Thursday, March 29, 2012

Board Finds Fault With Third Party Plans

I came back for the 2pm reconvening.  That was pushed back to 2:30 and they actually got started again at 2:37.  This section of the afternoon was spent
  1. reviewing the third party plans that were submitted and then 
  2. approving the modified (to fix HD 1 and 2) Proclamation plan as a backup in case they can't get a new plan ready soon enough for the 2012 election.

Board Attorney Michael White began first with the Rights Coalition plan which he dismissed out of hand because it didn't follow the Hickel process, that is, they didn't prepare first a plan that met the state constitutional requirements and then go from there to  modify it to meet the Voting Rights Act (VRA) requirements.  There were lots of ironies in this.  White has expressed his disagreement with the Court's requiring the Hickel Process and now he was using that as a standard to knock down the plan worked up by Rights Coalition tech expert Leonard Lawson who was an expert witness (after the Board's protest was denied) for the plaintiffs at the trial in Fairbanks which led, eventually, to the Supreme Court imposing the Hickel Process on the Board.   White acknowledged that the Rights Coalition argued that they didn't need to present an original constitutional plan because their plan was both constitutional and in compliance with the VRA.  But White went on to point out parts of the plan that he said were not constitutional and those breaches could only be justified, if at all, by following the Hickel Process and showing they had to violate the constitution to meet the VRA.

Then he went on to question whether they even complied with VRA.   Here's the Rights Plan below.  A couple of commenters in the previous post asked me to post it and I had just gotten hold of an electronic copy of it during lunch.

Rights Coalition Plan - click to enlarge

[You can get pdfs of all the submitted maps here.]

Next White (and executive director Taylor Bickford) used the checklist -
___Hickel Plan (Did they have a plan that was constitutional first and then a plan that also complied with VRA?)
___Meet the VRA?
to get rid of the two Calista plans and the AFFR plan.  The Calista plan was the only one that had followed the Hickel Process. 

Then they reviewed their own revised proclamation plan - the changes to Fairbanks.  Instead of looking for what was wrong as they did with the others, they only explained what was right.  And the Board looked at the Fairbanks map it created and the Board saw that it was good. 

Up until late yesterday the board's policy was:  If you want to send us something, we're a public agency, so you can.  We may or may not look at it.

Yesterday they agreed to look at the third party plans, but didn't give a checklist of what they were going to look for.  I think it had to be obvious to the third parties that their plans would have to meet the Constitutional and VRA requirements.  Not so obvious was the need to have a Hickel map, though any map that the Board eventually uses will have to meet both the VRA and constitutional requirements.  If they don't meet the constitutional requirements they will have to have a first draft of their plan that does so the court can see why they had to violate the constitution to get the VRA approval.

But both the AFFR and Rights Coalition believed their plans were constitutional.  Thus they didn't need to have a benchmark constitutional plan so the Court could judge the need for their deviations.  There were, in their minds, no deviations.  The Board found various constitutional deviations (and with the Calista plan too) which I can't really evaluate.  Compactness and socio-economic integration are so subjective.  But I'd wager that if a third party had submitted one of the Board's old plans from earlier in the process, a plan the Board then thought was Constitutional, today they would have rejected it as unconstitutional.  They just seemed to have a much less generous eye when looking at other people's maps than when looking at their own. 

I would also note that Calista, the only third party to submit Hickel Plan maps,  has worked closely with Randy Ruedrich, chair of the Republican Party, and who has spent a lot of time sharing his opinions with the Board members and staff during breaks.  I didn't ask Randy why AFFER (the key group he was working with to submit plans earlier in the process) didn't submit a plan this time round. 

Basically, after rejecting the idea of soliciting plans until yesterday, it seems the Board decided it would be a good idea to get them in and then put on the record what was wrong with each one of them before moving on to approve their own plan.  The way they dispensed with the maps suggested to me that they weren't looking to find a third party plan in compliance.  In fact the existence of other plans that met both the Constitutional AND VRA requirements is what derailed them the first time round.  They had what they thought was such a plan, but rejected it because it paired Native Senator Hoffman with Senate President Stevens.  They decided that it would be rejected by the Department of Justice.  But it was considered constitutional.  And its existence was a reason the trial court said that such a plan could be drawn.  Would it have been considered constitutional had it been submitted by a third party today?  I doubt it.  And, curiously,  yesterday when their VRA expert Lisa Handley spoke to them over the phone, she said that pairing a  Native incumbent in a plan with high VAP would be a stronger bet than not pairing, but having a lower VAP.  Basically she said the one they didn't send in because of the pairing, probably would have been ok. 

My head's starting to hurt trying to think through all this. 

