Supreme Court's Redistricting Opinion Next Steps. Is Marcum Still On The Board?

The Alaska Supreme Court finally issued its Opinion explaining its reasoning for its earlier Orders.  (Three its in one sentence, sorry, I don't have time to make this pretty.)  See this post for more.  The immediate consequence of the decision is that the Alaska Redistricting Board was given 90 days to object to keeping the interim plan in place for the next ten years.  

For those not up on all these details - probably most people - the Court ruled the Board's last two plans  faulty because of gerrymandering.  So the court made a change in the Board's plan for the 2022 election.   The deadline for candidates to file to run for office was nearing and they needed to know what districts they would be running in.  So, that was the interim plan.  

Most of the state map has been approved and won't be affected.  There are only a few house districts in north Anchorage that could possibly be realigned into different Senate seats.  There is no way the court will allow the Board to make changes that would give Republicans more power in the legislature.  So it would seem that remanding the interim plan back to the Board is just a courtesy, maybe a way for the court to allow the Board to technically approve this plan as the actual plan for the next ten years. 

But that means the Board has to 

1. Reconvene and meet to 
1. approve the interim plan as the final plan, or
2. come up with an alternative within those very narrow options they have left and send it with a rationale back to the court
2. Do nothing and let the 90 days and let the interim plan become the final plan by default
3. 
   

Is Bethany Marcum still on the Board?

At the Alaska Press Club Conference Friday and Saturday, the Court's decision, which was announced Friday morning, was a big topic among some of the journalists who have reported on the Redistricting Board.  

One of the questions that came up was whether Board Member Bethany Marcum was still on the Board.  She's been nominated to the University of Alaska Board of Regents and some speculated that would mean she was off the Board. 

So I emailed Peter Torkelson who still is the Executive Director for the Board.  I asked 

• Is Marcum still on the Board?
• If not, since Governor appointed her, would he be appointing a new member?
• Are all the other members still on the Board?

Peter's normal quick response was that Marcum had resigned on March 23, 2023.  And the legal advisors believe that since the Governor appointed her, he would be the person legally entitled to appoint her successor.  He pointed out that Governor Parnell did that in 2011 for another Board member.  (Even though I covered the Board, I don't remember that at all.  But perhaps it happened early in the process.  I didn't start covering them until about March 2011.)  He didn't mention other members so I assume they are all still officially on the Board.

A new member could be someone who followed the process closely - say a Randy Ruedrich - but there aren't too many people who would really understand all the details and nuances of what the Board has been through.  I mention Randy even though the Court pointed out that the Constitution requires that appointments be made without regard to political party.  I simply don't think that Governor Dunleavy is capable of appointing someone who isn't committed to Dunleavy's political goals.  Unless he believes, as I do here, that there really aren't any changes to be legally made that would make a difference except to shake up a couple of districts and the incumbents of those districts.  

The Board's Eagle River Senate decisions, which passed 3-2, and were vigorously and loudly objected to by the minority members Banke and  Borromeo, were judged by the Court to be unconstitutional gerrymandering.  

I suspect the most dignified thing for the Board to do now would be to meet and vote to endorse the interim plan as the final plan and send their approval to the Supreme Court.  Board Members Marcum and Simpson were the most partisan Republican promoters of the gerrymandering.  The third Republican on the Board, John Simpson, went along with that, but I think he was less committed to that decision than the other two.  

I'd note that during the 2010 Redistricting process I asked then Board Attorney Mike White about a new plan being challenged on gerrymandering grounds.  His reply was that no plan had ever been overturned because of political gerrymandering and he wasn't worried.  Well, this round, the Supreme Court has definitively said that partisan gerrymandering is unconstitutional.  

I'm slowly reading through the Court's Opinion.  My present plan is read through the Opinion and identify what I see as the key points that are new.  Then I want to pull up the post(s?) I've written about what I hoped the Court would address.  Then I can see if they addressed all the issues I was concerned about.  So far, they have addressed the issue of the Governor intentionally appointing Republicans to the Board.  And they weren't just Republicans, they were hard core Republicans with a history of working with the Republican Party.  

I was concerned about how blatant the political appointments were this time round and that if the Court didn't address it, it would become an unenforceable part of the Constitution.  But they did address it - but I have to read more of the Opinion to see how it informs their conclusions.  I suspect it played a role in their deciding that the Eagle River Senate pairings were politically motivated.  

We'll see.  Meanwhile my previous post extracts the outline of their Opinion (all the headings) so you can have something like a Table of Contents of the Opinion.  There's also a link to the decision.  

Just one more piece of trivia.  I've tried to pay attention to follow the Court's language.  Particularly regarding "decisions," "orders," and "opinions."  So I checked online and here's what Cornell's Law School says:

• An order tells the parties to a case or cases something that they should do.  Orders can deal with housekeeping matters, such as scheduling or permission to file a brief, or with something substantive and important, such as whether the case will be dismissed or not.  An order may accompany an opinion or opinions, but if it does not, it tends to be brief and not to offer reasons. It may deal with one or more cases, and may dispose of those cases or not.
• A decision is a loose term for the set of opinions that accompany an order, combined with that order.  There may be more than one case associated with a particular decision.     
• An opinion is a general term describing the written views of a judge or judges with respect to a particular order.  Not all orders--including important orders, and including in both the district courts and the courts of appeals--have opinions.  A single order by a court might produce a zero or more majority opinions, zero or more concurring opinions, zero or more dissenting opinions, and zero or more opinions that concur in part and dissent in part.  It is also possible that a decision produces other documents that are not opinions -- for example, a syllabus, appendix, or summary describing all the other documents related to the decision.

What we got Friday was an Opinion.