The Legal Equivalent Of Mansplaining

[Note, I was having trouble getting the video segments to start and stop where I wanted, so while I'm leaving this up, I'm also making some changes.  LATER:  I think I've straightened it out.  But I'll be revising through tomorrow if necessary.] 

My last post organized my thoughts about the Supreme Court hearing for the redistricting board cases into three categories:  

1.  PRACTICAL/POLITICAL:  WHAT WILL THE LEGISLATIVE MAP OF ALASKA LOOK LIKE FOR THE NEXT TEN YEARS?

2.  LEGAL:  WHAT LEGAL PRINCIPLES ARE THE ATTORNEYS AND JUDGES DEBATING/WEIGHING AND HOW DO THEY IMPACT #1 AND FUTURE BOARDS?

3.  PERSONAL:  HOW DO THE SKILLS, STYLES, MOTIVATIONS, AND EXPERIENCES OF THE ATTORNEYS (AND TO SOME DEGREE, THE JUDGES) IMPACT THE DECISION MAKING?  

I've realized a couple of things as I struggle to write the follow up posts:

• While I've separated the three categories for clarity of discussion, they are very closely interwoven.  You can't talk about one without the other two.
• There are almost four hours of video tape to repeatedly review to start to get all the points
• There's way too much content here for even hard core redistricting nerds to read and for this blogger to cover
• What I really want to write about most is how the Board's attorney, Matt Singer, presented his case

Writing blog posts - on my own, without compensation - allows me to follow my personal interest and curiosity - the angle of the story that most calls out to me.  No editor assigning stories (or correcting my typos) and no deadlines, except natural ones.  Like getting comments on the trial out before the Supreme Court issues its decision.  If I pair my passion with reason, you - the reader -  get the best posts.  My gut is telling me that the most interesting part of this case, the one that tells us the most, is the Board's attorney, Matt Singer.

Matt Singer is at the heart of this case.  He has been the Board's attorney since early March 2021 when his firm was hired to represent the Board and he has since advised them on the law - constitutional, statutory, and case law.  The Board used his advice to draw the maps, to guide them in and out of executive sessions, and on how to pair the Eagle River house districts into Senate districts.  

And he's the attorney who has been in the spotlight in the Redistricting trials - being the face of the Board as he had to defend it against five different law suits, all with another attorney or more, in one combined case.  

And he doesn't seem to be doing too well.  I say this based on Judge Thomas Matthews' ruling on the case at the Superior Court level.  And I say this based on the questions the Supreme Court justices asked him at the hearing there on Friday, March 18, 2022.  

Law-splaining

I've been closely watching the Alaska Redistricting Board for about 15 months now.  But it wasn't until after the trial, that it finally came to me that Matt Singer spends a lot of time "law-splaining."  This is the legal variation of 'mansplaining.'

So, let's look at a definition of 'mansplaining' from SHRM:  

"Mansplaining—when a man talks condescendingly to someone (especially a woman) about something he has incomplete knowledge of, with the mistaken assumption that he knows more about it than the person he's talking to does."

Those key points again:

1. condescendingly
2. about something he has incomplete knowledge of
3. with the mistaken assumption he knows more about it than the person he's talking to

All three of these apply to Singer's performances in the trials.  I didn't quite pin it down during the trial, though I did comment in a post after his colleague Lee Baxter represented the Board on a couple of occasions.  I wrote: 

"I finally figured out why it's so tedious to listen to him at trial.  There's a smugness in his voice.  Disdain.  He knows the truth and he sounds like he's tired of having to correct all the plaintiffs' errors.  That this all is a waste of his time. (A lucrative waste.) I didn't figure this out until the Calista case today when Lee Baxter took the role of the Board's lawyer.  In contrast, he sounds respectful and sincere as he tries to counter the plaintiff's arguments."  

 So, at least, the condescending part was pretty clear then. [I'm having trouble embedding the part of the video I want.  But it starts at the beginning, so you should listen until he gets to calling Judge Matthews decision absurd.  Then stop and read.  After that you can then play the next few minutes as the judges ask Singer questions.] [I now seem to have got it right and it should stop there on its own and the second section of the video is below.] 

He begins by talking about the court's 'usurpation of the power of the board.'

Then he tells us

 "The first error the trial court made"    was in recasting the core role and purpose of the Board.  In Judge Matthews' interpretation, the Board has no special expertise to make redistricting decisions because its members need only be Alaska residents for one year.  Based primarily  on the absence of a longer residency requirement the trial court opined that the spirit if not the letter of the Constitution compels the Board to adopt  a number of equally constitutional plans and then let the public have a say after which the Board must follow the public's bidding unless doing so would be illegal.  This court has repeatedly said over decades that it will not substitute its judgment for that of the Board.  It's said that its role is to evaluate the plan adopted by the Board, not plans that were possible or preferred.  Implicit in that standard of review is a recognition that the Board and its members have judgement.  They get to exercise judgment.  The trial court's reasoning that it should not exercise its own judgment because the Constitution does not require a longer residency is also factually absurd.

