Sunday, May 21, 2023

The Final Board Meeting - But Maybe Not Quite [UPDATED]

The Alaska Redistricting Board members came together on Monday May 15, 2023 - three [Nicole Borromeo, John Binkley, Bethany Marcum] live and Budd Simpson and Melanie Bahnke through the ether - and dutifully went through the agenda before finally voting 5-0 to approve making the Interim Redistricting Plan the Permanent Plan until the next Census and next redistricting board.  Officially it’s the Permanent Proclamation Plan.  

As long as no one successfully challenges the final plan in the courts, this is the last meeting. If such a challenge were successful the Board would have to reconvene to redraw the part of the map that was challenged. There are only a few Senate seats in northeast Anchorage that could possibly be challenged because all the House seats and other Senate seats have been settled. (The time to challenge them was 30 days after the previous plans.) I don’t see much likelihood that anyone can convince the courts to reopen this.  Even those Board members who had their wrists slapped by the Superior and Supreme Courts offered no serious pushback.  

The NOT QUITE part?  In public testimony, one of the Girdwood plaintiffs, Louis Theiss asked the Board to instruct the Board attorney to not object to their request for attorney fees.  Board member Borromeo said they needed to do that in Executive Session.  But by the time the Board got to approving the plan, it seems this was forgotten and they didn't adjourn into Executive Session. They just adjourned. Given the Girdwood plaintiffs prevailed in the Courts, there's a good chance the Courts will award the fees to the Girdwood plaintiffs.  It would seem a waste of money to pay the Board attorney more to oppose this.  Though I guess one could argue that whatever money is saved if Girdwood plaintiffs don't get reimbursed would go back to the State. But maybe Monday was not the time for that.  Attorney Matt Singer also said they needed additional meetings to settle legal matters.  While any such meetings will probably be in Executive Session, the Board does have to announce the meetings, open in public, and then explain what they will be doing in Executive Session - the reason for the ES as well as the specific Board topic.  And when they are done they have to go back into a pubic meeting and announce any decisions they've made.  

[UPDATED May 22, 2023:  Board Executive Director Peter Torkelson emailed to say Board is likely waiting to see if there are any legal challenges to the Permanent Plan they just approved before they meet to discuss legal issues. The public has 30 days from the approval date which was May 15.  So, another meeting is likely after about June 15.]

So let’s go through the agenda - my rough transcription along with, here and there, my commentary which will be in [brackets.]  Remember these are my rough transcripts, not exact quotes.  

My Notes

1.  Board meeting opens about 1:10pm

Nicole Barromeo, John Binkley, Bethany Marcum present in person.  Budd Simpson and Melanie Bahnke are online.  

2.  Agenda accepted

3.  Bethany Marcum sworn in as new member [I’ve covered this saga in a previous post - she was appointed to the Board of Regents and had to resign from the Redistricting Board.  But the legislature did not approve her Regent appointment and the governor reappointed her to this Board.]

3.  Minutes approved. [I didn’t pay real close attention here, but there were minutes from various meetings approved.  Simpson made a correction to something.]

4.  Public Testimony

[I was the only person at the meeting who signed up to testify.  The few others there I could identify were media.  I had three points I wanted to make, but I had sensed the way things seemed to be headed before the meeting started.  There was a draft resolution all written out that they were clearly going to vote on to make the Interim Plan permanent.  I chatted with members Marcum and Binkley before the meeting began and I didn’t sense any interest in prolonging this further.  

So I just focused on my first item - Thanking the Board for the hard work they’d done.  Because they were at pretty much every meeting. They spent lots of time learning the software and then working to make maps.  I thought they’d all worked hard to further those things they believed in.  I also noted that the Chair - John Binkley - had set a productive tone with his always cheerful demeanor and his commitment to making this a transparent process.  I didn’t highlight incidents, but over and over throughout this process he has included public testimony at nearly every meeting and on a couple of occasions insisted that potentially awkward discussions about how the Board was operating be held in public.  (I’m not ignoring the over use of Executive Sessions by the Board in some cases, but John wasn’t the one who pushed that.)   

All this was leading to the subject of my real focus - Peter Torkelson, the Board’s Executive Director.  Early on he’d reached out to me - having found my tab on the 2010 Redistricting Process on this blog - and I met with him and his assistant director about the website they were creating and they let me know they were open to suggestions.  Peter was a website designer and had also worked for the legislature and I pointed out that he had a unique set of technical skills and ethical standards that made him ideal for this job.  

He put up an incredible website  and put  documents and information and maps up on the website within 24 hours, usually faster.  He also was key in getting maximum communications for the public in terms of Zoom meetings and phone lines.  I could go on, but I didn’t want to delay the vote.  Peter was a truly great administrator for this Board.]

