When the Redistricting Board appealed Judge McConahy's order to follow the Hickel Process and show that each district was constitutional, the Supreme Court's response was to tell the parties: to argue why the Amended Proclamation Plan (not the Interim Plan) should not be used as the Interim Plan. That sounded like they were leaning toward using the Amended Proclamation Plan. But while that Amended Proclamation Plan was mentioned frequently, they moved on to new questions.
This morning (Thursday) the Redistricting Board's attorney, Michael White, seemed to be arguing with the court. The Fairbanks' plaintiff's attorney, Michael Walleri seemed to be having a conversation with them. It looked like the court had little sympathy for White's position in his first opportunity on Thursday morning. It seems to me kind of daring to try to tell the court what their intent was - especially when they are challenging your arguments and they would seem to know it better than anyone else.
The court wanted to know why the Board hadn't fixed the Constitutional problems in District 32 that Judge McConahy had pointed out. The Justices wanted to know, based on their Hickel Process instructions, why the Board wouldn't have to choose a third party plan if, as Walleri contended, it deviated less from the Alaska Constitution than the Board's plan. White had trouble with this one. His basic response, as I understood it, was if it was constitutional it met the test and that you could quibble forever about which was more constitutional. Redistricting was, he said, like squeezing a water balloon. If you squeeze one place, it bulges somewhere else.
But while the judges' tone with Walleri was decidedly friendlier, Walleri didn't seem to be able to offer them straightforward answers to their basic questions. When White had some time again at the end he argued that Walleri's contention that the Court was flying blind because none of the plans have been pre-cleared by the Department of Justice was a red herring. The district in question - HD 38 - had been pre-cleared in the original plan. And the plans Walleri wanted had never been pre-cleared for VRA complaince.
[Note: For people unfamiliar with the Voting Rights Act and Retrogression, you can go to Alaska Redistricting for the Masses Part I
- which looks at the background information needed to understand the process -
the Voting Rights Act and Alaska Constitutional requirements
Basically, here are the questions they needed answered.
1. Was the Division of Election's May 14 deadline for a plan (so candidates can know their districts by the June 1 filing deadline) a drop dead date or could things be put off a bit more?
Both sides seemed to agree that there was some wiggle room. Federal law now requires 45 days before the election absentee ballots need to be sent to military overseas. If you work back from there, ballots need, according to Walleri, to be mailed July 2. White said the date could be pushed back, but you still wouldn't get a new plan out until July, because of the need for pre-clearance from the Department of Justice (DOJ.)
2. Which plan should be adopted as the interim plan?
Walleri offered the benchmark plan because it couldn't be retrogressive since it literally is the benchmark for measuring retrogression. The benchmark plan is the one adopted in 2002 and the plan the current legislature is based on and against which they measure retrogression (or whether Alaska Natives have lost voting strength.) He argued that neither the Board's Amended Proclamation Plan nor its proposed Interim Plan have been pre-cleared by DOJ.
Walleri also argued that the Rights Coalition and Calista 3 plans were both in better compliance with the state constitution than the Board's plans.
White responded that the Board's Amended Proclamation Plan and the Interim Plan both were very close to the original plan that the DOJ had pre-cleared and that their VRA expert had said the two plans were good.
He blasted the benchmark plan as having huge deviations in district size violating the critical one-person-one-vote principle. (This is undisputed.]
3. What should the court do next? Give it back to the Board to fix, adopt one of the plans, or appoint a master to fix the plan?
White argued for adopting one of the Board's plans. If necessary, the court should give it back to the Board to fix the constitutional problems with Southeast. Walleri pointed to the Rights Coalition plan, the Calista 3 plan. If they didn't like that, he wanted a master. But it was clear that he knew there was no easy answer.
That's my take on what happened in court today. For the redistricting obsessed or for those who can't sleep, below are my very rough notes. USUAL DISCLAIMER - these notes leave out a lot, but will give those not there a sense of what went on.
Alaska Supreme Court Redistricting 5:10:12
I then had time to get a sandwich and spend the afternoon observing the recounting of the Municipal election at City Hall. So I was tired when I got home and my brain was full. That's why this is going up so late. But if the court turns out their decision as fast as last time, it could be announced tomorrow (Friday) or Monday. So this needs to get out.