Alaska Redistricting Trial Day 11 - Brena's Redistricting Expert Brace Closes Testimony

 Kimball Brace took the stand again.  He testified as a national expert on redistricting for attorney Brena in the Valdez case and again today for Skagway.  A lot of what we heard was rehashing of old points, but there were a few new ones.  Rather than tediously go through each line of the testimony, let me try to pull out the points I think are significant.

1.  Simpson intended to move Skagway out of Juneau from the beginning

red lines added

I don't recall seeing this from the deposition of Board Member and Valdez mapper Budd Simpson -

"It had always been my intention to make the district more compact and put Skagway and Haines with the north end."

"The north end" means putting Skagway and Haines with the Mendenhall Valley instead of with downtown Juneau.  

This raises two issues I can think of:

• It suggests Simpson had some reason of his own to do this, beyond his stated desire for compactness
• It shows that the public hearings were a sham because he'd already made up his mind and because  the people were overwhelmingly in favor of 
• putting Skagway, Haines, and Gustavus together with downtown Juneau and
• not splitting up the Mendenhall Valley

Compactness is one of the criteria for a Constitutionally acceptable district.  But there are a lot of other districts where compactness seems to have been much less important.

I'd note that it had always been Board Chair John Binkley's intent to keep Fairbanks unbroken, even if a little overpopulated.  But bowed to public pressure.  

2.   Brena posits that the map was done this way to increase likelihood of voters approving a

From AK DOT

road from Juneau to Skagway.  

In previous testimony, Brena raised the point that Simpson's wife had been a strong advocate of a road to Skagway - forming an organization to make it happen and writing articles supporting it and attacking those who opposed it.  And Simpson agreed that he supported the road too.  

Then Brena - who was born and raised in Skagway - had his witnesses over a lot of testimony how such a road would destroy historic Skagway, "The Gateway To The Klondike," and turn it into a truck stop.  They explained how the road from Skagway into the Yukon had taken all the freight business from the Skagway Railroad.  

There had also been testimony that showed in a close vote about whether to support the ferry or the road, the people of downtown Juneau voted for the ferry, but the parts of the Mendenhall Valley voted for the road.  

Kimball Brace, Brena's expert, offered precinct analysis of that vote today to argue that putting Skagway in with this part of Juneau,  and 4000 people from the Mendenhall Valley with downtown Juneau would water down the votes in favor of the ferry in both districts.  

3.  Showed other districts Simpson worked on that aren't compact at all 

Compactness was used as a justification when it was convenient and ignored when it wasn't, seemed to be the argument made here as they tried to show how tiny and compact D3 and D4 (the two Juneau districts) compared, particularly to D36.  This issue of throwing around redistricting criteria as it was convenient but totally inconsistently has been something I've observed from some of the Board members from the beginning.  

[I'd note that the D36 map they used - a redrawn map that Brace had done in response to previous criticism - got intervenor attorney Tanner Amdur-Clark to jump up and yell foul.  He pointed out the map wasn't one they'd seen before.  What I think got his attention is they started talking about the Cantwell cut out that he so carefully engineered and pulled off.  Singer joined the protests and later on when they were discussing exhibits, it was tossed.]

Brace said this was a classic case of cracking  - taking those (in this case pro-ferry) voters and dividing them into two districts would dilute their vote and allow a pro-road group to dominate.  (The Skagway people had argued yesterday and the previous day that being with the Mendenhall Valley, their votes would mean nothing to their legislator who would answer to the much larger group of Mendenhall Valley voters.)

4.  Argued that splitting the Valley and moving Skagway into the Valley destroyed both the socio-economic integration (SEI) of the Valley and the many critical common interests Skagway and downtown Juneau had.  

I've been making comments about the subjective and flexible ways different Board members have used the term SEI.  I did a whole post on the issue recently.  And their reliance on the 1982 [1993]Hickel case that said everything within a Borough boundary is SEI.  I think that declaration made sense when it was made, but there is reason to update that thinking now.  I'll try to make that case this weekend.  

But I think this is a pivotal point that the Board is relying on.  

5.  What I heard the last three days on Skagway

I heard the Skagway side produce a pile of evidence for Skagway being in the downtown Juneau district and for not splitting the Mendenhall Valley.  

• All the public testimony favored it
• The SEI between Skagway and Juneau makes keeping that linkage intact critical for Skagway, but also is very beneficial for downtown Juneau.  
• There was no evidence that anyone besides Budd Simpson favors his changes.
• Sealaska, the SE Alaska's biggest Native Corporation favored Skagway being in downtown Juneau's district.   They ok'd Simpson's realignment when he asked them to.  Oh yeah, he's been their attorney for 40 years. 
• Simpson ignored public testimony because he'd already made up his mind
• Given that testimony and the lack of a compelling reason for the Board's map of D3 and D4, Brena has offered the Simpson family's strong desire for the Juneau-Skagway road as a motive for the rejiggering of Skagway and Juneau districts
• Simpson was appointed to the board because he was a Republican.  That's just dangling there, but I did a post about how blatantly partisan the GOP picks were even though the Constitution says  "Appointments shall be made without regard to political affiliation."   Brena has done anything with that other than raise it, but I expect to see it in his closing argument.  

The Board's arguments were basically

• It meets the other criteria so it's legal
• "It's not a popularity contest"
• SEI is the same inside a borough, so we don't care if people wanted it the other way*
• Making the districts more compact
• Skagway is to the north, so it makes sense to connect them with the north of Juneau

*really, I'm not be snarky here.  This truly reflects Simpson's tone for most of his testimony.  He gave a treasure trove of examples on how to avoid answering a direct yes-no question. I'm thinking about doing a post on that one day.  And it's true that the other side had people who did the same thing.  But there was a difference.  The Skagway folks were trying to explain the nuances that a simple yes or no wouldn't reveal.  Simpson was not doing that.  He was trying to avoid revealing anything that might hurt his case.  That's a big difference.  

There is no slam dunk here.  The Board's district isn't a technical violation of the criteria, even if the evidence is that switching Skagway, Haines, and Gustavus back into downtown Juneau is a better choice and won't have a ripple affect on other districts.  Will Brena's pile of evidence be enough to give the judge enough to legally justify overturning the Board's map of districts 3 and 4?  

After the witness was dismissed, the attorneys wrangled over which exhibits could be entered into the record and which couldn't. 

They also continued a discussion about whether Calista attorney Schecter's offer of a program that would allow the judge (and each other) to overlay maps so they could see differences, say between ANCSA lines and new district lines.  Or school district lines, and other variables.  It was presented as a way to make it much easier to compare maps than looking from one to the other. 

Only attorney Brena balked at this.  He argued that the tool wasn't neutral as the others claimed, that, for example, it was biased by what information was in the maps.  The others countered they are only maps that have already been entered into the case. 

As someone who grew up with Marshall McLuhan's "the medium is the message" I'm sympathetic to Brena's position.  

In the end the judge ruled that since they had decided to keep out interactive evidence such as the Auto-Bound software the Board used to map - because it was dynamic and you couldn't save the record for the appellate court - he was going to say no because the group didn't agree unanimously.  He acknowledged that this tool wasn't interactive in the same way, but he wanted to leave a clear record for the Supreme Court.  After the ruling, if I caught it right, Brena offered to see if his expert could supply their information.  

If I understand this correctly, the attorneys have until February 9 to get their Findings of Fact and Findings of Law.  Closing arguments will be on February 11.  

Looking at Judge Matthews' Youtube channel I see there is a hearing set for Monday, Feb 7.  I have to admit I gave myself a bit of a break while they were talking about exhibits so if they said anything about the Monday hearing, I missed it.