Louis Theiss - Girdwood, one of the Girdwood plaintiffs.  Last Friday attorney filed an appeal,  First I too want to thank you.  I’ve been living on Timberline Drive in Girdwood, since 1971, and poll worker.  Myself, my neighbors, fellow plaintiffs all paid for our legal fees.  So asking your attorney not to oppose our request for fees

Borromeo - we should take that up in Executive Session. [Now that I think about it, they didn't go into Executive Session and there have not been any other meetings announced.]

Yarrow Silvers - this is a long journey.  Ask you - I want to thank you, you’ve made me a lot more civically engaged.  I hope this is the last time we meet as Redistricting Board.  

Binkley - any one else?  

5.  Review by Legal Counsel

  • [First attorney Matt Singer talked about Supreme Court opinion as a guide for future Boards. 
  • Looked at the specific challenges  Then he 
  • Went through key areas where the court added new interpretations. 
  • He praised the Board for getting most of the districts - both House and Senate - right, though everyone focuses on the couple that had problems.]

Matt Singer:  Supreme Court issued an Opinion.  History of Board.  Another Summary Order May 2022, and this decision issued last month explains its decisions.  No changes, but explanations.  

Starting point to step back and appreciate the litigation process, court review and citizen involvement.  It’s part of the process, expected in the constitution.  Litigation is expected, every plan challenged, and every plan tweeted.  Just part of the process.  What comes of that - the constitution gives basically two sentences on how to redistrict.  The Court cases flesh that out.  

What I see as a gift is the Supreme Court’s 112 pages recognition that there are aspects of redistricting that haven’t been well spelled out.  Now they’ve given the next Board a road map.  These pages will be read very carefully in years to come.    Many we got right and some we didn’t.  Nature of the process.

Court’s decision provided constitutional backdrop, the  constitutional convention, due process clause, the Hickel Process, the public meetings act, and Section 6 o f the Constitution.  

In Nov. there were 5 plaintiffs who challenged the plans - a corporation and four individuals


Valdez and Matsu - challenged their being paired

East Anchorage plaintiffs challenged ER

Plaintiffs had wide variety of theories.  

Trial court ruled against Calista - W Alaska constitutional

Against the Board and for Skagway - Hard Look standard

Against Valdez and Matsu  and they appealed

Against the Board on East Anchorage and we appealed

SC ruled in favor of the Board on Hard Look doctrine incorrect on Skagway - not most popular, not important.  Must have salient constitutional issues

. . . 

SC we should be more precise about why having Executive Session, but not productive to go back because of those violations

Some issues about court technicalities - caused by unusual, expedited trial

Hope next time there will be more time, more like normal trial

Matsu - Court agreed with us    Court did not violate the Hickel process by drawing rural districts early in the process, didn’t violate equal ?? By having larger districts

Calista did not appeal

Following first appeal - another plan

Trial court found against the Board on Eagle River pairings and SC agreed.

Highlight key reasoning from board for future

Hickel process - Voting Rights Act (VRA) important, but Board’s job is first to follow Alaska constitution.  Draft plan and then evaluate it against the VRA.  Because Board referred to districts as VRA and did them first people complained.  SC recognized that just saying the words doesn’t mean applying VRA first, Board has to have some opportunity, can’t wait until last minute.  

Open Meetings Act (OMA)- hadn’t been established when constitution amended, not clear the act covered this Board.  Court affirmed.  We assumed it did.  Executive Session, need to be more specific about topics being covered in ES.  Slightly tapped our wrists, but not in public interest to change plan due to ES violations

Taking a Hard Look and considering testimony that comes before you.  Making reasoned decision, not about popular decisions.  Superior court focus on quantity not correct.  

Compact and Contiguous - don’t need road contiguity.  But reconsider (Socio-Economic Integration) SEI

Another - took out of footnote - contiguity and compactness take precedence over SEI - my advice on Cantwell appendage.  I said you’re sacrificing compactness and you’re balancing constitutional priorities.  Start with compactness, then contiguity, and then SEI.  

Not previously articulated Sec 10 procedural requirement to have a plan - within 30 days, not only a house plan but also Senate pairings.  Not clear in constitution but understand why.  Board adopted a few 3rd party plans after the 30 day deadline - Superior court said that was not good enough, but SC said it’s ok, but should have been adopted within 30 days.  Gentle tap on the wrist, but not enough to overturn it.  

Most interesting part of the case, developing new laws - equal protection laws and Court adoption of communities of interest - geographic group of people who share SEI and believe they are part of ?community??    That body of law will impact urban folks much more than rural.

I’ve hit the highlights, after six lawsuits in total, Court found this Board had constitutionally redistricted 99.9% of house districts - Cantwell - which Board corrected in Spring last year.  

