Census delay, prospect of closed session raise new concerns for redistricting commission

Beth LeBlanc
The Detroit News

Michigan’s Independent Citizens Redistricting Commission is expected to mull over ways to meet a constitutional deadline for district maps after the federal government announced last week it would delay census data integral to the map-drawing process.

But the commission's prospective closed-session deliberations on the issue have raised concerns about transparency in the new redistricting process. 

"Barely out of the gate, and what was to be a fully open and transparent commission is now shrouded in closed door meetings. Interesting," GOP consultant and Allegan County Republican Jason Watts tweeted Thursday. 

Census Bureau data crucial to the redistricting process won’t be available until Sept. 30, which creates a problematic delay with the constitutional timeline for redrawing Michigan’s state House, state Senate and congressional districts. 

Under the 2018 constitutional amendment that created the new redistricting process, the maps must be available for public comment for 45 days before the Nov. 1 deadline for voting on the final maps. That would require maps to be available to the public by Sept. 17, creating an “untenable situation” for the commission if the data to draw those maps aren’t available until Sept. 30, said Juliane Pastula, general counsel for the 13-member commission. 

“This creates critical timing issues,” said Pastula, who noted the last time the state set redistricting lines in 2011, the census data was made available by March 11, 2011. 

Pastula said she could present options to address the delay at a future commission meeting via a “privileged and confidential document” during a closed session, a prospect that legal analysts questioned.

Pastula argued in a statement to The Detroit News that the closed session was allowed under the Open Meetings Act, which permits a closed session to discuss “material exempt from discussion or disclosure by state or federal statute.” She argued that an exemption for any attorney-client privileged information under the Freedom of Information Act constituted the state statute required under the Open Meetings Act. 

"This allows the Commission to discuss legal options in a closed session, but to deliberate and make decisions in an open session which is consistent with the Open Meetings Act," Pastula said.

Both the Open Meetings Act and, more important, the constitutional language creating the redistricting commission prevent such a closed session from taking place, said Steven Liedel, a Dykema attorney who served as legal counsel to Democratic former Gov. Jennifer Granholm. 

The Open Meetings Act does not permit a closed session except to discuss specific pending litigation, Liedel said. And attorney-client memos are not automatically exempt under public records laws, he said. Rather, the law allows public bodies the option of exempting the records from disclosure, he said.

Even if the Open Meetings Act were to create such an exemption, the constitutional amendment says several times that the commission must be open to the public, Liedel said. The Michigan Constitution would take precedent over state law.

The Independent Citizens Redistricting Commission was created to usher in transparency missing in the former partisan process, he said.

“There’s no reason to not discuss this publicly,” Liedel said. “And clearly the Constitution evinces a public mandate that they do work in a transparent manner.

“There’s no other entity that has been created in this manner where there’s such an obligation that’s imposed,” he said. 

The commission likely will have to seek relief in court from the Nov. 1 deadline, said Nancy Wang, executive director for Voters Not Politicians, the group that helped get the redistricting commission proposal on the 2018 ballot. 

Should the court grant that relief, Wang anticipated the commission could make maps available by early November for the final 45-day review of the proposed districts. The new timeline would mean redistricting would be complete by Christmas.

"We can do most of the work, like 90% of the work, before we ever get the Census Bureau data," Wang said, referring to more than a dozen public hearings scheduled throughout the year to get input on the maps. "... It doesn’t take much time to draw the final maps once you get that data.”

As for the prospect of closed session, Wang said the group would like to see the process be as open as possible. 

"The intention behind the amendment, and the reason I think voters supported it, was to undo the system that we had," she said. "And what characterized the old system was a lot of backroom deals.”