Tuesday, February 12, 2013

Alaska Redistricting Board Meets Under Uncertainty To Plan Next Steps

With a petition pending before the Alaska Supreme Court and a US Supreme Court case challenging Sec. 5 of the federal Voting Rights Act, the Alaska Redistricting Board met to plan out its next steps.  I listened to this online.  I missed the first ten minutes because it wasn't connected through the online link.  I heard part of it through a phone link and when the online connection came on, through there.  I didn't really get on until they began asking questions of the attorney after his briefing of the legal issues.  Some of the discussion was hard to hear.  So, below is what I caught - first an overview and then my rough notes.

Members present:  A couple of times the Chair said something that sounded like all the members were present at the meeting in Anchorage and not there by phone.  All spoke at one point or another.

The Board met for about 70 minutes, took a 15 minute break and then went into Executive Session, which lasted twice the Chair's estimate of 45 minutes.   
Finally they met in a public meeting for about 5 minutes.

  • Mapped out a very tentative time line
  • Authorized the Board Chair to initiate the hiring of a new Executive Director starting today
  • Authorized attorney, if their petition is rejected, to seek clarification from Supreme Court about what they can and can't do in redoing the plan. 

Topics Discussed:

  • Possible Appeal of Alaska Supreme Court to US Supreme Court
  • Shelby County v. Holder case which challenges Section 5 of the US Voting Rights Act (VRA)  - for more information on that case which is scheduled for Feb. 27 you can look at Lawyerscommittee and Alabama site al.com. The first link has links to all facets of the case.
  • The impact of both court decisions on the Board:
    •   have to wait for Alaska Supreme Court decision to know what they need to do
    •   wait for US SC decision to know whether still covered by Sec. 5 of the VRA.
  • They could do their “Hickel” Process plan and then wait until the US SC decision on the Shelby County Case is in before working to meet the VRA.  That should be in by July 2013.
  • Meaning of Alaska Supreme Court Decision:
    •  Do they really have to start every district from scratch?
    • What happens if districts, say, in Anchorage are the same?  Or District 40? 
    • Who would be able challenge the result? (Attorney: Probably no new parties could, but if maps were changed, old parties would likely be able to challenge them.)
    • What steps of review?  We don’t need to get Court approval each step of the way, but then they could go back and challenge our process anyway?
    • Can we ask that the new Supreme Court justices recently appointed take over from the retiring judges? (Attorney:  no, but who knows what they will do?)
    • What will the VRA benchmark be?  The one we used or the one approved by DOJ when they approved our Plan? (Attorney:  The new one probably.)
    • Was Hickel Plan an issue in 2000 process?  (Attorney: no)
    • If Shelby County case overturns Sec. 5 how does that affect the rest of the VRA? (Attorney:  Sec. 2 still holds, but only apples to intentional discrimination.)
  • Timeline:   Chair Torgerson had a draft plan which they discussed. (I was able to get a copy of this from the staff via email).  This was just the roughest of plans, given the uncertainties, but at least it allowed them to get a sense of what needs to happen and how long it might take.  They made some adjustments in the discussion. 
2-12:  Board Meeting
2-12:  Board Authorizes Hiring Executive Director
2-12:  Start Hiring Process
3:14:  Board interviews:  (in person)
3:15:  Board hires Executive Director
3-18:  New Director works with Taylor Bickford (old Director)
4:02:  Board Meets; start drafting Hickel plans
4:05:  Board Adopts Hickel Plans
4-06:  Board Meeting if needed
7-15:  US Supreme Court rules
8-09:  Board Adopts final plan
8-19:  Board forwards final plan to Superior Court
8-20:  Superior Court reviews
8-29:  Superior Court set schedule for hearing on Plan
9-09:  Superior Court Hearing (Fairbanks)
9-20:  Superior court issues ruling
9-30:  Appealed to Supreme Court
10-08:  Supreme Court Hearing (Anchorage)
11:-1  Supreme Court ruling
11:15:  Submit to Department of Justice (if needed)
1-15-14:  Approval from DOJ received.

Below are my rough meeting notes.  As always, beware.  There are omissions, gaps, approximations, and other distortions that will have to be endured until official transcripts are available.  The purpose of these notes is to give a sense of what was discussed and a place to start to ask other questions.  Don't rely on these except as a starting point to get better confrimation. 