They finished the first part of the afternoon about 4.  I was getting groggy and decided to go home and listen in via internet.  The 4:30 return was pushed off to 5:30.  When I tried to hook in online about 15 minutes late, it said the next meeting was 10am Friday.  They've also announced meetings for Sunday and next week.  It doesn't mean they'll use all those days, but they need to get public notice out in advance just in case.  They have put up a link to some "board maps", but I'm not sure what these are.

Here are my rough notes from today's meetings.  They are particularly rough, but it's better than nothing until the official transcripts become available.  So, read them knowing there are serious gaps and paraphrasings. 

ROUGH NOTES (see warning above ⬆)

Redistricting Board March 29, 2012

10:03  Open
Roll Call
Agenda approved
Third party plan offered option of stretching Bethel to Matsu, so Taylor will try this with the PAM_E.  This is Suggestion for AFFR?
Taylor Bickford:  AFFR and Rights Group.
Torgerson:  I’ve talked to Taylor to also look at including Anchorage.  We have a lot of Natives in Anchorage.  If we try to Matsu, we can try Anchorage too. 

Board Discussion of Draft Timeline
We had talk about the timeline.  Start with the court ordered timeline, that was vacated.  But a good start.

Compares the Court to the Chair’s

1.  Board start work - 3-26
2.  Board Drafts Constitutional Plan   2-27
3.  Plan reviewed by VRA expert - 3-28
4.  Board Adopts Amended plan - 3-30
5.  Board Adopts proclamation - 3-31
6.  Board Submit plan to Court - 4-04

Had Taylor call Republican and Democrat Party to find out how much time they needed = both said two weeks for notice to public of actual plan so people can ??

Mr. Ruedrich suggested we petition the court to adopt our plan so we know what we go back to and that we continue our work so we get it done.
Kay Brown’s response just got, basically very aware of board’s time crunch, not opposed to delaying candidate June 1 deadline or even delaying the election, but there should be a two week notice. 
Oddly enough we found agreement within the parties.

Instructed legal to give us a draft motion to the SC to draft the proclamation plan.  Very draft document, other things will probably be added to it, but don’t want to be in a crunch on when the time comes.

White:  Still not sure if it has to be pre-cleared before hand.  I do believe if it is submitted it would be pro-forma. 

Torgerson:  Possibly the board needs to adopt two plans.  We’re adopting the Proclamation Plan with the Fairbanks fixes.  On a parallel course we would have a different plan as we’re going along. 
White:  Let SC know we have the fixed Proclamation plan as a back up ??? [Not sure what they were saying.] 
Torgerson:  If we make the decision by the 15th, the timeline is right on the nose with the two week notice.
We’re two weeks ahead of the last redistricting board, but they didn’t have the Native pre-clearance issues we have. 
I’ve tried to get answers, but they are so elusive, especially DOJ pre-clearance.  One thing I picked up on is that people are assigned to us, 5 DOJ folks, they’re familiar with our earlier submission.  they don’t have to start from scratch. 
White:  The board needs to have Lisa look at any plan prior to submitting for VRA. 
Torgerson:  I figure if we give her a plan tomorrow, she’ll stay up all night long to get it back.  If she can’t do it Friday night and we can’t get our work done, I’ll roll this to Sunday.  We’re going to notice meetings all next week.  We don’t know what we’ll need.  We can keep going and not have an issue with open meetings. 
Back to agenda.  Board will take

STaff will review 3rd party plans submitted and compile a report when we get back.  Have them present their findings and if their are Constitutional and VRA issues.  Also instructed Taylor to look at coming concept of AFFR plan that takes Bethel into Matsu that solves a lot of problems.  I’ve instructed Taylor to look at the same pairings, but bringing that into Anchorage.  Matsu is 17.1 VAP and Anchorage is almost 18. 

Then we’ll look at Fairbanks 1 and 2.  We’ll take a look at that and then staff presentations and mine on the conceptual Bethel - Matsu.

Taylor Bickford:  Plans we received this week, a lot of stuff moving around.  Not necessarily organized.  By 2pm we’ll have them organized to pass out.  For people on line some questions about being able to follow along.  We’re getting a lot of things on the fly, we’re doing the best we can.  Trying to get stuff on the website.  Hope people online will

Hickel Plan from Calista
Rights Coalition
Last night two more Calista plans

I’m assuming at this point we don’t need to look at Calista’s Hickel Plan, or do we need to look at them all?
Torgerson:  I can call the Chief Justice.  Just look at them all.
Taylor Bickford:  Last night’s AFFR plan had an issue with it, I’ll check if they will get us a new one by 2pm.  The AFFR plan had an issue.  Talked to them last night to give them a heads up.  They said they are working on something and I’ll check after this meeting and.  They’re total deviation was too high - 11.8.

