Alaska Redistricting: The Valdez Challenge Part 2 - Looking At Valdez' Allegations and Claims

This is a follow up to The Valdez Challenge Part 1.  The items with the red checks below were covered in  Part 1.  In this post I'll try to address items 2 and 3.  NOTE: I've been working on this a while and it probably needs some more proofing, but it also probably needs to get up sooner than later.  So I reserve the right to look through this later and fix typos, add links, or whatever else needs to be done.  Substantive changes will be noted.]

#3 - The Board's Discussion Of Valdez

The Board didn't spend much time talking about the pairing of Valdez with Mat-Su - not quite 14 minutes.. The attorney said the Supreme Court hadn't objected to Valdez being paired with Mat-Su in one case and with Anchorage in another.  

The discussion I found took place on the afternoon of November 4, 2021.  It's the first thing discussed on this video.  The video starts with a discussion of Valdez at 1pm.  (They had been in Executive Session all morning so nothing of that is on the tape.)  They spent about 15 minutes discussing pairing Valdez with either Anchorage or Mat-Su..  It's possible that they talked about Valdez at a different point, but I don't have any notes.  Their minutes are combined from November 2- 4.  When I did a search for Valdez there was only one mention - it merely mentioned there was a public hearing in Valdez. I'd note that originally their agenda for  Monday [Tuesday] November 1  [2] as overly ambitious and they thought it might have to be stretched out over the rest of the week.  

Below is the video of that meeting.  As I said, it starts the video and goes for 15 minutes.  I've also done a rough transcript.  (A rough transcript is much better than my rough notes at a meeting because I can play it over and over.  But still, Board member Marcum seems a bit further away from a mic and talks really fast.  Member Simpson speaks slower but in a low voice and is the hardest to hear.  But I think I've captured the key points reasonably accurately.  And you have the video here to double check. 

Joint Redistricting Board, 11/4/21, 9am Part 1 from AlaskaLegislature.tv on Vimeo.

Rough Transcript of Video

0:35  Binkley:…  [Discussion of what to do next]  Did we wrap up Kenai? So then the only area left.  So, should we go into Anchorage?

Marcum:  I would like to raise something if I could

Binkley:  OK

Marcum: [?????? Something about Anchorage, then Valdez.]  How far does it go? My understanding is that Valdez had been paired with Anchorage in the past and … was not keen on going with the Mat-Su.  The current iteration that we’re looking at would not allow Valdez to ?? With D36, D35?? Is also full.  So maybe Anchorage is still a consideration and I would [like us?] to discuss that possibility.

Binkley:  Have you tried mapping Valdez and Anchorage?

Marcum:  ???? [This just occurred to me?] last night, but looking at the history, I know it’s been done in the past. . .  Peter, do you have a  number . . [although?] we are in Anchorage . . . fitting Valdez and 

Peter Torkelson, Board Executive Director:  Anchorage is 15.88 districts, so it needs about .12, so it needs about 2000 people roughly.  Valdez is 4000.  [Voices  - about 2000 over???]

Binkley and Marcum:  The same going in the other direction..

Marcum:  ???Obviously significant    how these [??affect Anchorage districts??]  But we have to have this conversation.  [???] all of the Valdez possibilities.

Binkley:  I don’t think it hurts to explore the possibilities.

3:05  Binkley:  See what options are out there.  Matt (attorney Matt Singer), could you remind us what happened when Valdez was in with Anchorage . . .

Singer:  Well, it was litigated, I believe it was litigated to the Supreme Court in the 2001 plan and the Court ruled that it was constitutional socio-economically because Valdez and Anchorage ...  including the air service, oil industry connections, connections with the University, so, there’s a legal pre…there’s a case at the superior court affirming that pairing.  What I don’t recall in 2001 is whether Valdez stayed in the ultimate Proclamation Plan or if it came out as a consequence of other? changes.  The court was ok with the Valdez-Anchorage pairing, but not ok with the entire plan so then . . . I just have to pull up the 2001 Proclamation Plan . . .

And then in the litigation about the current pairing of Valdez with Mat-Su mostly focused on issues of compactness and the superior court affirmed the district in which Mat-Su and Valdez are paired.  

