Findings of Facts and Law Are In - Sort Of Like A Map Of All The Plays For The Redistricting Super Bowl

The Findings of Facts and Law were due yesterday from the five plaintiffs and the Board.  They showed up late this afternoon online.  I'm starting to lose track of things.  I thought the closing arguments were due, since they'll be presented in court tomorrow.

Way too much for anyone to read tonight. Probably not necessary

But to give you a sense of what's in these, I'm offering you a bit of the Skagway Document and a few of my comments.  And further down I opened the Board's document.  I wanted to see if there were five or just one.  Just one.  

INTRODUCTION

The legislative history of that amendment includes comments from an aide to one of the Resolution’s sponsors, who explained: “It’s not supposed to be an adversary system. It’s a system of cooperation.”2

Not sure what this point is about other than the Board got very adversarial in regards to the Eagle River pairings, but that's not the Valdez case.  Brena did point out that Board member Borromeo offered a different plan for Skagway.  Board member Simpson, when questioned by Brena said Borromeo's plan was "an exercise" and nothing more.  Brena added more evidence that it was more than an exercise.   

Under article VI, section 8, the Board shall consist of five members, all of whom must be residents of the state for at least one year, and none of whom may be public employees or officials at the time of their appointment or during their tenure on the Board.3Appointments are to be made without regard to political affiliation.4 The chair is selected

I think this is significant and we'll see where Brena takes it.  He did get Simpson to say in court that he was chosen for the Board because "I was a Republican from SE Alaska, and they're few and far between."  The point being he was chosen WITH regard to political affiliation.  

The requirements for the redistricting process are set forth in article VI, section 10. The Board must adopt one or more proposed redistricting plans within 30 days of the reporting of the decennial census. The Board must then hold public hearings to obtain public comments on the proposed plans. Finally, the Board must adopt a final plan no later than 90 days after the reporting of the census.10

I'm guessing this is to argue that the Board had an obligation to pay attention to the public - which in Skagway, Valdez, and the East Anchorage cases - was counter to the Board's ultimate decisions.   Brena also asked at one point:

Brena: Fair to say don’t need public process if person doesn’t listen? 

Simpson:  Fair

There is similar argument being made about the Board ignoring testimony in the Eagle River pairings - again, a different case.  But all the cases are consolidated and overlap.   

In addition, the Board is subject to the constitutional requirement of due process under article I, section 7.11 The Board is also subject to the Open Meetings Act (“OMA”).12

I think the Board abused the Open Meetings Act, as I explained in a recent post.  Several attorneys have mentioned this fact - particularly on how the Eagle River pairings were made.  I'm guessing this is going to that point.  Though the judge ruled the other day that the attorney client privilege claims he has reviewed in regards to emails were al legitimate.  

In 1992, the Alaska Supreme Court ruled as follows with respect to the redistricting process:

The Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements.13 

In the Skagway case, Simpson reported that he started out by getting the numbers right for the district, beginning in downtown Juneau and moving north.  When he got enough people for one district, he drew the line.  

I suspect Brena will point out that 'the numbers' are a federal requirement and so he should have started with the state requirements - compactness, contiguity, and socio-economic integrity - not the numbers.  

Skipping along, after discussing Board meetings and the steps taken, there is a brief discussion about the v1 and v2 being completed by the 30 day deadline.  But that v1 and v2 were, a week later, replaced by v3 and v4.  That V4 was never discussed and was entirely new 40 district map.  This raises the possibility of claiming that a) creating v4 was done secretly and b) it was entirely new  and c)  that it thus didn't meet the 30 day deadline to draw it and the public didn't have 60 days to review and comment on it.  This is an important argument for Valdez, but has implications for everything.  

Next the brief goes to general court procedures "regarding 'reasoned decision-making' deliberations":

The D.C. Circuit has also identified four principles to guide the inquiry regarding “reasoned decision-making:” deliberation, transparency, rationality, and evidentiary propriety.84 Regarding deliberation, “[T]the agency must ‘engage the arguments raised before it.’ . . . It follows that an agency’s decision is not deliberative if it fails to ‘respond meaningfully to objections raised by a party.’”85 Regarding transparency, “[T]he agency ‘must, of course, reveal the reasoning that underlies its conclusion.’”86Regarding rationality, “If an agency’s interpretation of a regulation [or constitutional provision] shifts such that the agency is treating like situations differently without sufficient

82 Fed. Energy Regulatory Comm’n v. Elec. Power Supply Ass’n, 577 U.S. 260, 289-95 (2016).

83 Elec. Consumers Res. Council v. Fed. Energy Regulatory Comm’n, 747 F.2d 1511, 1513 (D.C. Cir. 1984).

84 Sierra Club v. Salazar, 177 F.Supp. 3d 512, 532 (D.C. Cir. 2016) (internal citations omitted).

Sierra Club v. Salazar, 177 F.Supp. 3d at 532.

Facsimile: (907) 258-2001 85
86 Sierra Club v. Salazar, 177 F.Supp. 3d at 532.

