Redistricting commission could remain active for months or years, lawyer says

Beth LeBlanc
The Detroit News

Attorneys for Michigan's redistricting commission told members Thursday that the state constitution calls for the panel to remain active until the conclusion of current litigation challenging their voting district maps.  

Attorney David Fink told the Michigan Independent Citizens Redistricting Commission that the 2018 constitutional amendment that created the panel bars the 13 members from defending their voting district maps against future litigation, and that they should make plans to ensure the maps are defended through 2030.  

That is, the commission should arrange for who should defend potential suits filed after the conclusion of the current active cases, two federal suits that could continue for months or years, Fink said. 

Commissioner and Chair Rebecca Szetela applauds after the commission adopted a new state Senate redistricting map at the Michigan Independent Citizens Redistricting Commission meeting in Lansing on Tuesday, Dec. 28, 2021.

The commissioners continue to be paid though they meet about once a month and, unless they decide otherwise, the 13 members will continue to be paid through the duration of the current federal suits, Commissioner Rebecca Szetela said. Commissioners are paid about $55,755 annually.

"Sometimes our job is to provide information and to interpret laws that we may not 100% agree with," Fink said.

"And this is one of those unusual situations where the policy implications of the law as we are about to describe it and discuss it may not completely comport with the views of all the commissioners and, quite frankly, may not completely comport with my personal views of how it would be best for the commission to go forward." 

Szetela questioned Fink's legal analysis Thursday, arguing that the constitution's mandate that the commissioners remain active until "any" judicial review isn't limited to current, pending litigation but could also include future litigation. 

"That's not the language in the constitution; that's your interpretation of the language in the constitution," Szetela said. "...There's a bit of conflating and reading in of language that just isn't there."

Commissioners will consider the recommendation in the coming weeks and expect to meet again in July or August. 

"That will give us time to review the memorandum they prepared, which provided several different options, and decide where to go from there," said Commissioner Steven Lett. 

While making his recommendations Thursday, Fink acknowledged there were "serious policy concerns" related to them, and that the constitutional language is not as clear as it could be about how to move forward. He noted other states put in clear language requiring commissioners' term to last through the 10-year redistricting cycle.

According to Fink's memo, after active litigation is complete and the commission disbanded, there are a few possible avenues to address future litigation challenges.

The Secretary of State's office could reconvene the commission by drawing 13 new names from the initial applicant pool that the current commissioners were drawn from. The commission could delegate defense of the maps to the Secretary of State, so thatthe 13-member panel wouldn't have to be reconvened. Or the commission could designate attorneys and experts to defend the maps against future litigation, Fink said.

If a court in a future case orders the maps to be redrawn, the commission would be required to reconvene, though Fink again noted that the reconvened commission would be pulled from remaining applicant pool. 

"This could leave the question of who defends the plan to the mere happenstance of when the suit is filed: a suit filed in 2022 would be defended by existing commissioners, but, if the same suit were filed in 2026, it could be defended by new commissioners less committed to supporting the plan," Fink wrote in the memo to the panel.

In addition to the discussion on dormancy, the group also discussed pressing financial concerns. 

The commission is about $2.2 million short of what they believe will be needed to pay litigation costs through the fiscal year. The group made a request to the Legislature for more money but haven't heard back from the chambers since last month. 

Executive Director Edward Woods told commissioners the group needs money by the end of the month and currently is holding out paying a $500,000 bill to litigation counsel because they do not have the money to pay it.