Question: Michigan’s Independent Citizens Redistricting Commission (ICRC) has pushed back against demands that it release a pair of briefing memos on the federal Voting Rights Act (VRA), prepared by its legal counsel, which opt to classify the documents as privileged attorney-client communications that cannot be shared with the public.
The ICRC has been under pressure by media outlets, Attorney General Dana Nessel, the group Voters Not Politicians (VNP), and, now, the Michigan Senate to release the communications discussed during a closed session last month. The interest stems from ICRC‘s handling of what are called ‘majority-minority’ districts, which appears to differ substantially from prior redistricting efforts over the past several decades.
In previous reapportionments, the contention was that a certain number of “majority-minority” districts needed to be created where at least 50% of the voting population was of a specific minority, in particular African-Americans. For example, two of Michigan’s 14 current U.S. House seats are majority-minority, which is about the percentage of blacks in Michigan statewide.
But the ICRC’s legal counsel argues that’s not necessary and, in fact, such an approach would “pack” districts with more minorities than is necessary. In protecting that argument, the Commission’s legal team of four different lawyers claims that the Oct. 27 private meeting upheld the sacredness of “attorney-client privilege” and says that Nessel’s 14-page opinion is “not binding” on the ICRC’s work. The ICRC‘s lawyers stressed the Commission would be putting its maps at risk if it allowed the public and — by extension — its legal opponents to see what its attorneys were putting in front of them. For that reason, video of the closed-door session also will not be released because it might become the “camel’s nose under the tent” once lawsuits start flying.
But critics, who appear to be just about everybody outside of the ICRC’s lawyers, argue that the redistricting panel is hiding evidence from the public because it would reveal the lengths to which they’ve gone to “disenfranchise minority voters.” Tony Daunt, executive director of FAIR MAPS, argued that “The Commission illegally held a closed-door session, in direct violation of the state’s Constitution, to discuss their efforts to disenfranchise African-Americans and other minority communities and to violate the Voting Rights Act.”
Can the ICRC and its lawyers be successful with their approach, or does it bode ill for the eventual outcome on the validity of their maps once the issue is addressed in court, as it surely will be?
Answer: Apparently, “attorney-client privilege” trumps all, at least in the opinion of ICRC lawyers. That’s what you might expect when taxpayer-funded members of the Bar (hired by the Commission) are all0wed to take over the work of a constitutionally-empowered panel approved by Michigan voters in 2018.
It’s still another reminder of the unintended consequences of Proposal 2, fashioned by the group known as Voters Not Politicians (VNP), which now is clearly embarrassed by some of the work of the Frankenstein it created. The ICRC has already missed deadlines established in the ballot language because U.S. Census data was released much later this year than was anticipated in 2018.
If the ICRC continues to defy demands that it honor ‘transparency’ in their map-making efforts — and may have more secret meetings going forward — it will be more grist for the mill for plaintiffs who will launch an avalanche of lawsuits from both sides of the aisle, and from interested parties in between, in 2022.
There is hope, if not expectation, that the ICRC will settle on one map apiece for the state House of Representatives, state Senate, and Michigan’s 13-member delegation to the U.S. House of Representatives by the end of this month, but that’s only the beginning of what will be a lengthy process of litigation in both federal and state courts that will extend into late winter, at the earliest, and probably into spring and maybe even summer (the date of the Aug. 2 primary may even have to be extended — there’s precedent for that). Much of this will be brought on not just by the maps themselves, but by the way the Commission has conducted its business.
Some questions have not been raised by the mainstream media, like, where is Secretary of State Jocelyn Benson in all this? She’s been silent. How much of what has gone wrong is due not so much to the Proposal 2 ballot language but to Benson’s elections division bureaucracy set up to manage the process? Why and how have the ICRC’s lawyers justified departing from the precedent of four decades of reapportionment wherein enforcement of the “majority-minority” standard has been sacrosanct? Can anybody be sure that some court, somewhere, will once again intervene and take over the final map-drawing regimen, as was done in 1964, 1972, 1982, and 1992? VNP thought it had guarded against that possibility by language in Proposal 2 that “ensured” that, if one or more courts found fault with the maps, the right to re-draw the maps would be returned to the Commission (now considered flawed if not fatally compromised)? Keeping the grasp of the judiciary out of the process was thought to be guaranteed, and maybe it will be — until it’s not.
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Bill, am less concerned about violation of the “majority-minority standard”, than about the apportioners violating the spirit of the ballot proposal. We expected to see compact districts that acknowledged governmental unit borders. We did not expect to see partisan gerrymandering replaced with racial gerrymandering.