In Senate 19/20 constitutional 95%.  Compared to ten years prior, plan thrown out, new plan and it was thrown out and there was a third plan.  

[He didn’t mention partisan gerrymandering. I asked him about that afterward.  He said he spoke about equal protection which was the factor most related to the gerrymandering charge.  I’m guessing he just didn’t want to say partisan gerrymandering out loud. We also talked about the Executive Session he held to talk to the Board about the Constitution and Court cases that provide guidance for future Boards to use when mapping the state. I pointed out that the previous Board’s attorney, Mike White, did that all in open meetings.  Singer said his purpose for that meeting was to tell the Board he was hoping to have the Board produce a plan that would not be challenged and outlined strategies to do that.

This was the first time  the courts have rejected part of an Alaska redistricting plan, due to partisan gerrymandering.  I think that is a big deal and should have been mentioned by name.  When I do my post on the lessons from the Court decision, it will discuss partisan gerrymandering. ]

More fun to write about what Board disagrees about than where they agree.  You should be proud of the effort and the result.

The court directed on remand - if you feel additional redistricting necessary, then I need to show cause .  But if Board doesn’t believe additional redistricting is necessary can just approve plan.

Some litigation matters to resolve in separate meetings.

Binkley:  Questions?

Marcum- when you talk about community of interest versus SEI  - does it apply to House districts or Senate pairings or both.

Singer:  Much to be developed further .  As I read it, the court went to lengths, they are not the same thing.  Constitutional on House districts SEI.  Communities of Interest to evaluate equal protection challenge to the Board whether a House district or a Senate district.  Time will tell. 

Binkley:  Others?  Questions?

Melanie, Budd:  No

Nicole:  No questions

6.  Binkley:  Consideration of adoption of Interim Plan as the Permanent redistricting plan.

Peter:  I have draft .  There are no changes proposed.  The two plans would be the same.  

Budd:  Can we have that up on the screen?  

Melanie:  Bethany’s name is not on the page

Torkelson:  I have stationery with all the names.  He reads the Draft Final Proclamation Plan [I posted it in the previous post.

Binkley:  We have item for consideration for adoption - we could discuss ahead or adopt a motion and then discuss.

Borromeo:  Move we adopt this as final proclamation.  

Pause before Bahnke seconds it

Binkley:  Discussion?

Simpson:  I intend to support the motion.  Would be disingenuous to say I agree with everything and facts in their [rulings?]  I attribute this to the expedited process, but I think it would be disruptive and an exercise in futility to make any substantive changes.  

Marcum:  I didn’t read the court opinion because I didn’t know I would be here.  But Court was gracious to give us that opportunity,  We had a couple goes at it and they gave us the opportunity and time to do so.  By [the Court] adopting it, it would set a bad precedent.  Better if we are the ones who decide.  But out of respect to other Board members desire to not take the SC on the opportunity.  But setting a bad precedent by letting the Court impose this.[I think she was saying it would set a bad precedent if the Court imposed the plan rather than giving the Board the chance to do it.]

Bahnke:  I’ll vote for this.  Both courts gave us two opportunities.  All of us voted for the two plans [The Board picked plan 3A over plan 2 at their meeting in 2022.  So plan 2 was a Board plan, not a Supreme Court made plan.] up for consideration. If [create?] other plans [now?], we should have done it before.  Don’t think it good use of public resources to try another plan.  

Binkley:  I’ll associate myself with the comments of member Simpson.  Travel around the state to do a better job pulling this together.  As Matt pointed out, we did an exceptional job compared to past boards.  And maybe it gets easier as SC gives guidance to make it clear.  I agree with Bethany to make clear, it’s the Board’s decision.  But that’s preserved in this ruling.  And by adopting this plan, doesn’t jeopardize that.  It’s our plan, not the court’s plan.  Protected future boards, because we drew the plan itself.  I don’t agree with everything in the decision but I recognize the Court has the final say.  Great constitution.  Public confidence in the process, checks and balances.  I will support this.  Least confusion for the public.  Don’t have to worry if they are shuffled into new districts.  

If no further discussion, ask for a rolL call vote.

7. The Vote

Bahnke yes

Borromeo yes

Marcum yes

Simpson yeah

Binkley yes

Plan is adopted until next process.  

The Executive Session Borromeo mentioned regarding the Girdwood plaintiffs attorney fees seems to have been forgotten in the excitement and relief of bringing things to conclusion. But maybe they are planning on another meeting or two.  Attorney Singer did say that there were legal matters to settle in additional meetings.  

1 comment:

  1. Thank YOU, Steve, for all of YOUR hard work on the redistricting process. Peggy


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