Redistricting Court Challenge: Judge Not Happy Getting Map First Day of Trial

I got on the phone line at 8:31 and the judge was talking.  It sounded like he wasn't happy about the plaintiffs showing up on the first day of court with a plan the defense hadn't seen yet.  He was letting the plaintiff's lawyer, Michael Walleri, know that he wasn't pleased but he would let him proceed. 

Walleri argued that the defense is claiming they produced a plan that couldn't help violating the Alaska Constitution because it had to meet the Voting Rights Act.  Therefore it is important to show that such a plan could be drawn.  At one point the Judge said something about that train having left the station.

Leonard Lawson was the key witness.  He testified about the standards he'd used drawing the maps for the Rights Coalition were based on the best information they could get about the standards.  First he relied on court documents from the 2002 redistricting.  Then what was said in the redistricting process that was wrong.  He never knew about the changed nomenclature and standards of 5 effective house districts (and 3 effective Senate seats) until December 2011.  Thus he could try to make a map that worked until then.  And that was why none of the third party maps turned in met the standard.  But that it could be done and that's why he made this map late December/early January.

He also testified that the reason they hadn't turned in shape files or that they used total native population instead of Voting Age Population (VAP) was that there was no guidance saying what was needed.  Once he learned what was needed he complied.

They are on a half hour break now - till 10:15 trying to work out with the clerk what evidence they agree on.  I think that's what the Judge said.  He also said something about scheduling closing arguments and there may be two more witnesses called. 

Below are my notes.  I'll put a page break here so they don't take so much room.  Hit Read More to see the detailed notes if your browser even reads the page break coding. (mine doesn't.)




The rough notes, usual warnings apply.  I typed these on the fly.  There are gaps, omissions, typos, and errors.  But they give you a sense of what was covered and if it's important you can check the court records when they come out.  Maybe the Board is even taping this, I didn't ask. 


8:31  Judge is talking:  Evidence that these other plans may have passed.  Not sure why the evidence, why the plan was posed on the first day of the trial
Mr. White, I understand you have a continuing objecting to the use of the this plan

White:  We’ve had no chance to check this file

That’s why I didn’t allow this.  Mr. Walleri I’ll be very interested.

Walleri:  In terms of Dr. Arrington.  He’s available at, excuse me.  He’s there for the Texas litigation, and their trial goes to 6pm so he would be available at 2:30 today.  About the court’s problem…

Judge:  If he has this prior to Jan 9, he’d have to talk about it the way Dr. Hanley talked about it. 

Walleri:  Mr. Lawson came in and they met, he advised that he believes it passes the benchmark.  He did go over the numbers presented by Mr. Lawson.

Judge;  Purpose to say that this is another plan to say if it works, to show that here’s another one that meets the benchmark, I still thank that’s in dispute.

White:  We just said, there is a process.  No one gave us one. . .

Walleri:  What plan does less violence to the constitution.  That’s the only thing that . . . we go further, there were option that would do less violence

Judge:  Didn’t that train leave the station a long time ago.

Walleri:  There’s a problem here, I don’t know the intentions of Dr. Handley, , really has to do with the process.  The board already has said they didn’t know the bm until, well they didn’t really find out the 5 effective districts until after the DOJ submission.  There’s a lot of disagreement that it’s not just nomenclature. 

Judge:  Thats in the wayback machine. 

Walleri:  We didn’t know until Thanksgiving.

Judge:  Why didn’t you give the shape files bak then.

Walleri:  That was 30 days before trial. 

Judge:  Why didn’t you come up to the plan back then?

Walleri:  If you know what the effective standards back then.  We believe it was the fifth influence

Judge:  Not how I read it, this was on the table a long time.  Bringing a plan on the first day of trial.  I don’t have control over what happened before the trial.  I have little control over the trial.  But I’m concerned about the sharing of data, but I’m concerned that the data hasn’t been shared.

If folks in this room think I’m going to be redrawing this, they are wrong.  If some or all of it is remanded to the board, the board will have to redraw, consistent with the SC.  The SC will say, we like. . .

Walleri:  That is not the intention of what the court is about. 

Judge:  Trial court should say is it in harmony with Constitution and VRA.  Good choice, bad choice.  harmony not in legal case. 

Walleri:  Whole issue here not the burden on 3rd parties to come forward to show how the Board should have done it’s work.  There is a system to engage the public and listen, the obligation, the burden of proof is on the board.

Judge:  I got that

Walleri:  I agree there were other plans available to the board.  Issue really whether the plan that was drawn was necessary to violate the Constitution.  We’re saying there were other ways to deal with the problem.

Judge:  I agree that the burden doesn’t shift.  But all parties must follow due process, and discovery.  In this context I’ll allow you to use this in rebuttal.  I’m not happy that a party is bringing this in on the first day of trial.

White:  They have had…. Arrington had the plan since September.  He said what the bm …???

