Redistricting Board Complies With Court Order, But Insists They Would Have Anyway, Not Because The Court Told Them To

On Friday June 7, the Redistricting Board met to discuss how they were going to proceed given a Superior Court ruling telling them to get moving and to hold hearings.  I've reported what happened at the meeting, but I've been thinking about what it meant and been trying to interpret what I saw and heard.  It's sort of old news, but it's not been said yet, so I'm putting this up for the record.  Which seems to me was a key goal of the Board at the June 7, 2013 meeting. Basically, it's my interpretation of what I heard with some rough quotes to support my assertions.  It's a bit tricky because:

• My notes are spotty and I don't have the official transcripts
• The comments weren't spelled out one by one - all were mixed together

It seemed to me that the Board was:

1. Upset by the Court telling it what to do
2. Trying to make a point that they were doing things (that the court told them to do) but they were doing them because they planned to all along, not because they had to.
3. They wanted to be sure that their new schedule and plans for hearings did not become a precedent for future Boards.
4. Therefore, they checked with their attorney that their legal right to challenge the Court's right to tell them how to do their job wasn't hurt if they proceeded with a new, speeded up schedule and public hearings.   (The attorney assured them they could preserve their right to appeal.) 
5. Putting on the record their response to things they felt were wrong that people seem to think about the board - We're not doing a bad job - problems are other people's fault

Things the Board was upset about:

1. The court setting their schedule
2. The court saying they had to hold public hearings
3. Faulty "public opinion" seemed to hold that
1.  That the Board had gerrymandered, when, attorney White told us in detail, that the court had found no evidence of that, and in fact so ruled
2. That the whole plan had been thrown out when, in fact,  only a few districts had been found to have problems

In past meetings, the Board - mostly Chair Torgerson - said things like "for the record" or "we can't say for the record too often."  Most notably on May 14, 2012. They didn't say that at this meeting, but it sure sounded like that's what they were doing.  Getting their side of things on the record.  You can hear the echoes from different folks.

Some examples:  [NOTE - these are not direct quotes, they're from my running notes of the meeting which you can see in their entirety here.]

Preserving Our Court Challenge While Moving Forward

The Schedule/Timelines -  We're doing them because we want to, not because the Court is forcing us to.

• Torgerson:   We could set a schedule and move forward, working on Hickel plan and following time line and at the same time pursue the appeal because we think the legal precedent is wrong.  
• PeggyAnn McConnochie:   I’d say, let’s set the schedule, it’s not because we are required to, but because we want to.  I don’t want any other board to have to deal with the stuff we have to deal with, without having some outsiders come in and dictate what we have to do.  
• PeggyAnn McConnochie - Motion to ?? they’re trying to impose timelines on us?  Is that right?  Riley Plaintiffs asked for a specific timeline and to hold hearings. 

My comment:  Well, at the previous meeting they had a schedule that had them done in January 2014 and now they have one and will be done July 2013.  It's hard to believe the Court had nothing to do with that.  

Public Hearings - Variations of "the court can't make us hold public hearings" and "but we want to on our own."

• Torgerson:  We never said we wouldn’t hold hearings, but making constitutional point it’s not required.  I personally think that public input is important and this Board thinks public input is important.  I recall PeggyAnn McConnochie and Marie Green working so hard to meet the public concerns.

•  PeggyAnn McConnochie:  McConahy [Fairbanks judge] says that public hearings are required on the Hickel Process.  If VRA is removed, then I’m not sure we would still have to do that since we wouldn’t follow Hickel plan.  .  .The Board is only required to hold public hearings on its draft plan, but not on its final plan.  Nothing after final plan is adopted. 
•  White:   It’s my understanding the Board always planned for public hearings anyway.  Waiting would only be for future Boards.  .   . [to challenge the Courts' ability to set the Board's time schedule so future Boards won't have to deal with this]
• White:  We will have public hearings because we want to, and reply to Monday’s decision.

