Nessel: Michigan redistricting panel wrong to meet secretly, must release memos

LANSING— Michigan Attorney General Dana Nessel said Monday that the state’s redistricting panel “must” disclose two voting rights memos used to draw districts in Detroit. 

In a 14-page legal opinion, Nessel also wrote that a closed-door meeting among redistricting commissioners on Oct. 27 about the memos “should have been held at an open meeting.”

The opinion comes after transparency activists, news outlets including Bridge Michigan, and the Michigan Press Association have slammed the Michigan Independent Citizens Redistricting Commission for meeting behind closed doors to confer with lawyers over its rationale for drawing Detroit districts. 

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The 13-member panel, which was created to end years of secrecy surrounding legislative redistricting, discussed memos titled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting.”

“Presuming the Independent Citizens Redistricting Commission ... discuss(ed) memoranda that provided Commission members with certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans, then the memoranda must be disclosed under (the constitution) and the discussion should have been held at an open meeting,” Nessel’s said. 

Despite the opinion, Edward Woods III, the commission’s spokesman, suggested the panel may still wait more than a week to disclose the documents. 

Bridge on Monday asked him for the fourth time to release the memos, and he responded he can do so once “ the commission authorizes (their) release.”

“At our next meeting scheduled for Thursday, Dec. 2, we will discuss (the opinion) openly and transparently,” Woods said.

Bridge and other news outlets have lobbied for the memos because the commission is amid a 45-day period of public comment that ends Dec. 28. The memos may contain hints about the commission’s rationale for drawing districts that include fewer majority-minority districts in the state Senate, House and U.S. House.

Nessel’s opinion was in response to a question from Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan, about whether the commission violated the state constitution when it shut the public out of the discussion.

The commission’s general counsel, Julianne Pastula, had advised commissioners to keep the documents and the discussion confidential, citing attorney-client privilege. 

Both documents were drafted by the panel’s attorneys and discussed amid complaints from Black residents about the panel’s decision to create fewer majority-Black districts in the state.

McBroom told Bridge on Monday the commission should release the memos as soon as possible.

“It’s certainly an important opinion that should help this commission and other public bodies to remember what an open meeting constitutes,” McBroom said.  

Lisa McGraw, the manager of the Michigan Press Association, celebrated the opinion. 

“We appreciate (Nessel’s) stance on transparency, especially on this important issue,” McGraw said. 

The commission was created in 2018 after voters pushed for a transparent redistricting process.  For decades, the party in power in the Michigan Legislature was in charge of drawing the new districts. The process occurred largely in private, and led to some of the most Republican gerrymandered districts in the country.

Despite the commission defending its decision to keep the documents in secret, some members if the commission may be having a change of heart. 

Commissioner Dustin Witjes, a Democrat from Ypsilanti, last week said he “personally cannot see any legal strategy that was really discussed in that particular closed session that the public should not be made aware of.”

According to the Michigan Constitution, the redistricting panel must “conduct all of its business at open meetings.”

But Nessel on Monday stopped short of answering whether the commission has that authority. She said “it is beyond the scope of this opinion to determine what discussions might fall outside the ‘business’ of the Commission.”

Nessel said the commission could discuss in private “concerning litigation or some other matter” that doesn’t have to do with the development or drafting of the maps. 

“Based on the titles of the memoranda and the presumptive content of the discussion at the Commission’s October 27th closed session, however, that is not what happened here,” Nessel said.