Anchorage Rallies In Protest of Supreme Court Election Decision

This afternoon, people gathered at the Parkstrip and marched to the Anchorage Town Square to protest Friday's Supreme Court decision on abortion.  My rough estimate of the crowd is 400-600.  

Observations:  The crowd was younger than the demonstration on May 8, 2022 when the decision was leaked.  The organizers also talked a lot about voting this time, which was missing at the previous demonstration.  Including voting no on whether Alaska should have a constitutional convention.  (The constitution requires such a vote every ten years.)  Conservatives want such a convention to do (at least) two things:

1. Remove the right to privacy in the constitution 
2. Change how judges are selected in Alaska (by a non-partisan commission which evaluates people applying for judgeships by reviewing surveys of judges, attorneys, juries, court employees, and court watchers.  Top candidates are passed on to the Governor to choose from.

During the 1960's the protesting against the Vietnam war was invigorated by the fact that all 18 year old men had to register for the draft and stood a decent chance of being sent to Vietnam to fight.  All their friends and family had a very personal interest in the war ending.  

Today's young folks have been give an equally important stake in fighting Dobbs v. Jackson's Women's Health Organization.  This time it's all women of child bearing age who are on the line, but since women don't need an abortion unless a man has been involved, men too have a vital stake.  And if the Vietnam War protests are any predictor, the people fighting to make abortions legal again aren't going away. 

Here are some photos from today's protest.

1927 Buck v. Bell

Facts of the case

Carrie Buck was a "feeble minded woman" who was committed to a state mental institution. Her condition had been present in her family for the last three generations. A Virginia law allowed for the sexual sterilization of inmates of institutions to promote the "health of the patient and the welfare of society." Before the procedure could be performed, however, a hearing was required to determine whether or not the operation was a wise thing to do.

Question

Did the Virginia statute which authorized sterilization deny Buck the right to due process of the law and the equal protection of the laws as protected by the Fourteenth Amendment?

Conclusion

The Court found that the statute did not violate the Constitution. Justice Holmes made clear that Buck's challenge was not upon the medical procedure involved but on the process of the substantive law. Since sterilization could not occur until a proper hearing had occurred (at which the patient and a guardian could be present) and after the Circuit Court of the County and the Supreme Court of Appeals had reviewed the case, if so requested by the patient. Only after "months of observation" could the operation take place. That was enough to satisfy the Court that there was no Constitutional violation. Citing the best interests of the state, Justice Holmes affirmed the value of a law like Virginia's in order to prevent the nation from "being swamped with incompetence . . . Three generations of imbeciles are enough."

Griswold v. Connecticut, 381 U.S. 479 (1965)

Argued March 29-30, 1965

Decided June 7, 1965

Syllabus

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate court and the State's highest court affirmed the judgment.

Held:

1. Appellants have standing to assert the constitutional rights of the married people. Tileston v. Ullman, 318 U. S. 44, distinguished. P. 381 U. S. 481.

2. The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Pp. 381 U. S. 481-486.

Eisenstadt v. Baird

DECIDED  Mar 22, 1972

Facts of the case

William Baird gave away Emko Vaginal Foam to a woman following his Boston University lecture on birth control and over-population. Massachusetts charged Baird with a felony, to distribute contraceptives to unmarried men or women. Under the law, only married couples could obtain contraceptives; only registered doctors or pharmacists could provide them. Baird was not an authorized distributor of contraceptives.

Question

Did the Massachusetts law violate the right to privacy acknowledged in Griswold v. Connecticut and protected from state intrusion by the Fourteenth Amendment?

Conclusion

6–1 DECISION 

MAJORITY OPINION BY WILLIAM J. BRENNAN, JR.

In a 6-to-1 decision, the Court struck down the Massachusetts law but not on privacy grounds. The Court held that the law's distinction between single and married individuals failed to satisfy the "rational basis test" of the Fourteenth Amendment's Equal Protection Clause. Married couples were entitled to contraception under the Court's Griswold decision. Withholding that right to single persons without a rational basis proved the fatal flaw. Thus, the Court did not have to rely on Griswold to invalidate the Massachusetts statute. "If the right of privacy means anything, wrote Justice William J. Brennan, Jr. for the majority, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."

New Season Of Sopranos Debuts At House Jan 6 Insurrection Hearings

 The new season stars DJT as Tony Soprano and his head honchos trying to persuade elections officials to change elections results.  With visits to Arizona and Georgia, threatening phone calls.  It's all there including thugs sent out to intimidate election officials and their grandmothers.  

Here's the full hour long audio recording of the then president's phone call to Brad Raffensperger, Georgia Secretary of State pressuring him to find enough votes to swing Georgia over to Trump.  (They only played a snippet at the hearing.)

Later in the episode we heard from two election workers - mother and daughter - who had been named by Trump and accused of counting fraudulent Biden votes.  These women had T thugs at their homes harassing them.  Even going into the grandmother's house looking to make a citizens arrest of the two women Trump had accused.  Imagine how an older black woman in Georgia might react to a crowd of angry white men breaking into her house.  She lived when lynchings were still happening on a regular basis.  

Here's Faye Moss' testimony:

What the hearing left out - or I just missed - was that these two women have filed two lawsuits over this.

"Protect Democracy, through its Law for Truth project, represents Georgia election workers Ruby Freeman and Wandrea Moss in two landmark defamation lawsuits. Ms. Freeman and Ms. Moss served as election workers in Fulton County, Georgia during the 2020 election. False claims that they engaged in ballot fraud in that capacity have caused them to suffer extensive harassment and threats of physical violence.

The first suit names The Gateway Pundit, a website which the complaint calls “among the leading purveyors of false information in the United States.” Law for Truth has undertaken this representation in partnership with the law firms DuBose Miller LLC, Dowd Bennett LLP, and Kastorf Law, LLC and the Yale Law School’s Media Freedom and Information Access Clinic. The Gateway Pundit, along with its founding editor Jim Hoft, and contributor Joe Hoft, knowingly disseminated blatantly false stories claiming that Ms. Freeman and Ms. Moss were involved in a conspiracy to commit election fraud, and continued to publish these untruths long after they were proven to be false. 

The second suit names Herring Networks, Inc., which owns and operates One America News Network (OAN), OAN CEO Robert Herring, OAN President Charles Herring, OAN staffer Chanel Rion, and frequent OAN guest Rudolph Giuliani. The suit alleges that the defendants have knowingly and repeatedly disseminated false information about Ms. Freeman and Ms. Moss and their work for the County on election night. In this suit, Law for Truth represents Ms. Freeman and Ms. Moss, in partnership with the law firms Willkie Farr & Gallagher LLP, DuBose Miller LLC, and Kastorf Law, LLC."

Sitting behind Ms Moss in the opening of the video is Mike Gottlieb, Ms. Moss and her mom's attorney. who has been filing suits for other election workers defamed and attacked.  

Here's a link to the actual suit against OAN.  It was filed Dec. 21, 2021.  

Did the committee not mention these lawsuits to gain greater pity for Ms. Moss?  I don't know.  But I personally feel much better knowing that steps are being taken to punish those who knowingly spread lies like this that cause great harm to people doing their jobs.  Jobs that are fundamental to democracy.  (It was amended in May when OAN OAN retracted its claims about Georgia, Moss, and Freeman.  That's good, but were there no consequences other than the expenses of hiring a lawyer for the harm they've done these women?  And what about the people who harassed them and entered the grandmother's home?  If there are no consequences they become emboldened to do it again.  Our system is failing.)

We need as many strong, upstanding citizens as possible to work and volunteer at voting places in every election to make sure elections are not stolen by the likes of Don Soprano.  

As Someone Who Closely Followed The Live Watergate Hearings, This Is Really Different

 I started this post while I was watching what I thought were the live Jan 6 hearings Thursday.  I was watching on YouTube, but I also followed the Twitter feed on the hearings and people were commenting on things I wasn't seeing.  In the long run, that's good, because what I was watching was not what I would expect after the committee hired a consultant to help them make the hearings more compelling.  

Turns out what I was watching was live in July 2021.  For anyone objecting to the committee getting professional help, just watch the old hearing.  You'll be thankful.  Same sort of thing - four law enforcement officers telling their stories, comments by committee members - but dragged on too long and was repetitive.

Then I found rerun of Thursday's hearing and things made sense.  It was significantly tighter and more compelling that the first one.  

But, it still was a very different experience than the Watergate hearings.  Those hearings had both Democrats and Republicans (a lot more even numbers) who took turns questioning witnesses.  Yes, like most committee hearings, they had already questioned the witnesses in private and pretty much knew what they were going to say.  But Republicans were able to do a sort of cross examination of the witnesses, softening the edges of those testifying against Nixon and bringing out more context in general.  

