Redistricting: Will The Supreme Court Reject Alaska's Proclamation Because Of Partisan Gerrymandering?

[NOTE:  I'm going to discuss the law in parts of this post.  I'm not an attorney. But I do know that the law is more complicated than it seems.  That you can find a statute in one place, but that there may be exceptions to that law written in other laws.  So, take what I say about the law skeptically.  Take everything I say skeptically.]

IS GERRYMANDERING A VALID LEGAL REASON TO REJECT THE PROCLAMATION PLAN?

When I blogged the 2010 Redistricting Board (you can see the index of that here), the Board's attorney, Michael White, once told me that no redistricting plan had ever been rejected because of partisan gerrymandering.  I'm not sure if he meant just in Alaska or nationally, but I think at the time both were true.  Since that time the Pennsylvania Supreme Court overturned that state's map in 2018 based on political gerrymandering.

"The Court also adopted and announced a new legal standard for determining whether a map is unconstitutional. According to the opinion, “neutral criteria of compactness, contiguity, minimization of the division of political subdivisions, and maintenance of population equality among congressional districts…provide a ‘floor’ of protection for an individual against the dilution of his or her vote in the creation of such districts.” The Court went on to state that when 'these neutral criteria have been subordinated, in whole or in part, to considerations such as gerrymandering for unfair partisan political advantage, a congressional redistricting plan violates [the Free and Equal Elections Clause] of the Pennsylvania Constitution.'”

I've noted on this blog a couple of times how it was clear that some of those testifying were simply using criteria like compactness and deviation as a cover for what appeared to be more political mapping.  This became clear because people used one criterion in one situation then ignored it to emphasize a different criterion in another situation.  Marcum, for example, early on strongly advocated the idea that every district in Anchorage had been ruled Socio-Economically Integrated (SEI) with every other district in Anchorage.  But when she proposed a map that joined Eagle River with Muldoon and JBER, she argued heavily for the SEI of all the military and retired military in those three places.  

All this is preface to this post.  Those people thinking that the obvious political gerrymandering of Eagle River and Goldstream should be a slam dunk in the Alaska Supreme Court. . . well, no.  

I can't find any language in the Alaska Constitution that bars political gerrymandering.  The US Supreme Court will consider racial gerrymandering, but has rejected political gerrymandering.

"Held: Partisan gerrymandering claims present political questions beyond the reach of the federal courts. Pp. 6–34."

But in this post I'm going to offer a possible way to get politics considered in Alaska's redistricting appeals.

You can read the Alaska Constitution on redistricting here.  It's not long.  But there aren't very many rules about what the Board CANNOT do.  Mostly how they make the House districts and that's basically focused on balancing the ideas of compactness, contiguity, and socio-economic integration.   Federal requirements add being as close to one-person-one vote as possible.  The federal Voting Rights Act has other standards, mostly related to not discriminating based on race.  But the US Supreme Court has invalidated one of the key aspects of the VRA and there's no telling what they will still recognize as valid.  That's why the Democrats' new Voting Rights bills are so important.  

POLITICS IS MENTIONED ONCE WITH REGARD TO REDISTRICTING IN THE ALASKA CONSTITUTION

The closest the Alaska Constitution comes to banning partisanship is this sentence: 

 "Appointments shall be made without regard to political affiliation."

What exactly does that mean?  If you make a decision 'without regard' then you could choose a Democrat or a Republican or an Independent or a Green, whatever, so long as . . . what?  You weren't aware of that affiliation?  You didn't take that into consideration?  

HOW CAN WE KNOW IF DUNLEAVY CONSIDERED POLITICAL AFFILIATION?

How do you even know if someone made their appointment with or without regard to political affiliation?  To my knowledge, no one has ever raised this question in a challenge to a redistricting plan.  Actually, the original Alaska Constitution gave redistricting to the governor to take care of.  A 1998 Constitutional Amendment created our current system (pp. 114-115) From what I can tell, in 2000 Gov. Knowles appointed Democrats.  Gov. Parnell chose Republicans in 2010 and Gov. Dunleavy chose Republicans in 2020. The only appointments that have been seemingly free of political consideration have been the made by the Alaska Supreme Court Chief Justices.  But I say 'seemingly" because as judges, they don't officially affiliate with a political party.  

