WA redistricting panel withheld text messages, possibly breaking the law

The messages show the degree of the Legislature's involvement in redrawing political districts — a process handled by a bipartisan commission.

Legislative building facade and dome at dusk

A jogger runs past the Legislative Building just before dusk, Dec. 21, 2021, at the Capitol in Olympia. (Ted S. Warren/AP)

Washington’s Redistricting Commission already admitted it broke the law by negotiating new political district maps in secret last year.

Now, it appears the commission engaged in even deeper levels of secrecy. Dozens of text messages between commissioners and legislative staff were not released as public records when sought by Crosscut as part of a public records request. 

According to the commission’s executive director, some of the text messages in question were deleted. That could be a violation of state law

Lisa McLean, executive director of the Redistricting Commission, acknowledged on Thursday that the commission appeared to have withheld some text messages that should have been released in response to Crosscut’s Nov. 17 records request.

McLean said other text messages were not available to release because one of the redistricting commissioners, April Sims, deleted many of her text messages before the request came in, most likely on the morning of Nov. 16. That was only a few hours after the commission voted to approve new redistricting plans that weren’t written down or shared with the public.

Sims did not respond to messages on Thursday seeking comment about whether she deleted text messages and, if so, why. 

If Sims did delete text messages relating to the work of the commission, that action may have violated a state law that prohibits destruction of official public records.

The backstory

Judges interpreting state law have ruled that public records include those captured on personal cellphones when those phones are used to do the people's business, as any work by the commission would be described.

The state Redistricting Commission meets once every 10 years to redraw the boundaries of the state’s legislative and congressional districts, based on data from the new U.S. census. The highly consequential process shapes the upcoming decade of state politics, deciding which party has the advantage in a given district; whether incumbent legislators are drawn out of their districts; and whether district lines split communities of color, diluting their voting power.

Yet, in a late-night meeting on Nov. 15, the state Redistricting Commission concluded its work in a spectacularly confusing manner, voting on plans for new congressional and legislative maps that hadn’t been shared with the public — or even publicly discussed — before the vote. 

A day later, the commission, which consists of four voting members and one nonvoting chair, said it had failed to meet its midnight Nov. 15 deadline to approve new maps.

Crosscut then requested copies of text messages sent between members of the Redistricting Commission, state legislators and legislative staffers. The request covered the period from Nov. 8 to Nov. 16, 2021, seven days before and one day after the commission voted on plans for new congressional and legislative district maps. 

Crosscut requested the text messages to shed light on what members of the Redistricting Commission were discussing in private before and after the vote, since none of those discussions had occurred in public view.

The bipartisan commission consists of two Democrats and two Republicans — each appointed by one of the Legislature’s four political caucuses — who then select a fifth, nonvoting member to serve as chair.

What the records show

While the Redistricting Commission provided copies of hundreds of text messages in response to Crosscut’s records request, Crosscut has since received copies of dozens of other text messages that appeared to fall within the scope of Crosscut’s records request, but that the commission failed to release.

Many of those text messages were shared with Crosscut by a source familiar with the work of the commission — someone whose identity is known to Crosscut, but who requested not to be identified. 

Other text messages were shared by state Rep. Gerry Pollet, D-Seattle, who filed a separate public records request and received certain text messages that were never released to Crosscut.

The withheld text messages show a much deeper level of coordination between state lawmakers, legislative staffers and the Redistricting Commission than what was shown in the records the commission previously released.

That’s concerning to Pollet, who thinks that legislative caucus staffers, who are paid state employees, shouldn’t be working that closely on redistricting. 

He thinks the redrawing of district lines, which often is based on partisan considerations, veers too far into campaign work. State ethics rules prevent state workers from using public time and resources on campaigns.

“We have got records where you have caucus staff people drawing up maps to increase the Democratic performance by two-tenths of a percent, and trade it for two-tenths of a percent in another district,” said Pollet, who chairs the House Local Government Committee. 

“It is flat out about improving the partisan performance of party candidates. That is illegal,” Pollet said.

House Chief Clerk Bernard Dean wrote in an email that he doesn’t agree with Pollet’s interpretation of the rules.

Dean noted that the commissions’ four voting members ultimately represent the interests of the political caucuses that appointed them. He added that before the creation of Washington’s bipartisan commission in 1983, the state Legislature directly controlled the redrawing of the maps, which is how redistricting is handled in most other states.

“... [D]rawing district boundaries is not campaigning ... we have no reason to believe that caucus staff engaged in any prohibited activity," Dean wrote.

Other legal problems

Still, the destruction of public records, as McLean says Sims has done, could run afoul of state law. Under one state statute, destroying public records is a felony that can be punished by up to five years in prison and a fine of up to $1,000.

While McLean said she thought the text messages Sims deleted were of minimal retention value and therefore could be deleted without violating the law, public records attorney Michele Earl-Hubbard said the text messages are almost certainly public documents that should have been retained.

Given the ongoing concerns about the commission's secretive operations, Earl-Hubbard called the destruction of the text messages "another slap in the face to the public." 

Withholding public records can be costly for agencies. The state Public Records Act allows a judge to charge agencies up to $100 a day for each day someone is denied access to public records. That law notes that “free and open examination of public records is in the public interest, even though such examination may cause inconvenience or embarrassment to public officials.”

Pollet said he is considering filing a Public Records Act lawsuit over the Redistricting Commission’s failure to provide him with the records he thinks he is entitled to.

He said members of the public have the right to know how the state’s new political maps came into being.

“I want to know how this happened,” Pollet said. “And what we get is obfuscation and hiding.” 

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About the Authors & Contributors

Melissa Santos

Melissa Santos

Melissa Santos is formerly a Crosscut staff reporter who covered state politics and the Legislature.