Thursday, September 29, 2011

Redistricting Board's Submission to DOJ - Part 1

The Alaska Redistricting Board submitted its plan for approval from the Department of Justice (DOJ) on August 9, 2011.  DOJ has 60 days to approve or not - which gets us to about October 10 or 11.  It's taken me a while to get to posting about this, but I do think people should know about it.  So I'm finally getting Part 1 up.

Alaska is one of 16 states (I've seen different numbers, but this seems to be the most common) that are required to have their decennial redistricting plans cleared by the DOJ.  I haven't tracked down the specifics of what got Alaska onto the list.  You can read more on the Voting Rights Act on Wikipedia.  Here's a bit from the Minnesota Senate website on preclearance under the Voting Rights Act:

In 1975, Congress extended the preclearance requirements for an additional seven years (through the 1980 redistricting cycle). The 1975 amendments added to the list of tests and devices the conduct of registration and elections in only the English language in those states or political subdivisions where more than 5 percent of the voting age population belonged to a single language minority group (including Alaskan natives, Native Americans, Asian Americans and people of Spanish heritage). The 1975 amendments also required the use of bilingual election materials and assistance if 5 percent of the jurisdiction's voting age citizens were of a single language minority and the illiteracy rate of that language minority group was greater than the national average. Finally, the coverage formula was extended to include jurisdictions that maintained any test or device and had less than half of their voting age population either registered on November 1, 1972, or casting votes in the 1972 presidential election. In all, 16 states or parts of states now are covered by Section 5 preclearance requirements, as shown in table 6.  [red font added]
You can get a .pdf copy of the Alaska Redistricting Board's  submission at the Redistricting Board's website. (See DOJ Submissions on the right at the Board's website) They sent in lots of material. 

A key part is the Submission Statement.  The statement is 18 pages long and essentially goes through the steps of how the plan was developed.  It's relatively straightforward, though it is written by an attorney for attorneys in the Department of Justice and uses a lot of terms of art that people familiar with the topic will understand, but others might find hard to get through.  This isn't a criticism, just a warning.

As I understand this, the key thing the DOJ must do is determine that there has been no retrogression - or as the board's attorney would assert, "No unjustifiable retrogression."  The Voting Rights Act was passed in 1965, shortly after the Civil Rights Act was passed to ensure that barriers to voting under segregation in the South would be removed and that African-Americans would be able to not only vote, but have meaningful votes.  Part of this means that they wouldn't be gerrymandered into districts that diluted their voting strength.  But this applies to other minorities whose voting strength is diluted by the way districts are drawn.

Alaska is one of the 16 states because the courts, in the past, found discrimination against Alaska Natives.  Part of the test of the fairness of the districts is whether the votes of Alaska Natives can make a difference, whether their percentage in the population is reflected in the voting results.  Past law suits have resulted in what are called Native Districts.  From the Board's submission:
Alaska Natives are the only minority group covered under the Voting Rights Act (“VRA” or “Act”) of sufficient size and geographic concentration in Alaska that qualify as a language minority of potential concern for purposes of redistricting. The proposed redistricting plan is free from discriminatory purpose and will not result in retrogression in the position of Alaska Natives with respect to their exercise of the electoral franchise because it maintains the same number of effective Alaska Native legislative districts as the Benchmark plan.
"Same number of effective districts" is the key phrase here. 
The Benchmark Plan reflects the current legislative districts with the 2010 Census population data. Using the target “effectiveness’ standard derived by Dr. Handley, the Benchmark Plan contains four “effective” Alaska Native House districts (Districts 37, 38, 39 and 40) and three “effective” Alaska Native Senate districts (Districts R, S and T) that consistently elect Alaska Native-preferred candidates even when voting is polarized. Additionally, there is one “equal opportunity” House district (District 6) that contains substantial Alaska Native voting age populations but did not always elect the minority-preferred candidate, and one “influence” district (District 5) that has consistently elected an Alaska Native even though not always the Alaska Native-preferred candidate.
What does that mean?

Benchmark plan, as I understand this, is the plan the new one is evaluated against.  It's the final 2001 plan which was the basis for the existing Alaska legislative districts which, until the new plan is adopted, is still in effect.  The VRA requires that there be no 'retrogression,' that is, no decrease in the number of Native districts from the benchmark plan.

It turns out there are different kinds of "Native" districts:

Effective districts - consistently elect Alaska Native-preferred candidates even when voting is polarized. [Polarized voting means that non-Natives vote as a bloc against the candidates the Native voters favor.]