The Speaker of the House (Rep. Bryce Edgemon)  who appointed Nicole Borromeo was officially an Independent.  I don't know Borromeo's affiliation and it hasn't been clear from her actions on the Board.  (Republicans might say that her opposition to the Republican proposals at the end show she was a Democrat, but simply opposing Republicans doesn't make you a Democrat.  Especially when GOP actions appear to be openly pushing political advantage.)  Melanie Bahnke was appointed by the Chief Justice of the Supreme Court, Joel Bolger.  (He retired in June 2021, so if this Proclamation is challenged, he won't be sitting in judgment.)  Again, I don't know Bahnke's political affiliation.  It's not mentioned in any of the descriptions or bios I could find online about her or Borromeo.  If they are registered to a Party, it's not that important an aspect of who they are.

On the other hand, Governor Dunleavy appears much more likely to have considered political affiliation: 

1.  Budd Simpson is the husband of Paulette Simpson who has been active in the Juneau and Alaska GOP as an officer, was  State Convention Organizing Chair in 2020.  In 2013 she was described as a powerful party activist who was 'fired' from her position along other Alaska Republican heavyweights like Glenn Clary during an internal party takeover that was short lived.  In 2016 she was named State Republican Party State Finance Chair by Tuckerman Babcock when Randy Ruedrich stepped down as State Party chair.  Paulette doesn't show up on the current Alaska GOP list of officers, but she donates significantly to the party still.  But, you say, Dunleavy appointed Budd, not Paulette.  Good point.  There are married couples with spouses of different parties. But it's not that common.  And Budd Simpson did split another $500 in contributions to Dan Sullivan and Don Young in 2020.  So he does have some skin in the GOP game too.  

2.  Bethany Marcum is the Executive Director of the Koch backed Libertarian oriented Alaska Policy Forum. The Forum's mission and goals are to cut back government as much as they can.  Exactly what Governor Dunleavy wants to do.  The best way to do that in Alaska would be to elect the most conservative Republicans they can find.  What better position for Marcum than to be on the Redistricting Board where she can influence who gets elected to the Alaska legislature for the next ten years?  Did I mention she was on Dunleavy's staff when he was a Senator?  Here's a bio of Marcum attached to an essay at Constituting America:

"Bethany Marcum has made Alaska her home for over 20 years. She currently works as Executive Director of the Alaska Policy Forum. She also serves as a citizen airman in the Alaska Air National Guard. She worked as legislative staff for State Senator Mike Dunleavy from 2013 to 2017. She is currently the Alaska Republican Party Region V Representative and has held a variety of other positions at the district and state level. She is a former president, long-time board member and life member of the Alaska Chapter of Safari Club International and is a life member of the NRA. She serves in her church with the children’s ministry and is a volunteer “big” with Big Brother Big Sisters of Alaska. She and her husband Conley enjoy hunting together." [this was undated]

3.  The third Republican on the Board is former state senator and representative John Binkley.  He was appointed by then Senate President Cathy Giessel.  I had thought he'd be more independent because Giessel had become a moderate Republican (or rather she stayed the same but by comparison to the governor seemed moderate).  Her district had been stretched from the Anchorage hillside to Nikiski in the last redistricting.  She hadn't appreciated that.  National Republicans helped Dunleavy purge the state House of moderate Republicans in 2020 and also had her term shortened to two years twice.  In the last election she lost her primary (as did John Coghill) to further-to-the-right Republicans.  So one could hold out some hope that Binkley wasn't so tightly bound to Dunleavy.  But then Binkley chaired the campaign against Dunleavy's recall.  So there was also loyalty to Dunleavy on his part.   

Both Dunleavy selections would appear to have been made with consideration of 'political affiliation.'  These weren't just folks who happened to be registered as Republicans. In the case of Marcum it's someone he's worked closely with, whose day job is to reach goals (no taxes, shrinking government) that would be easier to reach if conservative Republicans control the legislature.  

Budd Simpson isn't quite as ideologically ideal, but he does have close ties to the Republican Party.  He's more than just a random Republican registered voter. One could counter that Dunleavy only knows Republicans, or only trusts them, but that's a failing on his part.  The governor should serve all Alaskans, not just the Republicans. He should have good relationships with honest, well-intended people who aren't Republicans.  I'm sure folks in Juneau can fill in more on Simpson's background.  