Board Meeting  2/12/13

1 855 463 5009 call in number

10:10am AK time finally got through

Board Attorney Michael White:  Going over his memo,

We have no idea when the decision will be.  I suspect sometime in the next month we’ll get some guidance. 

Board Options:

Switched from phone to online.

Seek US Supreme Court to review AK SC decision.  Appropriate for US SC to review if there is a federal question.  They have violated the Supremacy Clause by dictating the process we have to use.  Looked at it, and not optimistic there’s a question there or that SC will accept it.

Memo explains the rest. 

Chair John Torgerson:  Start with federal.  SC said we have to ignore the federal law and constitution as we start.  And then we can start for real.  Upside down in terms of which law takes precedence.  You called it the Supremacy Clause and for me it’s Separation (Usurpation?)of Powers.   Hope we look at SC as an option.

White:  We could.  90 days to request the court to review it.  Now pending.  Time line of 90 days still going. 

Torgerson:  Challenge to VRA Sec. 5 itself in US SC now.  If we filed an action to overturn AK SC - would it get wrapped up in this issue?  You sent a memo, don’t know if other members got to read it.

Lastly, should we wait til we get ruling before going to SC?

White:  Case challenging constitutionality set to be heard Feb. 27.  US SC has lots of issues before them.  Unless of a clear mind and quick decision, probably no decision til end of June.  Checked with my sources in DC, say decision at end of June.
If declare Sec. 5 unconstitutional, they’ve have a split decision  Shelby County Case - lined up pretty clear up and down
Could be unconstitutional all states or just Shelby County.
Unless Congress acts very quickly,
If unconstitutional, then board faced with different set of circumstances.  Makes sense to wait until that decision comes down before deciding what to do.  Perhaps get the Hickel part done,  if don’t have to deal with Sec. 5, then no need to revise that plan. 
My advice, to wait to adopt a final plan, no time pressure now.  No deadlines in court case.  If we start over, not the same as 2011.  Same place as last April when we got Court order to do Hickel process.  No timelines or deadlines we face except 2014 election, so by June 2014 or whatever date the division of elections needs. 

