'Records kept from the public': St. Joe County taxpayers in the dark about election maps

SOUTH BEND — St. Joseph County Democrats and Republicans have spent tens of thousands of dollars in taxpayer money to pay Indianapolis lawyers in the fight over new county election maps.

But after months of partisan gamesmanship between the Democratic-majority County Council and all-Republican Board of Commissioners, the taxpayers footing the bill for the redistricting battle are still in the dark about key discussions and decisions surrounding the controversy.

Over the past three months, the South Bend Tribune has filed several public-information requests seeking records generated by the law firms working for the council and commissioners, as well as emails and text messages among county elected officials about redistricting.

Editorial: When officials create unnecessary barriers to public information

Despite those requests, the county has disclosed few records that shed light on the behind-the-scenes discussions and taxpayer-funded work at the center of the fight.

Of the records the county has disclosed, few offer new information about how county officials — or the attorneys they’re paying — have reached decisions on the election maps.

The county has claimed legal carve-outs to avoid disclosing other records, including documents or communications created by the outside law firms. Those legal exceptions allow – but do not require – public agencies to withhold certain records.

Still other requests remain pending after two months, with the county yet to give a final response.

RECORDS 'KEPT FROM THE PUBLIC'

The fruitlessness of The Tribune’s requests is disappointing to some advocates for redistricting reform and transparency.

“These records being kept from the public is just another layer on boxing us out of the process as much as possible,” said Ranjan Rohatgi, a Saint Mary’s College professor and member of the Indiana Citizens Redistricting Commission. “Therefore, many of us think we’re being boxed out for solely partisan reasons.”

Rohatgi added: “If the commissioners or the council members didn’t want that to be the narrative, they could have been transparent from the beginning, but it’s clear that's not what they want.”

The largest batch of redistricting records released to The Tribune came on Jan. 14, when the county provided almost 400 emails — many of which are duplicative — to and from council members and commissioners. The records also include a handful of text messages. Some of the records go through mid-November.

The records came in response to three separate requests filed by the newspaper — one in early October and two in mid-November.

The October request sought emails about redistricting between any members of the council or commissioners.

One of the November requests sought all redistricting-related emails or text messages sent to or from any council members — including communications with external parties beyond the council.

The other November request sought records generated by Ice Miller, the outside law firm hired by council Democrats to help draw their version of new district maps and ultimately sue the commissioners.

The county released the 400 emails and text messages, but no documents from Ice Miller’s work. According to a letter from the council attorney, the county withheld some records because of attorney-client privilege, as well as legal exceptions for “deliberative” material and “attorney work product.”

The letter did not give descriptions of the undisclosed records or say how many were withheld. County attorneys did not respond to an email seeking answers to those questions.

Meanwhile, the county has yet to provide any records in response to several more requests The Tribune filed in November.

One sought redistricting records generated by Kroger, Gardis & Regas, the outside firm hired by the commissioners.

More: GOP and Dems to explore compromise in St. Joseph County election map fight

The Tribune also asked for emails and text messages between the commissioners and various outside parties, including top Republican donors and other insiders. The Tribune initially asked for the commissioners’ emails and texts with any outside parties, but a county attorney said he would not fulfill the request unless it were narrowed to specific senders and recipients.

Most of the records disclosed thus far deal with the council and not the commissioners, in part because the council has released broader information and done so more quickly. For example, the council did not require The Tribune to name specific senders and recipients of emails and text messages.

Open-government advocates have said the records of the outside law firms are perhaps the most important because they could reveal the specific instructions and goals county officials gave the firms in drawing the new districts.

“Neither body of government and neither political party acted with full transparency,” said Elizabeth Bennion, director of voter services and education for the League of Women Voters of the South Bend Area. “None provided the public with detailed information about the specific criteria used to draw the maps, including the role that partisanship played in drawing the maps for the commissioners and the council.”

Andy Kostielney, the commissioners president, has said the county would not release records produced by Kroger, Gardis & Regas, and has refused to say whether he gave the firm any specific political goals, including the creation of commissioner or council districts favorable to the GOP.

Tensions over this year’s redistricting ramped up this past fall, when the commissioners voted to spend $35,000 to hire Kroger, Gardis & Regas, which is led by Republican and former Indiana House Speaker Brian Bosma.

Council Democrats responded by hiring an Ice Miller team that includes Kip Tew, a former state Democratic Party chairman, and former Indiana House Speaker John Gregg, also a Democrat. The council set aside an initial $50,000 to retain the firm.

Under the election maps proposed by Kostielney and approved by the commissioners in a split vote in November, Republicans would gain a greater advantage in two of the three commissioner districts, while shifting Democrats and racial minorities to the third.