My comment:  At the previous meeting they were saying there was no need for public hearings this time around, that they are only required in the first go around after the Census data comes in.  There was no mention, that I recall, of wanting to have public hearings at that Board meeting, because they were the right thing to do and not because the Court wants them.  But now the Board is embracing the idea of public hearings and that they always intended to have them this go around. 


SETTING THE RECORD STRAIGHT

• It's Not Our Fault and Setting The Record Straight

Torgerson:  Just because the Court doesn’t have time to do its job, not because we aren’t doing our job.

My Comment:   This is wrong on so many levels I don't know where to begin.  I'm guessing Torgerson is conflating time and process here.

• The Court said it couldn't do its job if they didn't have a plan that met the Alaska Constitutional requirements.  They needed this because their job is to determine if any deviations from the Constitutional requirements are the least necessary to meet the Voting Rights Act.  They need the first plan to compare to the second plan.  This did delay the Board's work because they hadn't taken the Hickel Process into consideration until the Riley plaintiffs argued it in their challenge and the Court agreed with them. 
  However, I'm willing to give the Board the benefit of the doubt when they first got this order and didn't quite know how to interpret it.  But they then went back to the Court several times asking, "You don't really mean this, do you?"  But that's not the issue here as I see it.
• The Board, instead of getting back to work and developing a Hickel Plan, decided to do nothing until the Shelby County v Holder opinion comes out from the Supreme Court.  They set up a very leisurely schedule that gave them about ten months (from March 2013 to January 2014).  The Constitution has the initial process getting done in 90 days, but doesn't talk about what happens after the 90 days is over and a new plan has to be done from scratch.  The Board interpreted that to mean there were no longer under any time pressure.  Given that whatever they do will probably be challenged in court, it seems to me that getting it done as quickly as possible makes sense.  If there is time leftover at the end, no problem.  That's better than not having enough time at the end.  And now the Board has a plan to get things done in about six weeks.  So why the nine months schedule before?
• The Courts have gotten their opinions back to the Board with incredible speed, with just one exception.  That was after last May's (2012) decision that allowed the Interim Plan to be used for the 2014 election.  Their next decision - to start from scratch - didn't come until late December 2012. And there I can't be sure how much of that was the Court's delay and how much was related to the filings of the different parties.

Saying that they're doing their job fine and that any problems are because the Supreme Court doesn't have time to do their job is, in my view, completely at odds with reality.

• Political Gerrymandering

White:  no political gerrymandering claim made in the filings.  In trial, Riley raised them.  I’ve looked at the orders.  Sept. 23rd order - there is not evidence in the record to find partisan gerrymandering occurred.  . . . It finds the allegations regarding political motivation are speculative, but not persuasive.
Later:  allegations that John, you said, political paybacks.
Court agrees with Board, that alleged gerrymandering unpersuasive.
Torgerson, Holm, and Bickford [all said they were] proud [of the Board's work] and not persuaded by partisan… and court finds this persuasive.
Made changes for Native districts, result lowest possible deviation.  p. 134 proclamation plan is not based on impermissible partisan . . .  Court ruled over and over again. 

My Comments:  You can prove political gerrymandering two ways:

• Revealing the intent of the Board 
• Showing the effect of the Board's work

To show the intent, one has to get inside the heads of the Board members.  One has to have recorded somehow their talking about designing the plan to put in more Republicans.  That's pretty hard to do.  Maybe you can show that there is no credible explanation for something except gerrymandering and the other side can't produce one. There was talk at public hearings about how in the previous redistricting, the Democrats had gerrymandered and switched many seats over to Democrats and thus it would be proper to just fix what they broke last time.  Is such a statement proof?  They would say that's just fixing past wrongs, not doing wrong this time.  And that was people who testified - if I recall correctly - not Board members.  So this avenue is almost impossible and the plaintiffs said they didn't try to do this.

