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.