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Michigan redistricting panel doubles down, won’t budge on secret memos

Attorneys for the Michigan Independent Citizens Redistricting Commission on Wednesday defended the panel’s decision to keep two voting-rights memos secret, despite an opinion from the state attorney general that they should be public.

Julianne Pastula, the commission’s general counsel, and David Fink, another attorney for the panel, doubled down on their claims that attorney-client privilege shields the documents. The comments came during a virtual meeting with representatives for Bridge Michigan, Detroit Free Press, The Detroit News and the Michigan Press Association. 

For weeks, the commission has rebuffed efforts by news outlets to acquire the memos. Bridge alone has requested the documents at least five times.

Fink told the group that attorneys “are certainly much less inclined to release these few (documents).”

Fink, who served on the cabinet of former Democratic Gov. Jennifer Granholm, said the decision “could well set a precedent” that will affect the commission for years to come.

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The memos — titled “Voting Rights Act” and “The History of Discrimination in the State of Michigan and its Influence on Voting” — helped inform the commission’s decision to reduce the number of state House, Senate and congressional districts in which minorities are the majority.

Voters created the commission in 2018 to end a system for decades that allowed politicians to draw districts largely in private. 

The panel has released 15 proposed maps and the public has until Dec. 28 to comment on them. The districts last 10 years.

“You all have asked the public for comments. You gave them 45 days,” Lisa McGraw, the manager of the Michigan Press Association, said during the meeting. 

“It's our belief that you're not giving them all the information to comment.”

Fink said the commission will discuss the attorney general opinion at its next meeting on Dec. 2. Before then, attorneys will issue a public recommendation to the commissioners, Fink said.

John Bebow, CEO and president of The Center for Michigan nonprofit and Bridge Michigan, said after the meeting  “the public voted for a commission to make these decisions, not for a lawyer to independently choose what is public and what isn't.”

Bebow said Bridge Michigan “will pursue all avenues and make every argument to obtain the public release of these documents.”

Both memos were discussed in a closed-session on Oct. 27 amid ongoing debate about minority representation, particularly in southeast Michigan.

The documents and meeting minutes of the closed session have been kept private. 

The commission repeatedly has pledged transparency, and on Monday, state Attorney General Dana Nessel issued a non-binding opinion saying the secret discussions “should have been held at an open meeting.”

Her 14-page opinion concluded that “the memoranda must be disclosed.”

The constitutional amendment that created the commission says it must “conduct all of its business at open meetings.”

That means “total transparency, no exception,” said Herschel Fink, an attorney representing the Detroit Free Press who is not related to David Fink. The newspaper is considering “further legal action,” Herschel Fink told the Detroit Free Press on Wednesday.

David Fink said he believes Nessel “drew some inferences” without reviewing the memos, and that he disagreed with the analysis.  Pastula this week denied Freedom of Information Act requests for the memos from both the Detroit Free Press and conservative advocacy group Michigan Rising Action.

Pastula said the Nessel’s opinion was not “conclusory,” adding that it is “premature”  to say whether she agrees with it .

Lynsey Mukomel, Nessel’s press secretary, told Bridge Michigan the opinion is not binding.

“They likely are not bound, but there is nothing prohibiting them from complying,” Mukomel wrote in an email. “The AG thought it important to issue the opinion regardless to provide guidance and to advocate for transparency."

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