Sorry folks, I've fallen asleep on the job. Being out of state is taking its toll and I totally missed the Alaska Supreme Court's rejection of the Redistricting Board's petition for a rehearing. They made two minor changes, substituting the number 22 for the original 36 in two places.
Here's the decision (the rest of the 50 pages were the same except for these numbers):
Before: Fabe, Chief Justice, Winfree and Stowers, Justices, and Matthews and Carpeneti, Senior Justices' [Maassen and Bolger, Justices, not participating]
On consideration of the Petition for Rehearing filed by the Alaska Redistricting Board on 1/7/13,
IT IS ORDERED: The petitionfor rehearing is GRANTED to the following extent:
On page 12 of the Opinion, "36 unchanged house districts" is modified to read "22 unchanged house districts," and on page 13 "these 36 districts" is changed to "these 22 districts."
In all other respects, the petition for rehearing is DENIED. Entered by the direction of the court.
Supreme Court No. S-14721 Order Petition for Rehearing
Date of Order: 2/15/13
Let's look at that in context:
From the original decision:
Thus, upon remand, the Board was instructed to consider the requirements of the Alaska Constitution first when constructing districts.20 However, 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
Moreover, when the Board first created these 36 districts, it did so in order to comply with the VRA; this is a clear violation of Hickel’s plain language. Although these districts went unchallenged, that does not change the fact that they were drawn with VRA considerations as the first priority. We do not know if these districts will meet the Alaska Constitution’s requirements of compactness, contiguity, and socio-economic integration, but they were not drawn with this purpose as the primary consideration.
From the Feb. 15 decision:
Thus, upon remand, the Board was instructed to consider the requirements of the Alaska Constitution first when constructing districts.20 However, 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 22 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
Moreover, when the Board first created these 22 districts, it did so in order to comply with the VRA; this is a clear violation of Hickel’s plain language. Although these districts went unchallenged, that does not change the fact that they were drawn with VRA considerations as the first priority. We do not know if these districts will meet the Alaska Constitution’s requirements of compactness, contiguity, and socio-economic integration, but they were not drawn with this purpose as the primary consideration.
The rest of the 48 page written decision remained the same. The only other difference I can see is that because of the new language explaining this modification, what was on pages 12 and 13 was bumped to pages 13 and 14. And the new document is now 50 pages instead of 48.
And I'm not even sure the switch is correct. In my post Fact Checking the Alaska Redistricting Board's Petition to the Alaska Supreme Court I pointed out there was a difference between the "Hickel Template" and the "Hickel Plan" and that in the template 36 was the right number, but in the plan 22 was, but the Board switched back and forth between those terms in their argument.
My Take On What It Means
[You can see more background on all the issues including the Board's petition in a January 10, 2013 post Alaska Redistricting: 2010-2013 Overview. This post covers some of the same ground, but focuses specifically on this decision.]
Basically, the court had told the Board that they needed to start out by making a redistricting map that is based on meeting the requirements of the Alaska Constitution - mainly that all districts be compact, contiguous, and socio-economically integrated. These are not exactly objective standards, particularly the last one. And in a state as big as Alaska with so much of the land sparsely populated, it is also difficult to keep the rural redistricts compact. [There are other federal and state requirements but they aren't an issue in this.]
The Board also had to draw the map so that it would meet the requirements of the federal Voting Rights Act (VRA). [Alaska Redistricting for the Masses Part 1 has a section explaining VRA] Because of past law suits, Alaska (along with 15 other, mostly Southern, states) must get pre-clearance from the US Department of Justice (DOJ) before its plan can become final. To get approved, the new plan could not have fewer "Native" districts than in the previous map. These are districts in which Alaska Natives have sufficient voting power to elect the candidate of their choice.
The Board, as it began, decided that it should configure the Native districts first and then, they figured, everything else would be relatively easy. There are enough people in the urban areas that they wouldn't have trouble creating viable districts there. So that's what they did. There was one board member Bob Brodie of Kodiak, who argued against this, saying the Board would be spending 90% of its time on 10% of the population. But he was voted down.
Then, when they finished getting the Native districts drawn, they went on to do the rest.
