By Ben Solis
Staff Writer
Posted: January 11, 2024 8:26 PM

The U.S. Supreme Court has docketed the ongoing appeal to a federal court's ruling that the Michigan Independent Citizens Redistricting Commission created unconstitutional maps for the state House and Senate.

An application to stay the effects of a federal three-judge panel's ruling in Agee v. Benson was filed by the commission last week. The commission hopes the federal high court will hear the case and potentially overturn the holding. The case was docketed Thursday, taken up by Justice Brett Kavanaugh, who oversees the 6th Circuit.

ICRC Commissioner Steve Lett announced movement in the case during the body's special meeting Thursday to determine how it would build remedy maps by February 2. Lett is the commission's legal liaison with its attorneys at Baker Hostetler.

Lett told commissioners that Kavanaugh has requested a response from the plaintiffs by January 17, fast tracking the case.

Attorney Richard Raile with Baker Hostetler asked the court to issue the stay while it prepares a direct appeal to the ruling. Raile also hoped the high court would promptly request oral arguments.

With the state's candidate filing deadline on April 23, Secretary of State Jocelyn Benson has asked the courts to act promptly to have remedy maps ready soon. The injunction placed on the defendants, both Benson and the commission, prevents the state from holding elections in the House and Senate districts in and around Detroit.

The three-judge panel of U.S. District Judge Paul Maloney of the Western District of Michigan and 6th U.S. Circuit Court of Appeals Judges Raymond Kethledge and Janet Neff held the commission used race as a predominant factor when building Detroit's districts, a violation of residents' Equal Protection rights.

Meanwhile, the panel on Thursday issued an order to appoint a special master to draw remedy maps in case the commission fails to complete the task of creating a new House map – and one that meets muster – by February 2.

Michael Barber, an associate professor at Brigham Young University, was appointed as the mapping special master. Barber has until January 16 to notify the court if he can't participate or if there were any grounds for his disqualification. The court will have him build a House map while the commission attempts to do the same.

Bernard Grofman, a professor at University of California-Irvine, was appointed as a second special master to review the commission's completed House map.

The panel also issued a ruling in the same order regarding Baker Hostetler's new role as the commission's Voting Rights Act counsel after consultant Bruce Adelson terminated his contract with the commission in late December 2023.

There were concerns from the plaintiffs that attorney Mark Braden would offer advice to the commission but could later become a fact witness in any potential future litigation should the new maps pose different legal problems. Jennifer Green of Clark Hill, the plaintiffs' attorney, thought it would be a conflict if Braden is cross examined by a member of his own firm.

The panel said the plaintiffs' concerns were "well-founded, but not insuperable."

"As a rule, attorneys indeed should not testify as witnesses in cases in which they serve as advocates," the panel wrote. "That said, Braden is a well-respected attorney with long experience with the law relevant to the commission's upcoming work here. We will therefore permit his appointment as VRA counsel, notwithstanding the plaintiffs' objection, if Braden promptly discontinues his role as litigation counsel in this case, and Baker Hostetler implements an appropriate mechanism to prevent Braden and his colleagues at Baker Hostetler, going forward, from sharing any information regarding their respective work regarding this case."

– By Ben Solis