Changes to proposed redistricting maps this week won't restart 45-day clock, lawyers say

Beth LeBlanc
The Detroit News

Lawyers for Michigan's Independent Citizens Redistricting Commission told commissioners earlier this month that they could make changes to proposed draft maps before a final vote this week without restarting a 45-day clock for public comment. 

The advice appears to upend the general consensus over the last several months that any changes during the last 45-day public comment period would restart the clock for public comment, dragging the commission's work into 2022 and butting up against deadlines for candidates to file to run in the redrawn districts for state House, state Senate and U.S. House.

The opinion was contained in a Dec. 1 legal memo released late Monday night to media outlets that won a case last week seeking disclosure of the commission's legal memos and closed-session recordings.

The memo noted it was still a legal risk for the commission to make changes without a subsequent public comment period, but an argument could be made that it was allowed under similar administrative rule standards. The memo indicated technical changes would be an easier sell with the courts than larger, substantive changes based on public feedback, but lawyers indicated there may be legal windows for both.

The commission is set to take a final vote on the proposed draft maps starting Tuesday, when the panel will begin a process that could last into Wednesday or Thursday.

When asked last week whether the commission would restart the 45-day public comment period to make map changes,  Commission Chairwoman Rebecca Szetela told reporters "anything is possible."

"We certainly have the ability to change maps," Szetela said. "... that could still happen. We could decide to make some changes and start another 45-day period or we could choose not to."

The Michigan Independent Citizens Redistricting Commission voted 7-5 on Dec. 2, on the advice of its attorneys, not to release documents discussed at a closed meeting.

Szetela said the decision for or against map changes would need to be made by the commission as a whole.

"I am not opposed to making changes if it satisfies the opinions of the public that we need to," she said. "So I am not opposed to it individually. I'd be OK with it, but ultimately it's a commission decision."

In the legal memo released Monday, the commission's litigation counsel, Katherine McKnight and Patrick Lewis, recommended the commission pass final plans in 2021 and not delay the process into 2022. McKnight and Lewis said a federal court may not look kindly on the commission's failure to meet a 2021 deadline, "especially one driven by election-administration concerns."

The safest way to meet the 2021 deadline is to adopt plans this week without making any changes to them, the memo said. But the memo said "de minimis" changes without a restart of the 45-day public comment period also may be defensible.

The memo defined de minimus changes as "those driven by technical issues in the map-drawing process like minor misalignments in census and state geography data, quirky precinct splits, and so forth."

A constitutional requirement mandating a notice-and-comment procedure for each plan appears to support the need for a 45-day public comment period after any changes to the maps, "but that is not the only possible reading," the memo said.

The 45-day notice-and-comment period appears to parallel administrative law, which allows agencies after receiving public comment to establish a final regulation that differs from the proposed rule, the memo said. Courts usually allow the change if it can be defended as a "logical outgrowth" of the proposed rule and "responsive" to comments.

"Under this precedent, the commission would have a cogent argument that limited amendments related to public comments, and tailored to them, are permissible even after the notice-and-comment stage," the memo said. "There would be structural arguments in favor of this approach, as the purpose of notice and comment is not only to solicit comments but to implement them."

But McKnight and Lewis argued such changes would be a "legal risk" and that there was no guarantee the Michigan Supreme Court would agree with their "logical outgrowth" theory. 

If the commission chooses to make changes without another 45-day public comment period, the memo said, "it should establish a clear record as to the basis of each change and seek to make the changes as limited as possible to achieve its purpose."

The Dec. 1 legal memo — the eighth to be released to plaintiffs The Detroit News, the Detroit Free Press, Bridge Magazine and the Michigan Press Association — was posted to the commission's site late Monday night. 

The release of the memo follows a Dec. 20 Michigan Supreme Court ruling that found the commission was constitutionally required to conduct business in open meetings and ordered the 13-member panel to disclose seven confidential legal memos and a recording from an Oct. 27 closed session. 

The decision was based in part on constitutional language requiring the commission to conduct all its business in public and requiring the publication of supporting materials used in the mapmaking process.

The Dec. 1 memo was not at issue in the case because it was penned after an initial list of confidential memos was provided to media outlets in November. 

It was released Monday because the commission's general counsel considered it "supporting material pursuant to the guidance provided in the Michigan Supreme Court’s opinion."