Redistricting Board Won't Use 'Protecting Incumbency' As a Principle

Last night I posted my running notes of the Alaska Redistricting Board's meeting a day after they received the 2010 Census data on which they base their decisions.  Receiving the data also sets off the State Constitutional clock which gives them 30 days to create a draft reapportionment plan. (This period is called the PRE-PLAN)  Then there are sixty days to write the final plan.  (This time period is called POST-PLAN)

That post yesterday was for the redistricting obsessed only.  This time I'm going to try to make the meeting more accessible to normal people who really should be interested in how our election districts are set. [Actually, it's turning out I'll do several posts about the meeting and this one focuses on the principles or criteria they will use to decide how to create the districts in the new plan.]

The agenda set out a few main decisions for them to make:

Board Attorney Michael White

1. Election of a Vice Chair (not sure how critical this is - they chose PeggyAnn McConnochie)
2. Adopt a time-line for public hearings  (See below)
3. Decide on  Pre-Plan hearing sites (places they'll visit to get public testimony)
4. Decide on Post-Plan hearing sites
5. Set public process & recording of hearings
6. Determine deadlines for submission of public comments and suggested plans
7. Set up Redistricting Guidelines
8. Decide what to do about legal issues
   a.  Reallocation of prisoner populations
   b.  What to do about military population
   c.  How to determine which Senate seats must go up for reelection in 2012
9. Decide on What Public Can Access (the short decision - everything they can figure out how to get online quickly)
10. How will they handle talking to the media - basic question was who would act as the Board's spokesperson
    

Can you see why this meeting went from 10:30am until 4:35pm? And why the last post went on forever? And how this post could go on for half of forever?

So I think I'll address one or two of these points each in their own posts. This one will look at lucky number seven - Redistricting Guidelines.

There are mandatory Federal and State Guidelines and then the board discussed two other possible guidelines, that are sometimes used in other states - protecting incumbency and

Board's attorney, Michael White's Redistricting Guidelines memo, dated March 16, 2011 lists in order of priority:

• Federal Constitutional Redistricting Principles
• Federal Statutory Redistricting Principles
• State Constitutional Redistricting Principles
• State Statutory Redistricting Principles

 [This document is in a long pdf file that contains all the handouts available at the meeting yesterday - it's pages 50-52.  But I'll cover it below.  This PDF file is not cut and pasteable. I'll note that the memo spelled principles as 'principals.'  I'm sure it was just a typo in the rush to get things out for the meeting, but I'll use the correct spelling even as I quote it.]



The Federal Constitutional Redistricting Principles are, briefly:

• A.  "One Person, One Vote". . ."legislative seats must be apportioned exclusively on the basis of population and the populations of the respective districts must be substantially equal."
• B.  "Districts of as nearly as equal size as practicable.  Maximum overall deviation of the no more than 10%, (i.e. plus or minus 5%)  Deviation is the measure of how much a district or plan varies from the ideal.  Good faith efforts to make deviations as small as practicable must be made.

Note:  The census data has come up with 17,755 as the ideal number for each district. (The 2010 State Population divided by 40 house districts.)  Of the 40 house districts, ten (10) fall in the plus or minus 5% range.  That's the MAXIMUM deviation allowed.  They are listed on this chart from lowest deviance (plus or minus) to the highest.

District	2010 Total Pop	2010 # Deviation	2010 % Deviation	Current Rep	Party	Location
31	17,744	-11	-0.06	Bob Lynn	(R)	Anchorage
19	17,804	+49	+0.28%	James ‘Pete’ Petersen	(D)	Anchorage
29	17,639	-116	-0.65	Chris Tuck	(D)	Anchorage
40	17,516	-239	-1.35%	Reggie Joule	(D)	Kotzebue
27	18,047	+292	+1.64%	Mia Costello	(R)	Anchorage
35	17,419	-336	-1.89%	Paul Seaton	(R)	Homer
28	18,473	+718	+4.04	Craig Johnson	(R)	Anchorage
33	18,493	+738	+4.16%	Kurt Olson	(R)	Soldotna
20	18,540	+785	+4.42%	Max Gruenberg	(D)	Anchorage
23	16,958	-797	-4.49%	Les Gara	(D)	Anchorage

There are some districts that are up to 19% below the ideal size and one 45% above.  These will challenge the board members.  You can see a chart with all 40 seats listed with their levels of deviance in a previous post.

