Monday, January 14, 2013

Redistricting Board Petition to SC - Part 2: I Can't Figure Out A Sexy Title For This

[I admit this is a pretty wonky subject and post.  But I believe that with a little help, this stuff is understandable.  Since I attended and blogged most of the Redistricting Board meetings in Anchorage, I have some understanding of the process and familiarity with the people involved and the events that happened.  This is the third post on the Board's petition.  I'm trying to put this into digestible helpings.  I'm hoping, after going over the petition, I can speculate on what might happen and what it means.  So far redistricting has changed the districts enough to knock out the Senate bi-partisan coalition and shift the power toward the Republicans who want to give the oil companies a giant tax break.  So this stuff isn't minor.]

The first post is an overview of key terms and events to get people up to speed.

The second post looked at the first part of the Alaska Redistricting Board's petition to the Alaska Supreme Court to reconsider their decision requiring the Board to redraw the districts for the 2014 election.  I focused on the first part of Part A - allegations by the Board that the Court misconstrued the number of house districts that were the same in their Hickel template.  When I looked carefully, it seemed to me that the Court had it right and that the Board's allegations got confused over the the Hickel plan and the Hickel  template.

In this post I'll look at the other allegations that the Court erred in their decision:
"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. . ."

Actually, all three of these seem to be variations of a single theme:  How does the order of creating the districts affect the final outcome?  The overview post mentioned above goes into the Hickel process and what all that means, but I think it makes sense to get into it again here.

The Hickel Process

In a 1992 Supreme Court decision - Hickel v. Southeast Conference* - the Supreme Court wrote:  
Article VI, cl. 2 of the United States Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land....” This mandates that provisions of state law, including state constitutional law, are void if they conflict with federal law. To the extent that the requirements of article VI, section 6 of the Alaska Constitution are inconsistent with the Voting Rights Act, those requirements must give way. However, to the extent that those requirements are not inconsistent, they must be given effect. The Voting Rights Act need not be elevated in stature so that the requirements of the Alaska Constitution are unnecessarily compromised.
I understand that to mean:  Federal law takes precedence over state law.  Thus, if the requirements of the Alaska Constitution conflict with the requirements of the federal Voting Rights Act, the VRA wins.  BUT, the VRA isn't so important that the Alaska Constitution is unnecessarily compromised.

So they told the people redistricting then, the steps to follow:
The Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements. (emphasis added)
So, first the Board must make a map that meets the Alaska Constitutional Requirements, then, they can make adjustments to that map, if necessary, to meet the VRA requirements.  But the deviations from the Alaska Constitution must be as minimal as possible.

This is the essence of the Hickel process.  The Board has to meet both the requirements of the Alaska Constitution AND the federal Voting Rights Act (VRA.)  See the overview post for more information on this.

[Update: Hickel was not on the Board's radar when the went into this process, though two Board members are mentioned as participants in the case.]  The Board decided to create the Native districts first and then, they figured, the other districts - many in more densely populated areas - would be easier.  This seemed logical to them because they needed approval of their plan from the federal Department of Justice before any plan could be implemented.

But if there are any districts that do not meet the Alaska Constitutional requirements, they have to deviate from the Constitution the least amount of necessary to meet the VRA.  The Hickel process - requiring the Board to do the districts strictly based on the Alaska Constitution first, then made deviations, if necessary, to meet the VRA - as I understand it, is the only way the Supreme Court believes it can determine if the deviations are minimal.  They would do this by looking at the Constitutional map and then compare it to the map created from it to meet the VRA.  This ability to compare the two maps is how they can determine whether a particular deviation was necessary.

Question 1:  Is it possible to to meet both the Constitutional and VRA requirements?  

Theoretically, yes. [And the Board says they've done it.]   I imagine the Board hiring some computer game wizards and letting them loose to play with the computer until they come up with such districts.  The Board members certainly were not the computer wizard type.  Perhaps member Peggyann McConnochie came closest to that.  The staff were younger and more comfortable on the computers, but they weren't total computer savants and they had a lot of different other tasks to do.

Alaska's huge empty spaces and scattered population make redistricting difficult.  Plus the Native districts are in low density regions.  There are more than enough Alaska Natives in Anchorage to make up a Native district, but they are too interspersed among the non-Native population, or so the conventional wisdom tells us, to create an urban Native district.

