Senators ask Nessel to weigh in on legality of redistricting panel's closed session

Beth LeBlanc
The Detroit News

Republican and Democratic senators have asked Attorney General Dana Nessel for a formal opinion on the legality of the Michigan Independent Citizens Redistricting Commission's decision Wednesday to enter a closed-door session to discuss two legal memos. 

Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan, sent a letter Thursday asking the Plymouth Democrat to weigh in on whether the decision violated the 2018 voter-approved constitutional amendment that says the commission "shall conduct all of its business at open meetings."

"It seems to me that there's a very straightforward clause in the constitution that prevents them from going into closed session," Irwin said Thursday. 

McBroom said he found the commission's actions Wednesday "very troubling."

"It raises a very important question regarding adherence to the constitutional provision and the idea that this would be a completely transparent process," he said.

McBroom and Irwin are the chair and minority vice chairman, respectively, of the Senate Oversight Committee.

Michigan's redistricting commission meets behind closed doors Wednesday, Oct. 27, 2021 in Michigan State University's student union building. Sens. Jeff Irwin, D-Ann Arbor, and Ed McBroom, R-Vulcan, are asking Michigan Attorney General Dana Nessel whether it violated the 2018 amendment that says the commission "shall conduct all of its business at open meetings."

Nessel's office said it received and is reviewing the letter. 

Michigan Independent Citizens Redistricting Commission Spokesman Edward Woods referred to prior statements the panel had made on the matter and declined further comment.

Thursday's letter asks Nessel to weigh in on the commission's potential violation of the constitution's "clear and unqualified" open meeting requirement in order to bring "certainty to Michigan residents regarding this important legal issue."

"Ensuring the level of transparency guaranteed by the Constitution is integral to maintaining the public's confidence in the commission's work, which of course includes deliberations on the fundamentally important role of the Voting Rights Act in the redistricting process," the letter said.

The 13-member commission — which was promoted in 2018 as a way to increase transparency around Michigan's once-a-decade voting map-drawing process — voted 11-2 Wednesday to enter closed session to discuss confidential memos titled "Voting Rights Act" and "The History of Discrimination in the State of Michigan and Its Influence on Voting."

The secret meeting lasted about an hour and a half. 

The commission's legal counsel argued that the materials were exempt from disclosure under the Freedom of Information Act and that the state's Open Meetings Act allows private proceedings if the material is "exempt from disclosure by state or federal statute." Usually, the constitution would supersede state laws, but the commission argued Wednesday no "business" was conducted during the closed session.

The memo topics seem to indicate the discussion would have been of genuine interest and import to residents upset by the commission's early draft maps of state House, state Senate and U.S. House districts and their dearth of Black majority districts.

The decision to close the meeting — which was criticized by both the Michigan Republican Party and the Michigan Democratic Party — came as commission members prepare to make adjustments to their draft maps before a 45-day public comment window. At the end of that window, the commission will take a final vote on the maps.

The commission's decision to enter closed session was "certainly eye-opening," said Irwin, who previously asked Nessel to weigh in on whether commissioners should be counting prisoners by their hometown instead of the current practice of counting them as residents of the prison during the redistricting process. 

Nessel declined to issue a formal opinion in that instance because the issue "may become the subject of litigation."

Irwin and McBroom's letter came the same day former Republican House Speaker Tom Leonard called on Nessel to hold the commission accountable for a "blatant disregard" of open meetings requirements. Leonard is seeking the GOP nomination to challenge Nessel in the 2022 attorney general race. 

"Dana Nessel is once again standing silently on the sidelines and watching political allies ignore the law for their own benefit," Leonard said. "It’s time for her to act like an attorney general and call out their unconstitutional actions for what we all know they are.”