Thursday, May 30, 2013

Here's The Superior Court Decision - Short and To The Point: "Poor Alaska"

Here's Judge McConahy's ruling. 

I've read the court filings and the judge's ruling.  Was the Board unfairly treated?  Or is the Board the problem?  As a close observer of the process since it began, it's my sense that Board chair tends to be fairly stubborn.  There's also a strong pressure to make sure the plan protects the Republican majority in the Senate which enabled the oil companies to get their $2 billion a year tax relief.  And the Board doesn't like anyone telling them what to do. 

The Board's attorney, Michael White's style in his briefs is confrontational.   He rarely allows for any ambiguity - his opponent is flat out wrong, his position is unquestionably right.  His response in this case wasn't much different from that.  Yet I can't help but wonder what he really thinks about his argument?  Does he really believe it?  Or are these the marching orders he got from the Board? 

The basic issues in the case were:

1.  Should the Court set a faster schedule for completing their Proclamation Plan?  (The Plan is the redistricting plan for the state.  Our 2012 elections used an interim plan that included some districts that were ruled unconstitutional.)

2.  Is the Board required to have public hearings on the final Proclamation Plan?

Others were raised in support of these, but the judge narrowed his ruling to these two questions.  In both he gave a resounding 'yes.'  Though he did not give the Board any specific timeline or deadline.

Below are just a few of my thoughts on this.  You can go to each of the four documents submitted to the court at Wednesday's post on this.


On the schedule, the Board's response allowed no possible other right interpretation.
“Beyond complying with the Open Meetings Act, the Public Records Act, and Article VI, Section 10 of the Alaska Constitution, the Board has the discretion to conduct its proceedings in a manner that it believes best facilitates the formulation of a new redistricting plan that is in compliance with the Supreme Court’s December 28, 2012 Order.  The Plaintiffs’ baseless arguments to the contrary have already been rejected by this Court.”
When I read this Tuesday, I thought about other situations where courts have intervened and told other agencies how to do their jobs.  School integration came immediately to mind (and Judge McConahy used that example in his ruling) as well as mandating the release of prisoners to relieve overcrowding of prisoners.  It seemed to me if the Court felt that the Board's schedule would lead to another election with an interim Plan, they really would have to intervene.

I was particularly struck by this argument by the Board:
“The Board is fully aware of its constitutional obligations as well as the deadlines it must meet in order to complete its work and allow for judicial review of that work in time to implement its Second Amended Proclamation Plan for the 2014 elections, and it will, as it has done in the past, act accordingly.”  (Emphasis added.)
REALLY?!  "As it has done in the past?"  The facts are indisputable that the Board was unable to complete its Proclamation Plan in time for the 2012 election and we had to settle for an Interim Plan which was seen as unconstitutional. 

One of the issues the Court pointedly did not rule on was the idea of waiting until the Shelby County v. Holder case is decided by the US Supreme Court.  It's nearly June and the Court will most likely decide the case in the next 30 days.  However, there is no reason that the Board has offered that to me would justify waiting.  And there seems no legitimate reason to wait.

The Hickel Process that the Court has said the Board must follow requires the Board to FIRST come up with a redistricting plan that meets the Alaska Constitutional requirements.  Then, and only then, should they consider the Voting Rights Act requirements.  They are waiting on the Shelby County decision on the hope that it will remove the requirement for pre-clearance of their plan by the Department of Justice. 

But because the Hickel process requires them to use the Alaska Constitution first, there's no reason why they couldn't have begun back in March.  Or February.  Or January.  If the US Supreme Court maintains the pre-clearance requirement, the Board would at least have done the first part of the process.  They would have created a map of the districts using only the Alaska Constitutional requirements.  The next step would be to make the most minimal adjustments necessary to also meet the Voting Rights Act.

If the US Supreme Court decision results in eliminating the need to get pre-clearance, then the Board would be done.

But this does raise other issues.  Even though they wouldn't need pre-clearance, they would still have to meet other sections of the Voting Rights Act.  But those other sections, if I understand it right, require proof of intent, whereas section 5 only looks at the outcome compared to benchmark districts from the past and doesn't concern itself with intent.  Short of documents or public statements, it's very hard to prove intent. 

Will the Board, freed of pre-clearance requirements, gut Native representation?  The Board's Response raised the issue of not having to meet the seven benchmark Native districts. Do they have some strategies for redistricting if they are free of the pre-clearance requirement?

There are no legitimate reasons to wait for Shelby that I can think of, but the Court didn't rule on these arguments directly.  But the general ruling seems to suggest he didn't think much of the Board's argument for waiting.

Public Hearings

On the second issue - whether a public hearings are required - the Board argued that while the Board hadn't decided whether to hold public hearings (where the the public can testify, as opposed to their regular board meetings where the public can attend but not talk), it was at their discretion because such hearings are not Constitutionally required.   The judge succinctly disagreed.

The Constitution clearly required the Board to have public hearings before they finalized their plan.  Since they are developing a completely new plan, even if the Constitution doesn't specifically say that "if the first plan fails they need to do public hearings again," it would seem to thwart the intent of the Constitution to not have public hearings.

Yes, as the Board argued, they had lots of public hearings already.  But not on the new plan.  And it doesn't make administrative sense to not have such hearings.  Local people can let the Board know obvious mistakes that locals see that the Board wouldn't see.  This allows a lot of simple things to be corrected.  But they might also see politically motivated quirks that the Board would rather not have people discovering.   Not having hearings increases the likelihood of court challenges.  I realize these challenges are inevitable, but there will be more issues raised and possibly more people raising them if there are no public hearings and the obvious problems aren't worked out before the Plan is final.


It would seem that the Board should be moving as expeditiously as possible.  They should have the first step of the Hickel process done and be waiting to do the second step - comply with the VRA - as soon as the Shelby County case is decided.

Why might they be taking their time?  To make it harder for people to see and review what they do?  That would be consistent with cutting out public hearings.  Or, as the Petersburg Plaintiffs hypothesized, to let the interim plan stay in place for the 2014 election too?

Maybe they just have a different sense of time and urgency than I have.  But when I saw their arguments, I just saw, well nothing that was a strong case.  And the judge apparently didn't either.

They also should be pursuing the idea of public hearings.  They don't have to do the ridiculous schedule of visits all over they state they did last time.  Much of that can be done through telecommunications.  And their hearings should involve much more information about the maps the Board proposes to the communities before the fact, so people can study them and make informed comments.

The Court should [showed] its impatience with the Board.  What will it take from the Board to have the Courts step in and set up their own process for getting this done?  It's happened in the past.  And this Board is being pretty confrontational with the Courts.  


  1. "The Court should its impatience with the Board."


  2. Harpboy, sorry, I've been busy conferencing. My fingers increasingly type "sounds sorta like" words. Thanks for the edit.


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