There’s been a lit . . I believe Valdez has been …… The reason Valdez comes up is it has a large population in an isolated part of the state with significant industry, it doesn’t have any sisters nearby with similar attributes

Marcum:  So you’re saying pairing Valdez with either Anchorage or Matsu would overpopulate both of those districts and therefore they would be underrepresented. Is that ??? understanding of the numbers? [NOTE:  That isn’t at all what he said, he merely spoke to the fact that they were accepted by the courts in previous proclamations.]

Binkley:  I guess to what extent . . .

Marcum:  ?? We’ve done the Anchorage and Mat-Su ???? And the numbers were 2-2.5 % over, right?, and as I said it would be about the same for Anchorage

Bahnke:  The difference between the two to me though is a matter of compactness and contiguity.  It makes more sense to me to pair Valdez with the lesser of the two options.  Difficult options I guess.  And we have to look at compactness and contiguity

Marcum:  I think that ???

Bahnke:  deviations are …

Marcum:  ??? Compactness and contiguity in the past, right?,

Singer:  The Superior Court in 2001 allowed. . . My recollection of …. There was Valdez, across Prince William Sound and a path sort of following the caribou route out past Whittier and on into South Anchorage.  The Court allowed that district.

[I think he's mixing this up with a ruling about Valdez and Palmer.  To my knowledge there is no caribou route from Valdez to Whittier to Anchorage. But there are caribou along the Glenn Highway between Tok and into Mat-Su.]

Bahnke:  And the courts allowed for both ?

Singer:  [Nodding his head[ and Valdez is currently paired with Mat-Su.

Bahnke:  So when you compare the two, since they’ve both already been identified as being compact and contiguous and socially-economically integrated, the deviations are similar, 

7:30 

but pairing them with Mat-Su is more compact and contiguous than with Anchorage, am I correct?

Singer:  I’m not comfortable giving on the fly a legal opinion about which of the two options better meets the constitution.  I’d have to look.   I think what I would say is they’re both  likely constitutionally permissible options.  I’m not sure I could grade one, without really looking but they are both available options to the Board, so the Board should be considering  relative population and the relative socio-economic, pattern of socio-economic integration that results, so what is the [ripple?] effect of one choice over another.  Makes sense to the rest of the Board’s plan?  

Marcum:  I had a question but then I lost it.

Borromeo:  Mr. Chairman

Binkley:  Yes, Nicole.

Borromeo: Thank you.  I've actually drawn a map early on that would do exactly what Bethany asked, about pairing Valdez with Anchorage.  It is possible.  It is also very difficult to absorb that population into the districts of Anchorage, keep neighborhoods,  school districts,  etc. tight as they are, might not be …  It sacrifices compactness and also at the end it really came to a policy call in terms of Valdez having no road to Anchorage , connectedness isn’t there in the same way it is to the Valley.  Yes you can drive down into Anchorage.  But when you look at that district, District 9, Bethany, and how it would be over to Valdez, there is no road between D9  … and Valdez.  You would have to drive through 18 other districts at least to get to there, so I believe that contiguity piece and that compactness piece weighs  more heavily in favor of pairing Valdez with the Mat-Su.

10:12

Marcum:  ??????   I know we have testimony from the City of Valdez in terms of a resolution from their elected officials and then we have testimony from their attorney saying they oppose having  Mat-Su with them.   Do we have anything from Anchorage addressing the possibility of Valdez being combined with Anchorage?

Borromeo:  Not to my knowledge, but again in none of these six plans did we ever presented as an option so I don’t see that they would have known to be commenting on it.

Marcum:  It wouldn’t hurt to ..  something combining?? Anchorage and Valdez

???:  There is testimony from Mat-Su about ???  

Bahnke:  Did Valdez at all about being paired with Anchorage?

Marcum:  They were 100% unanimous about not being paired with Mat-Su

11:43

Borromeo:  

Marcum:  I’ll just say that I’m not ???  Making decisions on Anchorage until ??? These other things that might influence Valdez.

Simpson:  I feel that ???? Get Anchorage squared away… Valdez …..

Borromeo?:  I like that plan.

Binkley:  I know this relates? To Fairbanks.  Nicole and I didn’t have enough time.  Looking at Fairbanks … comfortable… solidify Fairbanks and move on to Anchorage.

So they then went to Anchorage.

