By Allison R. Donahue, Michigan Advance
The Michigan Supreme Court heard oral arguments Wednesday in a lawsuit filed by several media organizations that allege the state’s redistricting commission has violated the constitutional requirement of transparency.
The Detroit Free Press, Detroit News, Bridge Michigan and the Michigan Press Association filed the lawsuit against the Michigan Independent Citizens Redistricting Commission (MICRC) on Dec. 7, after the commission refused to release memos and recordings of a closed session held in October.*
This is the first time in state history that an independent commission has led the redistricting process, which is a result of a 2018 state constitutional measure passed by voters. The 13-member commission consists of four Republicans, four Democrats and five independents. Before then, the Legislature was charged with drawing the maps that would then require the governor’s approval.
The new panel’s maps will go into effect for the 2022 election and will be in place for 10 years.
“The Constitution commands that anything the commission does that involves developing, opposing or adapting redistricting plans is the business of redistricting, and must be done in open meetings. Any data or materials used by the commission in support of that effort must also be published for review and possible comment by the public,” said Kurtis Wilder, the attorney representing the media organizations. “In other words, the people told the commission that it has to show its homework before it can receive a final grade.”
Wilder asked that the court direct the commission to release the video or audio of the Oct. 27 closed session and all related materials for public review and consideration.
During the closed session, the commission met with their legal counsel to discuss two memos: “The Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting.”
“When you look at the actual title of the memos that are in question, don’t you feel that … the general person would look at that and say, ‘Wow, that must have to play a role in how these maps are created,” Justice Richard Bernstein asked.
But David Fink, the attorney representing the MICRC, argued that the closed session was lawful and protected by attorney-client privilege.
“There were open sessions where the [Voting Rights Act] was described and explained in excruciating detail and facts have been presented about historical discrimination. There’s a ton of that in the record. What you don’t have is any memo where a lawyer applies the facts to the law, because that’s attorney-client communication,” said Fink. “The Constitution did not say everything and anything is going to be public, including attorney-client communications.”
The commission’s approach to following the federal guidelines of the VRA has stirred pushback throughout the process from advocates who say the maps for the state Senate, state House and congressional districts should have a fair amount of majority-minority districts.
Currently, of the maps that the MICRC will vote on later this month, the U.S. House and Michigan Senate maps have no majority-minority districts and the proposed state House maps have fewer majority-minority districts than what is currently in place.
Last week, MICRC spokesperson Edward Woods said in a statement that the commission is “not surprised or distracted by this lawsuit and will continue our mission to draw fair maps through public engagement openly and transparently.” Additionally, Woods said the MICRC will have no further comment on this lawsuit while it’s in litigation.
Those watching the redistricting process closely this past year have weighed in on the constitutionality of the commission hosting closed sessions.
Earlier this month, the Michigan Senate unanimously passed Senate Bill 728, introduced by Michigan Senate Oversight Committee Chair Ed McBroom (R-Vulcan), aiming to prevent the MICRC from convening behind closed doors. The House passed the bill Tuesday with a 100-2 vote.
Attorney General Dana Nessel issued a formal legal opinion last month stating that she believes the closed meeting should have been public.
Voters Not Politicians Executive Director Nancy Wang said the group that drafted the amendment to create the MICRC in 2018 “supports the efforts by Michigan media to pursue the release of the Voting Rights Act memos and we appreciate the Michigan Supreme Court’s swift attention to this matter.”
“Voters established the commission to bring redistricting out into the open. Anything that informs the commission’s mapping decisions should be made public,” Wang said.
*Disclosure: The Michigan Advance donated to the Michigan Press Association’s legal fund for the redistricting lawsuit.
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