Those changes would be achieved by removing all the rural and suburban areas from one district, represented by Commissioner Derek Dieter, and adding them to the other two, represented by Kostielney and Commissioner Deb Fleming. At the same time, Dieter’s district would gain all the precincts that lie within the city of South Bend, essentially narrowing the district to the city limits.

Kostielney and Fleming voted for the plan, while it was opposed by Dieter, whose own re-election chances would be hurt.

The commissioners had more power over St. Joseph County’s redistricting process this year. That’s because Indiana lawmakers last year passed legislation allowing the commissioners to approve their own redrawn maps without the council’s approval.

That means the commissioners also had more power to create favorable council maps for Republicans, because three council districts must “nest” within each commissioner district.

More: Questions surround potential legal fight over St. Joseph County election maps

At stake is a two-thirds Democratic majority on the nine-member council, allowing them to override vetoes by the commissioners.

The county election maps are now held up in court, after the council filed a lawsuit challenging the commissioners’ plan.

‘CANDID CONVERSATIONS’

Both Kostielney and Council President Rafael Morton last week disputed the idea they were withholding records that belong to the public.

“There are certain things that aren’t necessarily open to the public,” Kostielney said. “We’ve got to be able to have candid conversations, strategic conversations about any topic, and if we do so, seeking guidance from our legal team, we’ve got to be able to do that. Otherwise, nothing gets done.”

Kostielney dismissed the notion that taxpayers and voters were the bosses of elected officials and should therefore be able to have access to complete information on decisions such as redistricting.

He said that type of access would be inconsistent with the American style of representative government.

“Taxpayers are paying the salaries for us to make decisions,” Kostielney said. “What we are being entrusted with is making the best decisions we can for the people that we represent.”

If elected officials were expected to share such information with taxpayers, Kostielney said, it would be akin to newspapers and other private-sector companies having to share their internal decision-making with their customers.

Morton contended the council had supplied The Tribune with “tons” of records in response to its requests. He said he had no idea how many records were withheld based on legal exceptions, and said he had no control over county attorneys’ decisions on whether to release information.

In fact, the council is the attorneys' client and could authorize the release of any of the records they wanted to disclose.

‘LEAVE THE REPUBLICANS ALONE’

Many of the emails released to The Tribune contain nothing more than notices or agendas for public meetings at which the council or commissioners were scheduled to take actions related to redistricting. Others are technical information on the redistricting process, distributed to local governments by Indiana election officials.

But some of the emails and texts show Democratic officials researching the redistricting process in early 2021 as they looked ahead to potential action by the commissioners.

Councilwoman Diana Hess, who is also the county Democratic Party chair, began looking up archived documents on the 2011 redistricting as early as April. She emailed a lobbyist with the Indiana Association of Counties in May with questions about the bill that gave the commissioners more authority over redistricting.

In September, County Clerk Rita Glenn, a Democrat, asked an official with the Indiana Election Division whether the council could move to redraw its districts before the commissioners drew theirs. The official responded that the council could act first, but its districts would still be required to fit within whatever maps the commissioners drew.

Glenn forwarded the response to Councilman Bobby Kruszynski.

The messages capture some strategizing by council Democrats before and after Kostielney proposed his maps.

One email shows Democratic council members spoke with Tew and Gregg, of Ice Miller, as early as Oct. 5 in a virtual meeting organized by Jason Critchlow, who at the time planned to run against Kostielney for commissioner. The council hired Ice Miller three weeks later.

Once Kostielney released his proposed redistricting plan, Democrats quickly saw it would threaten their veto-proof majority on the council. On Oct. 31, the day the South Bend Tribune first reported on Kostielney’s proposed election maps, Hess sent an email to county Democrats.

“It has been suspected that Andy Kostielney was planning an attempt to gerrymander the districts, and do so in such a way that would threaten the Democratic veto override majority on the County Council,” Hess wrote. “The proposed maps released do exactly that.”

That same day, in a text to several fellow Democrats, Councilman Joe Canarecci said it seemed Republican council members were “as clueless as we were” about Kostielney’s plan, apparently referring to the fact that at least one GOP member would be removed from his current district.

“Could it be possible that they’d join with us to speak out against what’s going on?” Canarecci wrote. “Instead of Democrats versus Republicans, maybe there’s a way to get to everyone versus Andy.”

“I would leave the Republicans alone right now,” Kruszynski replied. “Have they supported us in the past?”

But the records disclosed so far provide no insight into Republicans’ mindsets or behind-the-scenes analysis of the redistricting issue. None of the emails or text messages show any discussions between the three GOP council members, and the commissioners appear in only a handful of emails.

Bennion said county officials could still choose to give the public more information about the process.

“They don’t need to hire lawyers, they don’t need to shield conversations and records from public view,” she said. “That is a choice against transparency and against the pubic having a full picture of how these decisions are made.”

This article originally appeared on South Bend Tribune: St. Joseph County redistrict council commissioners Republican Democrat