Brodie:  Nothing stops us from adopting the Proclamation Plan????
Marie:  I want to express my appreciation that we are going to review the different private plans. 
Torgerson:  We’ll stand at recess until 2pm.  time now 10:27. 

Afternoon is pushed back to 2:30pm

2:37pm  Reconvening - Packet of maps and deviation numbers are being passed out. 
Torgerson:  Assigned legal and staff to review 3rd party plans and see how far they could get and we’ll start with that.
then move to adopt Fairbanks 1 and 2
Then other plans.
After Fairbanks take another 30 minute break to let staff work on their Bethel-Matsu and Bethel-Anchorage attempts.

White:  Took Calista, AFFR, and Rights Coaltion and put them through the same analysis  and then VRA and Constitution.

Rights did not start from Hickel plan the Board adopted.  From our analysis that by itself disqualifies.  Their conviction is they don’t have to apply a Hickel plan because it meets the Constitution and so they don’t need a Hickel.  I think that’s wrong.
No Hickel - we couldn’t adopt this and take it to the SC.
VRA compliance - on it’s face appears to meet 5 effective, one  and one.  One is just one % above the minimum. 
41.8%  Statewide
in old six 50%
Chain - maybe to 35-37% range
Any time you move off exact configuration of those two 37 and 6 - then the numbers change. 
Taylor Bickford:  We did get the maps on the website if you are listening online. 
White:  3rd point, they did change SEast, pairing Kookesh and also pair Thomas with Northern Juneau (Munoz)
State compliance.  Under the 10% so that’s ok.
Start at top and work down.  HD 39 Only way to justify it is by citing VRA.  Departure.  Close to Proclamation Plan.  McCarthy to Nome. 
HD 38 BEthel District - how they solved urban population shortfall go across the water to Home and Kenai.  I think no question would not be relatively Socio-econ integrated.  mr. Lawson proffered some justification for the connection, as a whole, I can’t see getting that part of Kenai to Northern portion, I don’t see it.
Compactness issues possible. 
HD 37 Chain district - running it up - maybe some compactness issues, but not major issues. 
HD 36 - Wade Hampton - shape, dragonish, maybe some compact.  Designed that way to comply with VRA, but
HD 31 - Yakutat, Cordova, Kenai Cooper Landing to Anchorage to Rabbit Creek - not socio-economically integrated.  Yakutat to Kenai hard.
HD 18 - in anchorage.  Appendages - haven’t looked in detail,
HD 10 in Matsu - questionable compactness
HD 5 - Richardson Highway - serious compactness and SE Integration.  Nor Compact.
Proportionality - Kenai Borough split three ways. 
Court found complied with Constitution but not VRA.  3rd thing then minimal change to be in compliance.  Looking at Rights as a whole - there has to be at least one SE-Integreation problem and at least one compactness problem.  If you look at this plan and give them the benefit of the doubt that the deviations relate to the VRA, I think it’s easy to say this wouldn’t pass Supreme Court muster. 
Taylor Bickford:  No way to tell that their constitutional deviations were necessary to VRA since there is no Hickel Plan. 

Calista 1:  Breaks up Traditional NS district and takes it down to McCarthy. 
Started with Hickel plan we adopted and so it seems it complies with the Hickel process.
Solved problem by taking population out of Fairbanks. 
VRA - does appear to meet - 5 ability to elect (effective)  3 senate seats - one in R is 41.8%, but it’s in the Aleutians.
Constitution  -
40 NSlope - compactness, SE Integration, Mix of different Native groups
39 compact - assume both required by VRA
36 - similar to our proclamation plan - Keeps chain split with one difference - puts Akutan back into Aleutian borough. contiguity issues. 
Other than Sen Kookesh doesn’t pair any other Native incumbents. 
4 departures from the constitution - I think the least amount.
Taylor Bickford:  37 and 36 and splitting of Chain is their own issue and separating to protect incumbent is different issue. Same rationale we argued in Proclamation. 

3:09 Eterra does mapping for Calista

Calista 2 - looks a lot like the Proclamation Plan, starts with Hickel template.
Solve rural population shortfall by going tinto Fairbanks.  VRA exact same as first plan. 
…… missed a bit……
Problems due to VRA. 
Three areas not totally constitutional necessitated by VRA. 

