Monday, April 29, 2013

Again, The Alaska Supreme Court Tells Redistricting Board They Meant What They Said

I haven't written about the latest Supreme Court decision on the Alaska Redistricting Board because I didn't have a copy of the order.  I couldn't find it on the Supreme Court website and requested a copy over the weekend. I got one today.  It says pretty much what I expected from the ADN articles (one and two.)  Basically that they meant what they said in the previous orders. 

There was a time when the Board was doing an outstanding job of putting all the paperwork filed before the Alaska Supreme Court on their website.  But they no longer have an Executive Director and the site is on life support.

Basically the Court has said several times now, "You have to start from scratch to create a map of Alaska House districts (the Senate districts are combinations of two House districts) by following only the Alaska Constitution's requirements."  (Following an earlier Supreme Court Decision that calls this the Hickel process.)  Then, and only then, can they make the most minimal changes necessary to those districts to accommodate the requirements of the federal Voting Rights Act.

I'm not sure what the Board's strategy is right now.  It's tempting to assume they're just having a temper tantrum because they didn't get what they wanted from the Court.  But they've been clear that they want to see what the US Supreme Court will do in the Shelby County v. Holder case which challenged the section of the Voting Rights Act (VRA) that requires them to get clearance from the Department of Justice (DOJ) before the plan can become law.  That decision should come in June. 

One would think that this would mean they would get started making a map based on the Alaska Constitution.  That's what the Court keeps telling them they have to do.  Then when the Shelby County decision comes down they would be way ahead.  If they don't have to get clearance from the DOJ, then they should be done, maybe.  (Even though they don't need to get clearance before hand, Alaska Native interests will be making sure that the Board hasn't diluted there representation in the legislature. The rest of the VRA would still be intact and it requires that Alaska Natives (in Alaska's case) be treated fairly.) 

If they are required to still get DOJ clearance, they will have done the first step of the Hickel process - made a map based on the Alaska Constitution.  Their next step would be to make the most minimal adjustments to that map that are necessary to comply with the VRA.

But the ADN reports the Board isn't going to do anything until the Shelby decision is announced.  I can't think of any logical, legitimate reason for the delay that is based on any of the information that I've seen. 

One has to consider their abrupt decision to NOT hire an Executive Director after they interviewed three candidates in March.  They were forced into releasing the resumes of the candidates by the Anchorage Daily News and they held the interviews publicly.  As I reported at the time, I can't see any explanation for their action other than the open session meant they couldn't hire a political ally - Fairbanks aide to former Senator Seekins - and apparent friend of Board Member Holm, Brian Hove.   Of the three candidates who stayed in for the interviews, Hove was by far the least qualified and least prepared.  The obvious choice for the position was a retired army Lt. Col. who had a PhD in Human Geography (important because she possessed the technical GIS skills critical for the job and the social science skills of how to balance the competing requirements) whose doctoral dissertation was on the impact of the military on Alaska Natives.  This is important because it means she's traveled to rural parts of the state and knows a number of the Native leaders - a huge asset in complying with the VRA.  It was after the interviews and apparently in the executive session (which would violate the public meetings act)  that they decided to not hire anyone.  The only explanation my usually imaginative mind can come up with is that they wanted to hire Brian Hove, and would have if the names and interviews had been secret.  But given that everyone could see that he was the least qualified of the three, they had no choice but to choose an executive director with perfect qualifications for the job or decided to not hire anyone.  This suggests to me that they didn't want someone with excellent GIS skills that they didn't control.

There's another dynamic in play here as well.  The board members were appointed by the Governor (2), the Senate President (1), the Speaker of the House (1), and the Supreme Court Chief Justice (1).  The first three, despite the fact that the appointments are to be made without regard to political affiliation, all appointed the four Republicans.  The Supreme Court Chief Justice - the Board's current nemesis - appointed the lone Democrat, Alaska Native Marie Green.

The Board, in public, has been extremely polite and accommodating to Green on all things Native.  And she seems to have decided that as long as the Native issues are resolved to her satisfaction, she'll go along with what the Board wants to do.

But what happens now?  The man who appointed her has retired from the Court, but retired judges can be called into serving in a case from retirement.  Given he was an integral part of this current round of redistricting, and was in on this latest opinion, there is reason to believe he will probably stay on this case until it is resolved.  As some members of the Board become openly hostile toward the Court and Carpeneti in particular, how will this affect their relationship with Green?

More important, if the Shelby case releases the Board from its need for pre-clearance from the DOJ, how will that affect how they treat the Alaska Native districts?  Will they continue to be as solicitous of Green?  Will she continue to be, in public, as cooperative as she's been in the past - always voting with the rest of the members?

Will the Board give up Native seats if they aren't required to get pre-clearance?  What kind of law suits will that cause?  