CIRCUMSTANTIAL EVIDENCE

But how does one prove intent? We have to gather circumstantial evidence.  Again, I'm not a lawyer, so I have to look up a lot of definitions of circumstantial evidence to make sure that they all pretty much say the same thing. This comes from a New York Courts website.  What I first got was a document about circumstantial evidence, but there was no identification on the document itself.  By playing with the url, I was able to find this page which links to the document.  It's sort of a catalogue of jury instructions that New York judges can use.  You can scroll down to circumstantial evidence, or just go directly to it here.

"Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or non- existence of another fact. A person's guilt of a charged crime may be proven by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt.3"

There's a lot more at the link, but the take-away is that circumstantial can be used to show what wasn't, or cannot be, observed directly.  Like Dunleavy's intent when selection appointees to the Alaska Redistricting Board.

CIRCUMSTANTIAL EVIDENCE OF PARTISANSHIP

1.   DUNLEAVY STRONGLY FAVORS HIS APPOINTMENTS TO BE LOYAL TO HIM AND TO HIS GOALS

When Dunleavy first came to office his chief of staff, Tuckerman Babcock, required 1,200 non-politically appointed state employees to sign loyalty oaths or be fired.   That was in 2019. In 2021 a Federal judge rule that illegal and that the governor could be personally liable.  

"The decision by Senior U.S. District Judge John Sedwick Friday is a major defeat for Dunleavy and Babcock, who could be personally liable for their actions.  The judge refused to go along with the claim of “qualified immunity” because Dunleavy and Babcock should have known they were violating the rights of employees."

Why is this relevant here?

1. The original loyalty oath business suggests that Dunleavy does not like having employees who he doesn't know are loyal to him and his program.  While that's true of most elected officials, this is extreme.  Most assume that professionals will do their job professionally.
2. The governor was willing to try to do something that the judge said he should have known was wrong. 
3. If Dunleavy was willing to try to impose a loyalty test on state employees despite that being clearly illegal, it's reasonable to believe that choosing highly partisan Board members, despite the constitution prohibiting selection based on political affiliation, would come naturally to the governor.
4. Tuckerman Babcock is extremely partisan and was the chair of the Alaska Republican Party from 2016-2018.  He resigned as chair the same day Governor elect  Dunleavy appointed him chief of staff/.  He's also been involved heavily in redistricting.  He even wrote a book chapter on redistricting.
5. It's not a stretch to assume that Dunleavy chose Marcum and Simpson precisely because they were Republican loyalists who would carry out his political wishes.  

OK, up to this point we have 

1. the highly partisan nature of the Marcum pick, and
2. the less glaring but still partisan choice of Simpson, and
3. Dunleavy's attempt to get state employees to sign loyalty oaths, which supports the idea that he's hardly likely to select someone who won't do his bidding.  

2.  BUT WHAT DID DUNLEAVY WANT?  A SUPPORTIVE LEGISLATURE

Although Republicans make up a majority of both the state House and Senate, the Republicans are not all united with Dunleavy.  Some House Republicans have joined a coalition with Democrats.  The Senate Republicans are divided as well and block or alter Dunleavy's proposals.  

What the Governor wants is a Republican majority in both houses that is loyal to the Governor and passes his budget, PFD proposals, and other initiatives.  Not only does he want to weaken Democrats, but he's frustrated with Republicans who don't support him on everything.  The state GOP successfully eliminated two long time Senators,  conservative Republican senators with even more conservative, Dunleavy-loyal Republicans in the primary.  They did the same to less than 'loyal' Republicans in the House..

What better opportunity to advance loyal Republicans and weaken Democrats than to have loyal supporters work toward that end on the Redistricting Board?  

WHAT DID HIS APPOINTEES DELIVER FOR DUNLEAVY? 

A.  In the first round of map making, Bethany Marcum made Anchorage maps that paired a number of Democrats into the same house districts.  Meanwhile Simpson managed a protrusion that slipped one Democratic representative into the district of another.  While he has protested it was accidental, no one has explained how he did it accidentally except to talk about the oddities of Census blocks in general.  And it managed to get repaired without doing harm to the Census blocks. It appeared that they got assistance in developing those maps, because the Boards' official software purposely did not contain any political data.  After the strong protests against the political nature of the Board's v1 map, I suggested in public testimony, that Board members should publicly report any contact outside the Board - besides public testimony - they had to help with mapping.  Later, both Borromeo and Bahnke stated publicly at Board meetings that they'd had no outside contact.  None of the GOP-appointed Board members made such statements.  

