Sunday, January 13, 2013

Fact Checking The Alaska Redistricting Board's Petition to the Alaska Supreme Court

The Alaska Redistricting Board has petitioned the Alaska Supreme Court to reconsider its decision requiring the Board to start all over again, this time using the Hickel process, to complete a new set of Alaska House and Senate districts for the 2014 election. 

In this post, I'm going to review the argument made in this petition regarding whether the Board followed the Hickel process.

This is all pretty wonky stuff, but I'm trying to make it accessible to the average person.  I have another post - Alaska Redistricting Board 2010-2013: Overview - which attempts to explain, for those who haven't kept up with the details of the redistricting process, some of the key terms and events one should know to understand this petition.   It should be particularly helpful in understanding the background of "the Hickel process."

The Board's petition is in three parts:

    • A.The Court Overlooked and/or Misconstrued Material Facts and Questions in this Case
    • B. The Court Violates the Separation of Powers Doctrine By Dictating the Redistricting Process Vested in the Board By the Alaska Constitution
I'm going to focus, in this post, on the Introduction and Part A of the Arguments. (In the end, I decided to only look at the first part of A.)

INTRODUCTION (of the petition)

In the intro, the Board's petition says, 
"Specifically, the Board petitions this Court to reconsider the portion of its decision  that the Board failed to follow the Hickel process in the adoption of its Hickel Plan."

"The Board seeks rehearing because this court, in finding the Board failed to follow the Hickel process and in failing to answer whether the Board's Hickel plan meets the Alaska Constitutional criteria
  • misconceived material fact
  • overlooked a material question in the case, and
  • misapplied a directly controlling principle.
"For these reasons set forth below, the Board respectfully requests the Court reconsider . . ." 
Disclaimer:   I'm not an attorney.  But I attended and blogged most of the Board's Anchorage meetings and I can, at least, apply logic and I can compare the facts as presented in the petition and what I saw at the Board meetings.

I'd note here, that first the Board's attorney, Michael White, tells the Court they are wrong - you misconceived, you overlooked, and you misapplied, he tells them.  There's no sugar coating here.  No, "we contend" or "it would appear that."   He says: You flat out screwed up.

This tends to make the next line sound hollow: "The Board respectfully requests . . ."  Respectfully?  Really?

This is either a bold or reckless approach.  Or both.  After all, none of these things are completely clear cut and the Court's decision becomes the legal reality.  But I think the Court is pretty seasoned in separating out the tone from the law in these documents, but the tone can't help but register somewhere in the justices' subconscious at the very least.


So, let's go to the argument, part A, to see what material facts and questions the Board thinks the Court overlooked or misconstrued.
"First, contrary to the Court's opinion, the Board did not start with, nor did it adopt a Hickel  plan that left thirty-six (36) House districts unchanged.  The Board's Hickel template, which was nothing more than a beginning point for its Hickel Plan, used only twenty-two (22) unchallenged, constitutional House districts from the original Proclamation Plan:  Anchorage HD 12-27, Southeast HD 31-36, and HD 40.  A side-by-side comparison of the Hickel template and the Hickel plan clearly shows the district configurations are vastly different."
OK, so what did the Supreme Court actually say:
. . . what the Board actually did upon remand was to create a Hickel template that maintained the boundaries of unchallenged districts from the original Proclamation Plan, resulting in 36 unchanged house districts. The Board asserts that these districts “were drawn with only the Alaska Constitution in mind” and thus they complied with the Hickel process.21
[For those whose heads are spinning already, you can go back to my overview post to get a better understanding of the Hickel process, Hickel template, and Hickel plan.] 

Watch carefully.  We have a Hickel template and a Hickel plan.  And if you don't look carefully, they might get switched on you.

A reminder here, there are 40 House districts. 

One more time.

The Board petition says the Court claimed said there were 36 unchanged districts in the plan.

The Court actually said there were 36 unchanged districts in the template.

"Hickel" map template
I went back to my March 26, 2012 post where they unveiled the Hickel template.  I wrote then:
"They started with a template that kept the parts of the state from their submitted plan that met the constitutional requirements (Southeast, Anchorage, Matsu, Kenai, and North Slope) intact. 