Also, revelations came out over time.  While the committee knew what was coming each day, often they only learned things a day or two before.  Like when Alexander Butterfield revealed that Nixon had a secret recording system in his office.  That was a blockbuster discovery.  It meant everything that people testified had been said could actually be checked on tapes.  Nixon went to the Supreme Court to prevent the release of the tapes claiming executive privilege.  No one knew what the Court would say.  But when they said the tapes weren't protected, it was pretty much over for Nixon once they started comparing the testimony against the tapes.  Lots of lying about what people knew and when they knew it.   Here's the part where Butterfield reveals the existence of the tapes.

This looks more like Trump impeachment hearings than the Jan 6 hearings, except the Republicans weren't stonewalling the whole event.  The interrogator in the clip is Fred Thompson, on the Republican staff, and later a GOP Senator from Tennessee.  In those days GOP staffers and members of Congress who helped investigate the GOP president weren't shunned by their party. And I don't recall any women or people of color involved.  Lots of Southerners, who were mostly Democrats in those days.  

The event Thursday night seemed more like the prosecution making their opening or closing argument before the jury.  Lots of gushing over the witnesses.  It was a strong, logical, evidence backed argument, but I can understand why GOP viewers might think it was partisan.  The tone of the Watergate hearings was much more formal.  While witnesses were thanked, they weren't fawned over.  

I'd also note the timing of  the events.   

• The break-in occurred May 28, 1972 (50 years ago last month).  
• Nixon was reelected in November 1972
• Alexander Butterfield testified before the Watergate Committee on July 16, 1973.
• Nixon resigned August 9, 1974.

These events just plodded along.  Here's a detailed timeline.  

The break-in didn't happen on national television like the insurrection did, but it took over two years before Nixon left office.  He resigned rather than be impeached.  Had he not resigned, it would have taken much longer. 

Two years for our current scandal will be January 2023.  And while Nixon supporters stayed loyal until the end, when it became clear he had lied to the American public, House and Senate Republicans did NOT rally to support him. (A few did, but most let him know he was going to be impeached if he didn't resign.)  

 [I realize as I write this there could be readers who don't know details beyond the word "Watergate." The Watergate housed a then new luxury hotel and office space and apartments.  The Democratic National Committee had an office there and Nixon operatives broke into those offices to spy on the Democratic campaign headquarters.  Sort of like breaking into the Democratic National Committee's computers in 2016] 

Here's A Copy Of The East Anchorage Plaintiffs' Motion Challenging The AK Redistricting Board's Amended Plan

 I've read through the motion quickly.  I need to sleep on it. 

Basically it says  the Board continued with its unconstitutional gerrymandering by not pairing the two Eagle River districts as ordered.  The new plan still results in Eagle River getting two Senate seats.  It argues that the Board majority is mocking the judge by disobeying his order.  The motion emphasizes this contempt by reminding the judge that Board chair John Binkley voted against the other change - the Cantwell cutout, saying he believed the Court's decision was wrong.  

"Board Chair Binkley’s acknowledgement of the court order regarding the “Cantwell Appendage” and then his express refusal to vote in compliance with that order was extremely concerning."

It also mentions that once again the overwhelming public testimony was for Option 2.  Footnote 13 elaborates:

"See Exhibit A attached hereto, all written comments submitted in favor of pairing the two Eagle River house districts together. These comments total 206. But see Exhibit B, all written comments submitted in support of fragmenting the Eagle River community of interest, totaling 111. The majority of comments in support of fragmenting the Eagle River community of interest appear to have been submitted in response to an April 6, 2022 publication by Must Read Alaska blogger Suzanne Downing entitled 'Conservatives needed to support Redistricting Board as it considers two maps of Senate pairings for Anchorage,”  

I tracked several pages of the public testimony submitted via the online form.  I didn't get to that high a number, but I did notice there were several times when there was a flurry of pro-3B comments. 

• Please DO NOT ADOPT THE BAHNKE PLAN
• I support 3B - (I counted over 40 like this one, Some added a 'thank you.)

On the other hand, the messages from the folks who supported Option 2 had a lot more to say and 

Mtn to Reject Proclamation ... by Steve

While I'm Enjoying California Sunshine,Matt Buxton Is Covering More Redistricting Twists And Turns

 Basically, Matt's saying that Judge Matthews' order wasn't a final order and that he's remanded things back for the Board to fix.  And since it isn't a final order, it can't be appealed.  But they can ask for a review from the Supreme Court.  But it might mean that the changes would be in effect for the next election rather than the Board's map.  

I'm meeting the SF grandkids (and their parents) for dinner in a couple of hours, so I'll just refer you to Matt's Twitter feed for more details

[UPDATED Feb 18, 2022  10:20pm:  Here's Matt Buxton's newsletter on this.  It seems to have a bit more than the Twitter feed.  I'm glad Matt's working on this.

The cat of the house where we spent last night.

AK Redistricting Board: The First Trial Is Over

[See message from Board Executive Director which arrived just after I posted this. At bottom]

So how should I do this?  There were five cases.  The Board had to respond to all of them.  Board attorney Singer responded to all of them except the Calista case which he delegated to Lee Baxter. 

Robin Brena was the attorney for two cases - Valdez and Skagway.  Stacey Stone for Valdez' partner case Mat-Su.  Holly Wells for East Anchorage, and Michael Schechter for Calista.  

I was hoping the closing arguments would be posted online and I could just direct you there for the details of the arguments.  But they aren't up and I doubt they'll be up before Monday if then.  The Findings of Facts and of Law are all up which is a general guide to what was said in the closing arguments.  

• Findings of Fact and Conclusions of Law

• East Anchorage Plaintiffs >
• Mat-Su Borough Plaintiffs >
• Valdez Plaintiffs >
• Calista Plaintiffs >
• Skagway Plaintiffs >
  
• Intervenor Defendants >
• Alaska Redistricting Board >

[I originally linked to the Court page with these documents, but the Board has put them on their page and I think that will be more permanent.  They've talked of preserving it, unlike the last Board website.]

There were lots of things here to talk about.  One biggie is how ridiculous and how useful the adversarial process is.  Silly because attorneys fight hard to defend the indefensible, but useful because so many important points get out and rebutted.  And this seems like a very conscientious and thoughtful judge.  The grandstanding some did, that might work (or backfire) in front of a jury is irrelevant, because the judge, this judge, seems to see through it.  He was gracious to all the attorneys and court staff and whatever he decides will be thoughtful.  The biggest obstacle for him is time - time to read through everything, time to write up his findings.  

But let me try to wing it here and just talk about a couple things that caught my attention. 

I wasn't impressed with  East Anchorage's Holly Wells' presentation.  I'd expected it to clearly identify legal criteria and then show how the Board missed them.  It was less organized than that.  But I missed the first few minutes of Wells' presenting her case - I had the video ready, but must have hit the stop button. 

So I went back to see if the video was still there. (The court doesn't save the video, but sometimes it doesn't get taken down right away.  As I post this (Saturday) it is still up and you can listen for yourself.  You can skip around to get a sense of the different attorneys to see their various styles. Maybe it will stay there over the weekend before someone takes it down - PLEASE court, just leave it there until Monday at least.)

So I've transcribed the beginning (the part I missed)  of Wells' closing argument:

Wells: This case is really one of process than anything. While process has been sidelined by the board recently Process is the heart of every substantive Constitutional requirement that faces the Board.  It’s at the heart of how it functions, how it understand its obligations.  

The board’s decisions were to abandon process and to even outright evade it on the 8th and 9th hearings and Senate pairings that led to the substantial constitutional errors that were  committed by the Board with respect to ER EastAnchorage Senate pairings..  Seems almost peripheral to focus on something like process when you’re looking at the level of extreme substantive crimes??  here..  But the truth is that it is the courts that have grounded us in this concept.  In order to understand where things went off the rails, we have to understand why.  And because it is present in every piece and every component of the Board’s decision. It’s also present in how the Board analyzes and its own perspective of its errors and its decisions not to ?? those errors and its decision to conceal them which has its own issues.  I think the best place to start is with the house districts.  

