AK Redistricting Board Trial Day 1 - Peeling Back The Layers

Anyone who is NOT confused by this case just isn't paying attention.  

You could read Matt Buxton's account of Friday's opening court date -and it's a good version - but there is so much happening, that 100 different reporters could have written equally good accounts that were all different.  

In part, because direct testimony in this case is not happening in open court.  That decision was made because of the ticking clock between now and the date by which candidates, who need to know what districts they're in, have to file to run for office..  The court's decision has to be in 120 days before that June 1 deadline.  That's January 31 or February 1.  

So I'm going to ask readers who haven't read Matt's account, to go read it.  That leaves me free to not try to give an overview, but rather to focus elsewhere. For instance, Matt wrote:

"The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony."

With no intent of contradicting Matt, I'd say the court spent an indecent amount of time on the rules of this trial. Maybe it's more obvious because in this trial the public was able to follow the wrangling in the pre-trial hearings - stuff we don't usually see in court.  I'm now thinking back to various screen court dramas.  I think most spend 99.9% of the time in open court, not in chambers arguing rules. Maybe some chamber time with the judge, but after the trial has already begun. Usually the judge is giving one party a stern warning about following the rules, not about what the rules are.

But it's become clear to me that that is where the real battle is here.  It's the rules the court ultimately follows that will decide the outcome of this case.  

Essentially, the plaintiffs are trying to expose how the board came to their decisions when they were drawing the lines.  The plaintiffs belief the Board members either had no documented reasons or had blatantly partisan reasons.  

For the most part, the Board's process was the most open in Alaska history.  Every meeting since at least December 2020 was available via phone or online.  The Board staff listened to suggestions about their website, quickly put up audio and video tapes of meetings, and worked to set up interactive programs that the public could use to make their own maps online.  They put up all the public testimony on the website in days.  

What didn't get up were transcripts of any of these meetings.  Video's nice, but searching keywords doesn't work. (Though the Assembly has a program where you can search keywords.)  The one area I'd found the Board a little loose on was Executive Session.  These seemed a bit too long to just be covering the official reasons for them. And often the list of reasons a board is allowed to go into ES was cited, but not the specific issue they were going to discuss.  

Well, despite all this openness, the battle now is between the plaintiffs trying to extract the reasons the Board made certain decisions and the defense trying to block them.  They've been asking for the Board meeting transcripts from last November's key meetings for a month now, but the Board only just got them out a few days ago.  They've been asking for the transcripts of the Board's emails to each other and the attorney for a month.  The Board's attorney Matt Singer has been fighting that request tooth and nail.  Even after the Judge ruled in favor the the plaintiffs - with the stipulation that the Judge would read them 'in camera' and decide which were and weren't protected by attorney-client privilege - Singer asked for a stay.  When that was rejected, he asked the Supreme Court for a stay.  They granted a stay, but it was short lived and in the afternoon before the case began, the Supreme Court upheld the Judge's ruling.  

But that meant that Holly Wells had to try her case without any of the information in those emails.  But the judge did allow that this is one big case and she hasn't closed her case yet.  It's still open pending those emails and what other things come up in trial.  Despite Singer's vigorous argument against that.  

There were three witnesses Friday.  Felisa Wilson is the lead plaintiff in the Anchorage case.  I couldn't tell if she said anything that isn't already on the record or not.  I say this because - as mentioned above - it's hard to know what is already on the record.  While the affidavits and depositions are now on the record, they've only recently been available.  In a normal trial, we would have heard direct testimony and what documents were submitted as evidence.  In this trial there are thousand of pages of transcripts, much of which has only appeared in the last week.  

David Dunsmore, worked with Alaskans for Fair Redistricting (AFFR) to come up with their third-party map and was deep in the weeds of this whole process.  Again I don't know that he revealed anything new.  They also had an expert witness.  It seems he did get a few points in about the demographics of East Anchorage and why pairing that district with ER would dilute their voting power.

The Board's lawyer, Singer, did everything he could to discredit the witnesses.  He pointed out that Wilson had been treasurer of the Democratic party, implying this made the lawsuit simply a partisan maneuver. She retorted that she was more than a temporary volunteer position she had only recently taken - that she was a physician, retired Air Force Major, an African-American, and a Blackfoot Sioux and when she retired from the military she got to do a lot of volunteer work she couldn't do while in the military including in immigrant neighborhoods of Anchorage, the ones that will be hurt by the Board's Senate pairings.  

