Tackling Alaska Supreme Court Redistricting Opinion

 

The first Supreme Court order regarding the 2010 Alaska Redistricting Board cases was issued on March 25, 2022.  It confirmed some of the Superior Court's decisions - mainly the Eagle River Senate seats - but not others - Valdez and Matsu complaints (though it agreed with them on the Cantwell appendage) and Skagway complaint.  The Board incorporated the Court's recommendations except in the case of the Eagle River Senate seats.  They offered a new map which also split the Eagle River house districts into two different Senate seats.  

Another on May 25, 2022 that ordered the Board to adopt Plan 2 as an Interim Plan so that candidates for the 2022 elections would know what districts they were in.  The court rejected the Board's new Eagle River Senate seat split and ordered the Board through the superior Court to approve plan 2 (which combined the two Eagle River house seats into one Senate seat.)

"IN THE MATTER OF THE 2021 THE STATE OF ALASKA REDISTRICTING CASES" was issued on April 21, 2023.  

I've been slowly plodding through the Opinion.  I'm not an attorney, but I have been following the Board and the subsequent court proceedings closely since December 2020.

In this post I want to simply describe the process I'm using to review what the justices said and the implications for future redistricting boards - particularly the 2030 Board.  In an academic paper this would be called the methodology section, though that's probably to generous a term for what I'm offering here.  I'm briefly explaining how I'm going about this.  

Step 1:  Quickly go through the text to see 

• what issues they covered
• what decisions they made about the current plan and the Board 
• (to remand the case through the Superior Court to the Board and have the Board either approve the Interim Plan as the Permanent Plan or tell the Court why it shouldn't be the Permanent Plan and offer alternatives.  
• to clarify that after approval the public still has the opportunity to challenge it)

Step 2:  Using the Court's headings, create an outline of the plan (which you can see here)

Step 3A:  Read through the Opinion more carefully with the Outline alongside and mark things that seem important on both the Opinion and the Outline.  Here are some examples of pages I marked up.

Okay.  This is not intended to be a tease.  But this is taking a while and I want to show you why.  Issues are raised in one section and then, sometimes, in another.  And maybe this intro, will make the final post(s) easier to understand.  Probably wishful thinking.

Step 3B:  As I did this, I also started to draft notes about what I think might end up being important.  These are tentative notes which I hope will become clearer (to me)  as I write them and then go back to the opinion to check if there are other comments that support or challenge what I've written.  

I call these Step 3A and 3B because I did them more or less at the same time, but they are different activities.  For example, here are some of my tentative notes (3B): 

"There seem to be several different kinds of issues

1. Procedural legal issues that seem to relate to how the court makes decisions, but don’t seem to set precedents (other than legal procedural ones in case of a challenge) for future redistricting boards to take careful consideration of.
2. Clarifications of past court decisions which will be important to future Boards  - These are the key issues I’m looking for and hoping I understand correctly
1. Partisan Gerrymandering
2. Public Participation and degree to which it should be considered by the Board - meaning of 'hard look'
3. Clarification of the related terms:
1. Socio-economic Integration
2. Communities of interest
3. Politically salient class
4. Equal protection
5. Kenai Peninsula neutral factors test.
3. Reasoned Decision making - Board didn’t show reasoned decision-making for splitting ER"

Step 4:  This is still ahead of me.  I need to expand my notes on the important issues and then try to look at all the ways the court discussed each issue.  When they said it applied.  When they said it didn't.  When they offered similar concepts and distinguished between them, etc.  

Step 5:  Review my previous post(s) which discusses the legal issues that, given the Board's actions and their attorney's public advice, I thought needed to be clarified by the Court and see which of my concerns were addressed.  

Step 6:  Try to take all those notes and create a post (and now I'm thinking several posts, maybe different posts on different issues).  I'm also thinking I need to talk to some lawyers about this as well.  

Why does this matter? 

Future Boards need to know what the ground rules are for creating Alaska house and senate districts so they can create maps that future courts will find proper and legal.  And they might even avoid future litigation.  

For example when I pointed out to the 2010 Board attorney Michael White that it appeared that some of the districts appeared to be political gerrymandering, he smiled at me as though I were a little dim, and said, no maps have ever been thrown out because of gerrymandering.  

And I suspect that some of the Board members may have heard similar stories.  

But one thing that is clear from the Courts' 2022/23 rulings is that gerrymandering is unconstitutional in Alaska.  Will that stop attempts to gerrymander in the future?  Probably not.  But Boards will have to cover their tracks better than this Board did when they do gerrymander.  

This year, Board attorney Matt Singer took the Board into executive session to explain redistricting law in the Constitution, constitutional convention, and past court cases.  Michael White did that session in 2011 in public and I think that Singer used a pretty broad interpretation of attorney-client privilege to justify briefing the Board privately on these issues. We don't know what he told them.  I'd note that the Superior and Supreme Court agree.  

But we do know that Singer's mantra throughout the process was "All areas within a Borough or City boundary are Socio-Economically Integrated."  The Court is clearly saying in this decision that while that is technically true, there are other similar, but different concepts - like 'community of interest' - that also have to be considered, even inside of a single Borough.  

Ideally, I can come up with a guide to the rules for future Boards and for citizens that will be useful in 2030.  I would hope that others would do the same thing, because I may well be missing things or misinterpreting them.