Redistricting : "Socio-Economic Integration" In Hickel v Southeast Conference

I wanted to do a post suggesting the Alaska Supreme Court rethink their rulings on Socio-Economic Integration.  Then I went back and read all of Hickel v Southeast Conference.   I'll lay out my argument at the end of this post, but first let's look at what the Court has actually said about socio-economic integration.   I think they probably have it right. 

I want to start with what we heard at the Board meetings.  

If you listened in to Alaska Redistricting Board meetings, you would think that all the Supreme Court has said about socio-economic integration (SEI) was this:  

Everything within a borough or city boundary is SEI.  

We heard that over and over again.  That's why south Muldoon and Eagle River can be paired.  Or why community councils districts in Anchorage don't matter.  They're all socio-economically integrated.  That was Board attorney Matt Singer's constant refrain when it came to SEI.  Member Marcum repeated it regularly until she started using SEI to justify pairing  Eagle River and Muldoon even though they are both within the Borough boundaries. 

What Board Attorney Singer Told The Board

We don't know what Singer told the Board about past cases on August 23, 2021 because it was in Executive Session.  What he said in public prior to that was (2.28-2:31 on video)

"We'll be meeting in Executive Session to review my legal memorandum and opinion and under Alaska law, law legal opinions are privileged and the reason for attorney-client privileges is to be able to have confidential discussions and for me to give my best legal advice.  What we'll be reviewing are things available to, my opinions are confidential but I can review for the public the key places where members of the public are interested can go to look at the information that will guide the Board's decisions, so 

Article 6 of the Alaska Constitution, specifically section 10 dictates the  timing for this process and many of the substantive requirements for the Board to consider are also in Section 6 of the constitution.  And then, in addition, the Alaska Supreme Court each time there's been a redistricting process there's been litigation.  Through that process the Alaska Supreme Court established what I call a set of guardrails or guidelines for the redistricting board, that include the process by which this must be done, and direction for things like deviation  of population, how the Voting Rights Act should be considered in light of Alaska's Constitutional requirements.  And also the Alaska Supreme Court Decisions have come out each of these ten year periods are another source of information for the public.  Those are available, there are public websites,  Findlaw.com is one.  The public can search those cases from the Alaska Supreme Court that deal with our redistricting process.  Without getting into my confidential advice, the public should understand we'll be guided here by the Constitution and the Alaska Supreme Court and that's all information that's available to you and we invite the public to read along and follow along as the Board makes decisions."  

Next member Borromeo moved: 

I move we transition into ES 44.62.3 Subsection 4 Matters that involve consideration of records that are not subject to public disclosure and I want to note for the record that no action will be taken in Executive Session

Last time I looked, the Alaska Constitution and the Supreme Court decisions are all documents in the public record.  But Singer has a broad sense of Executive Session.   At one point he said something like, "You can't go in and out of ES because you say something that isn't protected."  

I did a whole post on attorney-client privilege because it's come up in this trial.

Well, actually you can and it's what the law requires.  It's just not as convenient. You have to plan better.   I'm not  completely sure how what he tells the board about his opinion is confidential here.  

From Governor Dunleavy's Memo on the Open Meetings Act

What effect does attorney client privilege have in dealings between a public entity and its attorney?

Executive session procedure requires that the reason for calling the executive session is clearly stated. The attorney- client privilege exemption to the Open Meetings Act is limited to matters where public interest may be injured. This might include how to avoid legal liability, litigation strategies and candid discussion of facts, a proposed settlement conference, and a conference on a decision to appeal.

The emphasis is on "where matters of the public interest may be injured.  All the other examples MIGHT be reasons, are NOT automatically exempted.  There were no litigants at the time, what sort of legal liability strategies would he discuss other than 'obey the law' at this point?  There was no settlement to discuss.  