Mike, you may not have expected gerrymandering, but many of us did. This was an attempt to change who gets to gerrymander. The goal was to wrestle control from an elected body who right now is predominantly Republican, to anything not Republican. this was totally foreseeable, and it was foreseen in the reporting of the Ballenger Report. Good Reads!!
There is an inherent conflict between preserving minority representation and district maps that treat both the Democrat and Republican parties fairly. That conflict between minority representation and fair districts is nothing new. The Republicans have used the preservation of minority representation as a tool to ensure their dominance in legislative offices in Michigan despite that result not reflecting the will of the voters. The question of confidentiality of matters normally subject to attorney-client privilege will be decided by a judge and the process will move along. We should note that the delay in receiving necessary census information is not the doing of the commission. It is the job of the commission lawyers (who have a history of representing Republican interests) to advise the commission of the highly complicated and even conflicting legal requirements of the law. This is not taking “over the work of a constitutionally-empowered panel approved by Michigan voters “. The fact that there is criticism from both sides is a positive, not a negative, as neither side should get exactly what they want. And if the final redistricting is done by the Michigan Supreme Court, that is likely to still be an improvement over what we have had the last decade or more.
Good article, Bill. Pity we don’t have more media covering it. They should. It might bore some of the audience to tears, but it would be one helluva good lesson in civics.
And none of us should be surprised that Benson is AWOL on this issue. The real question is WHY she is AWOL.
In full disclosure, the Commission made an error in judgment in not selecting me to be one of its members (I would have at least argued against the indefensible and obscene pay hike they gave themselves BEFORE doing their job).
First of all, I seriously doubt the ICRC wants to disenfranchise non-white voters. Such accusations are dangerous and poisonous to the system in that those who make the charges essentially say do what we want, or else. Such bullying is at the very least unseemly and strikes my non-lawyer mind as bordering on slander and defamation.
Now to the matter at hand. From what has been going on overall, I am not sure if the ICRC has adopted BOHICA (bend over here it comes again) as their official slogan; or if it is Operation Enduring Fustercluck. Their passion for secrecy (and apparent ability to keep the stuff secret) is top notch. The lack of any ongoing political reporting on this simply reflects on the news media as much as it does the Commission. In my youth, the Freep and Detroit News would have had at least two people on it and the ICRC members would run as fast as they could away from the late Tom Greene. Those were the days.
Their position on majority/minority districts – as described in Bill’s article – can be defended, but the way they are going about it seems to be more geared to reduce the total number of elected Republicans without creating the abominations done in Illinois to accomplish the same thing.
But to defend it as something other than partisan hackery, the question they should be asking themselves (and the media should be asking) and telling us IN PUBLIC is how does one define non-white voters?
Specifically, how many non-white grandparents are needed to make you a minority? For example, Halle Berry, Patrick Mahomes and Meghan Markle (I’m not sure what royal title if any she retains) each have two white grandparents and two black grandparents. Are they officially a minority for redistricting purposes?
How about their children who have only one black grandparent? Are they minority citizens for redistricting purposes?
Do we use the Plessy v. Ferguson standard?
Some other standard that Tony Daunt approves of?
What have the courts said, or not said, on this?
Sunshine and transparency are the best political disinfectants, and if the ICRC screws this up, it will be back to the drawing board.
And the only question then, is who else will go down in flames with them.
Mr. Sullivan, you are so correct in your criticism of the main news media for ignoring the redistricting adventures. My former employee, the late Tom Greene, would have been off the leash, salivating and breathing fire all over this. Coverage of such an issue is boring only if the reporter is boring and lacks the talent to bring it alive. I define ‘news’ as being anything people should know and want to know. A worthwhile news product should be a pretty good balance of both. I’m sure you know that news today consists almost totally of things that people want to know. News that people should know is neglected. Anyone who reads this newsletter knows it’s bad for the country and helps to explain the shape we’re in.
Good Morning to all who need some reassurance that major disservices to fair districting will not occur..the reason is that the courts will eventually set things straight (a pun) as has occurred in past efforts of redistricting. Optimistic and some hopeful folks believe in a perfect world, and there is no such reality. I worked a bit on the 1968-1970 redistrict efforts financed by the Seyferth families from Muskegon, and lead by legal counsel Fred Culver. Eventually those efforts led to a better representation in districts created, but that football has been kicked around a lot since then. Eventually this football will be downed at a point on the political spectrum that judges think is fair and within the boundaries of sustainable effort. Too bad so much time has been wasted arriving at this point. Eye Wash for a democratic process, Progressives have not dealt with real politics and perhaps Republicans know that the Supreme Court may be the best friend they have….interesting speculation.