With the house districts saw a board who made every effort to try to communicate with the public.  They adopted a public testimony process at the beginning and the end of every hearing.  They put up interactive maps, they adopted software that allowed the public to go in and draw on those maps.  They made mistakes because every board makes mistakes, and they’re inevitable, but they did maintain the integrity of their process, so at the end of the day they, when the Board members were gathered at their table there was fighting there was difficult conversation, a lot of public input and at the end of the day a fair house district map resulted.  On Nov 8 they walked in and suddenly they changed their agenda.  There is no second public testimony.  They cling to the presence of senate pairings and leave the findings facts and conclusions of law of the Board, there were  talk of Senate pairing proposals of the third party plans.  But in reality when they walked in they didn’t know what they were creating or how they were going to create it.  The discussions in the transcript have questions from member Bahnke asking “What’s our plan? How are we going to do this?”  And Chair Binkley answered, “I don’t know, maybe do some on our own, smaller groups, then we’ll all get back together and then we’ll show the public what we’ve come up with.  On the record.  There were no plans there were no Senate pairings out there and the public, even without those plans, submitted over 100 comments in support of keeping ER together and keeping Muldoon with Muldoon.  There was a significant focus of the public on the house districts, it was a running theme.  Fear that ER would be split, given two house seats and combined with Muldoon and then would be fragmented.  As they start this process, Board member Bahnke makes a presentation. And the majority Board members are silent.  They say nothing. They make some comments, I think there’s some discussion on procedural issues, but there is no substantive statement of support or opposition to what she presents about ER and Anchorage senate pairings.  

Then Board member Marcum makes her presentation.  She mentions that she has four versions, she doesn’t present any particular version in a way where you are looking at a concrete, visible, clear presentation of Senate pairings.

We see that in David Dunsmore’s affidavit.  We see that very clearly when we review the transcripts.  

And yet the one thing she does do, she makes it very clear there is one goal she is trying to accomplish.  She wants JBER to be paired with Eagle River.  My biggest disappointment is that reading this is much more interesting than listening to wells tell us.  It's more like she's relating to a friend what she said after a long day at trial.  And it may be the case that she was up late last night practicing.  She starts by telling us it's about process - which is an important part - but she doesn't succinctly identify the rule or law or constitutional point that was violated with a short example of what happened.  We have to work hard ourselves to figure out what points she's making.  There's no First, Second, Third to help us get back on track.  

She does, after this, talk about the Board being a public entity that is acting like a private entity, but if she cites legal differences between the two and then gives examples of what the Board did, I missed it in the droning narrative.  

We get principles - 

"Socio Economic integration is not required for Senate pairings, but rational decision making is."

She tells us administrative record wasn't maintained.  That there was a lack of communication.  That they violated Roberts Rules of Order.  

All that's true.  Minutes didn't really tell the public what happened or who was responsible.  And if I recall correctly, they all got delivered and approved in a huge group, so late in the process, that the Board itself didn't have time to check each meeting.  And frankly, by the time they got the minutes, it would have been hard to recollect what happened when or to find what was missing.  But why exactly is this illegal and reason to do what, exactly?  Sure, the transcripts of the meetings were never actually put up on the Board's website.  It took till the end of the pre-trial hearings before they actually got transcribed. Tell us why that's illegal enough to invalidate the ER pairings.  And the board did a great job of posting the audio or video very quickly of every meeting.  They also did a good job of posting the public comments within a week of the meeting, often faster.  

But as I know too well, going through video to find what was said is a slow and tedious process.  Transcripts, good ones anyway, allow you to search key terms.  Then if you need to, you can find the spot on the video - again, if the transcripts include time.  [Next time the Board should make sure there's a clock always visible in the video to make it easier to find things.]  

I went through the East Anchorage findings of fact fairly quickly yesterday.  After listening today, I need to do that again to see if they highlight more clearly the points she made today.  I suspect they do.  And this trial has been going at a grueling pace.  I suspect she didn't get much sleep the night before.  But that makes having an organized, point by point presentation all the more important.  

She ended by saying the remedy for the ER pairings is easy - they just need to follow the Bahnke plan that was presented.  

And then comes Singer, the board's attorney.  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.  The parts that sound a bit like Singer are the parts that I suspect Singer had a hand in scripting - He started off by saying that "Calista seeks to gerrymander NW Alaska to increase representation."  That is out of character for Baxter.  But back to East Anchorage. (And I'll stray beyond East Anchorage.)

Basically, Singer was taking a stand that it doesn't matter what the districts are like as long as they don't violate the Constitutional requirements.  It doesn't matter if there are better maps that could have been drawn.  The plaintiffs had the chance to draw better maps but waited until after everything was over.  The Board worked hard, are smart people and they did a great job. There is no concern about having the best plan possible, just winning.  

What would happen if in Court the Board authorized the attorney to say, "You know, Brena is right about Skagway.  The court should give that one back to the Board and we'll switch Skagway back to downtown Juneau and keep all the Mendenhall Glacier  [Valley] together"? But that would take a concern for the people of Alaska that Singer doesn't seem to have.  Some things he said:

1.  "Everything within a Borough is socio-economically integrated.  End of argument."  We heard this over and over at Board meetings, from Singer and then from Board members.  I would really like for Singer's briefing to the Board on Redistricting Law to be made public so we can know if he told him about how much more flexible the SC decisions have been.  How they've emphasized things like:

"In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote."

That is precisely the point being made best by Brena in the Skagway and Valdez cases.  But also in the East Anchorage case and the Calista case.   And that's true for Senate seats as well - the voters not be denied their right to an equally powerful vote.  Even inside a Borough.

2.  Dismissing claims about overwhelming public testimony on Eagle River/Muldoon pairings (and Skagway), "This is not a popularity contest."  Actually in a way it is. We're talking about elections and democracy and he's just saying, the Board can ignore what the public has to say because that's why they were chosen to be on the board. To make the hard decisions. Over the will of the people they are deciding about.  Except if that were true the Constitution wouldn't require 60 days of public hearings.  And if it's true, the Board should pay back all the money they spent traveling the state to hear from the public.  

3.  On the other hand, he said again, that it's easy to make a map of one or a few districts.  But you really have to make a map of all forty districts because then you'll see how hard it is.  That seems to contradict the point of it being the Board's job to make the hard decisions.  If the Board tells people they will only look at their maps if they make complete state maps, that's essentially telling them "We don't care what you think."  The Board members got paid a decent fee to spend the last year making statewide maps with specialized training and staff assistance.  Simpson even testified he didn't do any mapping himself, he had staff do it for him.  That was better for him.  But the public was supposed to make 40 district maps?  They couldn't just describe their preferences for their own district and let the Board work it out?  

OK, I know it's not easy, and Tanner Amdur-Clark did a good job as an intervenor explaining how little changes in one place ripple across the state.  The presentation was effective, but I don't have the ability or time to double check what he said in detail.  And he is strongly advocating for maintaining D36 as it is, so he has a vested interest in not letting that district get altered which would happen if there are any changes to Valdez and Mat-Su maps.  But the presentation was a good illustration of the difficulty of making maps. 

4.  Right after telling us that "attacks on Doyon and Ahtna and others are an excuse to get the map they want" that "Ad hominem attacks are falacious"  Singer, in the next sentence, calls Valdez' expert Kimball Brace "Mr Gerrymander."  He's been called that on national television so it's not original to Singer, but nationally it's more a recognition of how well he knows how to map.  But Singer has made sure to link Brace to that moniker frequently.  That might work with a jury, but I think Judge Matthews sees through that.   

He also made fun of Brace for calling Hoonah, Houlihan.  But I recall Singer apologizing for not being able to pronounce all the names of the villages in the Calista case.

5.  He sounds a lot like a certain ex-president denying every allegation, even those everyone saw him do live on television.  I think I say that because of the swagger in his voice as he denies everything.  Well, not everything.  He acknowledged that Skagway joined with downtown Juneau would be perfectly ok, but it doesn't matter because that's not what the Board did and what the Board did was fine.  Because everything in a Borough is SEI so pairing with downtown Juneau or Mendenhall Valley would be equally SEI.  This just doesn't appear to be the case.  Except he's clinging to part of the Hickel case where that was said, but under different circumstances.

 I think this denial of reality is what is so frustrating. The Court early on said everything in a Borough by definition is socio-economically integrated because that was how Boroughs were defined in the legislation that created them.  But in a large, populated borough like Anchorage 50 years later, we know that in reality, that's not true.  It's a fiction.  Mountain View is not SEI with Campbell Lake. 

