Michigan Supreme Court orders release of redistricting panel’s secret work

Update: Here’s what the Michigan redistricting panel discussed in secret

LANSING—The Michigan Supreme Court ruled Monday that the state’s redistricting panel violated the state Constitution when it met behind closed doors to discuss secret memos used to draw the state’s new political boundaries.

The Court ordered the Michigan Independent Citizens Redistricting Commission to immediately release a recording of the Oct. 27 private meeting to Bridge Michigan and other news organizations that sued to make the secret hearing public. The court also ordered the panel to allow the public to see seven of 10 memos the commission’s attorneys had said were protected from disclosure under attorney-client privilege.

Several hours after the ruling, the commission released the memos around 11:30 p.m. Bridge Michigan will report on their details on Tuesday.

The opinion was issued in a lawsuit brought earlier this month by Bridge, The Detroit News, Detroit Free Press and the Michigan Press Association, a media trade group, against the Redistricting Commission over the disclosure of the materials. 

Related:

• Critics say prisons give rural Michigan towns unfair edge in redistricting
• Michigan Supreme Court hears redistricting lawsuit over secret memos
• On eve of court case, Michigan redistricting panel says it has right to secrecy

In ruling for the media groups, the high court noted that legal advice that might otherwise be shielded in disputes involving private parties was less likely to be protected under the facts of this case: involving a public commission whose very purpose is to design political maps that conform to legal requirements. 

“Because the October 27 meeting at issue concerned the adoption of the plans (for proposed maps) and not any pending litigation, the subject of the meeting constituted the commission’s business and therefore had to be conducted in an open session,” Justice David Viviano, joined by justices Brian Zahra, Richard Bernstein, and Elizabeth Clement, wrote.

The Court said the commission’s decision to meet in secret and withhold some legal memos from public disclosure violated the state Constitution, which says all of the commission’s work “shall” be conducted in public. 

“The voters in 2018 changed the process for redistricting in Michigan. In doing so, they established numerous safeguards to ensure that the new process would be transparent,” Viviano wrote.

“Today, we enforce two of those provisions against the Commission’s attempt to operate outside of public view.”

Two of the memos the court ordered released Monday were titled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting.” They were discussed in private as the commission heard from Black voters who questioned the panel’s decision to reduce the number of minority-majority districts in Southeast Michigan. 

Minority-majority districts are districts in which minority voters make up the majority of the voters. Michigan currently has 17 state legislative minority-majority districts, but the redistricting panel has proposed reducing the number to a handful in future elections. 

Edward Woods III, the spokesperson for the commission, told Bridge in an email the commission was in the process of complying with the order. He didn't say when the documents would be made public. 

Rebecca Szetela, an independent commission member who serves as its chair, told Bridge in a text message that the opinion “clarifies the scope of the attorney-client privilege as applied to the MICRC.”

Szetela had advocated for the release of the memos.

The commission’s attorneys claimed the documents were protected under attorney-client privilege. They also asserted that commissioners didn’t use those disputed documents to draw maps, despite commissioners admitting the information informed their map drawing.

Attorneys for the commission also claimed the panel discussed legal strategy at the closed hearing (not the substance of mapping decisions), despite no pending litigation against the commission.

The commission attorneys warned that disclosure of their legal documents would prevent them from providing candid legal advice to the commission.

But Monday’s majority disagreed, writing “we are unmoved by the dissent’s overheated rhetoric and unfounded prediction that our opinion will cause the heavens to fall.” The justices noted that Voters Not Politicians, the activist group that drafted the constitutional provision creating the commission, “apparently do not agree that the Commission will be kneecapped by disclosure of all the requested materials.”

Justices Elizabeth Welch, Megan Cavanagh and Chief Justice Bridget McCormack dissented from the majority, saying the ruling “strips the Commission of a fundamental commitment of our legal system — the attorney-client privilege.”

John Bebow, the CEO of The Center for Michigan, which includes Bridge Michigan, celebrated the decision, saying in a statement that “the commission can get back to the important business of drawing the lines - in COMPLETE transparency.

“We are grateful for this important precedent requiring the people's business to be completely in view of the people."

Nancy Wang, executive director of Voters Not Politicians, the group behind the push that created an independent commission to draw state and federal political maps in Michigan, said the ruling “upholds the will of the millions of Michiganders who voted overwhelmingly for a transparent redistricting process."

The Michigan GOP called the ruling a victory for Michigan residents.