Fighting settlement, GOP says Benson has 'potential bias' in gerrymandering case

Jonathan Oosting
The Detroit News
FILE - Secretary of State candidate Jocelyn Benson, left, speaks at the Michigan Democratic convention at Cobo Center in Detroit on April 15, 2018. Behind her is former U.S. Sen. Carl Levin, right.

Lansing — Attorneys representing Michigan Republicans in a lawsuit alleging partisan gerrymandering are seeking a slew of records from new Democratic Secretary of State Jocelyn Benson, citing her “potential bias” in favor of plaintiffs in the case.

Benson took office Jan. 1 and last week announced she was working to settle the federal lawsuit, which argues Republican lawmakers drew legislative and congressional district boundaries to benefit their candidates and dilute the power of Democratic voters.

As The Detroit News first reported, the deal is expected to focus on “fewer than” the 34 districts currently challenged in the lawsuit and would require new lines to be drawn for the 2020 elections. The high-stakes case could threaten GOP majorities in the state House and Senate.

Republican attorneys on Tuesday reiterated they were never invited to the “clandestine” settlement talks, challenging plaintiff claims that GOP lawmakers had “not chosen” to participate in negotiations mentioned in two phone calls and an email.

In their latest filing, attorneys for intervening Republican lawmakers questioned Benson’s neutrality in the case and requested permission to seek records from her, noting that plaintiff attorney Mark Brewer donated $500 to her campaign in 2017 and is former chairman of the Michigan Democratic Party.

Republicans told the court they would likely pursue any emails, text messages or other communications between Benson and plaintiffs since October 2017, when she first announced her run for secretary of state. They also want any communications between her and Brewer and any organizations that may be helping to fund the lawsuit, along with campaign contribution records.

The fact Benson “potentially reached a settlement” with plaintiffs only days after being named a defendant in the case “created serious doubt regarding her continued standing,” said GOP attorneys Jason Torchinsky and Charlie Spies.

“This is especially true considering Secretary Benson’s public positions regarding so-called gerrymandering, all of which suggest she is aligned with plaintiffs and the relief they are seeking this lawsuit.”

An attorney for Benson did not immediately respond to a voicemail seeking comment on the GOP filing, but a spokesman in her office said a consent agreement, "if one can be reached, would ensure a fair and equitable resolution for the citizens of Michigan."

"Secretary Benson is deeply committed to ensuring our districting process is fair, nonpartisan, and complies with the requirements of state and federal law," said Shawn Starkey.  "That’s precisely what the voters elected her to do. It’s laughable to suggest otherwise."

Brewer said he was reviewing the filing but stood by his weekend statement that there’s “no such thing as a secret settlement here” because any deal “is going to have to be approved by the court.”

Benson. a former dean of the Wayne State University Law School, is a vocal opponent of partisan gerrymandering and last year supported Proposal 2, a voter-approved measure that will create an independent redistricting commission to draw new political boundaries for the 2022 election cycle and beyond.

In announcing settlement negotiations last week, Benson said it is “clear the court has found significant evidence of partisan gerrymandering, and the likely outcome would not be favorable to the state.” Her predecessor, Republican Secretary of State Ruth Johnson, had defended the district maps.

Plaintiffs are suggesting “an agreement by which fewer than the 34 contested districts are redistricted,” Jay Yeager, a plaintiffs attorney for the League of Women Voters and Democratic voters, told Republicans in a Jan. 21 email disclosed in the Tuesday filing.

Yeager noted any consent decree with Benson would be submitted to the court for consideration and require a public hearing. Michigan’s Republican-led Legislature would have the first chance to propose new “constitutional, non-partisan remedial districts,” subject to court approval, Yeager said. If the Legislature did not do so by a required date, “the court would draw the districts with input from all parties.”

Republican lawmakers have denied overt political bias in the district boundaries they approved in 2011, but emails between map makers revealed in the federal case have included several partisan references and commentary on the prospects of maintaining GOP power.

The League of Women Voters and several Democrats initially sued over the entire apportionment plan approved by the GOP-led Legislature in 2011 but last year narrowed their complaint to 34 specific districts where plaintiffs or league members live. 

The revised suit challenges congressional districts 1, 4, 5 and 7-12; state Senate districts 8, 10–12, 14, 18, 22, 27, 32, 36; and state House districts 24, 32, 51, 52, 55, 60, 62 63, 75, 76, 83, 91, 92, 94, 95. Four of the congressional districts, six of the state Senate and seven of the state House districts are currently represented by Republicans. 

A settlement limited to redrawing those districts could give Democrats a narrow chance to upend Republican majorities in the state Legislature. New maps would only apply to 2020 and would likely require mid-term elections for state senators in redrawn districts who had been elected last fall to four-year terms

Republicans hold six-seat advantages in the state House and Senate but Democratic candidates got more collective votes in the 2018 election. Michigan Democrats picked up two congressional seats, and lawmakers from each party now represents seven districts in the U.S. House. 

The Michigan Republican Party on Tuesday launched a new online ad accusing Benson of participating in "the greatest partisan power grab in Michigan history" by working with Brewer "to give Democrats a stranglehold on our state government."

But Starkey said Benson decided to pursue a settlement after spending several weeks reviewing evidence in the suit and determining "she could not in good conscience waste taxpayer money defending a case that would likely be unsuccessful."

GOP attorneys on Tuesday challenged Benson’s assertion that the court has already “found significant evidence” of partisan gerrymandering. “This court has made no such final determination,” they wrote. “That is the entire purpose of the February 5, 2019 trial.”

Republicans have also asked to delay the trial as the U.S. Supreme Court considers arguments in gerrymandering cases out of North Carolina and Maryland.

Several Republicans in the state House and Congress last year won court approval to intervene in the case. Attorneys for state Sens. Jim Stamas of Midland, Ken Horn of Frankenmuth and Lana Theis of Brighton asked to join the case Tuesday,  arguing that any redistricting plan that would force an election two years into a four-year term would amount to “an undue burden on Michigan senators and their constituents.”

A settlement could also force lawmakers to “expend significant funds and resources” on the redistricting process, said attorneys for Senate Republicans.