Michigan redistricting panel shuts out public to discuss legal memos

Craig Mauger Beth LeBlanc
The Detroit News

East Lansing — Michigan's redistricting commission, the panel in charge of drawing the state's political boundaries for the next decade, went into closed session Wednesday, preventing the public from hearing members discuss two legal memos they received that could influence future decisions.

The commission, which had been promoted as a pro-transparency initiative, voted 11-2 to temporarily halt the public's ability to hear its deliberations. A Detroit News reporter was asked to leave the meeting room before the closed session began.

In an unusual move, both the Michigan Democratic and the Michigan Republican parties issued statements critical of the private meeting, which occurred on the campus of Michigan State University. 

The secret discussion came at a pivotal point in Michigan's redistricting process as commission members prepare to make adjustments to their draft maps before a 45-day public comment window.

"I think that this will allow us to freely discuss attorney-client matters with our lawyers freely and openly where we can all as a group ask questions about the memorandum that we received," commission Chairwoman Rebecca Szetela said before the vote to go into closed session.

Michigan's redistricting commission meets behind closed doors on Wednesday, Oct. 27, 2021. The session took place inside Michigan State University's student union building in East Lansing.

The commission said it was going to privately discuss a confidential memo titled "Voting Rights Act" and another titled "The History of Discrimination in the State of Michigan and Its Influence on Voting." The commission's early draft maps of state House, state Senate and U.S. House districts have been criticized for not creating enough Black majority districts.

The commission's draft maps violate the Voting Rights Act, Michigan Civil Rights Department Executive Director John Johnson Jr. told the commission during an Oct. 20 hearing in Detroit. The federal law prohibits maps that have the result of "denying a racial or language minority an equal opportunity to participate in the political process."

Wednesday's closed session began at about 3:50 p.m. It ended at about 5:30 p.m.

Voters were promised a free and transparent process when they approved the independent redistricting commission in 2018, said Tony Daunt, executive director of Fair Maps Michigan. Previously, drawing the district lines was left to the party controlling the state Legislature.

"Sadly, as many of us predicted would happen, we've gotten secrecy and incompetence run wild," Daunt said. "There is no reason, let alone statutory authority, that provides this commission and their attorneys (the ability) to discuss one of the most important aspects of redistricting — the Voting Rights Act — behind closed doors."

The 13-member commission cited a section of the state's Open Meetings Act that allows private proceedings if the material is "exempt from discussion or disclosure by state or federal statute." The memos are exempt from disclosure under the state's Freedom of Information Act, the commission maintained through its legal advisers.

But the Michigan Constitution specifically says the redistricting commission "shall conduct all of its business at open meetings." And a memo from a lawyer to a public body is not exempt from disclosure under state law, said Steven Liedel, a longtime Michigan attorney.

"I have never advised a public body client to enter closed session to discuss a legal memo except when the memo relates specifically to a specific litigation," Liedel tweeted.

Likewise, Voters Not Politicians, the group that led the charge for the amendment that created the commission, said in a statement the intent of the 2018 proposal was to bring redistricting "out into the open through a fair, impartial and transparent process."

"Redistricting business includes deliberating issues arising under the Voting Rights Act," said Nancy Wang, executive director of Voters Not Politicians. "We hope the MICRC (the commission) will provide additional information explaining its decision to hold a closed session today."

In a Wednesday night press conference, Julianne Pastula, general counsel for the commission, maintained that attorney-client privilege allowed the panel to meet in closed session. 

"That legal advice would not be appropriate to provide in open session because it’s protected by the attorney-client privilege, which we’re upholding," Pastula told reporters.

There is no litigation against the commission at this time, she said.

Likewise, Edward Woods III, the commission's spokesman, pushed back on the idea that the session was a discussion of strategy.

But Gustavo Portela, communications director for the Michigan Republican Party, said the commission had reached "a new low in holding a closed-door discussion about the applicability of the Voting Rights Act."

The Michigan Democratic Party said in its statement that it was "unclear why a closed session was necessary for a public body that is required to make their meetings open to the public."

"Instead of having an open and transparent discussion, the commission retreated behind closed doors to discuss VRA," said Lavora Barnes, chairwoman of the Michigan Democratic Party. "This process cannot move forward until the commission addresses what they’ve heard from the public, what was discussed in closed session and how they plan to fix the maps accordingly.”

The controversy came after the meeting in East Lansing was delayed more than two hours Wednesday after the commission reported receiving an emailed death threat. 

Woods said the commission received notification of the threat at 1:06 p.m., shortly after the meeting was supposed to start, and notified law enforcement. The threat appears to have been made Tuesday but wasn't found until Wednesday.

"They basically said that they wanted to kill the commission," Woods said of the threat.

Woods told reporters at the building Wednesday that authorities had done a sweep of the facility and opened an investigation after the reported threat. The windows of the doors of the meeting room were covered with paper.

Before the commission reconvened, one of the members could be heard telling a colleague she was concerned about walking to her car after the meeting. She was also playing the song "Pumped Up Kicks" through her phone. The song's lyrics mention someone outrunning a gun.

Michigan State University Police Inspector Chris Rozman said Wednesday that a police officer had been dispatched to the MSU Union shortly after 1 p.m. to take a report on a threatening email. 

"We do not believe there is any safety concern for the community, and we have not determined the threat to be credible at this time," Rozman said in a statement. 

The redistricting commission met Wednesday for the first of several meetings to deliberate over changes to voting district maps that would be used in the 2022 general election. 

The commission on Tuesday concluded a series of five public hearings on proposed draft maps for Congress, state House of Representatives and state Senate.

A redistricting meeting in East Lansing has been suspended until further notice after the commission received an emailed death threat.

Those hearings at times became heated over the commission's decision to break apart counties, municipalities and current majority-minority districts to comply with recommendations from their Voting Rights Act expert. 

The commission's hearings over the next several days will be some of their last chances to change the maps ahead of a vote on proposed maps, a 45-day public comment period and then a final vote on Dec. 30.