Singer did the same with Dunsmore. You were a staffer to Democratic Sen Bill Wielechowski, right?  AFFR was a union organization right?  These kinds of guilt by association arguments might work at a jury trial, but I have confidence they won't sway Judge Matthews.  

He tried to deny the expert credentials of anthropologist Dr. Chase Hensel.  He asked him questions about things he either wasn't qualified to answer (the law) or aspects of the Anchorage maps he hadn't studied.  Hensel didn't fall into the traps.  These attacks on Hensel were particularly awkward because, as Mat-Su plaintiff's attorney got on the record, Matt Singer himself had himself hired Hensel as an expert witness for another Alaska case. 

I understand that attorneys try to diminish the creditability of opposing witnesses, but given that there is no jury here, these attacks were fairly transparent and seemed sleazy.  Singer had already seemed close to whining as he repeatedly complained about 'changing the rules at the last minute'.  

Singer is one attorney (plus the backups from his law firm) who is fighting off five other attorneys.  With just one opponent it's much easier.  But here, one attorney raises a point and debates with Singer, and then the next one picks it up and adds more ammunition, then the next.  The plaintiffs' attorneys each have one big day in court and the rest of the days they can sit back and just swoop in with question when an opportunity arises.  Singer has to be in the hot seat every day.  Maybe he should have given an associate responsibility for a couple of these cases so he could recoup.  

His main accomplishment has been to block the plaintiffs from getting information that would help them find out what the Board's logic was for the districts that are being challenged.  (Most of the house districts were discussed fairly openly.  But the Eagle River pairings- the most blatantly partisan action the Board approved - was not openly discussed. It was just ramrodded through.  The Valdez pairing with Matsu was briefly discussed in open, but it seemed to be, "Well we've got most everything else done, what do we do with Valdez?"  The options they discussed were pairing it with Anchorage or Mat-Su.  Since it's with Mat-Su now, that seemed the best to them. 

I'd note that Holly Wells had planned to cross examine Melanie Bahnke about the Eagle River pairing.  Board member Bahnke had flown in from Nome specifically for this.  But at the last minute, Wells decided not to cross Bahnke.  My rough notes include this:

"Singer:  I want to call member Bahnke and Borromeo is here.  Ms. Bahnke wants to go back to Nome.  

Wells:  I was hoping to take break given Mr. Singer’s comments.  Rather not call Board.  Nervous about that."

I didn't understand the issue, only that she didn't want to open things up for Singer to question the two Board members.  Later I found a "MOTION TO PRECLUDE REDIRECT QUESTIONING IN ABSENCE OF CROSS-EXAMINATION" that was submitted the evening before the trial was to begin. (It's still, as I write this Sunday evening,  the last document up for this case.)  It's in response to things Singer said in a meeting they had Thursday afternoon.  The part that seems to most succinctly explain her concern:  

"Plaintiffs indicated that they intended only to call three of the Board members, after which counsel for the Board informed the East Anchorage Plaintiffs that he intended to conduct a re-direct examination of all the Board members, regardless of whether the East Anchorage Plaintiffs intended to cross-examine them."

Another maneuver by Singer.  I don't deny that Singer's job is to defend his clients to the best of his ability.  But what is becoming clear is that his clients' case in the Senate Pairings is pretty weak.  His defense is not - at least in the East Anchorage case - to have his clients come to the stand and explain how they got to their decisions, but rather to keep the plaintiffs from getting to his clients.  

On the other hand, he belittles the work of the East Anchorage plaintiffs' expert witness.  That's ok except that the expert actually did some analysis of the districts, while the Board member who did the Eagle River pairings, Bethany Marcum,  used, in her own words, her opinion based on having lived in Eagle River.  No demographic analysis, no numbers on the comparative racial and ethnic make up or economic differences between the two house districts she paired up.  

The wrangling in this case tends to support those who argue that the US courts are not about justice, but about winning.  

Enough.  

 

Bahnke and Borromeo will be back for the other plaintiffs, but I'm not sure Wells will be able to get more about the Senate pairings from them.