This was his interpretation of these documents which would be useful for the public - which the Board represents - to hear.  Especially for those third party map makers that Peter Torkelson had just said were important to the process before this.  [I'd note that while doing this post, I found a page on the Board's website that lists all the Constitutional language as well as Hickel v Southeast Conference language and links to the cases.  While I prowled the Board's website regularly over the last year, I don't recall seeing this page. Got to it googling Hickel v Southeast Conference.  I'm guessing Board Executive Director Peter Torkelson at some point put this up - after this August 23 board meeting.  Peter was relentless about giving the public as much information as possible.]

I'd note that Michael White, the attorney for the previous redistricting board did publicly discuss, on March 17,  2011, what the constitution and the prior court cases had said.  Singer didn't even give the public a list of the names of the cases.  

Misuse of executive sessions has been mentioned as an issue in these lawsuits.

But let's move forward.  

In reviewing Hickel v Southeast Conference I found the Court to be much more subtle about what Boards need to consider than "All parts within a Borough boundary are SEI."  

Here's the section of the decision that focuses on SEI (though it comes up frequently in other parts of the decision as well.)

3. Socio-economic Integration.

In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote.

This is a fundamental part of the Valdez and Skagway cases.  That the Board's map dilutes the power of the Valdez and Skagway voters by putting them into districts where they are a small minority among people who do not share their interests in crucial issues that they would like their legislator to support.  I'd say it's a critical part of the East Anchorage case, but that case was hardly argued at all in public and Holly Wells didn't have things lined up as neatly as Brena.  In part that was because she went first and because much of the evidence she was hoping to get wasn't released to the judge for review until after she presented her case.  Continuing with Hickel:

[W]e should not lose sight of the fundamental principle involved in reapportionment — truly representative government where the interests of the people are reflected in their elected legislators. Inherent in the concept of geographical legislative districts is a recognition that areas of a state differ economically, socially and culturally and that a truly representative government exists only when those areas of the state which share significant common interests are able to elect legislators representing those interests. Thus, the goal of reapportionment should not only be to achieve numerical equality but also to assure representation of those areas of the state having common interests.

Again, what was argued vigorously by Brena in the Valdez and Skagway cases.   

Groh v. Egan, 526 P.2d 863, 890 (Alaska 1974) (Erwin, J., dissenting).

We have looked before to the Minutes of the Constitutional Convention for guidance in defining "relatively integrated socio-economic area." Kenai Peninsula Borough, 743 P.2d at 1360 n. 11; Carpenter, 667 P.2d at 1215; Groh, 526 P.2d at 878. The delegates explained the "socio- economic principle" as follows:

[W]here people live together and work together and earn their living together, where people do that, they should be logically grouped that way.

"Do they live together, work together, and play together?" We heard that over and over in the digital courtroom.  The board conceded that Mat-Su and Valdez people don't live together, but argued that they work together (both have oil workers, but no numbers were provided).  Valdez folks said their people work on the pipeline and Mat-Su oil workers work on the slope.  So no, they don't work together.   And  to show they play together the Board argued they both hunt caribou off the Glenn Highway.  The Valdez official when asked if he hunted caribou there said he did, but with friends from the Richardson Highway area, not with people from Mat-Su.  So no live, work, or play.

3 PACC 1836 (January 11, 1956). Accordingly, the delegates define an integrated socio-economic unit as:  an economic unit inhabited by people. In other words, the stress is placed on the canton idea, a group of people living within a geographic unit, socio-economic, following if possible, similar economic pursuits.

3 PACC 1873 (January 12, 1956).

In order to satisfy this constitutional requirement, the Governor [Legislation creating a Board didn't happen until 1998]  must provide "sufficient evidence of socio-economic integration of the communities linked by the redistricting, proof of actual interaction and interconnectedness rather than mere homogeneity."

The Board regularly argued about similarities - homogeneity - and didn't offer much proof of actual interaction and interconnectedness.   