• C.  "No purposeful discrimination against a group that has been consistently excluded from the political process."

In previous years, Alaska has been sued, successfully over discrimination in redistricting against Alaska Natives.  Because of this, Alaska is one of 16 states whose redistricting plan must be approved by the Department of Justice under the Federal Voting Rights Act.  You can read more details on this in a post I did last year on legislative hearings to enlarge the legislature. 

This does put pressure on the Board to be more careful because they know that not only Alaskans, but also the Federal Department of Justice will carefully review what they do.  

• D.  "No political or racial gerrymandering."

Then there are the Federal Statutory Redistricting Principles - two sections (2 and 5) of the US Voting Rights Act.

• Section 2 - No denial or abridgement of voting rights on account of race, color or status as a member of a language minority.
• Section 5 - No avoidable retrogression.  Retrogression is drawing a district in a manner that worsens minority voting strength as compared to the previous district configuration.  The minority group must be a large, cohesive and vote as a bloc.

Retrogression is the key issue the board has to be careful of in terms of the DOJ scrutiny.  Section 2 was an issue in a lawsuit about having translators and ballots in villages where English was not the main language of some voters.  I'm not sure how it affects the redistricting - except perhaps to keep large enough blocs of such voters together to allow them to get appropriate ballots and translators.  But I'm not sure.


The State Constitutional Redistricting Principles give some pretty specific guidelines.  The first one mimics the second US Constitutional Principle.

• A.  House districts of as nearly equal size as practicable (no overall deviation greater than 10% (plus or minus 5%)
• 10% deviation standard is not a safe harbor, good faith efforts must be made to reduce deviations to as small as practicable
• Deviations in Urban areas must be made as small as practicable because new technology makes it practicable to achieve those deviations

So those ten seats highlighted above, theoretically are acceptable, but those with the 4+% deviation probably are will face adjustments.   Seven of these ten are in Anchorage, two on the Kenai Peninsula, and Kotzebue.  The ones under 2% deviation are probably pretty safe, but the others - in Anchorage - probably are not.

• B.  Redistricting must be based upon the population within each district as reported by the official U.S. decennial census.
• C.  Districts must be contiguous.  Contiguity = All parts of a district being connected at some point with the rest of the district.
• D.  Districts must be relatively compact.  Compactness = Having the minimum distance between all parts of a district.  

If you look at the current district map of Alaska (bottom of post) you'll see House Distric 6 is huge - the largest in the US - and hardly compact.  Alaska's low population density and large geographic size makes redistricting a particular challenge - especially with all these criteria.

• F.  House Districts consisting of relatively socio-economically integrated areas [the attorney's memo skipped E]

An additional criterion they discussed was "communities of interest" in addition, but followed the attorney's advice that 'socio-economically integrated areas' pretty much covers the same ground.

• G.   Consideration to be given to local government boundaries where it is practical to do so.
• H.   Senate districts composed of two contiguous house districts.

As of yesterday, the Census data for the Senate districts wasn't yet available.  Just the House.

• I.  Drainage and other geographic features must be used, whenever possible, in describing boundaries.

Finally, the State Statutory Redistricting Principle.  (There's only one.)

• A.  Compliance with AS 15.10.200.  Redistricting Board may not adjust the census numbers by using estimates, population surveys, or sampling for the purpose of excluding or discriminating among persons counted based on race, religion, color, national origin, sex, age, occupation, military or civilian status, or length of residency.

There was relatively little discussion of most of these principles.  The focus was on two possible additions to these mandated principles.  Both were voted down.  But the discussion is worth considering.