Brena made it clear that most people in Juneau would prefer Skagway with downtown Juneau and Mendenhall Valley whole. There is a very close government, business, and personal tie that isn't there with the Mendenhall Valley.  It really is what the people there, according to the testimony, including going through Simpson's handwritten notes person by person at the Skagway public hearing (which the Juneau Board member only attended via Zoom and not in person).  And switching them would be easy and not affect any other districts.  Yet the Board is simply going to stonewall that and go for the map that basically one person - Simpson - wanted regardless of the public testimony.  (At least that's how I heard the testimony)

I'd point the reader to my post that looks at some of what the Court has said about Socio-Economic Integration to understand my frustration with Singer's narrow view and my optimism that Brena has read those cases more closely and shaped his arguments carefully to mirror what the Court seems to believe.  

There are at least 100 posts that could be written about yesterday's closing arguments.  I'll try to get a bit more of a general summary of the arguments done.  But these were things that really stood out for me.

All my posts on the Board going back to December 2020 are indexed (latest post on top) at the Redistricting Board tab just under the Banner up top.  

UPDATE - Well really an addition that came just after I posted this.  An email from Redistricting Board Executive Director about a) they're posting court info on the Board's site  and b) a meeting Wednesday to discuss the judge's decision - which is due before midnight Tuesday. But they'll probably go into Executive Session, which would be appropriate for the parts where they discuss how they plan to react.  

From Torkelson:

It has been a whirlwind of litigation work the past several weeks with many late nights and weekends dedicated to defending the Board's adopted Proclamation Plan.  The Plaintiffs have likewise worked diligently investing substantial time and resources pursuing resolution of their concerns. 

Closing arguments wrapped up yesterday afternoon and we expect the Superior Court's decision by Tuesday, February 15.  Attorneys with decades of experience on both sides have never seen a case move this fast.

There are over 150,000 pages of litigation related documents and numerous motions and counter-motions filed by all parties.  It is easy to get lost in the flurry.

We have created a litigation web page which contains the initial complaints followed by Findings of Fact and Conclusions of Law responses – the best summary of each sides' arguments.  

• www.akredistrict.org/litigation

We will update this page with the Superior Court's decision once it is published.

The Board will meet via Zoom Wednesday, Feb 16 at 11am to receive a report from our legal team on the Superior Court's findings.  Here's the public notice link which includes the Zoom invite and agenda:

• http://notice.alaska.gov/205456

Have a great weekend,

Peter Torkelson
Executive Director
Alaska Redistricting Board

 

AK Redistricting Board Trial Day 1 - Peeling Back The Layers

Anyone who is NOT confused by this case just isn't paying attention.  

You could read Matt Buxton's account of Friday's opening court date -and it's a good version - but there is so much happening, that 100 different reporters could have written equally good accounts that were all different.  

In part, because direct testimony in this case is not happening in open court.  That decision was made because of the ticking clock between now and the date by which candidates, who need to know what districts they're in, have to file to run for office..  The court's decision has to be in 120 days before that June 1 deadline.  That's January 31 or February 1.  

So I'm going to ask readers who haven't read Matt's account, to go read it.  That leaves me free to not try to give an overview, but rather to focus elsewhere. For instance, Matt wrote:

"The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony."

With no intent of contradicting Matt, I'd say the court spent an indecent amount of time on the rules of this trial. Maybe it's more obvious because in this trial the public was able to follow the wrangling in the pre-trial hearings - stuff we don't usually see in court.  I'm now thinking back to various screen court dramas.  I think most spend 99.9% of the time in open court, not in chambers arguing rules. Maybe some chamber time with the judge, but after the trial has already begun. Usually the judge is giving one party a stern warning about following the rules, not about what the rules are.

But it's become clear to me that that is where the real battle is here.  It's the rules the court ultimately follows that will decide the outcome of this case.  

Essentially, the plaintiffs are trying to expose how the board came to their decisions when they were drawing the lines.  The plaintiffs belief the Board members either had no documented reasons or had blatantly partisan reasons.  

For the most part, the Board's process was the most open in Alaska history.  Every meeting since at least December 2020 was available via phone or online.  The Board staff listened to suggestions about their website, quickly put up audio and video tapes of meetings, and worked to set up interactive programs that the public could use to make their own maps online.  They put up all the public testimony on the website in days.  

What didn't get up were transcripts of any of these meetings.  Video's nice, but searching keywords doesn't work. (Though the Assembly has a program where you can search keywords.)  The one area I'd found the Board a little loose on was Executive Session.  These seemed a bit too long to just be covering the official reasons for them. And often the list of reasons a board is allowed to go into ES was cited, but not the specific issue they were going to discuss.  

Well, despite all this openness, the battle now is between the plaintiffs trying to extract the reasons the Board made certain decisions and the defense trying to block them.  They've been asking for the Board meeting transcripts from last November's key meetings for a month now, but the Board only just got them out a few days ago.  They've been asking for the transcripts of the Board's emails to each other and the attorney for a month.  The Board's attorney Matt Singer has been fighting that request tooth and nail.  Even after the Judge ruled in favor the the plaintiffs - with the stipulation that the Judge would read them 'in camera' and decide which were and weren't protected by attorney-client privilege - Singer asked for a stay.  When that was rejected, he asked the Supreme Court for a stay.  They granted a stay, but it was short lived and in the afternoon before the case began, the Supreme Court upheld the Judge's ruling.  

But that meant that Holly Wells had to try her case without any of the information in those emails.  But the judge did allow that this is one big case and she hasn't closed her case yet.  It's still open pending those emails and what other things come up in trial.  Despite Singer's vigorous argument against that.  

There were three witnesses Friday.  Felisa Wilson is the lead plaintiff in the Anchorage case.  I couldn't tell if she said anything that isn't already on the record or not.  I say this because - as mentioned above - it's hard to know what is already on the record.  While the affidavits and depositions are now on the record, they've only recently been available.  In a normal trial, we would have heard direct testimony and what documents were submitted as evidence.  In this trial there are thousand of pages of transcripts, much of which has only appeared in the last week.  

David Dunsmore, worked with Alaskans for Fair Redistricting (AFFR) to come up with their third-party map and was deep in the weeds of this whole process.  Again I don't know that he revealed anything new.  They also had an expert witness.  It seems he did get a few points in about the demographics of East Anchorage and why pairing that district with ER would dilute their voting power.

The Board's lawyer, Singer, did everything he could to discredit the witnesses.  He pointed out that Wilson had been treasurer of the Democratic party, implying this made the lawsuit simply a partisan maneuver. She retorted that she was more than a temporary volunteer position she had only recently taken - that she was a physician, retired Air Force Major, an African-American, and a Blackfoot Sioux and when she retired from the military she got to do a lot of volunteer work she couldn't do while in the military including in immigrant neighborhoods of Anchorage, the ones that will be hurt by the Board's Senate pairings.  

Singer did the same with Dunsmore. You were a staffer to Democratic Sen Bill Wielechowski, right?  AFFR was a union organization right?  These kinds of guilt by association arguments might work at a jury trial, but I have confidence they won't sway Judge Matthews.  

He tried to deny the expert credentials of anthropologist Dr. Chase Hensel.  He asked him questions about things he either wasn't qualified to answer (the law) or aspects of the Anchorage maps he hadn't studied.  Hensel didn't fall into the traps.  These attacks on Hensel were particularly awkward because, as Mat-Su plaintiff's attorney got on the record, Matt Singer himself had himself hired Hensel as an expert witness for another Alaska case. 

I understand that attorneys try to diminish the creditability of opposing witnesses, but given that there is no jury here, these attacks were fairly transparent and seemed sleazy.  Singer had already seemed close to whining as he repeatedly complained about 'changing the rules at the last minute'.  

Singer is one attorney (plus the backups from his law firm) who is fighting off five other attorneys.  With just one opponent it's much easier.  But here, one attorney raises a point and debates with Singer, and then the next one picks it up and adds more ammunition, then the next.  The plaintiffs' attorneys each have one big day in court and the rest of the days they can sit back and just swoop in with question when an opportunity arises.  Singer has to be in the hot seat every day.  Maybe he should have given an associate responsibility for a couple of these cases so he could recoup.  

His main accomplishment has been to block the plaintiffs from getting information that would help them find out what the Board's logic was for the districts that are being challenged.  (Most of the house districts were discussed fairly openly.  But the Eagle River pairings- the most blatantly partisan action the Board approved - was not openly discussed. It was just ramrodded through.  The Valdez pairing with Matsu was briefly discussed in open, but it seemed to be, "Well we've got most everything else done, what do we do with Valdez?"  The options they discussed were pairing it with Anchorage or Mat-Su.  Since it's with Mat-Su now, that seemed the best to them. 

I'd note that Holly Wells had planned to cross examine Melanie Bahnke about the Eagle River pairing.  Board member Bahnke had flown in from Nome specifically for this.  But at the last minute, Wells decided not to cross Bahnke.  My rough notes include this:

"Singer:  I want to call member Bahnke and Borromeo is here.  Ms. Bahnke wants to go back to Nome.  