Then he goes on to discuss how the Board appointments are made.  And describes the members as having 200 years of collective experience in Alaska.

So, let's first look at the parts marked in red.  This is just the beginning of Mr. Singer's morning before the court.  He starts out talking about "the first error the trial court made."  OK, this doesn't sound too bad, but he is unequivocally telling the Supreme Court justices that one of their brethren judges has made a number of errors (he'll enumerate others down the line.) and ends this opening by saying the trial court's conclusion is 'absurd.'    The parts in red deal with the "condescendingly" part of mansplaining.  

I get that it's the attorney's job to point out errors in his opponent's argument.  But it helps 

• if you focus on the argument, not the person,  
• if you do it with a little more grace and respect.  
• if the person you complain about actually did what you said he did.  

Singer does none of these.  Absurd is a strong word.  Dictionary.com defines it this way:

"utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense; laughably foolish or false"

He's saying that Judge Thomas Matthews was utterly senseless, illogical, contrary to all reason or common sense, laughably foolish!    

 There are times when 'absurd' is appropriate.  This is not one of them.  Mainly because the judge never said what Singer alleges.  He never said, "The Board must do the public's bidding."  

And he's saying this to the judge's judicial brethren.  It's like bad-mouthing your former employer in a job interview with your potential new employer.  It can't make a good impression.  

Moving to the blue now.  Judge Matthews did say that the Constitution assumes that the Board members don't have special expertise because they're only required to have one year's residency.  But he didn't say that this Board has no expertise.  He didn't say the board 'has to do the public's bidding' because of the one year residency requirement.  

In fact, Mr. Singer cherry picks one idea and takes it out of context to reach conclusions that grossly mischaracterize what trial court Judge Matthews actually wrote.  

Judge Matthews spent a lot of time discussing the role of public testimony and how the Board is to consider it.  He never says that the Board should simply adopt the majority opinion of the public testimony.  Rather, he concludes the Board shouldn't substitute its own personal preferences when they are contrary to the overwhelming majority of public testimony.  Rather than using personal preferences, the judge wants to hear how the facts of each district fit the criteria.   And if the Board feels it must override the overwhelming public testimony, they need to document why.  In this case, the board didn't do that.   

In this section of his ruling, he reviews the minutes of the Constitutional Convention, Judge Matthews quotes Delegate Hellenthal  (I've only copied part of Hellenthal's statement below):

click to enlarge and focus

I doubt Mr. Singer has been asking himself Delegate Hellenthal's question:  "What can I do to help the greater good of the State?"  Rather, it seems he's been asking, "How can I win this case?"  And that is his job in court.  But I don't think he was thinking about the greater good of the State when he was advising the Board either.  

Then he reviews how past Supreme Court cases discussed the role of public testimony:  

And I know this is more than most of you want to know, but I want to emphasize that Judge Thomas Matthews worked hard to find guidance in making his decision.  This isn't just Judge Matthews' perception of how it should.  He's based his conclusions on what the writers of the Constitution discussed at the Constitutional Convention, what the final and amended versions of the Constitution say, and what the Alaska Supreme Court has said over the decades.  He continues.  

Finally, he apples all this to this case.

The blue parts here show the other two aspects of mansplaining - "about something he has incomplete knowledge of" and "with the mistaken assumption he knows more about it than the person he's talking to"

So, what Singer calls 'absurd' is really based on an allegation that Singer himself makes up (known in logic circles as 'a straw man') and is not to be found in Judge Thomas Matthews' ruling.  

Now, moving along to the next part of this video - and this is just about six minutes of the almost four hour session, of which Singer was on almost half the time - I'll let you watch as the judges themselves question Singer's assertions.  

There is one point I would make.  Throughout the redistricting process, Singer has told the Board that the  Courts had found that anywhere within a Borough boundary was socio-economically integrated with any other place within the Borough.  That was his mantra throughout the the process.  Board members - particularly Bethany Marcum - have repeated it as gospel.  

During the trial, after hearing Valdez and Skagway attorney Robin Brena citing the old cases, I had to go back and look at them carefully and realized they were not nearly as blunt as Singer represented to the Board.  There was much more nuanced discussion about the needs of having people's interests represented in the legislature.  I posted what I found here and here.

The justices question Singer over these points. For example:   Does that (all parts of a Borough are socio-economically integrated) mean that the court can't consider gerrymandering within Anchorage?  

