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Nessel: Michigan redistricting panel must release memos; panel doubles down, won’t budge on secret memos

The Michigan Independent Citizens Redistricting Commission held a closed-door meeting last month in East Lansing to discuss two Voting Rights Act-related memos. (Bridge photo by Sergio Martínez-Beltrán)

by Sergio Martínez-Beltrán (Bridge Michigan)

LANSING— Michigan Attorney General Dana Nessel said Monday that the state 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.

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 said.

Despite the opinion, Edward Woods III, the commission 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 rationale for drawing districts that include fewer majority-minority districts in the state Senate, House and U.S. House.

Nessel 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 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 attorneys and discussed amid complaints from Black residents about the panel 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 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) 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 October 27th closed session, however, that is not what happened here,” Nessel said.

Michigan redistricting panel doubles down

Attorneys for the Michigan Independent Citizens Redistricting Commission on Wednesday defended the panel decision to keep two voting-rights memos secret, despite an opinion from the state attorney general that they should be public.

Julianne Pastula, the commission general counsel, and David Fink, another attorney for the panel, doubled down on their claims that attorney-client privilege shields the documents. The comments came during a virtual meeting with representatives for Bridge Michigan, Detroit Free Press, The Detroit News and the Michigan Press Association.

For weeks, the commission has rebuffed efforts by news outlets to acquire the memos. Bridge alone has requested the documents at least five times.

Fink told the group that attorneys “are certainly much less inclined to release these few (documents).”

Fink, who served on the cabinet of former Democratic Gov. Jennifer Granholm, said the decision “could well set a precedent” that will affect the commission for years to come.

The memos — titled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting” — helped inform the commission decision to reduce the number of state House, Senate, and congressional districts in which minorities are the majority.

Voters created the commission in 2018 to end a system for decades that allowed politicians to draw districts largely in private.

The panel has released 15 proposed maps and the public has until Dec. 28 to comment on them. The districts last 10 years.

“You all have asked the public for comments. You gave them 45 days,” Lisa McGraw, the manager of the Michigan Press Association, said during the meeting.

“It’s our belief that you’re not giving them all the information to comment.”

Fink said the commission will discuss the attorney general opinion at its next meeting on Dec. 2. Before then, attorneys will issue a public recommendation to the commissioners, Fink said.

John Bebow, CEO and president of The Center for Michigan nonprofit and Bridge Michigan, said after the meeting, “the public voted for a commission to make these decisions, not for a lawyer to independently choose what is public and what isn’t.”

Bebow said Bridge Michigan “will pursue all avenues and make every argument to obtain the public release of these documents.”

Both memos were discussed in a closed-session on Oct. 27 amid ongoing debate about minority representation, particularly in southeast Michigan.

The documents and meeting minutes of the closed session have been kept private.

The commission repeatedly has pledged transparency, and on Monday, state Attorney General Dana Nessel issued a non-binding opinion saying the secret discussions “should have been held at an open meeting.”

Her 14-page opinion concluded that “the memoranda must be disclosed.”

The constitutional amendment that created the commission says it must “conduct all of its business at open meetings.”

That means “total transparency, no exception,” said Herschel Fink, an attorney representing the Detroit Free Press who is not related to David Fink. The newspaper is considering “further legal action,” Herschel Fink told the Detroit Free Press on Wednesday.

David Fink said he believes Nessel “drew some inferences” without reviewing the memos, and that he disagreed with the analysis. Pastula this week denied Freedom of Information Act requests for the memos from both the Detroit Free Press and conservative advocacy group Michigan Rising Action.

Pastula said the Nessel opinion was not “conclusory,” adding that it is “premature” to say whether she agrees with it.

Lynsey Mukomel, Nessel press secretary, told Bridge Michigan the opinion is not binding.

“They likely are not bound, but there is nothing prohibiting them from complying,” Mukomel wrote in an email. “The AG thought it important to issue the opinion regardless to provide guidance and to advocate for transparency.”

by Sara Swanson

Sara Swanson is an editor, writer and a founder of the Manchester Mirror.