Friday, February 01, 2013

What's At Stake If The Redistricting Board Starts Over?

[This is the fifth post following up the Alaska Redistricting Board's petition to the Alaska Supreme Court Decision to reconsider its decision telling the Board to start the whole redistricting process over for the 2014 election.  The other posts are listed and linked at the bottom.]

The Alaska Supreme Court has ordered the Alaska Redistricting Board to start over again and once more divide up Alaska into 40 House and 20 Senate districts for the 2014 election.   The Board has petitioned the Court to reconsider its decision.  What all is this all about and what's at stake?  There are two main parts:

  • Form over Substance
    • The Board's Task
    • The Court's Task
    • What Happened?
    • Form Over Substance?
    • My Conclusion
  • Impact Of Redoing The Plan From Scratch
    • A Lot of Work
    • Should the job be given back to the Board?
    • Impact on the balance of Democrats and Republicans in the legislature
    • Impact on voters' connection to their legislators 

Form Over Substance?

The Board's petition charges the Court with substituting form for substance.   Is that the case?

The Board's Task

The Board's job is to divide the state into 40 House and 20 Senate districts.  Each House district should have as nearly as possible 17,755 people based on the 2000 Census.  Additionally there are some state constitutional requirements - compactness, contiguity, and socio-economic integration - and there are some federal requirements based on the Voting Rights Act (VRA).  The VRA required the Board to preserve Alaska Native voting effectiveness, which, in practical terms, means they had to have the same number of districts as before in which Alaska Native voters had enough population to choose the candidate of their choice.  (Here's a previous post that goes into it in more detail.)

The VRA requirements take precedence over the Alaska Constitution, so if the Board can't draw lines that meet the VRA requirements without having to compromise the Alaska Constitution, then it's the Constitution that gets short changed.

Given this, the Board set out to first create the Alaska Native districts and then work out the rest of the districts.  They turned in a plan that they claimed met both the VRA and the Alaska Constitution.

The Court's Task

The Court's job is to make sure that the Alaska Constitution hasn't been violated by the new redistricting plan.  The Court recognizes that the VRA takes precedence, but based on a prior Alaska Supreme Court decision, ordered the Board to follow the "Hickel Process."

The "Hickel Process" requires the Board to start out by making a plan that meets the Alaska Constitution.  Then, if that plan does not meet the VRA requirements, the Board should make the fewest changes necessary to comply with the VRA.  The Court's rationale is that they need a benchmark to determine if the constitutional deviation is the least possible.  So, if they see the constitutional map first, then they can compare that map with the new map to see what changes the Board had to make to also comply with the VRA.  They argue that by starting with the VRA, the Court can't do its job of determining if the deviations from the Alaska Constitution are as minimal as possible.

The "Hickel Process" is also seen as a way to minimize political gerrymandering.  The Board has to show why it's done what it did.  And, as I heard during the process, the idea behind the "Hickel Plan" has been adopted by other states for this very reason.

What Happened?

Since the Board began the plan with first the Alaska Native districts so it would comply with the VRA, the Court had no original Constitutional plan to compare it against.  I would note that the Board's attorney didn't mention the "Hickel Process" to the Board as a requirement they had to meet and appears to have been taken by complete surprise that the Court used it in its decision.   Now, he clearly knew about the court case - Hickel v. Southeast Conference.  Two of the 2010 Redistricting Board members are mentioned as plaintiffs in the case.  But it appears that none took the "Hickel Process" instructions in that case to apply to their work. Possibly because they assumed a constitutional amendment in 1998 changing the redistricting process made it irrelevant.

In sending the plan back to the Board to be redone, the Court did not evaluate whether the districts in the plan were constitutional or not.  The Board argues in its petition, and two of the Court members seemed to agree in their dissent, that if the districts in the plan were constitutional, then it doesn't matter if they did the Native districts first or not.  That would only matter if there were unconstitutional districts.

That assumes, however, that the districts are all constitutional and I would argue that a few of them are not - they are definitely not compact.  I'm not sure one could draw a plan for Alaska in which all districts met a strict definition of compact because there are parts of the state with lots of land and few people.

Form over Substance?

I think the Court's logic about needing a benchmark against which to measure the degree of deviation from the Constitution is sound.

But I also have doubts that, practically, a Board could come up with the best possible map (ie meets VRA and has the least possible deviations from the Alaska Constitutional requirements) by drawing its first map only thinking about the Constitution and not thinking at all about the VRA. The Court has written "the Board ‘painted itself into a corner’ by leaving only a few blank areas on the map."  I would argue the same thing would happen if they did a constitutional map first without any consideration of where the Native districts might go.  The VRA requirements are so different from the constitutional requirements, that to ignore them would likely have the Board end up with a map that would require far more constitutional deviation to adjust at the end.