B.  After the public hearing tour, Bethany Marcum made a map of Anchorage that had house districts that included Muldoon and Eagle River and other pairings that the public testimony had strongly opposed.  Districts that would add strong Republican populations that would dilute the Democratic East Anchorage voters.  Even Budd Simpson voted no, saying the public testimony had swayed him.  The Eagle River House districts stayed in Eagle River by a 3-2 vote.  Only Binkley joined Marcum to support her map.

C.  Senate Pairings.  At what seemed like the very last minute - Board member Bahnke said she was taken by complete surprise - Board member Bethany Marcum presented a map of Anchorage senate pairings which linked the two Eagle River house districts, NOT with each other, but one with South Muldoon (about 10 miles away by road through one or two other districts) and the other with JBER, Government Hill, and parts of downtown Anchorage.  This was after all the testimony opposed to such linkings.  An alternative map was rejected 3-2.  Marcum's map was passed 3-2.  There was minimal debate.  

Although Simpson had opposed those connections in the House districts, he voted, with little or no comment in favor of Marcum's map.  Others have spoken at length about how this gives ER two Senate seats and is an example of cracking much more diverse districts and favors GOP candidates. 

If the GOP-appointed members had had a good non-partisan, non- gerrymandering reason for these Senate pairings, they didn't tell anyone.  They did emphasize how important military socio-economic links tied these areas together.  I've pointed out in this Nov 9 post that the military are among the most favored subgroups already in Alaska, with 20% of the Senators fitting in that category.  I'd also note that Marcum had previously argued strongly that social-economic integration was irrelevant when pairing other Anchorage House seats because the Courts had ruled every neighborhood in Anchorage was socially-economically integrated with every other district.  Now SEI was her only argument for the Eagle River pairings.  

After this was over I asked Budd Simpson, 

Me:  "Since you cited the public testimony for keeping Eagle River separate from Muldoon when you voted for the House districts (he voted, to everyone's surprise, against the Marcum plan), what changed that caused you to vote for pairing ER with Muldoon in the Senate pairings?"

Simpson:  "I don't talk to bloggers."

Me:  explaining more of my background and redistricting blogging history and asking again

Simpson:  "You can ask all you want, I'm not going to answer."

This only makes sense if he doesn't have a good reason.  He's an attorney.  He should be good at articulating his argument.  My guess is that after his unexpected vote on the Anchorage House map, he'd been taken to the woodshed by his wife, the governor, and other GOP officials and was reminded why he was appointed to this Board.  Sure, this is speculation, but I haven't heard any better explanations.  I would say that his silence forces others to fill in the void.  

D.  Allocation of Senate Terms To Alternating Cycles

I wrote about this in detail here.  Basically, after a fairly brief discussion, and after rejecting the option of flipping a coin to decide whether to start with seat A or seat T, the GOP-appointed Board members all voted for Bethany Marcum's Allocation plan with the other two Board members opposed.  Why wouldn't the three flip a coin, as Nicole Borromeo proposed,  "to avoid any appearance of partisanship?"  Because, the outcome was punishment for moderate Republican Senators and reward for those loyal to Governor Dunleavy. Something they didn't want to say out loud.  The chart is pretty clear in the outcome.  In the follow-up post, I showed that the motion itself was hardly a plan.  Marcum once stated her 'motion' as   "I propose we go in simple numerical logical order, starting with A 2 years 4 years 2 years cycle like that.??  Is that how we say it Peter? 2 years 4 years 2022, 2024?"  The second time it wasn't even a complete sentence: "2022, 2024, 2026 something like that" in violation of all standards for making official motions. This wasn't a high school government motion on the theme of the prom.  This would affect the Alaska legislature for ten years.   It would appear Board members didn't even know the details of what the motion would do.  But that is grounds for a different challenge to the motion.  The point here, is that Dunleavy's appointees carried out exactly what he wanted them to do:  Support those Republicans in the Senate who stayed loyal to him and punish those who didn't go along with all his proposals.  