14:55

So, basically, the discussion was about what courts have said about the constitutionality of pairing Valdez with either Anchorage or Mat-Su (attorney Matt Singer said both had been ok with previous courts) and Marcum raises the issue of the unanimous testimony against the pairing from the Valdez government and people.  The fact that no one really responded to Marcum about Valdez' opposition to being paired with Mat-Su somewhat belies their claim to having listened to the public.  It might also reflect their conclusion that Singer said out loud, that Valdez is a difficult community for redistricting Boards.  

#2 LIST OF VALDEZ ISSUES AND EVIDENCE

The lawsuit's paragraphs are numbered consecutively.  There is a list of 28 allegations in the Allegation section (14-42).  Then later there's a list of specific claims Valdez is making against the Board.  It would be easier for the average reader to have the evidence presented in the Allegations section more directly linked to the Claims section.  I've gone through the Allegations and grouped them for you.  (Well for me, so I could make sense of them.)

# 14 is procedural - includes the previous paragraphs into the allegations

#15-20 discuss the Board's constitutional requirements and steps it took to implement them - and up to Map v3, Valdez had no problems

#21-22 Map v4 - Valdez surprised to be paired with Valdez and cut out of Richardson Highway and submitted Valdez Option 1 map to the Board

Then we get different allegations - 

#23  claims the Board did not fulfill its obligations to inform the public and solicit feedback and listen to feedback

[My comment:  Most of the allegations seem accurate to me.  But this one is hard for me to swallow.  This Board posted far more information on its website than the previous Board and Board's before that didn't even have websites.  The Board made all meetings available on line or by phone.  All the maps were posted on line as soon as they were available to the staff.  The previous Board brought physical maps to their public hearings around the state which the local folks didn't see until they were pinned to the wall.

The one point that I would agree with, as it relates to Valdez, is not listening to feedback.  This is true about Anchorage and West Fairbanks too, among other places.  But looking at the comments made by Valdez residents that are posted online, it's clear they had no effect on the Board's final decision.]

#24 No opportunity to comment on Senate pairings and truncation  [True for everyone.  Even some of the Board members' comments were ignored rather than discussed.]

#25 Notes that Board did Final Proclamation plan and links to district Valdez ended up in connected to Mat-Su and disconnected from Richardson Highway communities.  [It's true]

#26-41 list all the connections Valdez has with the Richardson Highway corridor up to (in some cases) Fairbanks - the Oil Pipeline, DOTPF headquarters, deep water and small boat harbors that serve business and recreational needs, electricity and phone utilities, PWS community college, KCHU public radio  [This is a powerful argument about socio-economic integration between Valdez and the Richardson Highway communities and even up to Fairbanks.  It would seem the Board would have to prove these aren't true or that there are roughly equal ties to Mat-Su.  But the Board has to balance three main criteria - SE Integration is just one.  But they talk about the others below.[

#42 points out that Valdez has none of these socio-economic connections with Palmer

[It seems that the Board has to show at least some important connections to Mat-Su to counter this.]

So that gets us to the specific claims Valdez makes:

As I said, this is a little tricky because the suit itself has a section on Allegations with 28 allegations (14- 42).  Valdez does include all these with the specific claims but you have to make the connections between the allegations and the claims yourself.  One has to go through these 28 allegations and match them to the specific claims.  I’ll try.  

First Claim - Violation of the Open Meetings Act

43-48     http://www.touchngo.com/lglcntr/akstats/statutes/title44/chapter62/section310.htm

43. Paragraphs 1 through 42 are incorporated as if fully set forth herein.   [See Above]

44. The Board, as a governmental body of a public entity of the state, is subject to the requirements of AS 44.62.310-320 (“Opening Meetings Act”). The deliberations and decisions of the Board are activities covered by the Open Meetings Act. [Undisputed]

45. Upon information and belief, the Board has violated the Open Meetings Act in the following ways:

(a) It conducted deliberations in secret.  [There are two ways this seem to have happened:

1.  The Board had very lengthy Executive Sessions at different times.  Executive session may (by law) only be held for a few issues.  Those are the only things that can be discussed in ES. They aren't legally allowed to stray into topics that should be on the public record.  It seems hard for me to believe that the lengthy executive sessions they had at the end didn't stray into areas that should have been discussed in public.  Even attorney-client privilege is not so far reaching that everything an attorney tells their client should be confidential.  And, in this case, an argument can be made that all Alaska residents are clients of the Board's attorney.

