Hoping For A Short, Boring Redistricting Board Meeting Monday - Here's Why

Quick Take:  The Board's job Monday is to either accept the Interim Plan as the Permanent Plan OR to 'show cause' why it shouldn't be the Permanent Plan.  

What does "show cause" mean?  Basically, it means they need to give good legal and/or factual reasons why, in this case, the Interim Plan, shouldn't be adopted.  

If the Board Monday has no good reasons to object to adopting the Interim Plan as the Permanent Plan until the next redistricting process in ten years (eight years now), it will be a short meeting.

If Board members feel the need to change the Interim Plan, I expect they will consult with the Board's attorney on how to do this and whether it is likely to succeed. Some, of that discussion, if not all of it, will (but not necessarily should) be held in Executive Session.  (The courts felt they overdid the Executive Session leading up the the Interim Plan.)

If they decide that they want to "show cause"  I expect they will either discuss their reasons, and/or adjourn to work on those reasons.  They may just ask the attorney to write up their response to be voted on at a later meeting.  This will then be sent to the Superior Court for consideration.  

At least, that's how I understand this.  

Background:  I don't like to repeat myself, but this opening is a quick background for people who haven't watched this saga too closely.  If you know this pretty well, just skip on down.  

Back in May 2022 the Alaska Supreme Court said the plan the Alaska Redistricting Board had approved (the vote was 3-2) was unconstitutional partisan gerrymandering.  They sent it back to the Board through the Superior Court, ordering the Board to approve the Option 2 plan that the Board considered, but had not approved.  This, then would be the Interim Plan for the November 2022 election.  Given the looming deadline for candidates to file for office, the Supreme Court just couldn't wait for the Board to come up with a new plan on their own.  More recently, the Supreme Court completed its Opinion - a long document that looks at all the issues it had raised regarding the Board's original plan (thrown out by the Court), and its second plan (which was also thrown out.)  

Actually, that's an oversimplification.  The first plan, with a couple of changes, was essentially approved WITH THE EXCEPTION of some Senate seats in Anchorage.  So, the Interim plan for all 40 House seats, as understand this, is settled. 

Purpose of Monday's Meeting From The Supreme Court's Opinion

The Supreme Court's Opinion ended this way:

"IX. FINAL REMEDY

After the second remand, the Board adopted the Option 2 proclamation plan as the 2022 elections interim plan.240 The question of a final redistricting plan for the

[I've cut out footnotes]

decade remains. Having concluded that the Board engaged in unconstitutional gerrymandering in its initial final redistricting plan and that the Board then did so again in its amended final redistricting plan, our remanding for yet another redistricting plan may be questioned. Indeed, by clear implication article VI, section 11 authorizes courts to mandate a redistricting plan when, after a remand, the Board develops a new plan that is declared invalid.241 But we will remand out of respect for the Board’s constitutional role in redistricting.

Given that the Board adopted the current interim redistricting plan for its final plan deliberations — confirming the Board’s belief that the interim plan is constitutional — and given that Alaska’s voters have not had a chance to raise challenges to that plan in the superior court:

We REMAND for the superior court to order that the Board shall have 90 days to show cause why the interim redistricting plan should not be the Board’s final redistricting plan for the 2020 redistricting cycle:

A. Upon a showing by the Board of good cause for a remand, the superior court shall REMAND to the Board for another round of redistricting efforts; or

B. Absent a showing by the Board of good cause for a remand, the superior court shall direct the Board to approve the interim redistricting plan as its final redistricting plan, allowing any legal challenges to that plan to be filed in superior court in the normal course."  [Red emphasis added.]

Basically the court said:

1. You had two final options last year - Option 3A (which you adopted, but we found unconstitutional) and Option 2.
2. We told you to adopt Option 2 as the Interim Plan.  
3. You approved Option 2, thus implying you thought it was a constitutional plan.  [Though some Board members might say they had no choice given the time constraints.  If they hadn't approved it, I suspect the Court would have imposed it anyway.]
4. You now have 90 days to give a good reason why the Interim Plan should NOT be the final plan. (The Opinion was dated April 21, 2023.  So 90 days is just about July 21, 2023.)
5. If the Superior Court deems your objection to be a worthy objection, then that Court will remand (give back) to the Board, the task of further changes to the map.  
6. If you do not 'show good cause' for making further changes, the Interim Plan becomes the Permanent Plan
7. If you show cause but the Superior, and then the Supreme Court, reject your argument, the Interim Plan becomes the Permanent Plan.  
8. Once the Permanent Plan is in place, the public will have one more opportunity to challenge the plan.  My understanding of the various court rulings and the Board's public musings, all the 40 House seats and all but a few Anchorage Senate seats are already fixed. The period to challenge them was within 30 days of the original Proclamation Plan.  There were challenges to some other parts of the map and there were other parts of the map that no one challenged.  The only parts of the map that were still in dispute in May 2022 were a few Anchorage area Senate seats.  

