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Redistricting Panel’s Closed-Door Meeting Leads to Lawsuit

December 17, 2021 by Dan McCue
Redistricting Panel’s Closed-Door Meeting Leads to Lawsuit
Kurtis Wilder

LANSING, Mich. — A number of media organizations are suing Michigan’s redistricting commission over its members’ decision to hold a closed-door meeting in October and then bar disclosure of several memos citing attorney-client privilege. 

The Detroit News, Detroit Free Press, nonprofit Bridge Michigan and Michigan Press Association argue the private review of memos by the Michigan Independent Citizens Redistricting Commission violated its constitutional duty to conduct its business in the open.

The legal memos in question were entitled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting.”

During a virtual hearing this week, attorney Kurtis Wilder said the media outlets don’t contest the commission’s right to counsel, but said the panel’s actions smacked of it trying to hide behind attorney-client privilege at the mere threat of litigation.  

“The fact that there could be a lawsuit at some point in time over some of the maps — if that was enough to attach privilege, that would swallow transparency whole,” Wilder said.

He also challenged the commission’s argument that the documents did not inform the 13-member panel’s mapping process, arguing commissioners couldn’t draw maps in a manner that complies with the Voting Rights Act without understanding the history.

“Clearly they relied upon these two memos,” Wilder said.

But David Fink, an attorney for the commission, said the panel has conducted a transparent mapping process that has included more than 100 public meetings and that there was nothing wrong with asserting attorney-client privilege at a single meeting.

He went on to argue that the memos in question played no direct role in the mapping process.

“I could envision a process, a context in which there’s some indication that the attorney-client privilege is being abused,” he said. “I don’t think anybody looks at this and says, ‘Oh, this is a secretive process.’ This is an incredibly open process with exactly one closed session.”

Wilder pushed back, contending that until a lawsuit has been filed or is imminent “all the work of the commission must be done in the view of the public, subject to public scrutiny.” 

He went on to say that when Michigan voters approved the constitutional amendment that established the redistricting commission in 2018, they expected transparency throughout the mapping process. 

“In other words, the people told the commission that it has to show its homework before it can receive a final grade,” he said. 

The commission is currently scheduled to take a final vote on a proposed map on Dec. 28, and lawyers for both sides have asked the Michigan Supreme Court for a swift decision given that deadline.

The media outlets want the court to order the release of recordings from the closed session meeting and legal memos provided to commissioners that have been kept confidential.

Following the hearing, Nancy Wang, executive director of Voters Not Politicians, a group that backed the constitutional amendment, said in a statement, “Voters Not Politicians supports the efforts by Michigan media to pursue the release of the Voting Rights Act memos and we appreciate the Michigan Supreme Court’s swift attention to this matter. 

“Voters established the commission to bring redistricting out into the open. Anything that informs the commission’s mapping decisions should be made public,” Wang said.

Dan can be reached at dan@thewellnews.com and at https://twitter.com/DanMcCue

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