Their justification for this was that without approval from the DOJ, their map wouldn't be legal. The federal law takes precedence here over the state Constitution. So if it's not possible to meet both the federal law and the state Constitution, then the Constitution loses. So, therefore, they should do the Native Districts first.
Here's what they did:
Step 1: Blank slate
Step 2: Draw in Alaska Native districts (this map is completely fictional for demonstration only)
Step 3: Draw the rest of the districts.
The Court wants them to do the 40 districts using the Alaska constitutional requirements first, and then adjust them to get the Native districts.
The Court's reasoning:
1. Once you draw these (Native) districts, you've taken this geography and the population in it, out of the picture, limiting your options for the rest of the state. Thus, these Native Districts affect how the rest are drawn and could affect whether they are constitutional or not.
2. If you start this way, the Court says it has no way to determine if your deviations from the Alaska Constitution are the least they can be. They argue that they need to see a constitutional map first, and then the VRA compliant map drawn from the constitutional map. That way they can compare the two maps to see if the deviations are the least possible.
The Court, using a 1992 Alaska Supreme Court decision, told the Board, at several points in this marathon, to follow the "Hickel Process." That means that first they draw a map just using the Alaska Constitutional requirements. THEN, they make adjustments to that map to meet the VRA. In the end, the Supreme Court believes it can look at the two maps, to determine if there was the least deviation possible.
My sense of the Redistricting Board is that they are frustrated. They believe that they have worked hard and done their job. They have managed to switch enough district lines to break the Bi-partisan Senate coalition and put in a Republican majority, but they believe they did that fairly. I suspect they believe that the Supreme Court (the then Supreme Court Chief Justice appointed the only Democrat on the Board) is acting as partisan as they did (particularly the Chair and Member Holms) and they're not happy.
Why do I say this? Well, last March when they were told to follow the Hickel plan, they sort of responded - You want a Hickel Plan? We'll give you a Hickel Plan, and went through the motions without conviction. They came up with four options - the one they wanted and three more that were so ridiculous there was no way they could be approved. But even then, when they evaluated their preferred option, they explained why the oddest parts were clearly constitutional, but when they looked at the other three they focused on why they were unconstitutional. [You can see my post on that meeting for more detail.]
And the most recent meeting showed no statesmanship toward the Court by (particularly) Mr. Torgerson and Mr. Holm. Board chair Torgerson didn't seem to make any effort to conceal his disgust with the Court. He said things like (these are from my rough notes of the meeting and not quite verbatim based on listening online. I couldn't find anything up transcripts of the meeting on the Board's website):
"History with this judge, he allows everything, truth, untruth, no one seen it, bring it on."
Instead of Separation of Powers, it was Usurpation of Powers.
"Clear as mud."
And from Board member Holm:
"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."
And they talked about appealing the decision to the US Supreme Court. I was wondering if these guys had even read the decision. I saw no ability on their parts to see anything but their own view of the world. I'm not saying they need to agree with the Court on every point, but they should at least be able to understand the reasoning and recognize there's a valid difference of opinion.
They've decided to wait to hear what the US Supreme Court does in the Shelby County v. Holder case (pdf) which is scheduled to be heard on February 27. It's a case in which the County is suing to be released from pre-clearance by the Department of Justice based on Sec. 5 of the Voting Rights Act.
In the meantime they are meeting again to choose a new Executive Director since the original staff needed to find other jobs since last June.
Their rough schedule (see post on their Feb. 12, 2013 meeting) has them meeting to draft a Hickel plan from April 2-5. Given how long it took last year, this seems like a very unrealistic schedule, unless they draw their maps privately before the meetings start.
At Wickersham's Conscience the title of his post on the decision is "Alaska Supreme Court Bitch Slaps Redistricting Board." He concludes the post:
It’s WC’s fond hope that after an adequate interval, the supreme court will step up and write a lawful redistricting plan. After all, that’s what has happened in each of the prior redistricting efforts. It’s increasingly clear that the current Board has no interest in following the law.
I have to say, if the new plans reflect the attitude I heard at the Feb. 12 board meeting, the Court is likely to lose its patience with the Board completely.