I mention it here only because it strongly supports the idea that the plan came from others, and because it so carefully and so successfully targeted seats for punishment or no punishment, that someone like Randy Ruedrich or Tuckerman Babcock with years of redistricting experience likely would have been involved.  And that these are examples that taken all together show a pattern of partisan appointees doing what they were appointed to do.  

SUMMARY

1.  The Alaska Constitution says that people should be appointed to the Alaska Redistricting Board "without regard to political affiliation."

2.  Governor Dunleavy's appointees were not simply Republicans.  One had been active as an officer in the party and was the executive director of an organization whose job is to pass anti-government legislation.  The other is the husband of a woman very active in the Alaska Republican Party, and, Budd Simpson himself  had contributed $500 to GOP candidates in 2020, the year he was appointed.    His wife contributed over $1000 to the Party that year.  This is the Party that has already supported the far-right, Trump supported US Senate candidate over our sitting Republican US Senator Lisa Murkowski. 

3.  It is hard to imagine Gov. Dunleavy would have made his appointments "without regard to political affiliation."  Why?  Because this is the governor who on taking office sent letters to 1200 career employees requiring them to sign letters pledging loyalty to his policies or be fired.  Since then the judge has found this not only illegal, but so illegal that he may hold the governor personally liable.  That's not the kind of man who would choose people for a Board that will help determine the political makeup of the Alaska legislature for the next ten years, without considering their political affiliation and loyalty to his policies.  

4.  In various actions - early Anchorage maps, later Anchorage maps, Senate pairings, and Allocation of Senate Terms - his two appointees made decisions that harmed Democrats and 'disloyal Republicans' and favored Republicans who had been loyal to the Governor. Only once did Simpson vote contrary to Dunleavy's wishes, but he quickly toed the line after that.  

5.  Not one of these points by itself is overwhelming proof, but taken altogether, they show a pattern of partisanship starting with the appointments and ending with various actions aimed at weakening Democrats and moderate Republicans.  

CONCLUSIONS

Dunleavy appointed two Board members who delivered on his objectives - to make maps and allocate the Senate seats in a way that would favor candidates  more supportive of the governor's policies.  

From what I can tell, every governor, since the constitution was amended to create a Redistricting Board up to now, has appointed people of their own party.

The requirement to NOT consider political affiliation when choosing is clearly not being followed.  I suspect the Supreme Court has not ruled on this because no one has specifically brought it up in suits against redistricting plans.  However, given the clear line from Dunleavy's appointments to specific partisan outcomes, it's apparent to me that his appointments not only considered political affiliation, but also commitment to fulfill the Governor's interests in redistricting.  

If any of the possible lawsuits against this year's Proclamation raises this point and the evidence I've presented here and if the Court fails to act on it, then the Court would be effectively saying that the clause that prohibits considering political affiliation when selecting Board members is meaningless or unenforceable.  

What might the court do?  I suspect that depends on what the attorneys ask of the court.  Here are two options.

1. At one extreme, the Court could invalidate Dunleavy's choices and order him to choose two new members.  This would not only be very disruptive to the redistricting process, but the Governor could simply pick two more Republicans and then what?
2. The Court could instead invalidate the most partisan results of the Proclamation Plan and order the Board to make appropriate changes.  This would include at least the Eagle River Senate pairings and the Allocation of Senate Terms.  This would neutralize the partisanship of the original appointments without dismantling all the other work that was done by the Board.  And it would send a message to future governors (and Senate Presidents, Speakers of the House, and even Supreme Court Chief Justices) that if they make partisan choices that result in partisan gerrymandering of the new redistricting plan, those parts of the plan will be invalidated.  It might not change what governors do, but it would set a precedent that the Courts will reverse partisan plans.  And they can do this because the Constitution requires that Board picks be made without regard to political affiliation.  Which implies the Board is not supposed to make politically partisan plans.  

FINAL NOTE:  I've focused on the Eagle River Senate pairings because they seem the most egregious acts of partisanship and because I know the Anchorage area much better than I know the rest of the state.  I know that the residents of Goldstream strongly protested first their being carved out of Fairbanks and into a much larger district, and then their Senate pairing.  But most of that seems to have been done by John Binkley, not a Dunleavy appointee.  Other areas of the state may also have grievances that I'm less sensitive to.  I apologize.  Just focusing on the Anchorage area was a huge task.  Others can make their own cases better than I can.