Walleri:  Leonard Lawson
What kind of VRA infor did you need to do plans.
Lawson:  How many districts VRA required and what they needed to be effective districts.
Walleri:  You needed to know how many effective and influence districts.  Effectiveness standards.
You attended most of the board hearings in Anchorage.
Lawson:  Kenai, Matsu and Fairbanks too
Walleri:  Rights coalition was one of a number of third party plans.  What assumptions were you working on when you made the draft.
Lawson:  Working on assumptions from previous redistricting.  Using Majority-minority terms.  We had no information from Dr. Handley.
Walleri:  Were you aware of criteria the board was using?
Lawson:  There were legal standards, but I was unaware of VRA standards.
Walleri:  How did you know?
Lawson:  They were released by the board and we used then.
Walleri:  Tried to use guidelines from ten years ago.
Lawson:  We pulled the court records from ten years ago.  We used that for influence districts which were around 35%
Walleri:  How many opportunities did you have to convince the board?
Lawson:  Prior to May 17 we requested another chance after we got Dr. Handley’s guidelines. 
Walleri:  In terms of formatting, did the board advise how to format, what kinds of data they wanted.
Lawson:  Not to my knowledge.
Walleri:  The first plan you submitted using total native population?  Yes
Did standards change after may 17? Completely
What happened?
Lawson:  Handley presented and said we were moving from majority-minority standards to effective.  Said we have 4 effective state house districts and majority-minority might not be effective and used HD6 that was m-m but counted as influence.
Walleri:  Did you understand effectiveness standard.   41.?%  and one that was 49.?% and Aleutian district that could go down to 3?.?5
Walleri:  Did you meet those standards?
Lawson:  May 17 we were given one week to meet those standards.
We asked Michael White to review the standard, and he was kind enough to do that.  He said, bm statewide was 41.7% number and explained differences in hd6 and 37.
Walleri:  I understand you recorded this, why?
Lawson:  I’m a very auditory learner.  I can’t take notes. 
Walleri:  You provided that recording.  Your Honor, may I play this?
Judge:  For what purpose?  Is there anything new?
Walleri: 
White:  I did say for the record, I don’t have any problem with the recording.
Judge:  Did the Rights plan hire it’s own VRA expert?
Lawson:  AFFR did some preliminary analysis.
Judge:  I’ll accept the White characterization.
Lawson:  We presented to Lisa Handley and thought we would get feedback, but was told we wouldn’t not get feedback, but might get questions.  Either mr. White or Torgerson.  It should be on tape somewhere.
Walleri:  Did you submit plan on 24th?  Yes  And make presentation?  yes
What was your guideline for the effectiveness standards and number of districts.
Lawson:  All based on Dr. Handley’s presentation.
Walleri:  Told to use any format?
Lawson:  I don’t believe so.
Walleri:  Did your plan include total Native or VAP?
Lawson:  The May 24 was the first time we learned to use only VAP.
Walleri:  Did May 24 change your understanding of number of districts needed or effectiveness standards needed?  NO  NO
When did you first learn about the five effective districts?
Lawson:  Reading Dr. Arrington’s … in December really that I knew anything about needing five effective districts.
Judge:  How many?
Lawson:  I thought 4 effective and EO and influence.
Walleri:  Alaska submission lists this
Walleri:  Did you have und   ??? No.
Your understanding you needed influence districts?  Yes
When did you learn you didn’t need influence districts?  Arrington’s deposition
Walleri:  Two demonstrations, relates to HD1.  Can you go to your computer and pull up existing proclamation plan? What program are you using?
Lawson:  Maptitude.
Walleri:  You loaded proclamation plan into Maptitude system?  Yes
Could you focus in on HD 1?  A little closer, we’re focusing on this area and this area.

9:06  - This appendage coming out of 1.  If you can start the process here of moving the census blocks in this appendage into d. 4. 
Judge:  What are you showing, that there are different ways to skin a cat?
Walleri:  Bickford said the appendage was necessary for deviation and that is distinctly not the case.
Telling Lawson to move parts of the map around.  You’ve highlighted.  433.  About 21 more than in the appendage.  Move those to HD1.  What is the deviation from the ideal is in the resulting districts.  255 people or 1.4% deviation for 1.  In 4 326  or 1.84%.

Thank you. 

Walleri:  I would say that is roughly the deviation as in in the proclamation plan.  What were the original deviations in proclamation plan for hd 1 and 4? 
Lawson:  347  1.59%  and 236 1.33%
White:  For the record, those numbers are different from what is on the record.
J41 - Board proclamation data p. 6034 

Walleri:  you were asked before the trial to see if you could do another plan.  YES
Also asked to do a demonstration plan or modified rights plan and that was provided copies to both the Riley plaintiffs and Petersburg plaintiffs.  When developed?

