Michigan Lawmakers Must Hand Over Redistricting Records

DETROIT (CN) – A three-member panel of federal judges ordered Michigan legislators to turn over records and plans related to the redrawing of electoral maps that Democrats say have tilted results heavily in favor of Republicans.

Eleven Democratic voters and the League of Women Voters sought internal documents as well as communications with outside groups as part of a lawsuit filed late last year in Detroit federal court that asked the court to end gerrymandering in the state, the partisan redrawing of political maps to favor one party over another.

But Republican legislators have been reluctant to produce documents, notes, data and analysis that could shine a light on the secretive process used to redraw maps in 2012 for Michigan’s congressional seats as well as state Senate and House districts.

Members of the Republican-controlled Legislature asked the court to quash the voters’ subpoenas, arguing that legislative privilege under state and federal law bars disclosure.

Lawmakers are not required to release such records under Michigan’s Freedom of Information Act. Disclosure of the records could expose details of partisan gerrymandering, which has often been shrouded in secrecy.

On Wednesday, a three-judge panel led by U.S. District Judge Denise Page Hood, an appointee of President Bill Clinton, concluded that the legislators’ privilege was not “absolute” and can be “overcome where important federal interests are at stake.”

In this case, the voters were seeking evidence that was relevant to their claim that Republican gerrymandering had a discriminatory intent or effect and disenfranchised Democratic voters by violating their free speech and association and equal protection rights, Judge Hood wrote for the panel.

“The requests are certainly relevant to the present case. The question of whether state legislators sought to dilute the votes of Democrats by pursuing specific voting population percentages is critical to this case,” Hood wrote in a 20-page ruling.

The lawmakers had also argued that the voters were asking to see records unrelated to the suit and protected by attorney-client privilege, but Hood found that the lawmakers did not provide enough facts or evidence to protect legislative counsel’s notes, reports, minutes and other information.

In granting and denying in part the motions to quash the subpoenas, the court ordered the lawmakers to disclose documents, communications and redistricting plans— with some notable exceptions.

The legislators can hold on to documents and communications created by them and their immediate aides, unless they are evidence of discriminatory intent, and can also withhold information that is irrelevant to the passing of the 2012 Michigan redistricting bill.

The voters’ attorney Mark Brewer said in an interview he was “very pleased” with the court’s ruling. He had served close to 100 subpoenas on both Republicans and Democrats.

The 35 subpoenas at issue in yesterday’s ruling concerned Republican lawmakers, staff and agencies inside the legislature, he said.

“As a result, we are going to get virtually everything that we subpoenaed – the internal documents and communications of the legislature as they put together these gerrymandered redistricting plans,” said Brewer, who is also the former chair of the Michigan Democratic Party.

The Michigan League of Women Voters and the 11 individual plaintiffs argued in their December 2017 complaint that Republicans had drawn the maps and rushed them into law with little debate. The complaint named Michigan Secretary of State Ruth Johnson as the sole defendant.

The voters cited data from 2002 to 2016 showing the alleged disproportion between the number of Democratic votes cast and the number of seats held by Democrats.

The group asked the court to find the current districts unconstitutional and redraw the maps.

The panel has not yet considered the merits of the case. A trial is set for early next year. Election district challenges go before a three-judge panel by default, and appeal petitions go directly to the U.S. Supreme Court.

Among those subpoenaed in the case were former Michigan Senate Majority Leader Randy Richardville, former House Speaker Jase Bolger and former House Elections Committee Chairman Pete Lund, all Republicans.

On the same day as Wednesday’s ruling, voters from Ohio’s 16 congressional districts, backed by the American Civil Liberties Union of Ohio, sued to end gerrymandering in the Buckeye State. Voters there had passed an anti-gerrymandering measure in this month’s primary elections called Issue 1, a statewide ballot measure with bipartisan support.

Pennsylvania officials drew a new map after a court concluded the old map that heavily favored Republicans was unconstitutional. Democrats immediately reaped the benefits of the redrawn map during last week’s primaries and could pick up as many as four seats in this year’s general election.

Democratic voters in Wisconsin and Republican voters in Maryland, meanwhile, have taken their gerrymandering claims to the U.S. Supreme Court, which is expected to rule on the cases by the end of June.

Attorneys for the Michigan lawmakers did not immediately respond Thursday to requests for comment on the ruling.

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