Showing the effect - changes in the makeup of districts to favor Republicans and of the legislature after the election - can show a correlation, but you can't show the cause was intentional political gerrymandering.  The Board talked about many technical reasons that forced them to do these things.  [I use Republicans here only because the Board is 4-1 Republicans.  If it were switched, I say Democrats.]

But I was listening in to most of this and if some omniscient being were going to reveal the truth in 30 days, I'd wager a lot of money that Fairbanks and Anchorage were intentionally gerrymandered.  I watched them play with districts, such as splitting the two Fairbanks city house seats into two different Senate seats, and extracting Ester from the rest of Fairbanks and attaching it to the Bering Sea, and putting an Eagle River house seat into Bettye Davis' Anchorage Senate seat.  I know they can defend these moves, but I'm not at all convinced.  That said, as long as they can produce a Constitutional map that meets the VRA, they have a certain amount of freedom to do it their way.  No, the Court didn't find the Riley plaintiff's proof persuasive, but that doesn't mean there weren't some districts whose boundaries reflected ways to get more Republicans into the Senate. 

• Public believes the whole plan was illegal.  The whole plan never declared illegal.   Only two districts.  .

White:  Somehow [people believe] the whole plan was illegal.  The whole plan never declared illegal.  Specific rulings on specific districts.  SC said on HP by not following that, we can’t tell if you properly balanced between the VRA and constitution we can’t do our job.  Just a couple of districts - trial court said some issue on influence district, 2006 amendments and DOJ don’t rule out influence districts, SC you may want to look. 
Torgerson:  Told board this would just be an hour.
White:  Only two districts 32 in SE which we changed and SC said never mind use your original.  And 38 . . .. can’t keep up. 
Hear people saying things about illegal plan.  Only ten out of 60 challenged.  4 that were ?? and only 2 ????

Brodie:  Thanks for the clarification.  Keep reading that the plan is unconstitutional.  They didn’t say unconstitutional, only that they couldn’t see how we reached our conclusion.  I think we did constitutional.
PeggyAnn McConnochie:  I agree. It was constitutional and good to hear that from you Michael.

My Comments:  We could split hairs here or count the angels in a census bloc.  A few districts were found unconstitutional - not every district.  But the plan is either legal or not.  If just a few bad districts make the plan illegal, then, as I understand it, the whole plan is illegal.  Not all the districts, but the whole plan.

It's always hard to have a higher authority declare you wrong.  And there are plenty of situations where that higher authority IS wrong.  Two members of the Supreme Court - one liberal the other not as much - wrote a dissenting opinion on parts of the decision.  But, it's my understanding that by definition, what the Supreme Court says is constitutional is what is constitutional.  There's no instant replay here. 

As I said, this all sounded a lot like the earlier meeting when they were busy saying things just to put them on the record.  I think that's what this was all about. 


The Board's job  is not easy.  They have worked hard. They've done a lot of good things.  They particularly worked hard to get the VRA districts right.   Some members harder than others.  Some members seem to be more political than others.  But all this patting themselves on the back is counter to what I was taught at home is good form.  And declaring it rather than offering proof -  Attorney White did offer examples when talking about gerrymandering - isn't convincing.  There's a lot they could have done better and I've not been shy  about posting those things over the last couple of years. 


Blogging comment:  There's so much to blog about, I can't keep up.  There's the court order that came out June 10 which I'll try to get up soon.  The Supreme Court still hasn't published its opinion on Shelby County v Holder which will have an impact on the Alaska Redistricting Board, because some on the Board are counting on not having to deal with pre-cleariance any more if Shelby County wins.  We'll see.  Was today's Arizona case throwing out their law requiring proof of citizenship to vote an indicator that enough Supreme Court justices do understand the problems of voter suppression or was it decided on a legal technicality?  And Anchorage is still having warm sunny weather.  I can't remember such a long streak of such weather - but I'm sure that reflects my faulty memory.  I passed on today's meeting.  These working meetings are far more tedious than usual.  Lots of computer work and little discussion of what they are doing or what it means.