Your Crib Sheet For Friday's Opening Day Of The Alaska Redistricting Trial

 There were originally five separate cases (links go to the original legal complaints):

• East Anchorage challenged over the Eagle River senate pairings
• Mat-Su challenged over being put into a district with Valdez
• Valdez challenged over being put into a house district with Mat-Su and separated from the nearby communities along the Richardson Highway
• Calista challenged over  Hooper Bay, Scammon Bay, and Chevak being put in a House district separate from that of the City of Bethel.
• Skagway challenged over being paired with the Mendenhall Valley rather than downtown Juneau

The five cases were consolidated into one case.  But the plaintiffs, the Board, and the judge all agreed to have them tried separately to make it easier to keep the issues clear and to establish a record for the appellate court.  Later, they also agreed to have Mat-Su and Valdez combine because the issues are the same and to eliminate repetition of witnesses and testimony.  So that's where we are today.  

The cases will be heard in court in the order I've listed them.  So we start tomorrow and 8:30am Alaska time.  You can listen in on Judge Thomas Matthews' Youtube channel.

Different from most trials, the opening arguments and direct testimony (original questioning of the witness in the court room) was done in writing and submitted to the court before the trial.  This was done to save time because the case has to be done 120 days before the date candidates have to file to run for office - June 1. That is the end of January.  

So, since you won't hear the opening argument in court, I'm going to give you the opening parts of it and if you want to see the rest, you can see the East Anchorage pre-trial brief and opening statement here.   I'd note the lead attorney in this case is Holly Wells of the law firm Birch Horton Bittner & Cherot.  She has done many workshops for state boards on how to comply with the public meetings law in Alaska.  She's also been one of the most succinct and on point attorneys in the pre-trial hearings.  

"I. OPENING STATEMENT

“The goal of an apportionment plan is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation.” Hickel v. Southeast Conference.1 The Alaska Supreme Court in Hickel v. Southeast Conference reminded Alaska’s leaders:

in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving true representation, which, of course, is the very cornerstone of a democratic government.”2

The East Anchorage Plaintiffs will present this Court with substantial evidence that the Board systematically deprived the voters in the East Anchorage communities of interest adequate and true representation in the Alaska State Senate. The evidence will demonstrate that the pairing of House District 21 with House District 22 and House District 23 with House District 24 was arbitrary, unreasonable, and in direct violation of the due process clause of the Alaska Constitution. Both the record and testimony will demonstrate that the Board’s process and procedure regarding the senate pairings violated Art. VI, Section 10 of the Alaska Constitution as well as the Alaska Open

1

846 P.2d 38 (Alaska 1993).

Hickel, 846 P.2d at 44 (quoting from 3 Proceedings of the ConstitutionalIN THE MATTER OF THE 2021 REDISTRICTING PLAN CASE NO. 3AN-21-08869CI

EAST ANCHORAGE’S PRETRIAL BRIEF/OPENING STATEMENT PAGE 2 OF 2401163926.DOCX

2
Convention (PACC) 1835 (January 11, 1956)).

Meetings Act.3 The East Anchorage Plaintiffs will submit evidence both from the record and testimony demonstrating that Board members intentionally misrepresented their considerations of partisan motivations, misrepresented their use of partisan data to select their pairings, concealed their analysis of the risk of dilution in the districts at issue on the basis of race and minority status, misconstrued testimony by East Anchorage community members to serve their impermissible objective, and held secret deliberations and meetings to veil their partisan and discriminatory goals. The evidence will demonstrate that the Board’s intentional pairing of Eagle River districts with East Anchorage Districts favored one geographical area, community of interest, and political party over another despite overwhelming testimony from both communities detailing their lack of shared interests, goals, and commonalities before the Board, and reiterated by East Anchorage witnesses from Eagle River and East Anchorage alike.

Upholding the adopted senate pairings not only muffles the voices of East Anchorage communities of interest, as so aptly stated by Board member Melanie Bahnke, it would confirm for future boards that partisanship and discrimination are “fair game” in the senate pairing realm. Under the underlying principles of the redistricting process, the Alaska Constitution, and the most basic tenets of fairness, the Board’s pairing of the South Muldoon and Eagle River Valley house districts and the pairing of the Government Hill/JBER/Northeast Anchorage and North Eagle River/Chugach house districts cannot stand.

And from Part B:

More specifically,  the evidence will demonstrate the following impermissible Board actions:

1. Holding executive sessions that are not permitted under the Open Meetings  Act (AS 44.62.310, et.seq.);
2. Adopting final senate pairings that were not presented to the public during the public hearing process in violation of Article VI, Section 10 of the Alaska Constitution;
3. Adopting final senate pairings that were not developed in accordance with the guidelines adopted by the Board for development of its final pairings;
4. Adopting senate pairings which the public did not have access to view;
5. Adopting final senate pairings that were not one of the senate pairings options published by the Board for public comment and testimony; and
6. Adopting pairings without regard to public testimony or relying upon misrepresentation of public testimony to justify pairings.

Don't assume this is a slam dunk.  The Board's attorney has done a great job of blocking access to Board members - having them cite attorney-client privilege for many questions during depositions.  He's also managed to delay the plaintiffs' access to transcripts of Board meetings.  He says this is due to the transcription service, but as I watch, the cumulative effect is keeping information from the plaintiffs.  

But I would add for point number 4 here that in neither the initial Board plans nor the modified plans that showed all the House seats, did the Board include Senate pairings.  On the other hand, all the third party submissions did include Senate pairings.  

See you all in court tomorrow.  

[UPDATED January 21, 2022, 10:30pm:  I didn't mean to leave this part (Conclusions) in here.  It was something I'd started on, but decided to put elsewhere and it interrupts the flow of the plaintiffs argument.  Since a number of folks have already seen it, I'll leave it here, but move it down to the end.  My rule is that I can make minor non-substantive corrections but not substantive ones more than an hour after posting, so I'll leave this here.] 

Conclusions:

I'm sticking my neck out here making conclusions before the trial even starts, but this has been a rare opportunity to hear all the pretrial wrangling of the attorneys.  Since this is not a jury trial, no one had to worry about potential jurors listening in.  

Essentially, Singer has been arguing about process and procedure.  He's acted confident in the way he spoke that there was [no] other correct position than his own on attorney-client privilege.  He called the plaintiffs' arguments 'laughable.'  He's stalled in getting the transcripts from the November board meetings to the plaintiff's attorneys.  The plaintiffs' attorneys didn't have that information or the affidavits when the deposed Board members and other witnesses.  He's blamed the transcription service for some of the delays.  He's blamed all the paperwork he needs to get into the court for other delays.  And, that point has some merit.  He's got five separate attorneys filing requests and motions and he has to respond to them all.  But in his firm's proposal to be the attorney for the Board, they talked about all the lawyers who would be available to back him up."