2.  It is seems very likely that at least two of the three GOP appointed Board members had meetings with members of the public to get help in making their maps.  When I requested Board members publicly declare who helped them with the maps, only Borromeo and Bahnke stood up in public and said they only got help from staff and other Board members.  Binkley, Simpson, and Marcum should be asked under oath who they got help from making their maps.]

(b) It failed to properly conduct votes. [Things got a little loosey-goosey toward the end.  Any semblance of Robert's Rules of Order fell apart as I've specifically described on this blog in terms of the allocation of terms after truncation.  The motion wasn't ever a proper sentence.  As I pointed out, after the vote, if all the Board members had been asked, separately, to write down what the motion was and how it would be implemented, they'd have all written down something different.]

(c) It conducted a serial meeting. [I'm guessing here that 'serial meeting' refers to the five day meeting November 1-5.  The Board posted an agenda for Monday.  When I talked to the Board's Executive Director (a staff person) about how ambitious that seemed, he agreed and said what they didn't get done that first day, they'd do the rest of the week.  That was the agenda for the rest of the week, which included work sessions -which you could watch and sometimes hear - where the Board worked on making maps.  It also included lengthy Executive Sessions, and the 15 minutes they spent talking about Valdez at 1pm on the 4th.  That discussion is not reflected in the minutes (also just one set of minutes for five days), but you can see it on the video.  But finding it is not easy.  I was able to find it quickly because I had taken notes of most of the meetings and searched them for Valdez.]

(d) It withheld documents from the public that were used in formulating the final redistricting plan. [I'm not sure about what they are talking about here exactly.  However, Marcum's pairing of Eagle River House districts with downtown Anchorage and south Muldoon instead of with each other came out of the blue.  And clearly there had to be some planning in order to get the allocation of Senate terms to work out as they did. Perhaps they're referring to where v4 came from - the map that paired Valdez with Mat-Su.]

(e) It failed to clearly and with specificity state the subject(s) of each executive session or its reasons for addressing the subject(s) in executive session. [This is something I've mentioned on the blog various times.  Early on - like December 2020 or January 2021, the Board just went into Executive Session without saying why.  I emailed the Board Chair and at the next meeting when they went into Executive Session they carefully cited the law to explain why they went into Executive Session and what the topic was.  But as time went by they got sloppier.  They'd cited the whole law, not the specific part that was related to that particular Executive Session, and they didn't identity the topic or why it was covered by the law.  And the last couple of days they spent hours in Executive Session without us clearly knowing why - vaguely Attorney-Client privilege.]

46. Plaintiffs and others have been harmed by these violations.  [That goes beyond my reporting on the Board.  I've thought about - when the AFFR map cut my neighborhood in half - exactly how I might be harmed if that were adopted.  If Valdez were separated from the Richardson Highway districts, one could argue they would have access to their representative and also to the representative for the Richardson Highway district.  We just assume all these interests should be together.  But, of course, at some point, geographical distance and many competing communities make it hard for representatives to represent their district well. More important though than my opinion is the Alaska constitution which requires districts to be socio-economically integrated.]

47. As a result of these violations, the actions of the Board resulting in adoption of the final redistricting plan including senate pairings, should be voided.

48. The Board’s proclamation of redistricting should similarly be voided, as it was based solely upon the redistricting plan.

My Comments:  

Second Claim - Violation of Article VI, Section 6

49 - 55  [I've copied that section of the Constitution below;]

§ 6. District Boundaries

The Redistricting Board shall establish the size and area of house districts, subject to the limitations of this article. Each house district shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.

[Rereading this now, I recall how AFFER used a lot of geographic featureas - like Campbell Creek - in its maps.  But the Constitution doesn't actually say they should be used in determining the districts, but rather in describing the districts, which is done when the Board staff wrote up the metes and bounds.   I suspect the Valdez attorneys will argue that their district is neither compact nor contiguous - given that they have to go through another district to get to the rest of their district in Mat-Su.  That will also be an argument against the Anchorage Senate pairings with Eagle River.  But I suspect that the Board will argue that Valdez districts that stretch up around Fairbanks are hardly compact either.  The map that Valdez offered the Board is more compact, but will require remapping a lot of other districts.  But given all the other challenges, that could happen anyway.  The Board will also argue that they had pressure from the Doyon Coalition to get Native villages aligned with the other villages from their Regional Corporations.]