Torgerson:  Earlier said, Court was telling us to start over.  Majority or dissenting don't remember who said it. 
White:  Never exactly said.  Said do Hickel process.  Minority said you’re wrong making them go back to beginning.
Torgerson:  30 days to sue after we adopted a final plan.  Who can sue us?  Goes to Superior Court ???
White:  SC said, ??? Board would have to go to process. 2nd Amended Plan to trial court.  Under old order, we had 30 days.  I don’t think new parties should be able to come in.  They’ve allowed challenges, but not new parties.  I’d ask court to prevent new parties.  The others would be allowed.
Torgerson:  Fact of law or can judge allow it.  History with this judge, he allows everything, truth, untruth, no one seen it, bring it on.
White:  …. I like our argument, still involved in the same process as before.  Doesn’t mean that if the districts are changed, then the parties already in the case could challenge it.  Say, we redraw a Matsu district, party already in the case could raise a challenge even if not challenged before.  New parties not allowed, but if new district.
Torgerson:  [Sarcastic comment.]
Clear under your findings, we need to draw a Hickel plan.  Need to move all the districts around.  No review of any court - no district by district explanation of why we did it.  Then go to process of adopting new Proclamation Plan.
White:  Have to start without considering the VRA.  If you draw district 40 the same as before w/o considering VRA?  Majority really didn’t like that they kept the same old districts in the template.  They thought the Hickel template tainted things, so court couldn’t determine ?? final plan.
Torgerson:  In my interpretation, comes down to redrawing Anchorage. ??? SE, is really there issue, not our issue if its the same.  Clear as mud.
White:  You said not subject to review.  Not prior to next step.  But in the opinion, seems to have established new area to Challenge.  Could challenge one district in the Hickel plan not constitutional and reverse.
Torgerson: Good strategy to talk about this later on? [in Exec session?]  Potentially Hickel plan will be reviewed, we just don’t have to submit it and say here you are.  You’ll refer to it as a footnote.
Jim Holm:  Confused.  Majority opinion - petition for review says:  Board failed the Hickel process, but then said, no requirements by constitution to submit a plan at any stage of the drafting to see if it applies.  How specifically could we prove, if we look at each district, we looked at compactness, socio-econ integrity.  We did all that and set up template based on that.  I don’t understand how they can have it both ways.  You aren’t required to submit it, but you are required to have Hickel plan.  Makes no sense to me.
White:  Sometimes difficult to understand what is required.  I think they said, we can’t tell if Constitutional, if it was necessary from strict compliance, because when you started you started with a plan originally where first priority was VRA.  Yes there was some ripple effect, but not every single district.  If not challenged up to this point, why do we have to go to the drawing board.  Majority said, we don’t care about that, may have limited your options and affected your final plan.  So go back.
Holm:  I agree with you.  Most confusing to me.  I believe that this Board took all those considerations.  I’m kind of like you I don’t quite understand.
White:  Hung up with 36 unchanged districts - true in template - but that was starting point and then we drew 4 different plans, without regard to VRA.  We had to take pop out of some urban areas in order to comply.  We then considered all major urban populations to get extra population. 
Opinion here:  By doing this you limited your options.  Of course you do that, one challenge from a party was proportionality issue.  10% out of Anchorage, Fairbanks and Kenai, but then proportionality issues.  Matthews in dissent  …. majority rules. 
Unless they reconsider, deal with that.
Mr. Brodie:  started with ??? people, and now midtown and Spenard?  ?????  Every district start over, not allowed to have any districts unchanged?  Enunciated by the minority.  How much weight does that category. ???
White:  Obviously 2/5 [minority judges] will also weigh in on final.  Does that mean no line can be exactly the same?  We can’t change anything?  Remains to be seen. Forms perfect districts for those area because % of Natives in that area is exactly 57%.  Do we have to throw that out?  I don’t know.  From majority, you may have limited your options so draw the Hickel plan.  All you’re doing is - we can’t tell if districts were tainted by VRA considerations.  thus, has ripple effect across the whole state.  We can’t tell if a better Hickel plan ????  Every line has to change?  Anchorage?  Everyone on board believes VRA did not affect Anchorage.  We have to change Anchorage around?  I suggest Majority opinion says start with blank template - start from scratch.  Seems to be saying.  Is that what they meant?  If we look at it and draw it same or close to before, will the court allow that?  Court doesn’t tell us. 
Brodie:  Use data????  change benchmark?
White:  Lisa Handley new benchmark will be the interim plan.  It’s been approved by court and DOJ, that would be the new benchmark.
Torgerson: Which makes interesting bedfellows.  I would think hard before I asked the board to start with new set of numbers.  I don’t think it’s right.  We know VRA takes nothing of real life into effects ?? - 10 candidates or whatever - not about racial bloc voting analysis.  To walk in now, this new analysis says we should be 60% instead of 32, I don’t know.  Talking about it earlier. 
I understand Michael saying you established, by law, a new benchmark.  Under that scenario we could redraw every two years.  Who would stop us?  When the rest of the law so rigid, this seems to be floating around.
What merit that in 2002 the Hickel process was never brought up, but now all of a sudden an issue?
White:  We pointed it out in hearings - they seem to think none.  No one even considered Hickel in 2002.  But now we know SC said, Hickel process is one you have to follow. 
Torgerson: I already know the answer, but say for the record.  We know two new SC justices approved, can we petition, beg, have new justices review the case?  Rather have justices who will have to live with their decision.
White:  You know the answer.  Carpeneti retired in January.  I can’t believe  . . . nothing we can do.  I don’t think Matthews, whether Carpeneti will continue because it will go so long… impossible to say.  More likely than not, continue. . .???
Torgerson:  this is a statement court made:  After setting forth the correct process for board to follow according to Constitution. . . they say themselves they are setting up a process, then say they only rule on constitutionality, but they are saying their process is the only correct one.  Not that it means anything.  Good to get it on the record I suppose. 
Article 6 Sec. 10 11 -- no where do they state two state majority required????
White: ???
Torgerson: This is Constitutional that SC has to uphold.  Only applying it to trial court, not to themselves. 
I think I’m about done.