Skagway went to great lengths to describe all the work connections between Skagway and downtown Juneau, NOT the Mendenhall Valley.  Valdez did the same with their connections along the pipeline corridor.   

Kenai Peninsula Borough, 743 P.2d at 1363. In areas where a common region is divided into several districts, significant socio- economic integration between communities within a district outside the region and the region in general "demonstrates the requisite interconnectedness and interaction," even though there may be little actual interaction between the areas joined in a district. Id. (declining to draw a fine distinction between the interaction of North Kenai with Anchorage and North Kenai with South Anchorage). "The sufficiency of the contacts between the communities involved here can be determined by way of comparison with districts which we have previously upheld." Id. A district will be held invalid if "[t]he record is simply devoid of significant social and economic interaction" among the communities within an election district. Carpenter, 667 P.2d at 1215.

In our previous reapportionment decisions we have identified several specific characteristics of socio-economic integration. In Kenai Peninsula Borough, we found that service by the state ferry

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Hickel v. Southeast Conference 846 P.2d 38 (Alaska 1993)

system, daily local air taxi service, a common major economic activity, shared fishing areas, a common interest in the management of state lands, the predominately Native character of the populace, and historical links evidenced socio- economic integration of Hoonah and Metlakatla districts with a hypothetical completely unintegrated area, as if a district including both Quinhagak and Los Angeles had been proposed. We decline to adopt petitioners' interpretation of this provision.

"Relatively" means that we compare proposed districts to other previously existing and proposed districts as well as principal alternative districts to determine if socio-economic links are sufficient. "Relatively" does not mean "minimally," and it does not weaken the constitutional requirement of integration.

B. EQUAL PROTECTION.

"In the context of voting rights in redistricting and reapportionment litigation, there are two principles of equal protection, namely that of `one person, one vote' — the right to an equally weighted vote — and of `fair and effective representation' — the right to group effectiveness or an equally powerful vote." Kenai Peninsula Borough, 743 P.2d at 1366. The former is quantitative, or purely numerical, in nature; the latter is qualitative. Id. at 1366-67.

Simpson argued that he was doing Juneau by the numbers and starting from the south end and moving north.  When he got a full district he stopped.  The fact that he had split the SEI residential neighborhood didn't matter.  He ignored the public testimony to keep the Valley whole and to move the line further south to the Fred Meyer.  Had he done this, then the inhabitants north of the Fred Meyer would have been almost exactly the same number as the Skagway, Haines, and Gustavus population.  And he could have moved them out of the Valley and back into downtown Juneau where they overwhelmingly want to be.  Attorney Robin Brena has obviously read more about socio-economic integration in these cases than just 'everyone in a Borough is SEI."   

The equal protection clause of the Alaska Constitution13 has been interpreted along lines which resemble but do not precisely parallel the interpretation given the federal clause.14 While the first part, "one person, one vote," has mirrored the federal requirement, see, e.g., Groh, 526 P.2d at 875, the second part, "fair and effective representation," has been interpreted more strictly than the analogous federal provision.

13 The Alaska Equal Protection clause provides that "all persons are equal and entitled to equal rights, opportunities, and protection under the law. . . ." Alaska Const. art. I, § 1.

14 The Federal Equal Protection clause provides that "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.Amend. XIV, § 1.

with several other southeastern 47 communities.12 743 P.2d at 1361. *47

12 We did not decide whether these characteristics were specifically necessary to pass muster under article VI, section 6 of the Alaska Constitution. Instead we merely found that a rational state policy existed in effectuating the constitutional mandate of relative socio-economic intervention. Kenai Peninsula Borough, 743 P.2d at 1361.

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In the same case, we found it persuasive that North Kenai and South Anchorage were geographically proximate, were linked by daily airline flights, shared recreational and commercial fishing areas, and were both strongly dependent on Anchorage for transportation, entertainment, news and professional services. Id. at 1362-63.

