Wednesday, August 21, 2013

Was Fairbanks Gerrymandered? Riley Challenge to Alaska Redistricting Board's 2013 Plan Part 2: Truncation

In Part 1, I looked at the parts of the Riley challenge that dealt with Fairbanks issues of compactness, contiguity, socio-economic integration, and deviation issues.  That post has an explanation of terms, maps, a population deviation table, and other information to help people understand the Riley challenge to the latest Redistricting Plan.

There was one more Fairbanks related issue, truncation, that wasn't as intertwined with the other issues which I left to a future post.  Now is the future.   Here, again, is what was in the Riley challenge concerning truncation:
25.  The Board's Truncation Plan for Senate Districts improperly considered improper factors (a) substantial changes from an unconstitutional Interim Plan as opposed to the prior Final Plan in effect for the 2010, b) incumbency protection relative to Senate District B; and (c) previously considered partisan voting patterns of persons within the Ester/Goldstream Area. 

[Let me note here that I started this about two weeks ago, but I've been interrupted for and by a lot of other things.  Plus this wasn't altogether clear.  I thought I should call Michael Walleri, Riley's attorney, to see if he could clarify things.  But when I called him about Part 1, he didn't return my call.  Part of me thinks there is value in just posting my take on things.  I've watched enough of this process to be relatively well informed, but in this part of the challenge I had real questions.  Tuesday afternoon I decided that before posting this I should give Walleri's office a try.  This time I got through.  I've decided to leave my original post as it was and then add what I learned in the phone conversation.  How will you know which is which?  If it's in blue, it's new.]

 Here's how I explained truncation in the previous post on this:
Truncation:   Senate terms are for four years, while house terms are for only two.  Senate seats are also staggered.  Half (10) are voted on in one election and the other half (10) in the next election two years later.  If redistricting significantly changes the constituency of a senate seat, then a large number of the voters of the new district are represented by someone they didn't vote for.  Thus, senate seats with significant changes are subject to truncation.  This means that regardless of when the term is up for the sitting senator, the population should be able to participate in choosing their senator in the next election.

So, all the new districts whose terms expire in 2016 that have a significant change will be up for election in the next election (2014).  Those up for election in 2014 will be up again anyway so they don't need to be truncated.  But this messes up the staggered terms, so some have to be designated as two year terms and others as four year terms to get ten up for election one year and the other ten the next election. The 2012 election used a new redistricting plan in which all but one of the seats were truncated and then the Board assigned two or four year terms to them. And now they have to do that again. 

I think there is an extra 'improper' in their point number 25 (way above the truncation explanation), but I'm not sure.  I think they are saying . . . well, actually it's not all that clear to me so I won't guess. 

Here's what I know.

The first time this board made a plan, their standard for truncation was 90% or more of the district was the same.   Only one Senator's district was that high - Sen Egan of Juneau.  All the other Senate districts were truncated.  This time they changed the threshold for truncation to 75% and they they all but said that that was to exclude from truncation one incumbent - Sen. Coghill - who lives in the new Senate seat B.

Item 25 includes three itemized points.  Here's the first:
(a)  substantial changes from an unconstitutional Interim Plan as opposed to the prior Final Plan in effect for the 2010

I'm not sure what (a) means.  Perhaps they are saying that they should have compared the new plan with the 2010 plan instead of with the interim plan to determine how different it was.  If that's what they meant, then (a) is a good example of why it's important to write clearly, because that actually says the opposite to me; that there's a bigger difference between the new plan and the interim plan, than the new plan and the 2010 plan.

[Mr. Walleri told me Tuesday that in fact there is a greater difference between the most recent redistricting plan and the districts used in the 2010 election.  And that if Senate District B were compared to the 2010 districts there would be a greater than 50% change in constituency and the seat would have to be truncated.  But, I asked, so what?  I remember somewhere in my brain that this issue came up before Shelby County v. Holder determined that Section 4 of the Voting Rights Act was invalid and thus there were no standards for determining which states were required to undergo Section 5 pre-clearnace.  The Board's attorney, I believe, told the Board that for pre-clearance they would be using the Interim Plan in place for the 2012 election, not the 2010 election districts.  

But Walleri was arguing that that might have been the standard for VRA benchmarks, but not for the Alaska Supreme Court.   The Interim Plan was declared unconstitutional and was used only because there wasn't enough time to create a constitutional plan.   

I suspect that this might be unexplored legal territory in Alaska.  According to the Board's attorney (from a memo to the Board):
"There are no statutes, regulations or case law guidance on how to ascertain the seating process."
The only justification for truncation I recall was that voters shouldn't be represented by people they didn't have the chance to vote on.  Michael White's memo to the Board goes on to talk about how this evolved from a Supreme Court decision.  Thus if a district were substantially different, a substantial number of voters would not have had a chance to vote for the senator.  Therefore those voters should have a chance to vote on that senator in the very next election.  Thus the justification for truncation. 

Walleri claims that that 2012 plan was declared unconstitutional and thus it shouldn't be used.  But if the issue is disenfranchisement of voters, then it seems that the 2012 districts would be the most pertinent because those are the people who voted for the sitting senators.] 