The Alaska Constitution's requirement for compactness is also tricky in the largely unpopulated areas of the state.  We've had a regular district that is bigger than most states - a district with most of its population off the road system.  It's very hard for a legislator to physically meet with the constituents.  By comparison, you could walk across some Anchorage districts easily in a day.

Another problem is the criterion of 'socio-economically integrated.'  By definition, they said, any Anchorage district meets that criterion, even though it could have very high and very low income populations and people whose native languages are very diverse.  The current plan includes a district with Fairbanks suburbs - on the road system, close to the second largest city in the state - and tiny Native villages along the Bering Sea far off the road system, some without running water or sewage systems. 

I suspect that by the 2020 census there should be computer programs that can generate 100 maps that humans can then scan and evaluate on the more subjective factors.

Question 2:  Does completing the Native districts first limit how well the other districts will meet the Alaska Constitutional requirements?

Riley, who brought suit against the Board, argued that by doing the Native districts first "the Board painted itself into a corner."  The original districts limit the options for the other districts, allowing the Board to say things like, "We have no choice but to . . ."

The Board argues that
 "[w]hile the configuration of these [four VRA] districts may have some ripple effect on the bordering districts, they did not impact the contours of every district in the State.  For example, the configuration of the House districts in Anchorage, Kenai, and Mat-Su Borough were not in any manner influenced by VRA considerations.
Except that they also said earlier in the petition:
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."
 In this paragraph they are trying to show that there were lots of changes from the original Proclamation Plan to the Amended Proclamation Plan.  But it seems to contradict this other claim of the VRA districts do not impact the others.  Maybe I'm wrong, but as I read this, it implies that at least 18 districts were impacted by trying to get the VRA districts right.

Let me explain my logic.  They started with the Hickel template that had 36 districts from the original Proclamation Plan.  The four they had to work on were all Alaska Native districts (HD 36, 37, 38, and 39.)  To make them work they decided to borrow population from Fairbanks districts.  This then had a ripple effect which included getting into Matsu districts and Kenai districts.  In the quote above, they don't mention Kenai and Matsu as unchanged.  That seems to contradict the quote before it which says ". . .Kenai, and Mat-Su Borough were not in any manner influenced by VRA considerations."  The way I see it, the ripples from getting districts 36, 37, 38, and 39 to work affected Matsu and Kenai districts. Though I acknowledge my own head is getting foggy at this point.

An additional issue is that they used the VRA districts 37 and 38 to justify making changes in Fairbanks that then paired two Democratic Senators (but left an adjacent open district without an incumbent in it that could have left the two Dems in separate districts) and other tricks that made incumbent Democrats more vulnerable.

I'm convinced that the Fairbanks districts were tinkered with to make it easier to elect Republicans.  The city of Fairbanks was split up - one of the subjects of the original court challenge - and there were little attempted and realized protrusions sticking into other districts that enabled a particular politician here to run in a neighboring district, or to exclude a politician from his traditional district.  Here's a post from the original court hearing before the Superior Court discussing political gerrymandering to give a sense of why I believe this.  I also watched how the original Fairbanks districts were brought to the Board and approved.

I'd note that the dissenting opinion on the Court pointed out that the 'blank spaces' on the template made up half the geography of the state and were bigger than Texas so they had lots of room to play with.  

Question 3:  Does it make sense to draw the maps to meet the Alaska Constitution without thinking about VRA?

I've pondered this question throughout the process.  I understand the Court's logic that they need a good constitutional map so they can tell if, really, only the least amount of variance from the Constitutional requirements were made to meet the VRA requirements, or if the VRA was used as an excuse to gerrymander the districts.

But I think this is where the painting metaphor fits in.  It appears (I can't prove this) that doing the districts without keeping the VRA in mind could lead you to painting yourself in a corner.  You could do the whole state with beautifully constitutional districts (compactness will always be a problem for a couple of districts though) but then getting from there to VRA approval may cause even greater variance from the Constitution than if you had kept the VRA in mind all along.  Why?  Because the constitutional districts you come up with, if you ignore VRA totally, may be so at variance with the VRA that to change them to meet VRA would cause serious boundary moving.  All this, of course, assumes the Board members have no political motivation at all. 

