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Judge: Lawmakers must disclose docs in Michigan gerrymandering case

Jonathan Oosting
The Detroit News

Lansing – Michigan lawmakers must disclose communications with outside groups and some internal documents subpoenaed by attorneys in a case alleging Republicans “gerrymandered” political boundaries created in 2012, a federal judge ruled Wednesday. 

Detroit U.S. District Judge Denise Page Hood ordered on Wednesday (May 23, 2018) the Michigan GOP and others to disclose certain communications and documents in a political redistricting lawsuit.

The order from Detroit U.S. District Court Judge Denise Page Hood could offer a rare glimpse behind the curtain of the Michigan Legislature, which is not subject to public records requests under the state’s Freedom of Information Act. 

Attorney Mark Brewer, former head of the Michigan Democratic Party, subpoenaed nearly 100 lawmakers, staff and legislative bodies in the case, which alleges the GOP created congressional and legislative maps that intentionally diminished the power of Democratic voters. 

Lawmakers had moved to squash the subpoenas, with their attorneys arguing legislative immunity and legislative privilege shields under both the state and U.S. Constitutions. 

But Hood, appointed to the U.S. Eastern District of Michigan court by Democratic former President Bill Clinton, ordered lawmakers and staff to turn over most requested documents, including communications with outside groups and any alternative maps produced during deliberations. 

Communications between lawmakers and immediate aides can be withheld unless they reveal an intent or awareness of “discrimination” against voters based on political party, “sorting” of voters based on political affiliation, the impact of voters’ ability to elect a candidate of their choice or representation of a political party in Congress or the state Legislature, Hood said. 

Brewer called the order a ‘tremendous victory” for plaintiffs in the lawsuit, filed on behalf of the League of Women Voters of Michigan and several Democrat voters, including former Reps. Fred Durhal Jr. and Rashida Tlaib of Detroit.

“We’re going to get access to virtually everything we subpoenaed,” Brewer said. 

Lawmakers who were served subpoenas include former Senate Majority Leader Randy Richardville, former House Speaker Jase Bolger and former House Elections Committee Chairman Pete Lund.

The order is the second of its kind in recent years that limited Michigan lawmaker claims of legislative immunity and privilege. Communications produced in a separate case revealed top Michigan Republican Party officials lobbied lawmakers to ban straight-ticket voting in late 2015 despite concerns by a key GOP lawmaker that the change could increase Election Day wait times. 

The federal redistricting lawsuit alleges Michigan political maps drawn by the GOP majority violated Democratic voters’ First Amendment right to free speech and association, along with equal protection rights guaranteed by the 14th Amendment. 

Attorneys for Michigan lawmakers have pointed out a three-judge panel “precleared” Michigan’s voting maps in February 2012, finding they would not significantly deny or abridge voting rights. 

The subpoena requests were overly broad and, in some cases, appeared to be a “fishing expedition, attorneys argued. Requiring lawmakers and staff to turn over requested documents would be “the first step down a slippery slope that will have a chilling effect on the legislative process and open the door for anyone who dislikes a statute to seek to depose current and former legislators.”

Hood has not yet weighed in on any merits in the case, which is scheduled to go to trial in early 2019. 

In March, she rejected Secretary of State Ruth Johnson’s request to delay the suit pending the outcome of two separate redistricting cases before the U.S. Supreme Court involving an alleged gerrymandering by Republicans in Wisconsin and Democrats in Maryland.

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Twitter: @jonathanoosting