They left blank the interior and Fairbanks districts and Western Alaska and Aleutians.  (see map)"

There were four districts in the original Proclamation Plan (that the Board originally proclaimed as the new set of districts) that the Supreme Court ruled unconstitutional.  That day it wasn't totally clear to me which districts they left blank.  The Supreme Court dissent (Matthew and Fabe) identifies the four as Districts 36, 37, 38, and 39 which went from the western Fairbanks suburbs west to the coast and looped around Fairbanks to the east, similar to the old district 6.  This map - the Hickel template - is consistent with that.  As I recall, they then decided to fix the unconstitutional issues with Districts 1 and 2 in the Amended Proclamation Plan. 

NOTE:  The old maps - the Hickel template and Hickel plans drawn from it are no longer on the Redistricting Board website list of maps, the map above is a photo I took of one posted on the wall, so it's hard to tell the details. (I did find the maps in with the transcripts for March 26, 2012.  They are here. The Template is the little map on top with the big blank space in the middle.  As I recall, a fourth one was added later.)

I then checked the Board transcripts from March 26.  Starting on page 41, the Board's Executive Director Taylor Bickford explains how they came up with the Hickel template.  He tells us that the Chair John Torgenson told them how to do it.
And so the guidance he gave us was to basically incorporate any aspects of the current plan where no Voting Rights Act justifications existed; in other words, parts of the plan that were really drawn under a Hickel process to begin with, parts of the plan that were drawn with only the Alaska Constitution in mind and not the Voting Rights Act.
And so obviously, the Anchorage District, for example, those were drawn originally to state constitutional standards, had nothing to do with the Voting Rights Act. The Mat-Su, the Kenai Peninsula, and the Kodiak District and Southeast.
He explains why each of these were done without considering the Voting Rights Act and then goes on.
So this was the starting point. So I started by importing the Southeast districts. I then imported the Kodiak districts, the Kenai Peninsula districts, the Anchorage districts, the Mat-Su districts, the Highway District and then the North Slope. (p. 42)
Then attorney White asks the critical question:
MR. WHITE: How many districts then need to be drawn?· How many districts exist in the template right now, just total number?
MR. BICKFORD:· The total number of districts would be 36. (pp.43-44)
It's clear from this exchange that the template had 36 districts filled in and the rest was blank.  Since there are 40 districts, there were four districts left blank.

It seems to me that the Supreme Court had their numbers right.

And if we look at the Board's wording again it's not altogether clear.  First it says:
"nor did it [the Board] adopt a Hickel  plan that left thirty-six (36) House districts unchanged."
 No, but it did adopt a template that left 36 districts unchanged.  And the Court said template, not plan, when it said 36 districts.   Then Board's petition says:
  "The Board's Hickel template, which was nothing more than a beginning point for its Hickel Plan, used only twenty-two (22) unchallenged, constitutional House districts from the original Proclamation Plan:  Anchorage HD 12-27, Southeast HD 31-36, and HD 40."
This is where commas make a big difference.  Grammatically, this says their Hickel template used only twenty-two (22) unchallenged House districts from the original Proclamation Plan.  I think he meant the Hickel Plan. We know the template had 36 districts left from the Proclamation Plan.

Let's look at the districts he lists:
Actually, this adds up to 23, not 22 districts.   In any case, there is no way that he is talking about the template, because, as the transcripts show, it began with 36 unchanged districts.  He has to mean the plan, not the template.  And, yes, as they started working out those four districts in the blank space, they needed to borrow population from the Fairbanks area to get districts big enough to meet the one person one vote requirement.  And then there was a ripple effect that caused them to make minor changes in the Matsu and in the Kenai districts. 

There are three more allegations that the Court erred in Part A of the petition.

"Second, the Court also misconstrues the material fact that the configuration of the House districts used in the Hickel template somehow limited the configuration of the Board's final Hickel plan. . ."
"Third, the Court also misconstrues the material fact that by first drawing districts that complied with the federal Voting Rights Act ("VRA") in its original Proclamation Plan, the countours of the entire map were affected. . . "
"The Court also overlooked a material question in this case by declining to decide whether the Board's Hickel plan complies with the Alaska Constitution. . ."
I think there's more than enough already in this post for people to attempt to digest, so I'll leave these three allegations for the next post.  I will say that at first blush, these all seem to be hinged on the same issue - to what extent does setting up the first districts affect what happens to the rest of the districts?


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