This sounds a lot like the relationship Brena has painted into the record  between Skagway and downtown Juneau.

Respondent Southeast Conference contends that Districts 1, 2 and 3 violate article VI, section 6 of the Alaska Constitution. The trial court agreed, finding specifically that "The districts of Southeast are not socio-economically integrated and they easily could have been." We affirm this conclusion.

Again, Brena has argued this very point for Skagway.  The Board put Skagway with an area of Juneau they don't have common ties or interests, but they could have put them with downtown Juneau where they have been the last ten years and where the evidence presented shows "they easily could have been,"

There's more, but you get the point.  And the Board's mantra is there too:

As noted above, a borough is by definition socio- economically integrated. It is axiomatic that a district composed wholly of land belonging to a single borough is adequately integrated.

It's axiomatic - meaning 'by definition - because when Boroughs were set up after statehood, the law said that the people in the boroughs should have the same interests.

From Justia Law - 2001 (Alaska) Redistricting Cases - A more recent case seems to be the source of the Board's mantra:

House District 18 is sufficiently socio-economically integrated as a matter of law because it lies entirely within the Municipality of Anchorage.[8] 

 footnote 8:

"[8] See In re 2001 Redistricting Cases, 44 P.3d at 146 ("Anchorage is by definition socio-economically integrated."); see also Hickel v. Southeast Conference, 846 P.2d 38, 52 (Alaska 1992) ("[A] borough is by definition socio-economically integrated."); id. at 51 (quoting AS 29.05.031) ("By statute, a borough must have a population which `is interrelated and integrated as to its social, cultural, and economic activities.'")."

The point is that when the statue that created Boroughs it defined them as  'integrated as to [their] socio, cultural, and economic activities.'  That appears to be why the Court has said everything within a borough 'by definition' is SEI.  In a recent post I went on to look at the statute.  You can follow that discussion here.

The court does talk about people in a Borough boundary being SEI (socio-economically integrated). At one point "sufficiently" so they could be in a district together.  I didn't see anything that wouldn't accept a different set of boundaries for a  districts within a Borough because the new district was MORE socio-economically integrated than another.

The Court has put a lot of emphasis on the idea that people should be in district with people they share common interests with and who can have a legislator who will represent those interests.  

 

The discussion I wanted to have - before I read more carefully what the Court has said - is this:

No one would argue that every neighborhood in Seattle or Chicago is SEI with every other neighborhood in those cities.  When Alaska became a state, there were about 200,000 people in the whole state.  The definition of a Borough made sense at that time.* 

 Boroughs is what mattered.  But at some point Alaska boroughs/cities will become more like Seattle and Chicago.  At some point Alaska will cross the line on a continuum from" every neighborhood in a Borough is SEI with every other' to  'not all neighborhoods are not SEI within a Borough.'  

I'd argue that we can see that already in Anchorage.  The Skagway case makes that argument between downtown Juneau and the Mendenhall Valley.  Surely parts of Anchorage like Fairview and Mountain View and the Muldoon area are economically and culturally different from Eagle River and from Upper Hillside or Campbell Lake that they need different representatives to insure their vote is able to elect legislators who can fight for their issues in the legislature. 

It seems that the court doesn't  forbid taking into account neighborhood differences, but rather it allows some pairings within a Borough that might not seem to be that compatible if there are no other ways to draw a district.  But I'm guessing here.  I've learned long ago that the law has hidden traps here and there.  But I'd just raise this point - that the Supreme Court explicitly recognize that what was the aspiration for Boroughs in 1961 is not necessarily true in 2022.  I think all the language about SEI in Hickel suggests recognition of that.  

*I wondered to what extent Alaska Natives' interests were considered in those early days.  I couldn't find anything that identified ethnicity of the legislature.  However, Wikipedia tells us:

In 1958 the first senate of the state of Alaska, unanimously elected Beltz president of the first senate of the state.  [Beltz was Inupiaq from Nome]