Tuesday, May 01, 2012

Redistricting Board's Supreme Court Appeal

The crux:

The transcripts from the April 24 meeting say:
BOARD MEMBER MCCONNOCHIE: My first motion would be to authorize our counsel to appeal the trial Court's April 20th decision to the Supreme Court. I so move.
I  thought that was fairly vague.  What exactly were they appealing?  All of it?  Some of it?  On what grounds?

So after the meeting I asked Board attorney White what they were appealing and on what grounds?  He refused to be recorded but agreed to answer otherwise.  Thus what I have is not as precise as it could be.  What I heard him tell me was that they needed the court to give them guidance on how to comply.   There was frustration in his voice.  It sounded like he was saying, "I give up, just tell us what you want so we don't have to keep guessing what you want us to do."

Then, the Board's website (April 25) adds a bit more detail:
The Alaska Redistricting Board voted unanimously today to appeal Judge McConahy's recent decision in 2011 Redistricting Cases v. Alaska Redistricting Board with the Alaska Supreme Court.

The Board will ask the court to overturn Judge McConahy's decision and approve the Amended Proclamation Plan as adopted on April 5, 2012. [emphasis added]

These are the important dates that come out of the Supreme Court's order posted on the Redistricting website April 27, 2012.  I put them into table form. 

  May 1, 2012 4:30pm  May 9 Week of May 21
Petitions for review of
Superior Court’s 4/20/12 order
Responses to the petitions for review Oral argument if allowed.

From the Supreme Court order posted on the Board's website, I figured these are the important dates.  Presumably, shortly after May 1 and May 9, the petitions and responses will be posted on the Board's website.   And if it's decided oral arguments before the Supreme Court are needed, the dates will be announced there too. 

The Background, in more depth, and translated so normal people can understand (I hope)

Keeping track of the Redistricting Board is getting harder.  The Board is being good about posting things on their website and emailing people who sign up, but they've been to the Superior Court a couple of times and now they are on their way back to the Supreme Court.  And things are happening sporadically.  It's easy to get distracted by other things.

What is being appealed this time? 

The Hickel Process

The first time round, the Supreme Court told the Board that it hadn't followed the Hickel Process and to redo its plan using the Hickel Process.  [What is now being called] the Hickel Process was spelled out in Hickel v. Southeast Conference, a 1992 Alaska Supreme Court case on redistricting.  It said
“[t]he Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements”
I understand this to mean that the board needed, originally, to develop a plan that met the Alaska Constitutional requirements. (You can see the Board's list of various requirements, including the state constitutional requirements, they must meet, here. )

Mainly this means that every house district needs to be compact (as small as possible to get in the required number of people - 17,755/district); contiguous (every part must be connected);  and socio-economically integrated (the people in the district must be seen as much as possible to have the same interests.)  I've said, somewhere here before, I'm not sure it's possible to get every district close to equal size AND have every district compact.  The state is just too big and the population too spread out.  So creating a map that complies with the state constitution and demonstrating that can be tricky. 

Then, when a constitutional plan is created, if that plan does not also meet the requirements of the federal Voting Rights Act (VRA), the Board can make what minimal adjustments to the original plan it absolutely must make, to make it also comply to the Voting Rights Act.  Since the federal Voting Rights Act legally trumps the constitution, there can be some minimal deviations from the constitutionally perfect map, if the deviations are the only way to meet the VRA.

The Supreme Court ruled the first time that the Board developed its plan with the VRA in mind mainly and did not first come up with a constitutional plan.  It told the Board to come up first with a constitutional plan.  The rationale behind this was that the court needed a baseline constitutional plan against which it could measure any deviations required to comply with the VRA.  They'd take the districts in the baseline map and compare districts in the new VRA compliant map to check the deviations were the minimal they could be to get VRA compliance. 

So, the Board redid their plan.  They assumed that the parts of the plan that were not challenged, could be considered as meeting the state constitution.  They worked on the parts that had been declared unconstitutional by the courts.  Fixed them. (Obviously the parties that filed with the court didn't agree they did fix them.)  And sent it back.

Judge McConahy at the Superior Court then responded:
  • The Hickel Process required them to show that every district was constitutional, which they hadn't done.
  • And that in Southeast Alaska the districts had been drawn in a way to create what was called a Native Influence District which at that time was assumed to be required by the Voting Rights Act. McConahy says Southeast was 'compact enough' because of the necessary influence district.  But in the mean time such a district (Native Influence)  has been shown to be no longer required.  But this meant the districts in Southeast hadn't needed to be tweaked so they were 'compact enough.'  So the judge told them now to make the compact - without the qualifying enough.
  • So McConahy said, "The matter is REMANDED to the Board to draw a redistricting plan solely compliant with the Alaska Constitution and to make findings of fact sufficient to allow this court, and the Alaska Supreme Court, to "independently measure each district against constitutional standards."
The Board's attorney's analysis - handed out at the April 24 meeting but I can't find a copy on the Board's website - of Judge McConahy's order says, in part:
In sum, the trial court rejected the Board's Amended Proclamation Plan because the Board did not redraw every House district or make specific findings that each and every district meets the constitutional standards.
As I reread McConahy's order I don't see where it says the Board had to redraw every district.  It DOES say that they have to show that every district is constitutional.  The Board simply assumed that the districts not challenged in court could be considered constitutional.  The only districts they bothered to demonstrate as constitutional were the ones the court found problematic.  The judge did specifically mention the districts in Southeast for the reasons mentioned above.  They were clearly drawn originally in a way that stretched constitutional standards in order to create a Native influence district.  McConahy said:
"The Board did not make specific findings by district, that each of the unchanged Proclamation Plan districts satisfied the requirements of the Alaska Constitution."
I see that only saying that they had to show that the unchanged districts did meet the Alaska Constitution's requirements.  Not that they had to redraw them all.

Of course, if they don't meet the requirements, they'd have to be redrawn.  And if you redraw a line for one district, you will have to redraw the line of at least one other district.  Possibly more. 

And yes, the Southeast districts need to be redrawn.  But if the rest of the districts can be shown to be constitutional - as the Board believes - they merely have to go through each district and explain why they believe that.  They don't have to redraw them all.  But they have to look at each district objectively enough that an outside body would also agree.  Not finding them constitutional because they need them to be.  As I implied above when I said this is almost impossible, I think that there will have to be at least one very large - hardly compact - district because of Alaska's geography.  They should just say that and that they don't know how else to get all the districts within a legal deviation from the 17,755/district without at least one less than ideally compact district.  They could point to similarly large districts in all the private plans.  But they shouldn't try to pretend that district meets the compact standard. 

At least that's how I see.

What's Going To Happen?

It seems to me the Supreme Court is going to side with the Superior Court and they will be scratching their heads trying to understand why the Board is having so much trouble here.  Whether that consternation shows through in their decision or not remains to be seen.

Today (Tuesday May 1) petitions are due.  The Supreme Court's order says all of the original petitioners are eligible to file again.  If there is a new amicus party that wants to file, they have to "move for leave to participate."

The Board's been good about posting all the court filings so maybe by Wednesday we can see what they look like.  People with access to the State Court docket online should be able to get them tomorrow as they get filed.  

Then there's a week for everyone to respond to all the petitions. 


  1. The situation is so knotty that it's tough for me to gain much in the way of understanding. Thanks for dedicating your blogspace to it.

  2. Kathleen, Thank you for letting me know it's of use. Messages like yours keep me going when it's sunny out and the greens are popping out of the ground. It's knotty because there are so many parts, but not because it's so inherently difficult. You just have so many technical words with very specific meanings that you have to keep in mind.


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