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What 7 Michigan redistricting panel memos discussed; excerpts from closed session

The Michigan Supreme Court ruled this week that the state's Independent Citizens Redistricting Commission violated the Michigan Constitution by meeting in a closed session and withholding certain legal memos from the public. 

A majority of the justices ordered a recording of the closed session of the Oct. 27 meeting be released, along with the seven legal memos written by the commission's attorneys.

The memos were drafted to help the novice commissioners understand the legal standards, statutes and constitutional considerations and justifications they must weigh as they redraw legislative maps for state House, state Senate and U.S. House elections for the next decade.

Protesters hold up signs before the Michigan redistricting commission held a Detroit public comment session on its draft boundary maps on Oct. 20, 2021. The outcry over the creation of majority minority districts, including in Detroit, led to legal memos and an Oct. 27 closed session of the commission in East Lansing to discuss Voting Rights Act requirements.

The following is a summary of the memos released late Monday by the commission and excerpts from the closed session.

Voting Right Act memo 

Document summary: The 1965 Voting Rights Act prohibits discriminatory voting practices and procedures, including racially discriminatory election practices and those shown to have a racially discriminatory impact. 

The statute protects minority voters' opportunity to elect candidates of their choosing but does not require the creation of majority-minority districts or mandate that a state have a certain number of majority-minority districts. The U.S. Supreme Court has been "crystal clear" that the Voting Rights Act doesn't require a numerical majority of voters "in any district, anywhere," attorney Bruce Adelson wrote.

"Creating majority-minority districts without appropriate, VRA recognized and required analyses is illegal and violate the U.S. Constitution's 14th Amendment as a racial gerrymander," Adelson wrote. 

Read the document here

Redistricting criteria memo

Document summary: The redistricting commission must follow the ranked criteria as set out in the state Constitution when drawing political districts and reject "obsolete" considerations.

The ranked criteria include districts being of equal population and in compliance with the Voting Rights Act; geographically contiguous; reflective of the state's diverse population; reflective of communities of interest; shall not provide a disproportionate advantage to any political party using "acceptable measures of partisan fairness"; shall not favor or disfavor an incumbent or candidate; shall consider county, city and township boundaries; and shall be reasonably compact. 

Examples of unacceptable considerations and justifications for drawing districts include for pleasing aesthetics, speculation about facts, consideration of the tasks of election clerks or public comment that's incompatible with the set criteria. 

Read the document here.

History of discrimination in Michigan memo

Document summary: A review of discrimination in Michigan's history from slaveholders among Detroit's first families to segregation in Detroit education to becoming a "stronghold" for the Ku Klux Klan and the vigilante group Black Legion's influence in the city. 

The memo also touches on the 1967 Detroit riot, discrimination in Grand Rapids in the early 20th century, racially restrictive housing covenants in the Ann Arbor suburbs, unlawful foreclosures and redlining in Metro Detroit, and even the Michigan emergency manager law used by state officials to assume control of financially troubled cities — including Flint ahead of the water crisis.  

"Detroit remains the most segregated city in the United States with Detroit and the surrounding areas of Warren and Livonia being the fourth most segregated metropolitan area in the United States," Adelson wrote. 

The attorney also cited 2021 VRA violations in Hamtramck, when the city failed to provide Bengali interpreters, voting information or ballots for Bengali residents, and gave an another example from Dearborn of materials not being provided for Arabic-speaking voters. 

He concluded that "minority groups in Michigan face several barriers to voting," making the state ripe for close scrutiny of its compliance with the Voting Rights Act. 

Read the document here.

Legal questions on map proposals, voting  

Document summary: This memo provides a legal opinion on the question of whether commissioners may submit new maps ahead of the 45-day notice and public comment period if those proposals were not presented at the commission's earlier series of public meetings. 