1.  Should "communities of interest" be added to the criteria for how to mark district lines.
2.  Should "protection of incumbents" be added to the criteria.

Communities of interest, as mentioned above, was seen by the attorney, Michael White, as 'too amorphous' to use and basically covered by the State criterion of "socio-economically integrated."  The Board accepted that conclusion and voted against adding this criterion.

The discussion on protecting incumbents was longer.  The attorney warned the Board that if the were going to consider incumbency in their decisions, they needed to make it one of their principles, so that it was open and clear.  And if they were going to use it, they would have to be completely non-partisan in its use.

The reasons it might be considered included:

• Needing to know an incumbent's address so that when redrawing the lines, they didn't accidentally
• exclude an incumbent from her district. 
• This could be particularly problematic in the case of Alaska Native incumbents because of the Federal Voting Rights Act and the issue of retrogression - "drawing a district in a manner that worsens minority voting strength as compared to the previous district configuration."
• they didn't accidentally put two incumbents into the same district so they would have to run against each other. 

But this also starts skirting the issue of gerrymandering which is explicitly prohibited.  In the end they voting against including criteria other than the Federally and State mandated criteria.

Below is an excerpt of some of the discussion on these topics. [This is from my running notes during the meeting.  Assume there are errors and omissions, but it gives you the sense of the discussion.  The notes of the whole meeting are in the previous post.]

Notes: 

G. Redistricting Guidelines

White (Attorney): It’s ok to use ‘protecting incumbents’ as long as it’s non-partisan. If you are defending a plan, you could have made district 12, 2% instead of 3%, then you could defend it by using the principle. If you use protection of incumbents as a guideline, then it should be voted on as a guideline. If you use where an incumbent lives, that’s ok. But if you’re going to use it, then you should adopt it. We will have to have data on where incumbents live for the Voting Rights Act stuff.
If you don’t expect to use it as a justification for your plan.
Brodie: is there a problem if you protect 30 but not ten [incumbents]?
White: Given the changes, it is inevitable. But if the board does it intentionally, to protect an incumbent, it should be one of your guidelines. But it has to be nonpartisan.
Last board didn’t use that as a guideline. If you have rational reasons based on your principles, then it’s ok. As long as information on incumbent’s address is not improperly used.
Brodie: Others? [criteria]
White: Metcalf mentioned communities of interest. Tried to use community councils and court rejected that. You can adopt that as a guideline, it’s pretty amorphous. Contiguous intactness protects against gerrymandering. In Eagle River they changed a little part that cut out an incumbent. Court threw it out.
Another Case - Cox - was thrown out, they used partisan interest and didn’t try to hide it. Others board could consider. I think statutory mandatory guidelines is legit and going beyond that isn’t necessary.
Brodie: doesn’t stop us from using community of interest?
White: If you use them, but haven’t adopted them a guidelines, not good.
Brodie: Other guidelines?
White: Yes, but not in Alaska. Like whole counties. For me communities of interest is pretty amorphous. Socie-economic integration gets that.
John Torgerson: I think socio-economic integration good. The incumbent guideline leads to gerrymandering.
PeggyAnn McConnochie: What’s in the federal and state guidelines. I’m naive enough that considering who is in the district and who might run against them is less important than socio-economic integration.
Greene: You  concur?
White: I think socio-ecomomic integration covers 'communities of interest'
If you deviate within 10% there’s no presumption it is a problem. More than ten%. State Supreme Court said, in urban area - Anchorage in decision - I think it applies to other urban areas. In rural areas, it’s harder and you have more leeway, but still under ten%. Yes, I think anything that community of interest covers, is covered in socio-economic integration.
John Torgerson: I think court went on to say that ferry system and other things are part of community of interest.
Motion before us is to add community of interest and incumbents as guidelines.
Brodie: in rural area it is easy to know where people live, I don’t know about in urban areas.
John Torgerson: motion to adopt
Motion fails.
Adopt redistricting guidelines presented in our [memo from attorney - stuff above in this post]
Adopt guidelines.