(b)  incumbency protection relative to Senate District B

This could mean a couple of things.  It might refer to the Board lowering the percentage that would require truncation to 75% to let Coghill escape truncation.  At the July 7, 2013 meeting, Board chair John Torgerson said,
"MR. TORGERSON:· Thank you.· Again, that's 22· ·three-quarters of the district or more is the threshold 23· ·that we're establishing, and in this case, it only 24· ·affects the one district, Senate District B." [from the July 7, 2013 transcript, p. 114]
Two years ago, in a post on truncation, I quoted a memo from Michael White:
"Where there is substantial change to the population of a district, and the previous district is mid-term in 2012, Egan appears to require the incumbent's term be truncated and that an election be held.  What constitutes a substantial change is not defined by law or court decision.  In 2000, the three districts the board found substantially similar, all had less than 10% change in population between the previous plan and the new plan. The next highest percentage of maintained population was 66.2%.  The data does not indicate whether that seat was a mid-term truncation or not. " [See the 2000 truncation plan here.]
[Actually the data do tell us.  I looked at the 2001 Board's Proclamation Plan, but I'm going to save that for another post.  This gets really wonky and I still need to analyze how the current Board did the truncation and the setting of two and four year terms to put the previous Board's work into context.]

So he said there is no specific law or court decision defining substantial change.  However, he also tells us that in the previous redistricting - 2000 - three districts that were NOT truncated all had less than 10% change.  It wasn't clear, he tells us, whether the next highest - 66.2% same population- was a mid-term truncation.  [Note:  the follow up post will raise questions about these figures.]

Then the current Board decided that 75% should be the cut off point (15% lower than their previous standard and the 2002 standard and less than 9% higher than the 66.2% mentioned above for the 2002 Board.)  They set it at this point because they knew - and talked about it at the meeting - that Coghill's new district was 77% the same.  This level would save Coghill from truncation.  I could argue persuasively both for and against the proposition that 75% of the population makes the district substantially the same.  But public bodies don't usually set such standards AFTER one knows how they will affect the outcome.  Usually you determine these abstract standards before you know who will be affected. 

But that isn't really what I think of when it comes to incumbent protection.  To me that means making a district safe for an incumbent.  Senate district B is made up of districts 3 and 4.  Coghill lives in the new HD 3.  The new HD 4 tends to be a liberal district as I understand it.  But is HD 4 liberal enough to defeat Coghill?  I'm not from Fairbanks, but my encounter with Coghill in Juneau tells me he's a very likeable guy and will be hard to beat.   I'm not sure this is making B safe for Coghill.  Rather, by splitting what seems a natural pairing of HD 3 and HD 5, they've prevented, probably, a likely Democratic Senator.

[What I understood Walleri to say was something like this:  the Board discussed protecting incumbents by making sure that not only was the Senate staggered statewide as required by the Constitution, but also that it should be staggered by communities, and thus Coghill was saved from truncation by lowering the percentage from from 90% used in 2001 and 2012 to 75%.  It's true that Board member PeggyAnn McConnachie made this local staggering seem like it was a Constitutional requirement at that meeting, but I don't think that was related to truncation percentages directly.  The discussion on staggering districts came after truncation was settled.   I think the percentage needed to be substantially the same is probably an issue the judges will be interested in. That plus the pairing of HD 3 and 4 into SD B and HD 4 and 5 into SD C, combined with de facto non-contiguity of HB 5, and the lowering of the percentage to 75% all combined in the Fairbanks area, drawn up by former Rep. Jim Holm who lost his seat in 2006 to Scott Kawasaki, one of the Democratic incumbents (whose sister's house* he gouged out of the district) do all add up to something worth paying attention to.  
*A house listed as S. Kawasaki in the phone book was drawn out of Rep. Kawasaki's district in the first maps of Fairbanks Board member Holm offered the Board.  It turned out to belong to Scott's sister Sonia. Redistricting insiders call this protuberance on the map the Kawasaki finger.]

(c) previously considered partisan voting patterns of persons within the Ester/Goldstream Area.

Again, I'm not really sure where this is going.  I do know that the Ester/Goldstream areas in the new HD 4 were identified as high voter turnout Democratic precincts the first times around.  They were paired with Bering Strait villages on the grounds that this would meet the Voting Rights Act (VRA) criteria.  This gets a bit complicated, but they were trying to make a 'Native District' which, for the VRA, would mean a district where the Native choice candidate was likely to be elected. Since Alaska Natives tend to vote Democratic, if they added Democrats to the district, it required a lower percentage of Natives to qualify than if they added population less likely to vote the same as the Native vote. 

The Board very clearly discussed the partisan voting patterns of the Ester/Goldstream area, but I don't know what the implications are here concerning truncation.

[When I asked about this, Walleri started talking about packing districts.  Yes, he was referring to the fact that the Board had pointed out the liberal nature of these two communities as justification for putting them into Native House District 38 last time round.  He also acknowledged that there was some self-packing involved simply by the fact that these folks all lived near each other.  Time was limited at this point and so we didn't discuss this too much.  He did say that he'd submitted an amended challenge that was edited, which I haven't read yet, but which you can find here.  He also mentioned that White is arguing that these challenges should only be about the law, not about the facts.  But since the facts are so changed, I don't see how you could exclude them.  I guess that should be the Board's position, but the Court, so far, hasn't been that friendly to some of the Board's positions that seemed to be contrary to the public good.

I thought that once I talked to Walleri I'd be able to finish off this post.  And I am bringing it to a close.  But in double checking some things after we talked, I've discovered issues  I need to post, but I need a little more time to put them all together.  Stay tuned, this should get good, in a very technical way.]

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