Attorney Katherine L. McKnight says the commission would have a defensible position for doing so, "but the issue is not free from doubt" and presents a "risk," possibly subjecting the commission to a lawsuit. At minimum, commissioners would have a "strong basis" to revise map plans presented at the hearing based on comments from those hearings, McKnight wrote.

She notes that limiting commissioners from proposing new plans after the hearings would arguably force them to "rush" plans and then tie them to the "initial, hurried" maps "even if they realize better options are available." But McKnight also recognizes the argument that the Constitution intended the hearings to publicize any map that might possibly become law. 

The memo also opined that the commission was not required under the Constitution to hold a majority-rule vote on which plans to send to public comment, but that it may as a commission adopt a majority-vote requirement for this purpose.

Read the document here

One person, one vote memo

Document summary: The 14th Amendment's equal protection clause has been interpreted as requiring election districts to be drawn so as not to violate the principle of counting each individual's vote equally with all other votes — "one person, one vote." 

The idea is not to deviate much from the "ideal" district population based on the overall population and number of districts. Adelson said courts have used an "overall range" to measure the population equality of a redistricting plan but will also consider appropriate justifications for deviating from "absolute" population equality, such as Voting Rights Act compliance.

Adelson said a redistricting plan with an "overall range" of less than 10% is a good guideline for surviving an equal protection attack, but that such plans are not "immune" from attack. Courts will ask whether a jurisdiction was following a "rational policy" in making the choices that resulted in the particular plan being enacted, he said.  

Read the document here

Renumbering of districts memo 

Document summary: The commission may renumber legislative districts "as it sees fit" as part of the redistricting process without violating any constitutional or legal restrictions regarding term limits or favoring or disfavoring incumbent, according to this memo from the firm Fink Bressack.

No federal law has a requirement to maintain continuity in numbering electoral districts, though state guidelines say congressional districts are to be numbered beginning with district 1 in the northwest corner and ending with the highest numbered district in the southeast corner of the state. 

Term limits are imposed by the state Constitution, limiting representatives to serving no more than three terms and senators to no more than two terms. They don't apply to members of Congress.

Read the document here.

Avoid disproportionate advantage to a party 

Document summary: The commission should take "affirmative steps" to identify advantages for any party in proposed maps, according to established partisan fairness measures, and work to minimize such advantages on a statewide basis to ensure none give one party a "disproportionate" edge.

But the commission isn't required to create "strictly proportional" representation or "ideal" measures under the partisan fairness measures it selects, allowing for minor deviations within an acceptable range of fairness, according to counsel. The closer the enacted plans are to the ideal measures under the metrics, the more defensible the maps will be under attack.

Separately, the commission may satisfy the prohibition on favoring or disfavoring incumbents by "simply ignoring" both candidates and incumbents in the map drawing process. 

"(T)he optimal way to avoid subjectively favoring or disfavoring candidates or incumbents is to give them no consideration in the process at all — i.e., to abandon 'incumbency protection' entirely," according to the memo from BakerHostetler.

Read the document here

Closed session excerpts

"The undertone that I know to be true is that in some areas if we don't change ... I think we're going to miss listening to the citizens in Detroit. And that really scares me.” —Redistricting Commissioner Brittni Kellom, a Democrat from Detroit

"They have an agenda, and we need to be able to spot that and weed that out and not fall for that.” — Redistrict Commissioner Cynthia Orton, a Republican from southwest Michigan, about the panel’s critics

“The federal judiciary is more conservative than it was 10 years ago. The judiciary, particularly the Supreme Court, on several occasions, has indicated some reluctance to abide what they consider to be race-based solutions, race-based answers, race-based compliance...." — Adelson

“The Voting Rights Act ... does not require any numerical amount of majority-minority districts — indeed, does not even require majority minority districts at all. The Voting Rights Act, as you know, is designed and intended to provide an opportunity or ability to elect on the part of protected categories under the statute that's based on race, color and membership in a language minority group. There are no guarantees of success.” — Adelson