Advance Notice: Briefs

Nessel: Redistricting panel’s closed meeting likely violated Constitution

By: - November 22, 2021 1:18 pm

The Michigan Independent Citizens Redistricting Commission holds a public hearing in Lansing. Photo by Anna Gustafson

Attorney General Dana Nessel issued a formal legal opinion Monday finding that the controversial Oct. 27 closed meeting held by the state’s independent citizens panel likely should have been an open meeting.

“The Commission is tasked with developing and adopting new districts that will no doubt change the makeup of our elected legislators,” Nessel said Monday in a statement. “It remains imperative that such a monumental responsibility be conducted in a public forum. The citizens of this state are owed a transparent process and the Commission must do its best to meet that expectation.” 

The 13-member panel, composed of four Republicans, four Democrats and five independents, was formed after voters passed a 2018 state constitutional measure. Prior to that, the Legislature was in charge of redistricting, with the governor signing off on maps. The new body is in charge of drawing new legislative lines that will go into effect for the 2022 election and be in place for 10 years.

Attorney General Dana Nessel, March 5, 2020 | Anna Liz Nichols

The AG opinion had been requested on Oct. 28 by state Sens. Ed McBroom (R-Vulcan) and Jeff Irwin (D-Ann Arbor), amid bipartisan furor that the Michigan Independent Citizens Redistricting Commission (MICRC) held a closed meeting while discussing the Voting Rights Act (VRA).

Presuming that the MICRC’s closed session was held to discuss items that provided members with “certain legal parameters and historical context that should be considered in developing, drafting, and adopting the redistricting plans … the discussion should have been held at an open meeting,” Nessel wrote in her opinion Monday, citing Article 4, Section 6 of the Michigan Constitution.

The commission was created and is governed by that section. Nessel goes into detail about its provisions and how it relates to the question at hand, particularly subsections 10 and 4.

“[T]he commission shall conduct all of its business at open meetings,” reads § 6(10), while § 6(4) “[t]he commission has the sole power to make its own rules of procedure.”

On Oct. 27, the MICRC postponed its scheduled meeting for over two hours due to a death threat. When the panel did convene, members went into a closed meeting to discuss the VRA with the commission’s general counsel, Julianne Pastula, and voting rights lawyer Bruce Adelson and Michigan’s history of discrimination and voting.

There has been backlash against the proposed maps so far from Detroiters and others concerned that the city, which is majority Black, is not being fairly represented in the process.

The MICRC is not currently facing any litigation. But at the time, MICRC spokesperson Edward Woods defended the closed session by arguing the panel is allowed to go into closed sessions to speak with an attorney for legal advice, which is protected by the Open Meetings Act (OMA).

Woods did not immediately respond to a request for comment Monday.

Nessel examined in her opinion whether the applicability of attorney-client privilege justifies a closed session, despite the panel’s constitutional directive to “conduct all of its business at open meetings.”

She acknowledged that although it is beyond the scope of her opinion to determine which discussions might rightfully fall outside the definition of “business,” in this situation it would be “‘repugnant’ to the Constitution to go into a closed session to discuss a memorandum that is not confidential and must ultimately be published.”

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Laina G. Stebbins
Laina G. Stebbins

Laina G. Stebbins covers the environment, Native issues and criminal justice for the Advance. A lifelong Michigander, she is a graduate of Michigan State University’s School of Journalism, where she served as Founding Editor of The Tab Michigan State and as a reporter for the Capital News Service. When Laina is not writing or spending time with her cats, she loves art and design, listening to music, playing piano, enjoying good food and being out in nature (especially Up North).