any part of any law,

to be ordained or created in any other way, would

be inconsistent with the logic of our free

institutions, and dangerous to the safety and

security of the liberties of the people.

It would be consistent, also, with our holding in Stow v Grand

Rapids, 79 Mich 595; 44 NW 1047 (1890). In that case, we

ruled that the inclusion of immediate effect by the Clerk of

5
(...continued)

from the text of the bill that the intent of the Legislature

was to appropriate $175,000.

By contrast, it is not clear from the text of the bill

here that the Legislature intended any more tracts to be

included in District 15, much less which tracts. It can only

be hypothesized after prolonged study of census data. That is

why Board of Control does not support the majority's argument,

but instead cuts against it.

6
80 Mich 598, 609; 45 NW 493 (1890).

the House of Representatives was an unconstitutional addition

to the bill passed by the Legislature.

This state has no case law allowing the addition of

substantive items to a bill between passage and submission to

the Governor. What has been found to be nonsubstantive, by

contrast, has been the omission of a word in an enrolled bill

when the omission is obvious on the bill's face. Board of

Control, supra. Also nonsubstantative was the second alleged

error in the bill in Stow, supra, because it involved a

typographical error wrongly describing the act to be amended

as an act from 1887, instead of 1877.

The majority’s use of these cases to justify the addition

of substantive items like a census tract permits the Secretary

of the Senate to engage in fact finding to determine

legislative intent. It permits that individual to speak for

the Legislature in a manner never before permitted in

Michigan. The designation of voting districts is a

legislative decision. Williams v Secretary of State, 145 Mich

447; 108 NW 749 (1906). It cannot be a mere technical

correction for the secretary to add 4,578 people to a

congressional district.

The case most nearly on point with the one before us was

decided by the Supreme Court of Kansas. Harris v Shanahan,

192 Kan 183; 387 P2d 771 (1963). It involved apportionment of

the Kansas Legislature. The bill submitted to the governor

omitted a city of 8,800 people from any senatorial district.

The Kansas court rejected arguments that the omission was

technical and that the court should correct it to prevent

constitutional error. In so ruling, it observed

We assume that the intention of both houses of

the legislature and of the governor was to enact a

law which gave adequate senatorial representation

to every citizen of Kansas, including the residents

of the city of Leawood. No one questions that

fact. But we are confronted with what was done,

not what the legislature may have really intended

to do. [Id. at 786.]

In Harris, as here, the bill passed by both houses of the

legislature was not the bill submitted to and signed by the

governor. The Kansas court found that the defect was one that

the legislature alone could correct.

Since the bill submitted to the Governor in the case

before us contained substantive, not technical, additions, it

was not the bill passed by the Legislature. And since the

bill passed by the Legislature was never submitted to the

Governor, art 4, § 33 of the Michigan Constitution was

violated.

CONCLUSION

I would hold the Secretary of the Senate's modification

invalid because it violates legislative Rule 12 and, most

significantly, it violates the Michigan Constitution. Adding

tracts to the description of a legislative district is both a

substantive provision and it is misleading. A fair reading of

Rule 12 based on plain meaning or a statutory construction

using ejusdem generis will not permit us to construe the

omission as an obvious technical error. The secretary's

change made a substantive alteration to the reapportionment

bill. As a consequence, the bill passed by the Legislature

was not submitted to the Governor, a violation of the Michigan

Constitution. The bill that was passed was never submitted to

the Governor. Hence it never became law.

The majority chooses to pass off as nonserious my

conclusion that the Secretary of the Senate's changes to the

bill were substantive and not a mere adjustment of totals.

However, it does seem serious to me (1) that 4,578 persons

were added to a congressional district without a vote, or even

the knowledge, of the Legislature, (2) that no figures can be

found in this bill that, by any method, can be totaled or

retotalled to assure us that 4,578 people are or are not

missing from District 15, and (3) that no Michigan case law

has ever condoned such a significant and unorthodox amendment

to a legislative bill as the majority has approved here.

To remedy this troubling situation, the Court should

avoid legislating. Rather, it should afford the Legislature

the opportunity to heed its constitutional mandate to

reapportion in accordance with art 4, § 33 of the Michigan

Constitution.

If there is to be a judicial determination of

congressional reapportionment, it should occur only after the

Legislature has shown itself unable to perform its

constitutional duty to reapportion.

After remand, should the Legislature be unable to pass a

valid reapportionment bill and give it immediate effect, it

may return to this Court, seeking further and timely relief.7

7
See Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed

2d 506 (1964); California Assembly v Deukmejian, 30 Cal 3d

(continued...)

Because of the increasingly short timetable involved in

preparing for the congressional elections, this Court should

retain jurisdiction of the matter.

It is regrettable that an error on the part of the

Secretary of the Senate should defeat the action of the

Legislature. This is especially true as the congressional

reapportionment law is of great public importance. However,

my strict application of the law calling for full compliance

with constitutional requirements is, taking the long view, a

sound one and in the interest of good government.

7
(...continued)

638; 180 Cal Rptr 297; 639 P2d 939 (1982).

LeRoux v. Secretary of State

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