Redistricting commission hires firm despite concerns about partisanship

Beth LeBlanc
The Detroit News

Michigan's Independent Citizens Redistricting Commission voted Thursday to hire litigation counsel over the concerns of several redistricting advocates, including the ballot committee that helped approve the creation of the commission in 2018. 

The commission voted 9-2 to hire the firm, BakerHostetler, after hours of public comment, an interview with the firm and deliberation over its hire. Two members — Juanita Curry and Brittni Kellom — were absent from the meeting.

"I know there’s some opinions out there from the Michigan community that we need to look at other groups. I don't share that opinion," said Doug Clark, a Republican commission member. "I think we’ve got in front of us a first class firm that’s going to give us the services we ask for."

From left, Michigan Independent Citizen Redistricting Commissioners Douglas Clark, Anthony Eid, Brittni Kellom and Rebecca Szetela listen to public testimony on redistricting criteria. The commission voted 9-2 to hire a law firm that critics said had defended Republican gerrymanders in other states.

Redistricting advocates raised concerns earlier this week over the possible hire as litigation counsel of Mark Braden and BakerHostetler, who they said have been instrumental in fighting for gerrymandered voting districts. BakerHostetler was the only firm to submit a proposal after the commission put out two requests for proposals. 

It's not clear yet how much the firm will be paid. In its proposal, Braden — who was described by the firm as providing "strategic legal advice to legislators and other redistricting stakeholders around the country for several decades" — was listed as charging $915 an hour. Other lawyers in the firm who would perform work for the commission charge between $355 and $670.

During Thursday's public comment at the meeting held in Detroit, several people urged the commission to reopen the request for proposals and voiced concerns over the firm's defense of "GOP gerrymanders" in Ohio, Pennsylvania and North Carolina. 

"They have always been on the wrong side," said Connie Cook. "What guarantees do you have this firm would represent this commission faithfully and well? ... Don't choose  the first, worst applicant."

"It seems to me very undesirable in general in life to choose when there is only, as here, one choice," said Richard Barron. "I would suspect there are more" willing to submit a proposal.

Baker Hostetler's Katherine McKnight defended the firm's work for largely Republican clients during the more than hour-long interview and said the commission would be hard-pressed to find a firm that hadn't represented a political group in redistricting litigation.

"Redistricting is political, period," she said. "That doesn’t mean that our work as litigation counsel would be political.

"We are here as litigation counsel. We are not here as map drawers."

The firm has gone to trial nine times in the past several years on redistricting issues, McKnight said. The cases can be "pressure cookers" with a lot of "mud-slinging," she said, but the firm's job is to inform clients of what their options are and gather information for trial, if needed.

"It’s up to the client to decide which course of action suits the needs best," McKnight said. 

Richard Raile, of Baker Hostetler, said the firm was approaching its work with the commission as a blank slate with no clues as to who might challenge the commission's actions. 

"We don’t know who if anybody will be against your map," Raile said. "It could be that you enact a map that a republican interest group believes is a gerrymander.” 

Among the critics of the pending hire of BakerHostetler were gerrymander author David Daley, the Michigan group Voters Not Politicians and former U.S. Attorney General Eric Holder, a Democrat in the Obama administration. 

"We strongly encourage the commission to solicit more proposals so it can evaluate multiple submissions in a measured and thoughtful manner and continue to build the public's trust as it has done so well," said Nancy Wang, executive director of Voters Not Politicians, the ballot committee that helped to put the Independent Citizens Redistricting Commission's proposal on the 2018 ballot.

But commissioners questioned the seriousness of firms now expressing interest in the litigation counsel role after missing the deadline for the request for proposals.

"To deny that or to ignore that so to speak feels like special treatment," said M.C. Rothhorn, a Democratic commission member. "They did do very well. They performed. If there were concerns that they didn’t, I’d have no problem opening it up again.”

But Anthony Eid, an independent on the commission, pushed back and argued for more time to respect the public concern over the hire. 

"I have some concerns with this firm and the main concern is keeping public trust with this commission, and I don’t think we can do that if we’ve only interviewed one firm," Eid said. "...It certainly would be the most extreme hire we’ve made so far.”

Several commissioners pointed to the firm's hire of Bruce Adelson as their Voting Rights Act counsel after an outcry from Republicans. The Michigan Republican Party noted he had contributed to Democratic Secretary of State Jocelyn Benson's campaign and had "taken clearly leftist positions on social media and his academic writings." 

Commission member Erin Wagner, a Republican, noted Adelson's hire while addressing concerns about BakerHostetler. 

"We’ve already had the RFP up twice," Wagner said. "Anybody who wants to get in on it thinking we’d have another RFP out there, I think they missed the boat.”