Wells:  I was hoping to take break given Mr. Singer’s comments.  Rather not call Board.  Nervous about that."

I didn't understand the issue, only that she didn't want to open things up for Singer to question the two Board members.  Later I found a "MOTION TO PRECLUDE REDIRECT QUESTIONING IN ABSENCE OF CROSS-EXAMINATION" that was submitted the evening before the trial was to begin. (It's still, as I write this Sunday evening,  the last document up for this case.)  It's in response to things Singer said in a meeting they had Thursday afternoon.  The part that seems to most succinctly explain her concern:  

"Plaintiffs indicated that they intended only to call three of the Board members, after which counsel for the Board informed the East Anchorage Plaintiffs that he intended to conduct a re-direct examination of all the Board members, regardless of whether the East Anchorage Plaintiffs intended to cross-examine them."

Another maneuver by Singer.  I don't deny that Singer's job is to defend his clients to the best of his ability.  But what is becoming clear is that his clients' case in the Senate Pairings is pretty weak.  His defense is not - at least in the East Anchorage case - to have his clients come to the stand and explain how they got to their decisions, but rather to keep the plaintiffs from getting to his clients.  

On the other hand, he belittles the work of the East Anchorage plaintiffs' expert witness.  That's ok except that the expert actually did some analysis of the districts, while the Board member who did the Eagle River pairings, Bethany Marcum,  used, in her own words, her opinion based on having lived in Eagle River.  No demographic analysis, no numbers on the comparative racial and ethnic make up or economic differences between the two house districts she paired up.  

The wrangling in this case tends to support those who argue that the US courts are not about justice, but about winning.  

Enough.  

 

Bahnke and Borromeo will be back for the other plaintiffs, but I'm not sure Wells will be able to get more about the Senate pairings from them.  

Your Crib Sheet For Friday's Opening Day Of The Alaska Redistricting Trial

 There were originally five separate cases (links go to the original legal complaints):

• East Anchorage challenged over the Eagle River senate pairings
• Mat-Su challenged over being put into a district with Valdez
• Valdez challenged over being put into a house district with Mat-Su and separated from the nearby communities along the Richardson Highway
• Calista challenged over  Hooper Bay, Scammon Bay, and Chevak being put in a House district separate from that of the City of Bethel.
• Skagway challenged over being paired with the Mendenhall Valley rather than downtown Juneau

The five cases were consolidated into one case.  But the plaintiffs, the Board, and the judge all agreed to have them tried separately to make it easier to keep the issues clear and to establish a record for the appellate court.  Later, they also agreed to have Mat-Su and Valdez combine because the issues are the same and to eliminate repetition of witnesses and testimony.  So that's where we are today.  

The cases will be heard in court in the order I've listed them.  So we start tomorrow and 8:30am Alaska time.  You can listen in on Judge Thomas Matthews' Youtube channel.

Different from most trials, the opening arguments and direct testimony (original questioning of the witness in the court room) was done in writing and submitted to the court before the trial.  This was done to save time because the case has to be done 120 days before the date candidates have to file to run for office - June 1. That is the end of January.  

So, since you won't hear the opening argument in court, I'm going to give you the opening parts of it and if you want to see the rest, you can see the East Anchorage pre-trial brief and opening statement here.   I'd note the lead attorney in this case is Holly Wells of the law firm Birch Horton Bittner & Cherot.  She has done many workshops for state boards on how to comply with the public meetings law in Alaska.  She's also been one of the most succinct and on point attorneys in the pre-trial hearings.  

"I. OPENING STATEMENT

“The goal of an apportionment plan is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation.” Hickel v. Southeast Conference.1 The Alaska Supreme Court in Hickel v. Southeast Conference reminded Alaska’s leaders:

in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving true representation, which, of course, is the very cornerstone of a democratic government.”2

The East Anchorage Plaintiffs will present this Court with substantial evidence that the Board systematically deprived the voters in the East Anchorage communities of interest adequate and true representation in the Alaska State Senate. The evidence will demonstrate that the pairing of House District 21 with House District 22 and House District 23 with House District 24 was arbitrary, unreasonable, and in direct violation of the due process clause of the Alaska Constitution. Both the record and testimony will demonstrate that the Board’s process and procedure regarding the senate pairings violated Art. VI, Section 10 of the Alaska Constitution as well as the Alaska Open

1

846 P.2d 38 (Alaska 1993).

Hickel, 846 P.2d at 44 (quoting from 3 Proceedings of the ConstitutionalIN THE MATTER OF THE 2021 REDISTRICTING PLAN CASE NO. 3AN-21-08869CI

EAST ANCHORAGE’S PRETRIAL BRIEF/OPENING STATEMENT PAGE 2 OF 2401163926.DOCX

2
Convention (PACC) 1835 (January 11, 1956)).

Meetings Act.3 The East Anchorage Plaintiffs will submit evidence both from the record and testimony demonstrating that Board members intentionally misrepresented their considerations of partisan motivations, misrepresented their use of partisan data to select their pairings, concealed their analysis of the risk of dilution in the districts at issue on the basis of race and minority status, misconstrued testimony by East Anchorage community members to serve their impermissible objective, and held secret deliberations and meetings to veil their partisan and discriminatory goals. The evidence will demonstrate that the Board’s intentional pairing of Eagle River districts with East Anchorage Districts favored one geographical area, community of interest, and political party over another despite overwhelming testimony from both communities detailing their lack of shared interests, goals, and commonalities before the Board, and reiterated by East Anchorage witnesses from Eagle River and East Anchorage alike.

Upholding the adopted senate pairings not only muffles the voices of East Anchorage communities of interest, as so aptly stated by Board member Melanie Bahnke, it would confirm for future boards that partisanship and discrimination are “fair game” in the senate pairing realm. Under the underlying principles of the redistricting process, the Alaska Constitution, and the most basic tenets of fairness, the Board’s pairing of the South Muldoon and Eagle River Valley house districts and the pairing of the Government Hill/JBER/Northeast Anchorage and North Eagle River/Chugach house districts cannot stand.

And from Part B:

More specifically,  the evidence will demonstrate the following impermissible Board actions:

1. Holding executive sessions that are not permitted under the Open Meetings  Act (AS 44.62.310, et.seq.);
2. Adopting final senate pairings that were not presented to the public during the public hearing process in violation of Article VI, Section 10 of the Alaska Constitution;
3. Adopting final senate pairings that were not developed in accordance with the guidelines adopted by the Board for development of its final pairings;
4. Adopting senate pairings which the public did not have access to view;
5. Adopting final senate pairings that were not one of the senate pairings options published by the Board for public comment and testimony; and
6. Adopting pairings without regard to public testimony or relying upon misrepresentation of public testimony to justify pairings.

Don't assume this is a slam dunk.  The Board's attorney has done a great job of blocking access to Board members - having them cite attorney-client privilege for many questions during depositions.  He's also managed to delay the plaintiffs' access to transcripts of Board meetings.  He says this is due to the transcription service, but as I watch, the cumulative effect is keeping information from the plaintiffs.  

But I would add for point number 4 here that in neither the initial Board plans nor the modified plans that showed all the House seats, did the Board include Senate pairings.  On the other hand, all the third party submissions did include Senate pairings.  

See you all in court tomorrow.  

[UPDATED January 21, 2022, 10:30pm:  I didn't mean to leave this part (Conclusions) in here.  It was something I'd started on, but decided to put elsewhere and it interrupts the flow of the plaintiffs argument.  Since a number of folks have already seen it, I'll leave it here, but move it down to the end.  My rule is that I can make minor non-substantive corrections but not substantive ones more than an hour after posting, so I'll leave this here.] 

Conclusions:

I'm sticking my neck out here making conclusions before the trial even starts, but this has been a rare opportunity to hear all the pretrial wrangling of the attorneys.  Since this is not a jury trial, no one had to worry about potential jurors listening in.  

Essentially, Singer has been arguing about process and procedure.  He's acted confident in the way he spoke that there was [no] other correct position than his own on attorney-client privilege.  He called the plaintiffs' arguments 'laughable.'  He's stalled in getting the transcripts from the November board meetings to the plaintiff's attorneys.  The plaintiffs' attorneys didn't have that information or the affidavits when the deposed Board members and other witnesses.  He's blamed the transcription service for some of the delays.  He's blamed all the paperwork he needs to get into the court for other delays.  And, that point has some merit.  He's got five separate attorneys filing requests and motions and he has to respond to them all.  But in his firm's proposal to be the attorney for the Board, they talked about all the lawyers who would be available to back him up."

