Benson weighs gerrymandering case, Whitmer ad complaint

Jonathan Oosting
The Detroit News
Michigan Secretary of State Jocelyn Benson

Lansing — Michigan Democratic Secretary of State Jocelyn Benson said Wednesday the law and transparency — not politics — will guide her decisions in major campaign finance and gerrymandering cases she inherited from her Republican predecessor.

Her office and the Bureau of Elections will decide the fate of a GOP campaign finance complaint against a Democratic group that last year spent more than $2 million on television ads featuring new Democratic Gov. Gretchen Whitmer.

Benson this week also officially replaced former Secretary of State Ruth Johnson as the named a defendant in an ongoing federal lawsuit challenging the constitutionality of Michigan election district boundaries approved by the Republican-led Legislature in 2011.

Benson is a vocal opponent of political gerrymandering who has criticized Michigan's maps and could decide to stop defending them in court. Asked about the looming decision by The Detroit News, Benson said she is in the midst of reviewing all evidence in the case, which alleges an attempt to dilute the power of Democratic voters.

“I’ll be looking at all the options, and I’ll be making a decision in light with what I feel in my view and my interpretation of the law is most true and is most authentic to what the constitution intended, or what the constitution provides,” the secretary of state said.

Attorney General Dana Nessel’s office will represent Benson in the case, “but I will be making this decision as the defendant,” she said. “I certainly appreciate input and advice, but I’m ready to be responsible for the decision myself, and I feel uniquely positioned and qualified to make that decision.”

The legal battle will continue even if Benson changes course. A group of legislative and congressional Republicans have already intervened in the federal lawsuit, citing "uncertainty" over how she will handle the case.

GOP lawmakers on Friday asked a three-judge appeals panel to delay the Michigan case until the U.S. Supreme Court resolves two related cases challenging political districts in North Carolina and Maryland.

Republicans have denied overt political bias in the district maps, but emails between map makers revealed as part of the federal case have included several partisan references and commentary on the prospects of maintaining GOP power.

Separately, Benson said she is also still reviewing documents related to a campaign finance investigation of pro-Whitmer ads run by a group called Build a Better Michigan.

Johnson ruled in December that the commercials violated Michigan “issue advocacy” rules by identifying Whitmer as a gubernatorial candidate, but the Republican administration also granted Build a Better Michigan a late-year extension for a pending response.

The political committee, organized under federal rules, could face steep penalties and fines if Benson confirms its ad spending should have been subject to state donor disclosure rules and other election laws from which issue advocacy groups are typically exempt.

“I approach this and any other decision I’m going to be making from the position of a lawyer and the state’s chief election official — not from any other position,” Benson said, denying any political influence.

“I’ll also make every decision in line towards not just what’s best for our state and democracy, but with an eye towards the importance of transparency and transparency in money in the political process as well.”

The Michigan Republican Party and Michigan Freedom Fund last year filed separate complaints against Build a Better Michigan, which ran ads featuring Whitmer in the run-up to the Democratic primary election that she won over former Detroit health director Abdul El-Sayed and businessman Shri Thanedar.

The Bureau of Elections combined the complaints and has taken months to complete the investigation, prompting criticism from the Michigan GOP, which has filed multiple Freedom of Information Act requests seeking information on the status of the probe.

The GOP questioned the continued delay on Monday and urged Benson to uphold her campaign pledge to "take Michigan from worst to first in ethics and transparency" and see the case through "to its logical conclusion, despite the implications it may hold for members of her party."

While the investigation was initiated under Johnson’s watch, Michigan Freedom Fund President Terri Reid has criticized Benson for failing to resolved the probe since taking office less than three weeks ago on Jan. 1. 

Voters are waiting to learn “whether or not Benson has the courage to hold members of her own party accountable when they break the law or if she’s only interested in using her position to drive opposing voices out of the public square,” Reid said this week.

The Bureau of Elections initially asked Build a Better Michigan to provide additional documentation to the state by Dec. 21 but was granted an extension “under the previous administration,” Benson spokesman Shawn Starkey told The News last week, referencing Johnson.

Starkey said the state expects Build a Better Michigan to respond soon. The group is “in the process of providing the information, so no firm deadline has been set” for when they must do so, he said.

Mark Fisk, a spokesman for Build a Better Michigan, said it is "continuing to work with the new Secretary of State and her office to bring a resolution" to the complaint.

"We strongly disagree with the previous Secretary of State’s interpretation of our advertising, which (as I said before) is part of a long tradition of issue advocacy used by both parties for decades in Michigan," Fisk said in an email. 

Build a Better Michigan had sought information about an initial public records request by the Michigan Republican Party and may have been waiting to receive that information before responding, Elections Director Sally Williams told The News.

"I continue to do my due diligence in understanding the full record and the full past precedent of all these decisions," Benson said. "I hope to be ensuring that we get all the information that my predecessor requested soon, and we'll be able to move forward."