Other things I want you to explain before we go to Executive Session - limit that to just strategy.
Sec. 2 violation of VRA - VRA isn’t going away?
White:  Only Sec. 5 challenged.  Sec. 2 prohibits intentional discrimination.  Prophylactic.  Congress tired, after passed VRA, had to go back in and have to knock down poll tax and other such laws.  Switched the burden - you can’t make any change in election.  You change a precinct line or polling place, you need pre-clearance.  That’s a problem states have with all those details. 
Sec. 2 - if you have the affect of discrimination - in Texas, court found intentional discrimination, showed how the legislature manipulated the system.  Thru emails, people drawing map made it look like they complied with VRA, but were actually making it worse.  Using same standard for intentional ???? in sec 5 either.
Torgerson:  said racial discrimination?  Only Alaska Natives?  Can non-native claim discrimination?
White:  Have to be a protected class, large enough to vote cohesively.  Under Sec. 2, doesn’t apply. Doesn’t apply unless protected class is majority in the district.  Has to be compact and contiguity requirement - not under Alaska law, but federal.  Remember in DC they showed you different districts.  Can’t gerrymander to create Alaska Native district.  In AK only Alaska Native covered.  Higher standard.
Torgerson:  If they throw out sec. 5 we need to spend an hour on Sec. 2
White:  Designed to protect the same people and same rights, to prevent intentional discrimination. 
Torgerson:  could take the place of Sec. 5?
White:  could, but not as rigorous.  Retrogressive? 
Torgerson: Benchmark on Sec. 2?  No requirement for present hearings or time line at all? 
White:  No.  only the election. 
Torgerson: other questions?  We went through ??? stuff?
Timeline before Exec. Session.
Starting point.

Hire ED - month, if we start tomorrow March 14 ready for interviews.  Have to fish for dates.  In-person interviews by board.  Hire next day.  Fridays and Mondays.  Bring Taylor [Bickford, former director] in that week as much as he can to work with new director. 
April 1 - draft Hickel plans all that week.
4/6 - adjourn until US SC ruled on Section 5
July 15, if court has something we can read
drafting and adopt final plan in Aug.   around 19 to Superior Court
stab  = review and cross motions - hearing 405 days
Appeal to SC
Hearing in 8 days, and rule in 20 days
Final around Nov. 1
Final by January 14

Started working backwards from June 1.  Nice to have out 90 days before filing deadline.  Mar. 1 should be drop dead for DOJ approval.  If I had a goal, that’s what I’d shoot for. 

10 or 12 days depending on trial. 
No action to take on that at this point?
Brodie: ??? Look forward to meeting in August. . .
White:  Didn’t have anyone’s schedules but mine.  Hope that couple of, one Decision Making point - authorize me to start process to hire ED.  Workplace Alaska quicker and easier it says.  Should have this person by middle of March.  We could move interview

PeggyAnn McConnochie :  Because I know hiring never goes as fast as you hope, so I move that you start the process to hire ED.
White:  discussion?  Objection?  Hearing none, adopted,  Skip roll call since we’re all here.
I will start later today.  Rest is very fluid.  We could move to September  No idea what court calendar is if it ends up in Court.
Checked on software licensing - it’s ours.  We bought the software itself, no license requirement, but if we needed an update, there would be something associated with that.
Take a ten minute break, back at 11:25.  Anticipate not more than 45 minute Exec. Session.  Stand in recess til 11:25. 
Get back on after the exec session.

12:57 pm  Back from Exec. Session
Back on record - echo
Torgerson:  all members present. ES @ 90 mnutes
The uncertainty precludes doing too much now

Brodie:  ???
Torgerson:  Motion to authorize Mr. White to request clarification;
If SC does not honor our request for reconsideration, we file a motion for clarification to ask Court what they are asking us to do?
Brodie:  ??? can’t hear.  time and enrgy . .. personal time  . . .
Greene:  Thank you chair for his efforts to learn more about what’s before us and what’s going to happen.
PeggyAnn McConnochie: Thank you to everyone for all your time, much appreciated, even if some in other areas don’t appreciate it, I do.
Torgerson: Next meeting around hiring and intrviews for ED.  About one month away, abut 14 March.  Could slide in either direction.  Would like all Board members here.  Could be two days depending on how many candidates we have to interview.  Mr. White, other than you’re a grandparent?
White:  ????to soft to hear clearly. 
Torgerson:  Adjourned 1:03pm  Thank you all for traveling. Adjourned.

1 comment:

  1. Sounds like business as usual for this bunch. Just leisurely setting the stage for a new and improved version of gerry-mandering.

    Too bad the court couldn't order this board disbanded and a new and truly balanced board organized for revision and correction of the illegal gerrymandering.

    Too bad they couldn't negate the election results that came about through the illegal gerrymandering. Several legislative seats wouldn't likely be what they are without illegal gerrymandering.

    This do-over is an insufficient response to the original crime.


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