Redistricting Overload Part 2: More Details On Friday's Pre-Trial Hearing

Part 1 is here.

What’s been vaguely clear became crystal clear at this hearing Friday - time, and how the attorneys use their allotted six hours, will be a major factor in these cases.  (Although the cases have been consolidated, all but two are being tried separately.  Two are loosely joined together.)

First part of meeting was about scheduling.  Judge wanted another hearing Saturday, but depositions are happening Saturday, So the next meting is Sunday at 1pm.  Then there were issues of when documents get in with the judge and others articulating how much time they’ll have to read and respond - but you can’t push too much because the trial starts on Friday January 21, 2022.  And on top of that, Monday is a holiday. 

The Sunday meeting, if I understood this right, is about a motion (which I haven’t gotten access to yet, but the issue was discussed previously) relating to turning over the email communications between the Board’s attorney, Mr. Singer, and Board members.  Mr. Singer has argued these emails are protected by attorney-client privilege.  At a previous meeting Ms. Wells said that attorney-client privilege for public boards is different and that Alaska’s Public Meetings Act plays a big role here.  At the previous meeting Singer said it would take time to redact sensitive information and the attorneys said there wasn’t time for that and they could get the emails and Singer could object to parts they wanted to use.  I’m guessing that is where we are now - with a motion to turn over all the emails and with Singer objecting.  But following a judge’s order, Singer said it’s all on a thumb drive if it does have to be turned over.  From what I could tell, this is what Sunday’s meeting will cover mostly.

They also decided to pair up the Matsu and Valdez cases because they overlap so much and there would be a lot of redundant testimony if they were two separate cases within this consolidated set of five cases.  Valdez objects to being put with Mat-Su and Mat-Su’s case opposed having Valdez in their district. 

Then there was discussion of the order of witnesses in the various cases and then who would get to cross-examine in what order. 

There was also discussion about what kind of transcripts they were getting.  The judge distinguished between real time (get them as they're being done) and Daily where you get the transcripts the next day.  The plaintiffs and Board are jointly paying for the service and Singer mentioned that Pacific Rim, the transcription company, wants to be paid within two weeks.  

These all might seem like highly technical issues, but they could greatly influence how things turn out.  

Then there was a critical discussion over a Board proposal by Mr. Singer to have the Board’s executive director do a 20-30 minute introduction to the software the state used so people will understand the terms and the practical capabilities and limits of the software.  

Mr. Brena strongly objected and wanted to have his expert witness there and to be able to question Torkelson and his expert witness about the software.  

Part 1 is here.

Brena argued that the Board used the software incorrectly and that using Alaska as the example geography for the demonstration would make it a demonstration of the software in Alaska and not a demonstration of the software.  

Ms Stone suggested Torkelson make a 30 minute video tape so people could view it and judge its neutrality.  Singer said there was no time to do that before Friday.  

I’d note that there is, actually, such a video tape by Peter Torkelson that he made and posted on the Board’s website which he used to help the general public get familiar with the software.  It is, though, and hour rather than 20-30 minutes.  

I’d note that Singer spoke as though this tool, with all the built in assumptions, is a neutral tool.  Sort of like, ‘people kill people, not guns.’  All tools affect the environment they are used in.  A shovel has a very different impact than a bulldozer.  

The judge backed off on this after hearing Brena’s arguments and postponed any decision on this.  But the trial begins Friday.  

Overall I thought the judge sounded very committed to as good an airing of the arguments as possible so that the Supreme Court has all it needs when it gets the appeal. It didn’t sound like anyone doubted there would be an appeal to the Supreme Court.  Judge Matthews was very open to the ideas of the attorneys and to hearing all issues for each topic.  Everyone’s demeanor ranged from extremely conciliatory to a bit competitive.  The most aggressive exchanges were between Singer and Brenna, but nobody was using elbows.  

The dynamic in 2022 is very different from 2012.  Then, the main case was a single attorney (mostly) representing some Fairbanks plaintiffs against the Board’s attorney.  I would say the Board’s attorney, who had been involved in the whole process, had all the facts and details on the tip of his tongue.  Nevertheless, the Fairbanks attorney did get the first maps thrown out and the Board had to begin again.  

This time there are five different lawsuits.  Each plaintiff is represented by firms with back-up attorneys.  (One of the attorneys - Robin Brena - is representing both Valdez and Skagway, and you can see this in the similarity of their initial written challenges. 

It’s like the Board’s attorney is playing chess with five different opponents at the same time.

Enough.  Below are my somewhat cleaned up, but still very rough notes from Friday’s hearing.  I have a lot of respect for court transcribers.  My notes missed a lot.  You can’t really quote them, but you can get a sense of what was discussed and who participated.   

Very rough notes of the meeting.  These are not verbatim and as you can tell there are gaps.  But until the judge makes real time transcripts publicly available, this is the best you have. At best they give a sense of the meeting, the topics, the participants. And they are a rough guide of where in the meeting to look if you need more.  

Judge Thomas Matthews:  Motion for Rule of Law and Board’s opposition

Schedule 1pm Saturday, rare situation and oral argument on those motions,  

Briefing raises issues on Attorney-client privilege and Open Meetings Act

Not much lead time, OK

Robin Brena [Attorney for Valdez and for Skagway]:  We have a deposition tomorrow

Matthews:  Sunday? Time is what it ….

Singer: [Redistricting Board's attorney]: Two depositions of Board staff, [Peter] Torkelson [Board Executive Director] tomorrow and Deputy Director. Monday, we could move both to Monday and do oral tomorrow.  Might make more sense and give court remainder of weekend.

Brena:  I need to get deposition of director tomorrow.  There’s a a 50/50 chance Monday deposition won’t go forward.  

Stacy Stone [Attorney for Mat-Su]:  We’ve been taking lunch breaks, we could do it during lunch tomorrow at noon.

Brena:  If you set it for 3pm the deposition should be over.  

Matthews:  

Singer:  Pretrial order says motions about privilege by the tenth, Matsu and 

East Anchorage and Valdez timely, the other three not timely.

Matthews:  I have your motion. valid point that [those were] after the deadline, but your motion yesterday is a summary judgment and I could say that was late too.  Deny your motion.  I want full presentation and court needs to set a record on that.

Singer:  Order should be on separate day from oral argument, deposition a different day.

Mike Schecter speaking? [Calista attorney]: Basically me too with others and don’t need extra oral argument time 

Matthews:  Sunday afternoon

Wells: [Attorney for Anchorage plaintiffs over Senate pairings] Sat or Sunday fine

Amdur-Clark - [Doyon attorney] not participating so either

Matthews:  Going to be a busy weekend,  Respect, if I set for Sunday pm, if others have Sunday commitment?  Madame clerk?

1, 2, 3 o’clock?

DECISION:  1 o’clock Sunday it is

One other issue:  Ordered yesterday and Mr. Singer responded in hours, in camera review.  I’m working this weekend as well, so if I make an order, please have them ready this weekend. [If I understand this right, the Board has been asked to turn over emails between attorney and Board.  Board has protested and the judge will make the decision soon if they have to be turned over.]

Singer:  We have it on a thumb drive and it’s ready.  Significant issue and implications for future boards and their counsel.  Will want to seek emergency review from the SC.  I respect the court, complicated issues, and time, but oldest ???  In the law (atty-client privilege)

Brena: I hope we don’t delay any process, not sure SC could rule before trial starts.  Hope court thinking as simultaneous actions.  They need to be looked at - 2400 emails asserted under privilege, many of which the attorney was copied on.

Matthews:

????:  

Mathews:  Would like reply briefs today, 4pm.  Want to be sure Singer has adequate time to review multiple replies, won’t hold strictly to 4pm since electronic.  

Production of emails, about order yesterday.  Only to be prepared to address the issue, one way or the other.  If ready on a thumb drive, at least have that ready.  Won’t make decision before oral arguments on privilege Sunday.  Recognize your right to appeal and will address issues on Sunday.

Msic. Issues.  Mr. Singer, courts power to compel.  

Filing deadline questions for objections, plaintiffs objections due, given court holiday on Monday.  Want to be fair to all and even handed.  Gave 3 days to keep things moving.  If I don’t get them until Tuesday, not much time 

Brena:  Was going to ask an additional day for reports to be filed - instead of today, tomorrow.  We’re doing the best we can, have outside experts,  asked Supreme Court for 15 days and got some,  Last night asked for maps, which have been in public record, but not available.  And older maps 1992 we can’t get.   Asking for 4pm reply, expert reports, no one harmed by one day extension.  Under circumstances that’s fair.  Don’t mind the objections on the holiday, but give us one more day for experts report.

