On eve of court case, Michigan redistricting panel says it has right to secrecy

Dec. 20: Michigan Supreme Court orders release of redistricting panel’s secret work
Update: Michigan Supreme Court hears redistricting lawsuit over secret memos

LANSING — Attorneys for Michigan’s redistricting panel argued in a court filing Monday that the group has a right to keep legal advice private because it falls under attorney-client privilege.

Attorneys for the Michigan Independent Citizens Redistricting Commission argued in a state Supreme Court brief that releasing documents discussed in private “would negatively impact” the commission’s ability to receive legal advice. 

“More plainly stated, the ability of the commission’s legal team to provide full, frank, and candid legal advice, consistent with their ethical obligations, is under direct threat, as is the commission’s right to receive that advice,” the filing said. 

Related:

• Bridge, news outlets sue redistricting panel over private memos
• Michigan redistricting panel opts for secrecy, won’t release voting memos
• Voters Not Politicians to redistricting panel: Release Voting Rights Act memos
• Michigan redistricting attorneys: Don’t ‘acquiesce,’ keep memos secret

The filing was in response to a lawsuit filed last week by Bridge Michigan, The Detroit News, Detroit Free Press and Michigan Press Association over the release of two memos used by the commission to draw legislative and congressional maps. 

Oral arguments before the Michigan Supreme Court are scheduled for 9:30 a.m. Wednesday. 

The memos, titled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting,” were used by the commission to help draw proposed districts, at least one commissioner acknowledged recently.

For much of the fall, issues about minority representation have dominated debate among the commission, which must abide by the federal Voting Rights Act, which guarantees minorities can elect candidates of their choosing.

The commission’s voting rights attorney and other experts hired by the panel have suggested the panel decreases the number of minority-majority districts in southeast Michigan, prompting a backlash from African-American voters and leaders. 

The 13-member commission is expected to approve the maps at month’s end. The districts last 10 years and set boundaries for the state House and Senate and Michigan’s congressional delegation.

The commission was created in 2018 after 61 percent of Michigan voters supported a constitutional amendment that was meant to create a more fair and transparent process.

Until this year, the party in power in the Michigan Legislature drew the maps in secret, and created some of the most gerrymandered districts in the country.

The lawsuit by Bridge and other news outlets claim the redistricting commission is violating the Michigan Constitution, which states that all of the commission’s business shall be made public.

The constitution also states the panel “shall publish the proposed redistricting plans and any data and supporting materials used to develop the plans.”

But attorneys for the commission said that the constitutional requirement that all business shall be conducted in public “does not abrogate the commission’s ability to invoke the attorney-client privilege or prevent the commission from receiving confidential legal advice during the map-making process.”

The attorneys also claimed the commission needs to be able to communicate confidentially with its lawyers in order to fulfill its constitutional mandate.