I'd also mention that in this section of the video, Singer claims that the South Muldoon district wasn't hurt by pairing it with Eagle River because it's 57% white and it votes Republican two-thirds of the time.  The judges don't address that, so I would point out here:

• 57% white in South Muldoon is very different from the Eagle River districts which are among the whitest districts in Alaska - in the 90% range.  
• Voting Republican two-thirds of the time means they vote Democratic one-third of the time, while the Eagle River districts NEVER vote Democratic.
• There are different types of Republicans.  Eagle River elects Republicans like like Lora Reinbold and Jamie Allard - both extreme Right anti-maskers who are cozy with White Nationalists.  And in comparison to Allard, one of Eagle River's Anchorage Assembly members, East Anchorage is represented in the Assembly by Forrest Dunbar and Pete Peterson, both Democrats, both former Peace Corps volunteers, and strong advocates for masking and LGBTQ rights and other progressive values.  
• When the 2011 Board paired an East Anchorage seat with Eagle River, it effectively ended the state Senate career of Alaska's (then) only black Senator, Bettye Davis, who was beaten soundly by Eagle River voters

Again, Singer is totally mischaracterizing the situation and it sounds like the Justices aren't buying it. 

I think I've made my point here.  I could challenge Singer's comments throughout the hearing like this.  But I'd never finish this post.  But he continues throughout the hearing to mischaracterize what Judge Matthews actually said.

You can find the three videos of the trial (one for each challenge) here.

I'd note (in relation to mansplaining point 3 - 'mistaken assumption he knows more than the person he's talking to -  that Singer (and all the other attorneys last Friday) are citing court cases to three of the judges who helped to write those cases.  Judge Warren Matthews - not to be confused with trial Judge Thomas Matthews - was appointed to the Alaska Supreme Court in 1977 and has heard all the  redistricting board cases  since the 1983 case ,  including the 1992 (Hickel) case, the  2002 case, the  2012 case and the current 2022 case.  Judge Robert Eastaugh was appointed in 1984 and served on the redistricting cases in, 2002 and the current case.  And Judge Daniel Winfree served on the 2011 case as well as the current one. 

I think if I were an attorney, I would let the judges know how intimidating it was to be citing the law that they - particularly Justice Matthews - had been writing and interpreting for 40 years.    

I'd also note that Justices Matthews and Eastaugh are no longer on the Supreme Court and are serving as Senior Justices replacing  two judges who recused themselves.  

I'd make one more observation about how Singer is different from some of the key attorneys of the plaintiffs.  

Singer appears to be less about upholding "the greater good of the State" than he is about winning his case.  He's had the Board in lengthy Executive Sessions that seemed to me - and to plaintiffs and the judge - to violate the open meetings act.  He even gave them their initial overview of the state law and court cases on redistricting in a closed meeting.  (The previous redistricting board attorney did that in public.)

His most successful strategies in the court case, haven't been based on theories of law, but have been ways to block access to documents that plaintiffs wanted.  Even transcripts from the Board's meetings in early November 2021 weren't available until late January or early February 2022, right before the trial started.  (Even though during the trial transcripts were available right after the day's session.)  Yes, the Board's staff got the video of the meetings up by the next day for most meetings.  But going through a video takes much more time than going through a transcript.    And that was due to Executive Director Peter Torkelson's vision and hard work to make sure the public got as much information as was possible.

The email and text communications among Board members were not available until the day before trial.  That made it hard for them to be used in trial.

He also had Board members refuse to respond in depositions and he didn't call the Board's Voting Rights Act expert to be a witness, depriving the plaintiffs the opportunity to cross examine him - which was critical in the East Anchorage case.  

So, blocking the plaintiffs from getting information they needed for their cases was his most successful action as an attorney.  But I also have to acknowledge that this trial made him sort of like a chess player playing five opponents simultaneously.  And perhaps he knows his case is weak and that's why he's doing what he's doing.  

But, if his case is weak, in part that's due to the advice he gave his client.  At least two of the Board members strongly and publicly objected to the Board's final decision on the Eagle River pairings, so maybe the Board didn't listen to his advice there.   Singer's advice to the Board about socio-economic integration and Boroughs, though, was fairly simplistic and in part is why we're in court now.  

However, I'm not going to guess what the outcome of the this case will be. I'm not a regular Alaska Supreme Court observer and I don't know how  judicial questioning of attorneys correlates with their ultimate decisions.  

I'll try to get another post up about the legal concepts and how they could affect future cases.  

I would note that if the Court remands the Skagway and Anchorage decisions back to the Board, and the Board dilly-dallies long enough, the current 2021 proclamation map would be used in the November election - including the Eagle River Senate Pairings and Skagway-Juneau House districts that Judge Thomas Matthews has told the Board to redo.  [Aug 1, 2022 - this turns out not to be true as a wrote in a later post.  The Court can order changes to an interim plan if it chooses. It did that in 2012.]

And there could still be more lawsuits when the Board finalizes that map.  

[March 26, 2022:  The Supreme Court rendered its ruling yesterday.  You can see it on this post.  While Singer lost the fight over the Eagle River Senate pairings, he won the Skagway case. Another change the Supreme Court is requiring (though the trial court didn't) is putting Cantwell back into the Denali Borough.]