Wells:  I don’t anticipate we’ll have objections.  Going first at trial, gives a little breathing room

Matthews:  Practical issues.  Singer’s concerns - if you aren’t going to file objections until after the holiday [MLK Day], when would you file.  

Brena:  ????   I’d give him an extra day to

Singer:  2 different sets of objections 1) board’s profiled testimony  

Brena:  Yes, I linked two things

Matthews:  Ms. Wells says no objections from her.  This is the last week, if fell on Saturday, gives you to Tuesday.  Singer said, then I have until Thursday.  Timing seems fair, other than we start trial on Friday.

Brena:  Fine either way

Matthews:  Three days would fall tomorrow, give Mr. Singer til middle of week for reply.

Singer:  Concerns, five, maybe only four, sets of objections times six witnesses to respond to.  We produced 150 K docs, made witnesses available for depositions, five to one, I ask for extra day.  If they submit tomorrow, then midweek.  Spill into trial, but opening case [Anchorage case] not affected.

Brena:  nature of our objection ????  However, we’re flexible

Matthews:  Objections to Board profiled testimony, due tomorrow, Board has four days to reply.  Expert Testimony that was due today  is now due tomorrow, and Board has four days.

In your brief yesterday, you asked for Valdez and Matsu  to go back to back.  Amdur-Clark said

Amdur-Clark - go after the court

Brena - raises several questions.  Talking about A or B, separate processes.  There are interrelated issues, but are separate cases.  I mentioned the two that made sense were Valdez and Mat-Su as plaintiffs.  Could go from five to four presentations.  Mat-su is open to the idea.  We want to be sure that Matsu first Valdez second, Intervenor third, and Board last.

Do we have opportunity ??? Cross exam.  No opportunity to close the case.  Ask for opportunity to call one of the witnesses to close the case.  Order:  profile testimony of Wasilla, the cross exam by???? Can’t keep up…. We aren’t perfectly aligned with Wasilla.  

We can go along with merging. Logical if done correct.  Wasilla, Valdez, Intervenor, Board, then if time, after Board witness to call our witness to respond.  

Stone:  Ask allocated entire two days because we have our own issues and we’d negotiate between us how to do  it, so we only have to call witnesses once.  Mr. singer says consensus among all parties, but not really.  

Brena:  Couple more things to add:  How trial works:  Observation;  Intervenors have 3 witnesses, so have nine witnesses, Valdez 3, Matsu 2.  Issue linked.  We selected 3 for Valdez day before affidavit due ??? Wouldn’t count toward our witnesses.  We were preserving slots for position, another issue is how deposition play into this>  Mr. Singer thought I was going to skip cross.  But we want to put in the depositions, but do intend to cross witnesses.  Gamesmanship with cross, if someone decides to pass on a cross.  ?????

If put - ok Matsu an Valdez together, [can’t keep up]  about order of witnesses and trial.

Mr. Singer:  Several items in play:  Possible miscommunication or not touching on real issues.  Mr. Brena said surprised didn’t cross.  They  were part of admission and fair game at trial, but not fair game, if someone submit Board deposition, but I was not given opportunity to redirect.  I haven’t had that opportunity.  Discovery depositions - 8 hours.  No second day for cross, because another witness the next day.  We’d have a meet and confer, but intent of Board testimony was to perpetuate testimony if not available.  Haven’t had oppotuniay.  If they do that???, then I have opportunity to redirect issues from deposition.  Preventing them from explaining.

No preference if Matsu or Valdez go first. Board has one explanation for why the distric tlooks that way.  Shouldn’t have to testify twice.  My experience that intervenor usually follows the defense, but have no profaner.  

Matthews:  not cutting anyone off - all important

Wells: We took deposition of Ruedrich, deposition instead of direct, hostile, I did think we were taking our direct testimony and then other parties would cross, but …. Ok submitting it as our testimony and our cross of Ruedrich.  A little different.

I did hear Matsu borough objected to opening statement but do want closing statement.

Amdur-Clark:  As Singer appreciates - our preference about coming after Board.  I will have questions and issues Singer doesn’t have and issues I wouldn’t raise, but Singer would.  Keep it a clear record and not redundant, makes sense for us to go after the Board.

Matthews:  Unclear why it makes a difference when you have your witnesses.  Seems that Board has biggest lift

Amdur-Clark - not that strong preference of witnesses, but really order of when crossing witnesses.  If Valdez makes witness available.  Likely many questions would be the same as he would ask.  More appropriate for Singer to ask, and I would just be filling in the holes. 

Matthews:  order cross exam witnesses of Valdez and Matsu, not your witnesses

Stone: I do think Mr. Singer has the opportunity to redirect at deposition and if he needs more, then he should file reasons.

Wells:  One significant point:  We have two Board members who did not present any testimony about senate pairings.  Can’t be in scope of direct, because there was not direct.

Singer:  Civil rules allows depositions for the purposes, but not-noticing, when each deposition went over 8 hours when court made it clear that cross at trial.  All went over 8 hours and we would have been there til 10 or 11 at night if I did it at deposition.  Ultimate question is whether the Board acted rationally.  Plaintiffs at last minute want to use deposition and ???  Ask opportunity to redirect out of our time.

Brena: What we agreed on:  order of witness and order of cross muddled until Mr. Clark’s comments.  Don’t object.  ???????  [Sorry can’t keep up]   Let Board cross witnesses first.  For Valdez witnesses, Matsu, Board, Intervenors???? [But not sure and he offered more of these timelines.]

Matthews:  Let’s pause and see if agreement

Mr.Amdur-Clark - for Board witnesses, Plaintiffs first and we after.  

Brena:  don’t want 

Amdur-Clark -retract that, confusion in mind.

Matthews:  Sense that Board’s testimony and way crossed is going to overlap, so having them put together and have int

Matsu-Valdez-Intervenor- Board (presentation of Witnesses)

Cross different Brena correct

Brena - other parties may want to ask a question, so I would ask if anyone is going to do that, that would be the first people crossing

Matthews:  no issue with that.  Each party gets 6.5 hours for each case.  If Brena wanted to cross a Valdez witness instead of Matsu, but you only get the six hours

Brena:  comments on depositions too.  No gamesmanship here.  Valdez gave up 3 witnesses so have opportunity to use depositions in fact.  You said it didn’t count against the trial witnesses, but didn’t have time, so created open spots to get these depositions before your honor.  Since first order that depositions could take place of witness.  Just asking that depositions that were taken, Singer saying doing discovery depositions, I didn’t think so, I was doing them so they would take time from trial.  Asked several times - getting sure that depositions are part of the record and go to the SC.  I’m going to use things from depositions in trial.  I should have to use them to validate the position I took, to preserve.  Depositions should be part of the record.  Singer raises point.  We didn’t have eight hours on the clock and he did ask redirect in his depositions..  Taken, videotaped, transcribed, lot of money, and want to sue them in court.

Matthews:  maybe not be hearing each other.  Brena you want to lodge testimony with court as any witness Rule 32

Brena:  And doesn’t take from trial time

Matthews:  Fine, but doesn’t take from his time and ability to cross

Singer:  Then I get take my time, not just scope of cross in court, but if ambiguity in deposition, I can ask witness to explain any ambiguity in the deposition.    Depositions very lengthy, I don’t need to question my witnesses.  I know what they are going to say at trial.

Brena:  Can he redirect.  Problem.  I may ask six questions and not raise a question.  He can redirect on topics I didn’t know he was going to raise.  They not only get to close, but on testimony not contested in live trial.  So, if he raise new issues I didn’t cross on, then I can redirect after.  Witness may say thing I never heard.  Not fair to give him that without giving me opportunity to call in my witnesses to rebut

Matthews:  We haven’t spoken to rebuttal.  You have six hours and in ordinary course you could do that.  Only piece we eliminated is that direct is prefiled.  You get to cross and redirect.  ???  We do that all the time.  Issue isn’t that we throw out the window, it’s just time.  How you use the six hours.  If you need a rebuttal witness and only have 15 minutes left, need to do it quick.  You have burden to go forward and have opportunity for limited rebuttal

Brena  Singer ok.

Singer:  If I do my redirect about things Brena raised and then go to p.42 on deposition, if Brena wants to recross, rather than a rebuttal witness …

Brena - argument for recross usually depends on circumstanes, but right to rebut everyone has

Matthews:  True and doesn’t prevent Singer from redirect/rebuttal????  Board members will be ??? of lawyers.  I can’t think of any trial without oopses.  I know you are on a really tight schedule and I’m trying to give you every opportunity.  Our issues is time.