Lawson:  Early October.
Walleri:  What was you understanding of the standard at that time 4-2-1 plus 3 effective Sen. districts.
Does it surprise you that it doesn’t meet the five effective
Judge:  What is the demonstration - Modified rights - OK
Walleri:  You learned about the five effective in late November.
Lawson:  I learned about it after I read Handley’s deposition because it said 5, but I didn’t understand that.  It went from     and then in deposition I heard about 5.  I didn’t know for sure until I read Arrington’s deposition when he agreed to the five effective districts.
When?  December 21.  I was flying back to see family and we had trip to dc and I had time in the car to go over it.
When back to Alaska?  28th  What did you do?
Lawson:  I think I spent a little time looking at the plan, close to NY a lot going on. Right after NY worked on the plan and worked on what is now being called the modified rights 2.
Walleri:  Did you contact anyone about this? 
Lawson:  Not until I had a better idea if it would work.  Then I contacted Michael Walleri - that was the friday before trial.
Walleri:  What did you tell me?
Lawson:  I thought I had a workable plan
Judge:  How did you have Arrington’s deposition?
Asked for it
Judge:  When did you start working for Mr. Walleri.
Lawson:  Goes back a while, not really sure
Judge:  Mr. Walleri, go ahed.
Lawson:  AFter I met with you (W) I met with Arrington.  AFter reviewing it he asked questions about overlap about some of the old and new districts.  He said he saw no issue with the plan and thought it would pass DOJ.
9:21  Some similarities with between the plans, correct?  Describe the similarities as you move south?
Lawson:  District 40 virtually unchanged.  Shishmereff in current district in now.
39 same kind as proclamation but different split on Delta region, but include same communities.  ONly dif in how Delta in Proc 6, in mine, part of Delta’s moved to 39, but otherwise both followed the highway and same boundary lines.
N. boundary of 38 in Proc and 36 in mine.
Walleri:  More consistent with Constitutional standards.  Soicoeconomic Integration,
How many times break the FNSB borough? once
How many times Matsu boundary?  not at all.  matsu borough is 5.01 districts.
Had to take some population from one of the organized boroughs?  yes.  What district is that?  38.  Where did you get population?  from Kenai/
Homer, Seldovia, Nanwalak, Tyonek.  Major places. 
Walleri:  Other than Homer those are Native villages.
Why Homer:  It’s not a suburb.  It’s its own community, not like Ester.  Homer had connections outside of Kenai because of the flights there.  People would go to Homer to go to wildlife.  Kind of self contained and had connections outside the borough.

Judge:  Did you talk to anyone from Homer about that?
Lawson:  I don’t believe I did. 
P. 2 produced by Dr. Arrington.
P. 3 is the breakdown?  Yes, produced by me.

Judge:  Mr. White?
White:  Just briefly. 
To be clear on a few points.  You produced the two plans.  You did it on his instructions, even though you didn’t see the need. 
White:  Produced it because Mr. Walleri asked you and provided it to Arrington.  And Arrington says five effective house and 3 Sen.
Lawson:  I don’t recall it in his report. 
9:30am 
White:  Page 7 par. 13 in his report.  Dr. Arrington says.  There are 5 bm house and 3 bm Senate.  Based on information you gave him. 
Lawson:  repeat?
White:  the demonstration plan meets the 5 -3 bm.
Lawson:  not very familiar with this report.
White:  Say you attended most board meetings.  But not all. 
White:  Were you there April 6, when we said there would be 9 districts. 
At no point did Rights Coalition hire a VRA expert?
Lawson:  that was cost prohibitive
White:  The answer is no then.
White:  Pop of Ak is 710,231, disagree?  Why do you have pop of 710, 907.
Lawson:  I don’t see that number.
White:  At no time did you add up the numbers.
Lawson:  The computer program does that.
White:  Add up the number you have 600 plus people not counted by the census.
You also have 256 more natives than the census.
Lawson:  not certain there’s an error, need to check the source.
White:  You breached the Kenai borough 3 times?
Lawson:  Same number as Proc.
White:  You had to take urban population from Homer.  You just moved from Fairbanks to Homer. 
You understand that Dr. Handley said you need Democrats. yes
So it’s not different from Fairbanks.
Lawson:  Different in other ways . . .
Judge:  What do you want to do?  Call Arrington?  I think you know my thoughts on that.
Walleri:  I don’t think it’s still necessary.
Judge:  Then my plan would be to start off with you agree upon and make sure not only you agree and this young lady has you where you are happy.  My expectation is that joint exhibits should all come in.  A few that were touched on, and that is appropriate for this kind of litigation.  Some offered and admitted without objection.  One from plaintiff without objection. 
How about I give you to 10:15 to make Madam Clerk happy.  then we can schedule some closing arguments. 
Walleri:  something about Dr. Walkie Charles and Robert Dean.  We would proffer that as evidence of the nature of what he would testify to.
Judge:  I can handle that, but willing to hear White.
Dean:  Ran for house against Mr. Foster in Dem in Nome.  Dean is Yupik and Foster is Yupik.  The upper and lower Yupik folks won’t support each other Lower Yupik wouldn’t support Upper Yupik and Mr. Foster won.
Judge:  White?
White:  No problem.
Judge:  Secondary, maybe tertiary.  At least legally I’m not seeing that as VRA level.  I leave that to protect your record for that.  We’ll be back at 10:15.