Michigan redistricting panel opts for secrecy, won’t release voting memos

LANSING — Michigan’s redistricting panel voted Thursday to keep secret two memos that helped members justify the reduction of majority-minority legislative districts.

Members of the Michigan Independent Citizens Redistricting Commission kept the records secret over numerous objections, including those from residents in Flint who are upset they are losing a Black-majority district in proposed legislative maps.

“Can we find out what you all talked about behind the scenes?” Arthur Woodson, a Flint resident, told the commission, which was approved by voters in 2018.

“That’s what we want to know.”

Related: 

• Voters Not Politicians to redistricting panel: Release Voting Rights Act memos
• Michigan redistricting attorneys: Don’t ‘acquiesce,’ keep memos secret
• Michigan redistricting panel doubles down, won’t budge on secret memos

Over objections from editors of Bridge Michigan, The Detroit News, Detroit Free Press, Attorney General Dana Nessel and Secretary of State Jocelyn Benson, the panel voted 7-5 to continue to hide the documents.

Four attorneys who work for the commission, which was created by voters in a constitutional amendment in 2018, argued that releasing the memos would put the panel in danger due to expected litigation.

The documents — “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting” — are believed to be mostly historical in nature and not involve legal strategy.

For an hour of debate, though, lawyers claimed that making them public would set a bad precedent.

“If you are going into litigation and reveal memorada, such as the (Voting Rights Act) memorada that forms the basis of your decision ... You are giving the other side your playbook,” said litigation counsel Katherine McKnight. 

The commissioners who voted to keep the memos secret are Democrats Juanita Curry, M. C. Rothhorn, Brittni Kellom, and Dustin Witjes; Republican Cynthia Orton; and independents Richard Weiss and Janice Vallette.

Witjes, who weeks ago floated the idea of releasing the memos, told reporters he changed his mind after hearing from attorneys.

The memos were discussed during an Oct. 27 closed-door meeting that also has raised alarms. As the commission was meeting Thursday, the state Senate voted unanimously to clarify that the state Open Meetings Act’s provisions allowing for closed sessions don’t apply to the commission. 

The bill, which has yet to go to the state House, bars the commission from “meet(ing) in closed session for any purpose.”

Even so, redistricting commissioners voted 8-4 on Thursday not to release recordings of the closed meeting on Oct. 27 that discussed the memos. 

Commissioner Steve Lett, an independent who voted to release the documents, acknowledged the commission drew districts with the information presented to them in the memos.

“Every time we have a meeting, we are reminded that 61 percent of the voters want an open and transparent process — and we shut that off,” said Lett, who referred to the percent of voters who favored creating the panel.

'The clock keeps ticking’

The commission was created to replace a system that allowed parties controlling the Legislature to draft legislative districts for the state House, Senate and Michigan’s congressional delegation largely in secret. 

The districts are redrawn every decade, and the process has led to some of the most Republican gerrymandered maps in the nation.

The panel is in the middle of a 45-day public comment period created to receive feedback on 15 maps put out for public consideration before a final vote is expected later this month. 

Bridge, Detroit Free Press, The Detroit News and the Michigan Press Association have all sent letters, met with the commission’s legal team, and spoke in front of the panel pleading with them to release the materials. 

The attorneys have cited attorney-client privilege when denying the records requests.

Lisa McGraw, the manager of the Michigan Press Association, told Bridge Michigan in a statement that she was “appalled” by Thursday’s vote.

“The very name of this commission is the Michigan CITIZENS Redistricting Commission,” McGraw said in an email. 

“It seems to me that the seven people who voted to keep these documents secret today based on the advice of their attorneys fail to understand who they are representing…the citizens of Michigan.”

Bridge Michigan CEO John Bebow said the continued secrecy is “wounding” the commission’s credibility. He said Bridge “will continue to pursue every avenue to publicly release these memos.

“Sadly, the clock keeps ticking on the public comment process for maps informed, in part, by still-secret information.”

Michigan Rising Action, a conservative advocacy group, has also tried to get the memos, but their requests have been denied.

Eric Ventimiglia, the executive director of the organization, said the “arguments being made by their legal counsel are likely to cover up for the poor advice given to the commission, which they know will be difficult to defend.”

“The commission has thumbed their noses at the people of Michigan, in direct violation of the constitution.”

Nothing nefarious?

The attorneys for the commission claimed that making the documents public would constitute a waiver of the attorney-right privilege, and that would hinder the ability of the lawyers to provide candid advice.

Although there currently is no pending litigation against the commission, the attorneys said lawsuits are likely once the commission approves maps. 

“There's nothing wrong or nefarious about lawyers providing attorney-client memoranda,” said David Fink, a lawyer for the commission. “We do it every day with all of our clients.”

He said waiving attorney-client privilege would be a “dangerous” “slippery slope.”

But Commissioner Rebecca Szetela, an independent who serves as chair  and voted to release the documents, said the commission has already waived some of its attorney-client protections, in part, because it has discussed other memos prepared by the attorneys in public. 

​Szetela, who is also an attorney, said she was “stunned” by some of the advice from commission lawyers.

“If we're going to take the position that we have one legal team, and that they all rise and fall together, that may put ourselves in a very, very dangerous position with respect for our ability to preserve the waiver going forward,” Szetela said. 

She also expressed frustrations with what she suggested was a lack of communication between the legal team and commissioners.