Reading The Rules Carefully Is Always A Good Idea

When I was writing this post in my head, I was thinking the Board, on Monday, could either agree to leave things as they are (the Interim Plan becomes the Permanent Plan) or try to tinker with the map.  But rereading the Court's Final Remedy section of the Opinion, the first step is to 'show cause' and get the courts to agree there is cause before anyone is authorized to adjust any Anchorage Senate seats.  

What Cause Might The Board Show?

I don't see any cause that the Board could put forth.  But I'm not an attorney and there are always undetected cards they seem to be able to pull out of forgotten statutes and old cases upon which to make a claim.  

Here's how I see it:

1. The Superior and Supreme Courts have both agreed that the Interim Plan was Constitutional.
2. The Board, by approving the Interim Plan last May, implied they saw it as Constitutional. (They aren't supposed to approve a plan they don't think is constitutional.)

So the Board would be hard pressed to argue the plan isn't constitutional.

At that point, what else could they argue?  That it's constitutional, but they have a better plan?  I think it's too late for that.  

In its rulings about the Eagle River and Skagway Senate pairings, the supreme court discussed the concept of 'taking a hard look' at public testimony.  It ruled with the superior court and against the Board on this ground in Eagle River because the Board violated another constitutional requirement of districts

"specifically for unconstitutional political gerrymandering." (Court Opinion, p. 43)

However, in the Skagway case it ruled against the superior court ruling on 'taking a hard look' at public testimony, because

". . .if public comments merely reflect preferences for district boundaries without implicating substantive redistricting requirements, drawing district boundaries based on demonstrated substantive redistricting requirements and not the “weight of public comment” likely would not violate the hard look requirement. We nonetheless note that a Board’s failure to follow a clear majority preference between two otherwise equally constitutional legislative districts under article VI, section 6 may be evidence supporting a gerrymandering claim."

But the court ruled that House Districts 3 and 4 were unconstitutional based solely on its “weight of public testimony” approach to the hard look analysis. Because the court otherwise agreed substantive redistricting requirements were satisfied and no salient problems were raised that the Board failed to consider, we reverse the court’s invalidation of House Districts 3 and 4 and its accompanying remand to the Board." (Opinion, p. 43-44)

It would seem that same logic would be applicable here.  Just because some Board members might prefer different pairings, that's not good enough to tamper with an already constitutional map.  The Board isn't exactly 'the public.'  However, in this situation, if the Board wants to protest against Senate pairings that the courts and the Board have already agreed are constitutional, it would seem to be up against a similar obstacle the public is up against if it "merely reflects preferences for district boundaries without implicating substantive redistricting requirements."

Furthermore, the only (true) reasons the Board majority might want to make changes, as I see it, would be to try to give Republicans some advantage they don't have with the current plan, or to mess with the Democrats, by creating new Senate pairings which would force Democratic incumbents to run against each other.    

Why do I say that?  

1.  There are only a few districts, as I understand this, that are still in play.  

1. At this point, all 40 House districts are set.  They've been approved and the time for the public to challenge them is over.
2. The only districts that could be in play now are a couple of northeast Anchorage Senate seats.  I posted the map below and incumbent lists in my previous post, but it's worth looking at again.  

I've circled the Senate seats that could possibly be in play.  The House seats can't be changed, 

they can only be paired differently to create different Senate seats.  Below are the incumbents 

of the House and Senate seats.  I'd note these are the district numbers in the Interim Plan.  

