Wednesday, January 16, 2013

Did the Alaska Supreme Court Violate Separation of Powers As Redistricting Board Asserts?

This is post four reviewing the Redistricting Board's petition to the Supreme Court to reconsider its decision that the Board must come up with a new plan for the 2014 election.  There are links to the previous posts at the bottom. 

In this post I'm looking at Part B of the petition. 
"B.  The Court Violates the Separation of Powers Doctrine By Dictating the Redistricting Process Vested in the Board By the Alaska Constitution."

It goes on to say the Court
"misapplied a controlling princple, the Separation of Powers doctrine, by invalidating the Board's chosen process in its attempt to comply with the Court's order on remand."

It points out that the Constitution separates power into the three branches of government and the different branches shouldn't interfere with each other's work.  It's how the independence of each branch is safeguarded.

The Court, according to the Board petition, "violated the Separation of Powers doctrine by mandating the Board's process."  (You can read all of Part B in the petition itself at the bottom of this post)

So, is the Board correct?  I'm not going to look at this from an attorney's view - since I'm not one.  I'll just apply logic, but in the law, there's always the possibility of overlooking an important point somewhere.

1.   The Supreme Court is the highest court in the state and the judges there have a good idea of the law and of what they've done in the past.   I'm betting the five members of the Supreme Court are better judges (no pun intended) of what violates the Separation of Powers Doctrine than is the Board's attorney.  I searched their December 28 decision to see if the dissenters might have pointed this out.  I found nothing.

2.   While the separation of powers is a key principle of our system of government, it's not explicitly mentioned in the Constitution and there are lots of examples of where powers overlap. Life is not as neat as our abstract ideals.  Courts have mandated executive branch agencies to do lots of things from desegregating their schools to how they run their prisons. 

3.  The Supreme Court in 1992 already ordered a previous redistricting board to follow this same procedure and that order was followed and used as a precedent for this case. That order remained unchallenged until now. 

4.  Here, the Court says it's doing this only so it can do its own job. 
". . . we explained why failure to follow the Hickel process was fatal to the Board’s plan: The failure prevented meaningful judicial review because we could not discern whether the Board’s deviations from Alaska constitutional requirements were actually necessary."
 Basically, they say that without an initial plan that meets the Alaska Constitutional requirements, the Court can't check to see whether any deviations from the initial plan to meet the Voting Rights Act requirements are the least possible deviation necessary.

To my non-attorney eye, the separation of powers argument on its own, doesn't have much chance.  There are lots of precedents of the branches of government breaching the separation of powers - not arbitrarily, but because it makes sense.  The world is messier than our abstract models of the world.  Things don't neatly separate into three governmental branches.  There will always be sniping at the borders.

However, as I wrote in the last post on the petition, I'm not convinced that practically, the Court's logic that the maps first must be drawn without consideration of VRA is practical.  Without, minimally, keeping the Voting Rights Act in mind, it could be much harder to create a map with the minimal deviations possible.  If a redistricting board simply tried to make the most compact and the most socio-economically integrated districts they could (two key constitutional requirements), without regard to the VRA, the resulting map could be impossible to stretch and warp to make it meet the VRA standards without doing even more serious harm to the constitutional standards.

And, in fact, the Board's constitutional districts work because they paid attention to where the existing Native districts were and how they were going to keep the right number of Native districts.

I'm guessing the best way to determine if the deviations are the least necessary is to compare the Board's final plan to the final plans of the independent groups that are also submitting plans. In the current redistricting cycle there were four or five independent groups also submitting plans.  Their ability or inability to meet standards better than the Board did was critical in evaluating how well the Board did.   But this strategy only works if there ARE independent groups with interests different from the Board's and with the resources to seriously create independent maps.

I'm further guessing that by 2020, the technology will exist to make maps that come very close to meeting the necessary criteria.  Humans will only have to make minor adjustments.  But Alaska is a small market with unique challenges and software companies might not find Alaska worth their while. 

In the meantime though, the Supreme Court has told the Board to start creating a whole new map for the 2014 election.  Two dissenters - Justices Matthews and Fabe - have said this is unnecessary and would be highly disruptive to the Alaska election process.

In the next post on redistricting, I'll contemplate the idea of the Court making this decision based on the practical implications and what those implications might be.  

Previous posts:

1.  Alaska Redistricting 2010-2013 Overview
2.  Fact Checking The Alaska Redistricting Board's Petition To The Supreme Court
3.  Redistricting Bord Petition To SC - Part 2: I Can't Figure Out A Sexy Title For This 

No comments:

Post a Comment

Comments will be reviewed, not for content (except ads), but for style. Comments with personal insults, rambling tirades, and significant repetition will be deleted. Ads disguised as comments, unless closely related to the post and of value to readers (my call) will be deleted. Click here to learn to put links in your comment.