It is a variation of the chicken and the egg dilemma.  Board member Brodie was at odds with the rest of the Board from the beginning.  He felt that the focus on the Native districts first - really just eight or nine districts out of forty - meant the board was spending, in his words, 90% of our time on 10% of the population.  That would mean at the end, they would have relatively little time to work out all the other districts where most of the population lived. And that's what happened.

Fairbanks and Anchorage maps were brought in by members and played with in a day each - at least so fast that it was hard to know what the districts looked like and the practical implications before they voted to approve them.  Was that intentional?  My guess for Fairbanks is definitely yes.  And I'm sure they wanted to minimize the public's opportunities to see and comment on how they played with boundaries like adding a mostly white and Republican Eagle River House district to the Senate district of the only African-American in the legislature. 

Back To The Board's Assertions:

So, what does this discussion mean in terms of the Board's assertions in their 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. . ."
The way I see it, once you draw one or two or eight districts and lock them in, you limit the options for all the other districts.  The Board's claim that this isn't the case doesn't ring true to me. Especially when the Native districts are so large geographically.
"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 contours of the entire map were affected. . . "
This seems to me a rewording of the previous contention.  Yes, again, once you draw one district, that limits your options for the next ones.  Not all districts will be directly affected - like those in the middle of a high density area like Anchorage.

The Board itself said, clumsily, that while the original Hickel template had most of the districts intact from the previous plan, the final plan had only 22 districts that hadn't changed.  (Here they were trying to show that the districts weren't the same as in the original plan the court threw out.)  As I read it, I thought that's the point the Court is making.  The contours of each district have to impact the contours of the adjacent districts, and then that ripples out to the ones they touch.  And since the Native districts tend to be the largest districts, they will touch the most adjacent districts.   And I didn't see any evidence in the petition to counter this. 
"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 haven't address this point yet.  Here the Board makes an interesting point.  They argue that the Supreme Court should simply judge the outcome and not how the Board got there.  If all the districts were found to be constitutional, then, they argue, it shouldn't matter because there is no deviance to minimize.  This is a strong point.  It's one the Court's dissenters agreed with:
"If the Hickel plan complied with the requirements of the Alaska Constitution, the Board did what we asked it to do. Today’s opinion declines to answer whether the Board’s Hickel plan meets Alaska constitutional
I agree that this is a question that remains to be resolved." (p. 30 bottom)
I would note that there are several districts that clearly do not meet the Constitution's compactness requirement - Districts 36, 37, 38, and 39 - but given their low population density, one could argue compactness would be a problem without the VRA.  But certainly the VRA exacerbates the problem because the districts need to wander around the state, avoiding white pockets, to get enough Native population to qualify them as effective Native districts.

There are also questions of socio-cultural integration.  But neither of these criteria  - compactness and socio-economic integration - can be objectively measured. We might know if they are drastically violated, but it's hard to know when a district crosses over the line from being ok to not ok. 


I think the Board wins some and loses some here.  It's not clear cut.  They just need to get one more member of the Court majority to join the two dissenters to get a majority that thinks they don't need to redraft the whole plan again.

In the next post, I'll look at their claim in Part B that the Court overstepped their authority to tell the Board how to do their job.

Also to be considered in the next post (or another one) are the practical implications of this decision and whether the Court should be considering them when making their decision. 

*Linking the Supreme Court decisions is tricky.  Links to the most current decisions posted on the Court's website work until they get posted at the Pacific Reporter.  So the links have a limited life span. They are also available at the Alaska Case Law Service, but I haven't figured out how to link directly to a case. Those links don't work.  Instead you have to put in the right search terms.[See comments for more on this.]


  1. >> Instead you have to put in the right search terms.<<

    What search terms worked?

  2. Anon, great question. I thought about explaining it in the post but it gets complicate. I found that if I searched by party name and put in just Southeast Conference I got two cases. The 1992 is the right one. The 1994 is about lawyers fees for the same case. If you put in Hickel, you get lots of cases and have to scroll down to 1992. Hope that helps.

  3. Oh, that was just for the Hickel v Southeast Conference. The current one you can get here:

    at least for the time being. It's Dec. 28 and has redistricting in the title.

  4. And for the purists, here's the missing 'd'.


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