Third Claim - Violation of Article VI, Section 10

56 - 59  

(a) Within thirty days after the official reporting of the decennial census of the United States or thirty days after being duly appointed, whichever occurs last, the board shall adopt one or more proposed redistricting plans. The board shall hold public hearings on the proposed plan, or, if no single proposed plan is agreed on, on all plans proposed by the board. No later than ninety days after the board has been appointed and the official reporting of the decennial census of the United States, the board shall adopt a final redistricting plan and issue a proclamation of redistricting. The final plan shall set out boundaries of house and senate districts and shall be effective for the election of members of the legislature until after the official reporting of the next decennial census of the United States.

(b) Adoption of a final redistricting plan shall require the affirmative votes of three members of the Redistricting Board. [Amended 1998]

[The Board did this - I'm not sure what is different here from the other claims they made.  While Valdez complains in allegations 20-22 that they didn't respond after v3 came out because it was fine, they were surprised by v4.  But v3 and v4 came out at the same time and there were 60 more days to complain.]

Fourth Claim - Violation of Article I, Section 1 (Equal Protection)

60-62

§ 1. Inherent Rights

This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry; that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the State.

[I'm not sure how Valdez intends to use this in the case - except maybe to say their equal rights are being violated somehow by the way their district was drawn.  But it is useful to be reminded of the final clause that says all persons have corresponding obligations to the people and to the State.]

Fifth Claim - Violation of Article I, Section 7 (Due Process)

64 - 68

§ 7. Due Process

No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.

[I suspect they are going to argue here that the lack of an open process has deprived residents of Valdez their due process to influence the shaping of their district.  Clearly the Board did not heed the unanimous opinion of the Valdez commenters that they wanted to be with Richardson Highway and not with Mat-Su.]

RELIEF

WHEREFORE, Plaintiffs pray that this Court:
1. Enter a judgment declaring the Board’s redistricting plan promulgated pursuant to the proclamation dated November 10, 2021, to be in violation of the Open Meetings Act, Article VI, Sections 6 and 10 of the Alaska Constitution, and the equal protection clause and the due process clause of the Alaska Constitution; 

2. Enter a judgment declaring the Board’s redistricting plan promulgated pursuant to the proclamation dated November 10, 2021, to be null and void; 

3. Enter an order enjoining the State Division of Elections and the State of Alaska from conducting any primary or general election for state legislative office under the Board’s redistricting plan, or otherwise taking any step to implement the plan; 

4. Enter an order requiring the Board to promulgate a new redistricting plan consistent with the requirements of the Alaska Constitution or, in the alternative, enter an order correcting errors in the Board’s redistricting plan;
5. Enter an order declaring Plaintiffs to be public interest litigants as constitutional claimants and awarding costs and attorney’s fees;
6. Enter an order for such other and further relief as may be just and reasonable. DATED this 10th day of December, 2021. 

[Valdez isn't simply asking the Board to fix Valdez' district.  They are asking that the whole redistricting process be thrown out and started over.  Given the 90 day process we just went through, if this were to happen, the new maps wouldn't be ready in time for the 2022 election and the law requires that the election use the current map which, theoretically, the courts would have declared invalid. At least that's what has happened in the past.  But here's what the Constitution says: 

 "The final plan shall set out boundaries of house and senate districts and shall be effective for the election of members of the legislature until after the official reporting of the next decennial census of the United States."

But one could argue that it says "the final plan" and if the court requires the Board to redraw the maps, the first proclamation map drawn wouldn't be the final plan.  Further, one could argue if it were the final plan, it would have to be used until the next decennial census and thus, a new final plan couldn't be drawn up until then.  But you could also argue that the whole point is to reapportion the districts so they are all equal size and thus the Board's proclamation plan does make the districts more equal in size than the 2011 plan.

If this were the only challenge to the Board, I would say that the courts would, if they find Valdez' arguments compelling,  at best, require the Board to get Valdez into the Richardson Highway district and whatever other changes would be needed as a consequence of changing that district.  But there are other challenges so a larger change may be called for.  Though I think the Anchorage Senate pairings could be remedied without consequences outside of Anchorage.  We'll see.  Wednesday is the next court hearing.  My granddaughter and her parents will be gone by then and I shouldn't forget it this time around.]

BRENA, BELL & WALKER, P.C. Attorneys for Plaintiffs 

By
Robin O. Brena, ABA No. 8511130 Jake W. Staser, ABA No 1111089 Laura S. Gould, ABA No. 0310042