If the Board stalls long enough will it be too late to make a new map for the 2014 election?  Clearly, the majority is pleased that their redistricting plan has shifted the power in the state legislature strongly to the Republicans.  (If Democrats would have been running the show, they would have tried to shift things in their favor.)  But are they now trying to make the Supreme Court look partisan to help drum up support for those trying to dismantle the Alaska's Judicial Council and its influence on the appointment of judges?  (I have to say in my opinion the Judicial Council has an incredibly open and fair process that gathers assessments of judges from attorneys, jurors, court employees, social workers who deal with the court, and others to rate judges and judicial candidates.)

How much of this recalcitrance is the Court going to take from the Board before they decide to simply appoint a panel to do the redistricting as has happened in prior redistricting?  

(This is starting to sound like a promo for a daytime soap opera isn't it?  Who said redistricting was boring?)

I'm sure there is a lot more going on behind the scenes that I've missed.  I do need to talk to some of the players involved again.  This is just my reaction based on what I've seen at the Board over the last two years.  

Below is the Court's opinion.  They did clarify one point - that the Board didn't need to change all the existing districts as long as they were developed anew as part of the Hickel process. 

In the Supreme Court of the State of Alaska In Re 2011 Redistricting Cases,   

Supreme Court No. S-14721 Order
Date of Order: April 24, 2013
Trial Court Case # 4FA-11-02209CI
Before:    Fabe, Chief Justice, Winfree and Stowers, Justices, and
Matthews and Carpeneti, Senior Justices*

The Alaska Redistricting Board has requested clarification of our order of December 28, 2012, as amended on petition for rehearing on February 12, 2013, in two respects. The Riley respondents oppose the Board’s request for clarification and raise additional matters. Having reviewed the request for clarification, we respond to the Board’s request as follows:

1. A new Hickel plan is required because the legal error found by both the superior court and this court was the Board’s failure to begin by constructing districts to comply with the requirements of the Alaska Constitution.

2. The first step in the redistricting process is to construct districts that comply with the requirements of the Alaska Constitution. As long as the Board begins by constructing districts that meet the requirements of the Alaska Constitution — that is, as long as the Board follows the Hickel process — the fact that a resulting district is the same as or similar to a previous district will not in and of itself preclude the new district from being approved.

3. Whether Article VI, section 10 of the Alaska Constitution requires public
hearings following the adoption of the Board’s plan or plans and whether the Board’s proposed timeline is sufficient to allow judicial review of the Board’s work are not properly before this court. Any party may seek to have these matters heard in the superior court.
* Sitting by assignment made under article IV, section 11 of the Alaska

Supreme Court Justices
Clerk of the Appellate Courts
/s/ _______________________________ Jolene Hotho, Deputy Clerk
WINFREE, Justice, would deny the motion, and therefore dissents.

Michael J Walleri
Jason Gazewood Gazewood & Weiner PC
1008 16th Avenue, Suite 200 Fairbanks AK 99701

Thomas F Klinkner
Birch Horton Bittner & Cherot
1127 W 7th Ave Anchorage AK 99501

Michael D White/Nicole Corr
Patton Boggs LLP
601 W 5th Ave Ste 700 Anchorage AK 99501

Natalie A Landreth
Native American Rights Fund
801 B St Ste 401 Anchorage AK 99501

Joseph N. Levesque
Levesque Law Group,LLC
3380 C Street Suite 202 Anchorage AK 99503

Carol Brown
Association of Village Council Presidents
PO Box 219 101A Main Street Bethel AK 99550

Marcia R. Davis
Calista Corporation 3
01 Calista Court Anchorage AK 99518

A. Rene Broker Jill Dolan
Fairbanks North Star Borough
PO Box 71267 Fairbanks AK 99707

Scott A Brandt-Erichsen
Ketchikan Gateway Borough
1900 1st Ave Ste 215 Ketchikan AK 99901

Thomas E. Schulz
715 Miller Ride Road Ketchikan AK 99901

Joseph H McKinnon
1434 Kinnikinnick St Anchorage AK 99508

Christopher Lundberg
Haglund Kelley Jones & Wilder, LLP
200 SW Market Street, Suite 1777 Portland OR 97201-5771

Brooks W Chandler
Boyd Chandler & Falconer LLP
911 W 8th Ave Ste 302 Anchorage AK 99501

Jonathan K. Tillinghast
James Sheehan
E. Budd Simpson, III
Simpson, Tillinghast, Sorensen & Lorensen
One Sealaska Plaza, Suite 300
Juneau AK 99801

[I put very few links in this post.  Just about every sentence could be linked to an older post that goes into more detail or explanation.  If you want more, go to the Alaska Redistricting Board tab at the top of the page or click here.  It has an annotated index of all the posts on the Redistricting Board.]


  1. The board has been in defiance of the courts and will continue to defy the court so long as the results are maintaining the illegal redistricting.

    There simply is no incentive for this gerrymandering body to do anything else.

    The court should step in and remove the board from the process.

  2. Thanks for your continued coverage, typically more informative than from other news sources.

  3. Joe, I can only take the evidence I see and surmise what it might mean. I don't know what is inside the members' heads except what they say themselves.
    Thanks, Anon. Rich Mauer at the ADN has been doing good coverage lately and was the force that got the Board to interview the candidates for the Executive Director publicly.


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