Calista VRA mod 2
Marcia Davis - based on Hickel 1made VRA adjustments.  HD 5, lowest slightly under 41% is an Aleutian district.
Torgerson:  You lost me
Taylor Bickford;  36 includes Change and Bethel - 41.41% Native VAP, but no polarized voting in the chain, so this will work. 
37 and 38 ok
Aleutians with Kodiak is 38?%  OK.  Does not have a third effective Senate district and we think wouldn’t get preclearance.
40 - potential SE Integration and compactness issues - NS + Athabascan
39 - almost identical to others SE I and Compactness
38 - combine urban-rural so know SEI problem, but since urban-rural needs to be somewhere
37 - I didn’t see issues here, maybe some compactness

AFFR Plan -
within 10% after fixing some computer problems
Did not start with a Hickel Plan so under the process it would be disqualified
Population shortfall - used Fairbanks and Kenai
VRA - appears to be retrogressive because only 2, not 3 Effective Senate seats, 5 effective house.  3rd Senate seat is 39.1  (39 and 40)  Bethel with Matsu.  More than 3% under the standard.  In House seats have concern, if problems - need more analysis
35 - contains much of same area of HD6 is at 45.31 so 3% over, but HD 6 needed 50%, don’t know if different enough. 
Taylor Bickford:  chunk of 35 out of urban, our VRA testimony - if you’re going to add urban population to rural you should take Democrats over Republican because more likely to cross over.  They take Republicans and because of how close they are I think this is a problem. 
White:  If you had 60% VAP wouldn’t be a problem.  Here it’s too close.  That’s why we took from the other side of Fairbanks. 
Taylor Bickford:  Focus on 45% - average for state is 42, but HD 6 was 50% - so should be higher
38 - Down around that area where Lisa starts fidgeting in her chair. 
Taylor Bickford:  Given Lisa had heartburn with Chain district below 38%, I suspect this would cause her even greater concern.
Brodie:  I thought you had concern with Valdez going into Anchorage. 
State Constitutional - Split NW Arctic Borough.  Maybe not a problem doesn’t have enough population to have own district. 
HD37:  First time I’ve seen this, unique, maybe compactness.  Potential long skinny district. 
Proportionality - NStar Borough 2 ways.  Kenai 3 ways
White:  this is quick and dirty, more time, maybe more issues.  Thank the third parties for putting these in.  Ideas that will help the Board. 

Torgerson:  After finish Fairbanks we’ll take 30 minute break

Brodie sitting at the computer: 
First thing Taylor did was take lower end of FNSB the highway district out.  City District split a couple of ways.  Put all of this district (4) into city of Fairbanks.  Talked about yesterday the Base issue, I think that’s ok.  I thought I had the right numbers for the City, but not sure.
All of 4 in City of Fairbanks. 
HD 3 takes in all the eastern part of Fairbanks.  Cleanest way.  Still has 38 into western outskirts.  A few minor adjustments here to make the numbers pretty equal.  Close to making all the districts the same size. 
White: Borough now only split one way.  Deviations in the 3 and 4%.
Taylor Bickford:  That was unavoidable.  Only our former 1 the court didn’t like (the appendage)  Had to fix former #1 and that affected the boundary of both. 
2 Up here stayed the same to pick up some trading population.  Adding back in the highway district.  Numbers here do not correspond to Proclamation Plan.
White:  I suggest you use the same numbers as proclamation plan. 
Brodie:  it depends on how we pair them.  If we pair the two City districts, we have to pair them.
White:  No requirement since that is not resolved.
Torgerson:  Jim, you ok with this?
Holm:  I think so, not sure about the senate pairings.  City paired. 
Torgerson:  Goal of the board to keep city intact and open whether proportionality is an issue.  As long as we have it, it’s an easy fix. 
Brodie:  I think this satisfies the courts concerns.  Fixed 2 by squaring it off.  Instead of the narrow corridor.
Torgerson;  and we added the bombing range.
White:  5 didn’t cross over . . .
Torgerson:  We should adopt this in concept.
White:  We’re doing this for the Supreme Court in case we can’t finish the other plan.
Torgerson:  Why don’t we adopt this as the amended proclamation plan.
Don’t ask technical questions.  I’m too tired to ask. 
White:  In order to comply, we have to say these districts are compact and meet. 
Torgerson:  I’m not working for an interim plan.  But if we have to, I’m not sure the SC said we had to have constitutional issues within boroughs.  I find those pretty darn compact.  Thanks Bob.
White:  When done, I have to submit to trial court.  We’ve complied with your order for 1 and 2.  Maybe your explanation on the record is sufficient. 
Torgerson:  Have to make findings on portion of the plan . . . . put something on the record. 
White:  humor me
Torgerson:  We did away with the Kawasaki finger.  Moved the bombing range out of the district, and made it not reflect the highway corridor. 
Roll Call vote: 
Five yeahs  0 nays  adopted amended Proclamation Pan, Fairbanks 6,1,2,
Take a recess until 4:30 or thereabouts so Taylor can finish his plan on Bethel Matsu.  Probably

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