SKAGWAY PLAINTIFFS’ FINDINGS AND CONCLUSIONS
ITMO Redistricting Challenges, Case No. 3AN-21-08869 CI (Consolidated)

February 9, 2022 Page 18 of 160

BRENA, BELL & WALKER, P.C.810 N Street, Suite 100 Anchorage, Alaska 99501 Phone: (907) 258-2000 Facsimile: (907) 258-2001

reason, the court may reject the agency’s interpretation as arbitrary.”87 And regarding evidentiary propriety, “[R]easoned decision-making also precludes the agency from offering ‘an explanation . . . that runs counter to the evidence before the agency.’”88

The D.C. Circuit has also explained that “[a]rbitrary and capricious review demands evidence of reasoned decision making at the agency level; agency rationales developed for the first time during litigation do not serve as adequate substitutes.”89

There's lots in this related to the cases.  First, for Skagway, there was no 'reasoned decision making' in public over why Skagway was moved to Mendenhall Valley, away from downtown Juneau.  There was very little discussion on the Valdez case either.  And particularly this is true for the East Anchorage case - the pairing of ER districts.  

And he's pointing out that explanations that happen after the fact to justify decisions in court, don't count.  

We're only on page 22 of 160 pages when they list ISSUES FOR TRIAL

Did the Board violate article VI, section 10 of the Alaska Constitution (Redistricting Process) in the redistricting process used in reaching the Final Plan?

• Did the Board violate article I, section 7 of the Alaska Constitution (Due Process) in the redistricting process the Board used in reaching its Final Plan?

• Did the Board violate the Open Meetings Act (OMA) (AS 44.62.310-.312) in the redistricting process the Board used in reaching its Final Plan?

• Did the Board violate article VI, section 6 of the Alaska Constitution (District Boundaries) with the Final Plan?

• Did the Board violate the Hickel Process by considering racial data and VRA compliance prior to drafting a redistricting plan based upon the constitutional criteria for redistricting?

• Did the Board violate article I, section 1 of the Alaska Constitution (Equal Protection) with the Final Plan?

Then the document goes through each of these in more detail.  For example, the first one (article I, section 7 is the one that says the plans have to be completed in 30 days.

In his Memorandum and Order on the 2001 redistricting cases, Judge Rindner held that “Article VI, Section 10 requires that public hearings be held only on the plan or plans adopted by the Board within thirty days of the reporting of the census.”103 The Alaska Supreme Court affirmed this holding.104 

Trial concludes tomorrow with each party giving closing arguments.  These Conclusions of Fact and of Law were due on the 9th and only posted online sometime today.  I checked a few times this afternoon and didn't see anything until I checked a little after 5pm (Alaska time).  The judge has had them since yesterday.  But he'll have them to review further as he writes his decision.  

The Board has offered 184 pages in its Findings of Facts and Law.  

On page 3 of 184 the Board gives us this information:

6. Several members of the Board are life-long Alaskans, and the Board brings over 200 collective years of experience in and throughout Alaska.16

7. In August 2020, the Board elected John Binkley as the chair of the Board.17 Binkleyisathird-generationAlaskanandriverboatcaptain.18 Bornandraised in Fairbanks, Binkley and his wife started a tug and barge business on the Lower Yukon in St. Mary’s, Alaska in 1977.19 Binkley lived in Bethel from 1978 through 1990, and was elected to represent a Bethel-centered house district and then a senate district that covered 225,000 square miles, included 74 different communities and 11 different school districts. Mr. Binkley’s senate district stretched from the Canadian Border east of Fort Yukon to Nunavik Island in the Bering Sea.20 In 1990, Binkley moved back to Fairbanks, and has since that time, among other things, served on the board of the Alaska Railroad, ran for governor of Alaska, and started the Alaska Cruise . . .

The description of Budd Simpson goes to the end of page 5 of 184.  Three pages of biographies.  Seems like filler to me.  Binkley's knowledge of interior Alaska is impressive.  But it doesn't explain why he insisted to almost the end that Fairbanks should remain in five overpopulated districts or why he didn't know that the Board's attorney was Athna's attorney in two cases currently pending before the Supreme Court when he got advice about carving out the Ahtna community of Cantwell from the Denali Borough and putting it with all the other Ahtna communities into D36.  

On the other hand, it's reasonable that Singer wants to be sure the Supreme Court justices know that the Board members have extensive Alaska experience.  But surely what is missing from Bethany Marcum's bio is more significant that what is there:

10. Member Bethany Marcum has been an Anchorage resident for 26 years.30 She has served in the military for 20 years, and has lived in various neighborhoods throughout the Municipality of Anchorage and has traveled extensively in Alaska for work and military exercises.31 Marcum has served in the Air National Guard since 2008, originally stationed at Kulis Air National Guard Base and now at Joint Base Elmendorf Richardson.32

There's no mention of her conversion to Libertarianism, her time spent as a legislative aide to then Sen. Dunleavy, and her position as executive director of the of Koch funded lobbying group the Alaska Policy Forum.  

OK, I'm done for tonight.  There's way too much for anyone to read.