Michigan Supreme Court orders redistricting commission to release voting rights memos
The Michigan Supreme Court ordered the state’s redistricting commission on Monday to release records the group withheld from the public while drawing proposed congressional and legislative districts.
The court's 4-3 decision in response to a lawsuit filed by the Detroit Free Press and other media organizations caps a monthslong controversy stemming from a late October meeting of the commission behind closed doors to discuss with its attorneys two memos related to voting rights issues.
The court ordered the release of those memos, a recording of the closed-door meeting and five other documents withheld by the commission, including those concerning redistricting criteria.
"This is a victory for transparency and the citizens of Michigan. We thank the court for its expeditious decision that keeps public business public," said Peter Bhatia, editor and vice president of the Free Press.
The state's high court found that the commission violated transparency requirements outlined in the Michigan Constitution when it met behind closed doors and withheld the memos it discussed privately with its attorneys.
Left-leaning Justice Richard Bernstein joined conservatives Elizabeth Clement and Brian Zahra in the opinion by Justice David Viviano.
"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. Today, we enforce two of those provisions against the Commission’s attempt to operate outside of public view," the majority opinion states.
Chief Justice Bridget McCormack and Justice Megan Cavanagh joined a dissent authored by Justice Elizabeth Welch, arguing the majority strips away the commission's right to confidential legal advice.
"Every other government entity, every legal entity, every person, and indeed every other similar independent redistricting commission in the nation has attorney-client privilege. But as a result of the majority’s newly created rule, Michigan’s commission will not," Welch wrote in the dissent.
"The majority’s rule places into question the commission’s independence and its ability to succeed in its mission of drawing fair, nonpartisan, and legally compliant maps."
In a statement, spokesman Edward Wood III said the commission, "is aware of the Michigan Supreme Court decision and is in the process of complying with the order.” The Free Press, The Detroit News, Bridge Michigan and the Michigan Press Association filed the lawsuit against the commission after the commission denied records requests for the documents and voted to keep the memos secret.
That vote followed a nonbinding legal opinion by Attorney General Dana Nessel that found the commission likely violated the Michigan Constitution in meeting behind closed doors and withholding the memos discussed. The commission's lawyers advised the group not to publish the memos in response to the opinion, arguing that it would essentially amount to a waiver of the commission's attorney-client privilege.
"Our Supreme Court moved with great speed to vindicate the public’s crucial constitutional right to observe the entire process of redistricting," Herschel Fink, legal counsel for the Free Press, said.
"The court’s opinion mirrors the Free Press’ earlier objections made to the commission itself that its closed-door meeting and secrecy violated the Michigan Constitution’s explicit mandate for transparency."
The commission entered its first-ever closed session on the heels of a statewide public hearing tour, during which the commission heard concerns that its draft maps would illegally disenfranchise Black voters. Following the meeting, the commission made major adjustments to its draft maps.
After the refusal to release the memos, Democrats and Republicans united in lambasting the commission. Michigan lawmakers almost unanimously approved a hastily crafted bill that would prevent the commission from citing the Open Meetings Act as a reason to have a closed-door session in the future. Gov. Gretchen Whitmer received the bill last week.
Voters Not Politicians, an advocacy group that helped spur changes that led to the creation of the commission, also called for it to release the memos.
The advocacy organization and the Michigan Republican Party heralded the court's decision on Monday.
"The court’s ruling upholds the will of the millions of Michiganders who voted overwhelmingly for a transparent redistricting process," said Nancy Wang, executive director of Voters Not Politicians.
The majority opinion disagreed with lawyers for the redistricting commission who argued that the group is not required to publicly discuss and disclose memos containing legal advice. The justices determined that the closed-door meeting violated the requirement in the Michigan Constitution for the commission to "conduct all of its business at open meetings."
The majority also discredited the idea that the memos the commission reviewed were subject to attorney-client privilege due to anticipated lawsuits stemming from redistricting decisions.
"The commission suggests that the meeting was conducted in relation to litigation that would almost certainly ensue. To be sure, 'you don’t need a weatherman to know which way the wind blow' with redistricting — litigation is likely inevitable," the majority wrote, quoting musician Bob Dylan.
"No doubt, these decisions are made so that the commission can produce maps that successfully withstand legal challenges. But that is a function of the commission’s duty to develop and adopt redistricting maps. Thus, mere anticipation of litigation is not enough at this stage of the process to overcome the constitutional mandate that business be conducted in the open. Indeed, allowing the simple prospect of litigation to shield the Commission’s discussions on how to make a map would threaten to swallow the open-meeting requirement altogether."
The majority opinion also found that the commission's decision not to publicly disclose the memos it discussed in the closed session that occurred in the middle of the commission's mapping process violated the constitutional requirement to publish "any data and supporting materials used to develop the (proposed) plans."
Labeling the majority opinion a "Trojan horse," the dissenting justices argued that denying the commission the ability to communicate privately with its lawyers would undercut its ability to effectively defend its work in the face of litigation.
"Without the ability to seek legal advice in confidence, there is a significant danger that external influences on the commission will predominate. Lawyers commonly have different views and understandings of what the law requires. One lawyer may say stop while another says go," the dissent states.
"Only the Commission’s lawyers have an ethical obligation to their client — other lawyers who might appear before the commission in public comment or through written submission do not. If the commission’s ability to seek or receive legal advice is diminished, the commission has not received the full benefit of the legal representation guaranteed it by our Constitution."
The dissenting justices further argued the majority's decision effectively nullifies the commission's ability to receive confidential legal advice. This puts the commission at a disadvantage in likely lawsuits, something voters clearly did not intend, the dissent states.
The majority acknowledged the broad and established right to private legal advice, but argued the state Constitution clearly creates a different standard for the commission.
"The commission is entitled to retain lawyers and seek legal advice. But when it comes to legal advice relating to the development and eventual adoption of redistricting plans, the legal advice provided to the Commission must be open to the public," the majority states in a footnote.
The commission will meet the last week of December to adopt final congressional and legislative districts for the next decade.
Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at chendrickson@freepress.com or 313-296-5743. Follow her on Twitter @clarajanehen.
This article originally appeared on Detroit Free Press: Michigan Supreme Court orders release of voting rights memos