Singer:  how present deposition

Mattjhews:  Haven’t fully thought this through.  1.  You simply file the transcript and you have it all.  

Wells:  Because we go first, want to be clear about deposition who are silent in their affidavits from Bahnke and Borromeo, we didn’t anticipate being closed from presenting testimony.  We have no opportunity to cross because 

Brena:  A judge trial case and no reason to not just let the deposition go in as part of the record.  Underlying rules are to protect juries, but you can do this.  Just lodge the depositions people can use them however they want.

Singer:  We don’t need line and page number, but having counsel simply id, this is the section that relates to City of Skagway’s case, then we should have opportunity - otherwise  free-for-all.  

Matthews:  Assuming, maybe incorrectly, for everyone except Brena who has two different cleints,  when Ms. Stone is going to be asking about Matsu.  

Singer:  Brena asked about Matsu and about Senate pairings.

Brena:  There aren’t any surprises on issues here. Anyone who wants to read through the depositions.  We are all capable of going through deposition and say what relates to which case.  These are capable sophisticated counsel here.

Miss Stone:  Why opening on the record is important.

Brena:  Do our best, but 

Stone:  That when do trial brief identify what we are going to use.  

Matthews [I think this was Singer]:  What I’m going to get with 8 hour deposition is that people will designate 7.5 hours and it puts more work on you.  Whether in trial brief at front end or ??? At the tail end.  Give me the whole thing.  Which raises another question I wanted to ask:  You all in earlier discussion with judge Morse, talked about real time transcription with Pacific Rim lined up.  Court ordered each party responsible for equal percentage of bill.  They are concerned about payment within two weeks.  

Matthews:  Let’s be clear here:  There’s a difference between real time transcription - transcribing as in progress so can be read on the spot.  Daily is overnight and ready the next time.  

Singer:  Real time

Brena: Yes, we anticipate real time. Lots of moving parts in this trial.  Concerned about two weeks payment cycle   Representing Municipality and Borough and they have their own procedures, typically 30 day cycle - I’ll talk with Matt.

Matthews:  Worked with many reporters, that have had trouble with attorneys payment.  Particularly with real time transcription, they should be paid timely.

Brena:  If you want to ask for 30 days I’m ok

Matthews:  or deposit

Amdur-Clark:  Stone raised issue.  There have been objections filed to pretrial testimony which court hasn’t ruled on.  Since they are before the court should we object now or wait until court?

Matthews:  We’ll address objections as we go.  Cite in trial briefs

???? Back to deposition, Ms. Stone, Ms Wells, about Randy Ruedrich.  Had discussion on what to do as a non-party witness.  Ruedrich is a bit of ????

Wells: We took his testimony to authenticate some documents.  We’re fine with that.  Don’t have a preference but wanted ???  We could submit designations and Board could do the same.

Matthews:  Anyone planning live testimony from Mr. Riuedrich?

Singer:  Put whole transcript in.  If plaintiffs don’t …. We don’t want to go thru it either.  If something inadmissible, your honor will exclude it.

Wells:  OK your honor.

Matthews:  Oral openings and closing and appeared from briefs you’re all in agreement.  Today sounds like agreement on oral closings, but not openings.

Closings makes sense to me once submitted findings of fact and conclusions of law

Oral openings, thought we resolved that you would include that in trail briefs.  No one jumping up and down.  Matter of time.  Oral closing.

Singer:  Timing, schedule closing argument right after filing findings and conclusions of law

???? Figuring out calendar for this - give me 24 hours or longer to review before getting oral arguments.

Brena:  I’m fine - I asked for opening - I have no problem having opening briefs address the issue. 

[Move on to talk about a presentation on the software and how it works]

Matthews:  Mr. Singer, you raised about presentation about the [redistricting software] 

Singer:  In standard trial would be first witness - software and how it works - non-controversial.  I’m a first time redistricting lawyer and had my own confusion about how you build maps.  More like legos than drawing lines.  Propose to do that without questioning about any areas of the state or about ???between getting data and final proclamation in November.  Ideally bring in 64 inch high res monitor and Mr. Torkelson would do a back and forth, 20-30minutes.  Willing to cede time to cross examine.  The Autobound and Districtor  software.  

Very first thing we do at trial or first thing after Anchorage case.  

If in person not possible, could be done through share screen.  Just not get the impact on a smaller screen.  

Brena:  Think that Ms. Brooks first

Stone:  Involves an area of expertise, may need an expert to ??  The process the Board used.

Brena:  We don’t think the Board did it right, so having an explanation by a non-expert on how to do it right starts things off wrong.  We want equal time to have our explanation of how it should work.  We believe they did it wrong.  Having their director say how this works because they didn’t do it right.  If you want a presentation, allow all the experts make one.  All ??oate equal time for experts to do it properly.  They should put their ?? how they want, but this is not a neutral point.  Best addressed in context of actual case.

Amdur-Clark - we support his idea.  There is plenty of time using trial to put on experts to say they did it wrong.  This is just Mr Singer saying “This is how we did it.”  We support having the court see clicking the buttons and making maps.

Brena:  We don’t oppose it, but should be part of the case.

Matthews:  My question was “how does this stuff work” Mr. Brena are you saying they didn’t run the software correctly?

Brena:  I’m deposing the witness tomorrow.  We don’t think they understood the software correctly, not consistent with how to use the software, because they did some things wrong.  We don’t agree Peter Torkelson is an expert.  Should not get some special status before the court.  Not a fair status to give them.  Let that be their first witness.

Singer:  I proposed we do it out of our time, and plaintiffs could question. Mr. Torkelson is a computer programer and probably there is no one more expert in the state. Going to be helpful to the court.  Not asking for special status.  If this an auto accident caee near courthouse, could ask court to walk to intersection.

Time out of us, allowing time for cross-exam.  If court thinks it useful..

Brena:  Compromise.  Singer proposing 30 minutes out of his time and me 30 minutes out of time.  My expert out of town, so ask this be zoom and I can ask Torkelson or ask my own expert.  If Singer gives us his time, not just cross, b

Singer:  Not proposing opportunity to get to any decisions in the case or evidence about the case.  Just showing the court about the tool the board used..  Then Brena wants to say we did it wrong.  If their witnesses wants to say, the software has these four functions the board didn’t use.  We aren’t going to get into what the Board did.  Just the census blocks and shape files and take a non-controversial area of the state and then look at the public software and see how it works - tha t?? of Valdez -that’s all I want.  Counsels misunderstanding of how software used,  we want to see click by click.  Mr. Brace, will come in with his ideas.  But court should have some understanding.  If this about a red car, court should see red car.

Stone:  What if Board submits a video of presentation before and we can look.

Brena:  Singer’s comments raise more issue.  “Non-Controversial” area of the state.  This is not about the software, but about Alaska and Alaska maps.  If any demonstration of how we ??use the software correctly and we disagree on this.  Then I want the opportunity to show how do it correctly.  Not sure we should use Alaskans as the example.  Mr. Singer hasn’t seen our deposition.  He said he’s [Peter I think] familiar - but uses it every ten years.   If wants to make presentation about software, then why use Alaska?  And then doesn’t want our expert.  I shouldn’t have to cross him in front of the court.

Ms. Stone’s suggestion is good, but I don’t like this whole thing.  If going to aocmodate out of court’s curiosity.

Singer:  No one disputes Northwest districts.  We could draw part of state not identified as problem in the state and could draw several maps to show what happens when you click the button.  Not going to have time to do video deposition and send in advance [lists things to do all week]

Brena:  They had opportunity to have Torkelson make this video.  Traditional to start with Arctic Slope where they pack a disproportionate number of Native Alaskans - goes right to the heart of the issues.  More I hear, the more it has to do with substantive issues.  If permit this, then we want 30 minutes too.

Matthews:  Perhaps I opened a can of worms . I see distinction between how does the software work and how did the Board use the software.  You’ve raised questions about my assumptions   Question of what order I take this evidence and the order.  It makes it difficult to do demonstration of software by affidavit.  I’ll wait until what you give based on expert deposition.  If software is critical to case, then having one understanding of how it works at the beginning would be helpful.  But you raise issues.  Take it one step at a time.  Not going to schedule it now.  I’ll hear evidence as it comes in.

Couple of hours now -

 other issues we haven’t touched on?

Brena:  Good for today

Wells:  No other issues

Stone: She left but no other issues

Amdur-clark:  no

Singer:  See you Sunday.