Redistricting commission lawyers advise against releasing secret memos, call it 'unwise'

Lawyers for Michigan's redistricting commission urged the group Tuesday to keep secret memos related to voting rights issues despite calls for their release and a legal opinion by Attorney General Dana Nessel that they must be disclosed.

The commission's lawyers said in a letter to the group that it would be "unwise and detrimental" to release the memos.

Responding to "strong pressure" to make the documents public threatens to "invade the confidential relationship" between the commission and its lawyers, attorneys for the commission wrote.

"The ability of your legal team to provide full, frank and candid legal advice, consistent with their ethical obligations, is under direct threat," the letter warned.

The commission's lawyers issued the advice ahead of a Thursday meeting during which the group plans to deliberate whether to publish the memos in response to Nessel's opinion, which is nonbinding.

Commissioners met behind closed doors with their lawyers on Oct. 27 to discuss two memos on the Voting Rights Act — the federal law that prohibits political districts that dilute the voting strength of minority groups — and history of racial discrimination in Michigan. The private meeting followed a series of public hearings during which the commission was told its draft maps would illegally disenfranchise Black voters.

Nessel determined that commissioners likely violated the Michigan Constitution, which requires the group to conduct all its business in open meetings.

Presuming the memos contained information weighed by the commission in drawing new political maps, the group should not have met behind closed doors and it must disclose the documents it discussed, Nessel wrote in her opinion.

More: AG Nessel: Redistricting commission's closed meeting likely violated Mich. Constitution

More: Free Press weighing legal action over redistricting commission's denial of FOIA request

The letter from Julianne Pastula, the commission's general counsel; Katherine McKnight, a member of the commission's litigation counsel; David Fink, local counsel for the commission, and Bruce Adelson, the commission's voting rights attorney, continued to defend the legality of the secret memos, citing attorney-client privilege.

The lawyers wrote that Nessel's opinion was "based, in part, on inferences" about the memo and that it "recognizes the appropriateness and significant nature of confidential attorney-client communications and underscores the open questions surrounding closed sessions."

The commission has received 10 confidential memos from its attorneys as of Nov. 9, and the commission’s lawyers advised against disclosing those documents to protect "future confidential communications."

After Nessel issued her opinion, the commission denied a public records request from the Free Press for the memos.

Free Press legal counsel Herschel Fink, who is not related to David Fink, said the commission's denial fails to address the fact that the state constitution makes the requested materials public without regard to the FOIA, and the constitution contains no exceptions for attorney-client privilege or any other potential shield. The Free Press is mulling legal action over the denial.

Media leaders, in a letter to Pastula, called on the commission to release the memos and other supporting materials the commission considered to draft maps.

The letter from John Bebow, president and CEO of the Center for Michigan and Bridge Michigan; Peter Bhatia, editor and vice president of the Free Press; Gary Miles, editor and publisher of the Detroit News, and Julia Stafford, president of the Michigan Press Association, argues that the commissioners have a legal obligation to publish the memos and adhere to the transparency requirements in the constitutional amendment adopted by Michigan voters in 2018 that established the commission.

"The Commission has a decision to make. It can continue a process expressly rejected by the citizens of Michigan of secretive decision-making that affects citizens’ most basic right — the right to vote — or it can ensure that citizens have all the information necessary to participate in what is supposed to be a public process," the letter reads.

Some commissioners have indicated their support for releasing the memos, and a majority vote by the commission Thursday could lead to their public release, which would come about halfway through a 45-day public comment period on a series of congressional and legislative districts proposed by the commission.

The commission plans to adopt final maps during the last week of December.

The group's proposed maps for the U.S. House and Michigan Senate would eliminate the majority-Black districts that currently run through Detroit while its Michigan House maps propose fewer majority-Black districts than the current map.

Current and former Detroit lawmakers and civil rights leaders have questioned advice from consultants for the commission that it did not need to draw majority-minority districts to ensure minority voters have an opportunity to elect their preferred candidates.

A legal challenge alleging the commission violated the Voting Rights Act would land the group in federal court to defend its work.

Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at chendrickson@freepress.com or 313-296-5743. Follow her on Twitter @clarajanehen.

Become a subscriber.

This article originally appeared on Detroit Free Press: Redistricting lawyers advise commission to keep memos secret