Equal opportunity districts -  contain substantial Alaska Native voting age populations but did not always elect the minority-preferred candidate,  [Minority here means Native]

Influence districts - consistently elected an Alaska Native even though not always the Alaska Native-preferred candidate.  [The key example used here was District 5 where a Republican Native was elected over the Native preferred Native.]

Actually, the terminology used last time and at the beginning of the process this time included "majority" and "influence" districts.  I discussed the old terms - Majority-minority and Minority-influence districts- in a post last April for those who need more than this post to get to sleep.

In any case, no retrogression means maintaining nine Native districts at least six of which are, in the new lingo, "Effective Districts" plus three "Influence Districts." 

The Board's submission explains to the DOJ - which of course understands the terminology since they created it - how things had changed in Alaska (ie. many rural Alaska Natives had moved into the cities thus decreasing the populations of the previous Native districts) and how the Board adapted to the changes.  I would note that the census indicates there are enough Alaska Natives living in Anchorage to make a Native Majority district, but since they are scattered throughout the Anchorage area and not 'geographically concentrated,'  it's probably impossible to create such a district.

Why is it likely to be approved?

I'm not an expert on this and I'm simply going on what I absorbed watching the Board meetings.   On the whole, I'm guessing the DOJ will approve the plan even though one of the districts (38) is very large and combines suburbs of Fairbanks with Yupik speaking coastal villages off the road system.
  • The old plan contained a similarly large district (but without such an urban area)
  • None of the private groups that submitted alternative plans were able to come up with more than nine Native districts - though perhaps DOJ might find that they have better districts
  • There have been no court challenges regarding the Voting Rights Act districts (the deadline for suing is long past) and 
  • the Voting Rights Act consultant, Lisa Handley, is someone who works closely with the Department of Justice on these sorts of issues.   As she presented herself to the Board, she's pretty current on the standards they use to approve and she herself approved the plan before it got sent in.  
But it's much less expensive to send in comments to the DOJ than to file a law suit, so perhaps people who think the VRA standards were not met have sent their comments to DOJ.

There are three law suits - two from Fairbanks  about District 38 and one from Petersburg.  District 38, which splits relatively close Yupik villages from Bethel and connects them to Fairbanks, may be of interest to DOJ as well, but I wouldn't hold my breath.  The Board had a difficult job crafting a plan with nine Native districts which also following the other standards set forth in the Alaska Constitution and statutes - particularly having compact and socio-economically integrated districts.  It's hard getting districts the right size (close to 17,755 people each) and meeting all the criteria.  And, as the Board's attorney told the Board, Federal law supersedes the State Constitution and Statutes.

Coming Soon

What I've discussed above is the important part of the Submission.  But my time has been spent recently focused on the section of the Submission called "Publicity and Participation."  It's the part I have the most expertise in and the part I encountered daily as I blogged the Board.  It's also the part where I think the board did poorly.   I spent a fair amount of time comparing what the Submission says to what I experienced.  I've sent a lengthy comment on that to the DOJ and am figuring out how to make that into a reasonably sized post.  I'll get something up on that soon.


  1. As an interested Alaska resident and voter, I attended several board sessions that were open to the public. What troubled me almost daily was how much time the board spent in "Executive Session" and out of the observation of people like you, Steve.

    In this day and age, I'm unable to accept the word of those who tell me to "trust them" while they labor in secret. And with regard to this topic, why should I have to accept what shouldn't be hidden?

  2. Thanks for the comment. There were a couple of things they could legally discuss in executive session - personnel matters (like when they had to make decisions after Ron Miller died) and litigation. Perhaps there are other topics. I'm fairly trusting that they didn't discuss more in executive session. Their attorney seemed to be pretty careful on these things. Also, there was one Democrat on the Board and if they strayed too far she could have brought them back, though she was generally not confrontational. If they wanted to play games with the maps, they had plenty of time to instruct the staff one-on-one on how to do the maps. I understand your skepticism, but I don't have any reason to believe they misused the executive session time.

    Now, whether their legal strategy should have been in executive session is another question. If you are prosecuting someone it makes more sense. But this is redistricting and I think their legal reasoning perhaps should be part of the public record if it's directly related to how they draw lines or their reasoning for drawing lines. It shouldn't be about winning or losing in court, but getting the most workable plan for as many people as possible. I'm sure that their attorney Michael White could explain why I'm wrong here.


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