That said, I think that the VRA can be a cover for the Board to gerrymander districts.  My observation of how the Fairbanks districts were originally determined leads me to believe that they used their VRA districts as an excuse to claim that their clear political tampering with the Fairbanks districts was an unavoidable "ripple effect" of the Native district.  In court, the plaintiffs showed that this was not the case.  

My Conclusion
  • The basic notion of the "Hickel Process" is logical, but
  • Drawing the constitutional map without any consideration of the VRA could lead to worse plans than not using the Hickel process 
  • If the Court were to review each individual district and find them all constitutional, then I would say that requiring the Board to start over using the "Hickel Process" was form over substance
  • I don't think they would all be constitutional

Impact Of Redoing The Plan From Scratch

A Lot Of Work 

I couldn't tell you how many hours the Board met, but I have 164 posts labeled "redistricting."  They met much of March 2011 through May 2011, in Anchorage and flying all over the state to meet with people.  They had several court hearings and met again in Spring 2012 a number of times to respond to the court decisions.   There are five Board members from different parts of the state, plus about four staff members. 

If something has been done wrong, the amount of work to fix it shouldn't be the issue.  But how much of a difference will all this work make?  And will the difference benefit the state or do more harm than doing nothing?

Should The Job Be Given Back To The Board? 

The Board certainly understands the job facing them and the technology for doing it.  They should be able to do this much faster than they did the first time round.  But even though this process has a major political impact, the first round had relatively little media attention and I suspect there could be less this time around. 

The current Board is made up of four Republicans and one Democrat.  The Democrat, appointed by the Supreme Court Chief Justice, is an Alaska Native who focused on the Voting Rights Act and did not otherwise appear to watch out for Democratic interests on the Board.  Nearly all, if not all, the significant votes on the Board were unanimous.  Her participation certainly helped the Board reach out to Alaska Natives, but since the Board knew that no Plan could proceed without the Department of Justice approval, they already were concerned about meeting the VRA requirements.

Short of having an evenly balanced Board, I don't see how partisanship can be prevented.  But such a Board might also be stalemated.  And such a Board means little in a state where Non-Partisan (no party affiliation) and Undeclared (no party declared)  make up the largest block of voters.

One Alaska Democratic representative, Les Gara, claimed  that the Court's decision to hand the redistricting task back to the Board would give it a chance to further increase the Republican legislative dominance it gained in the 2012 election:
"Now the Supreme Court has ruled this board can rewrite every district, after seeing how its 2012 plan performed. That lets the board members re-gerrymander lines in those districts where races were closer than they predicted, even if those districts are legal."
I don't know what options the Court has if it finds the plan unconstitutional.   I don't know under what circumstances the Court could dismiss the constitutionally established Board to create another body.  Past redistricting board processes have involved court appointed masters to finalize plans, but I understand that this happened when time was critical and the result plan was only an interim plan.

The only check on partisanship comes when the Court reviews the plan that the Board proposes.

Impact on the balance of Democrats and Republicans in the legislature

This was mentioned in the previous post.  I have no doubt that if the Board had been dominated by Democrats, the Senate bi-partisan coalition would not have been broken in the last election.  There are several Senate districts that were changed in ways that were unnecessary except to impact the balance of Republicans and Democrats.

I see no reason to believe that Rep. Gara's prediction of even further benefit to Republicans wouldn't occur in the next round unless the Court decided to consider political gerrymandering, which is illegal.

Impact on legislators and voters' connection to their legislators

The dissenting opinion on the Supreme Court, while agreeing that the Southeast districts should be revisited, argued against redistricting the whole state. One issue they cited was the impact on voters.
. . . it is highly desirable that election districts not change, or change as little as possible, from one election to the next during every ten-year census cycle. Redistricting inevitably generates significant political disruption and voter confusion, and gives rise to charges of partisan and ad hominem gerrymandering. It results in the truncation of four-year senate terms to two-year terms when there are substantial changes in a Senate district. Further, redistricting may place two incumbents in one district, thus resulting in the inevitable defeat of one of them. In addition, redistricting may cause incumbents to lose the core of their constituency. (p. 33)
The whole process of redistricting is highly disruptive.  Asking the Board to revisit the whole state, including the many districts that are clearly constitutional, unnecessarily invites uncertainty and mischief.

These are the thoughts of an observer of this process.  There's a lot I don't know, but I don't see too much discussion or debate on this so I figure I should at least raise some issues for people to think about, learn more about, and discuss. 

I've written four other posts in response to the Board's petition to the Supreme Court's December decision:

1.  Alaska Redistricting 2010-2013 Overview
2.  Fact Checking The Alaska Redistricting Board's Petition To The Supreme Court
3.  Redistricting Board Petition To SC - Part 2: I Can't Figure Out A Sexy Title For This 
4.  Did the Alaska Supreme Court Violate Separation of Powers as the Board Petition Asserts?

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