House Seats	Senate Seats
17 - Zack Fields - Democrat	I - Loki Tobin - Democrat
18 - Cliff Groh - Democrat	J - Forrest Dunbar - Democrat
19 - Genevieve Mina - Democrat	K - Bill Wielechowski - Democrat
20 - Andrew Gray - Democrat
21 - Donna Mears - Democrat
22 - Stanley Wright - Republican

2.  Why are these the only ones in play?  Because the rest of the map was approved.  The only changes were to pair the two Eagle River house districts into one Senate district.  That left district 18 an orphan and it was paired with downtown district 17. And an orphan South Anchorage district. If they do any changes it would be to the Senate pairings in the circle - and maybe with a ripple effect beyond - because everything else was locked down and approved.  (District 9 was also an orphan district, when the two Eagle River districts were paired, but I haven't even considered that the Board might want to mess around with that district.) (Actually, my description suggests the court changed Map 3B.  In fact, they adopted Map 2, the map the Board did not choose.  So these were the pairings on that map.)

3.  As you can see, the Senate seats in this area are held by Democrats.  And the six key House seats are held by five Democrats and one Republican.  

4.  The Board majority argued long and loud, but short of actual facts or data, that JBER, the military base shouldn't be paired with 'liberal' downtown. 

"The Board cited no evidence, aside from its own speculation, that JBER is a community of interest; in any case, there was no showing that the House district encompassing the populated portion of the military base as a whole would tend to share political preferences more closely with an Eagle River House district than with the downtown Anchorage House district. We thus reject the Board’s argument that concerns about JBER justify splitting Eagle River."  (Opinion p. 105)

In fact, the Board had already put  JBER in a house district with much more liberal Government Hill and other north and northeast Anchorage neighborhoods.  

Edited from Elections page to fit in one image

Note:  This was a ranked choice vote.  Most, if not all of Franks' votes had Groh as second choice.  Also, only 6% of the registered voters on JBER even voted.  

In the 2022 House District 18 house election, the Democrats got 55% of the vote and the Republican got 44%.  HD 18 voted for Democrat Mary Peltola for US House and for Democrat Zak Fields for state Senate.  

So all the arguments that Board members Marcum and Simpson made about how terrible it would be to combine the JBER district (as they called District 18) with liberal downtown was hot air.  They'd already put JBER into a House district that was more liberal than the Base.  And that elected a Democrat.  

5.  But they may think that pairing House District 22, which did elect a Republican to the state House, with their so called JBER district (18) would result in a Republican Senate seat.  And so they may want to try to do that.  This would also mean finding other Senate pairings for the orphaned House seats - 18 and 21, which aren't contiguous, so it would force even more changes.  

6.  But the District 22 Republican only won by 72 votes out of 3700 votes.  Not really a GOP stronghold.  And with the electoral reality of District 18 (the one including JBER) as a strong Democratic district.  The resultant Senate seat would still be held by a Democrat. 

7.  But the other new Senate pairings that pairing 18 with 22 would force, they could force a two or more Democratic Senate incumbents to run against each other.  

8.  But this would all be so transparently partisan gerrymandering again that neither the superior nor the supreme court would accept it.  

9.  They only reason the Board majority might do something like this would be brazen shamelessness.  After all with Trump and Santos and DeSantis as models and the rest of the Republicans either supporting them or at least staying quiet, this would not be a big step for the Alaskan GOP to take.  

It wouldn't cost them anything, and there's the possibility it would work.  

10.  But I think it's just too obvious.  Even if Marcum and Simpson were willing to try this, I suspect the third Republican on the board, Chair John Binkley has more integrity than that.  He's had time to think this over and see it would merely waste even more public funds.  While he went along the first rounds, now it's pretty clear that the courts won't support this.  

11.  And their 'cause' also needs to show why any new plan is worth the disruption to voters and elected officials having to adjust themselves to new electoral districts.

12.  I'd also draw your attention to these words in the court's "Final Remedy" quoted above:  

"Indeed, by clear implication article VI, section 11 authorizes courts to mandate a redistricting plan when, after a remand, the Board develops a new plan that is declared invalid.241 But we will remand out of respect for the Board’s constitutional role in redistricting."

The court is saying, "We have the power to simply mandate a plan.  But out of respect for the institution of the Board (not necessarily for this particular Board) we'll give the Board one more shot to do this right."

That's my take on what will happen Monday.  There could be some other scheme Randy Ruederich has hatched for the Board to try.  But ultimately, the courts will be looking very carefully and I don't see any justifications the Board could make to oppose making the Interim Plan the Permanent Plan that the courts would accept.  

But even if the Board votes to make the Interim Plan the Permanent Plan, the public will still have thirty days to challenge it in court.  But this wouldn't be on the State's dime, and with the Board joining the superior and supreme courts, it would take some ingenious soul to find a loophole here.