Redistricting Board Rolls Out A Detailed Schedule

It's getting to be crunch time at the Redistricting Board.  Their new schedule has them finished with their Hickel Plan by July 12, 2013. Then if the US Supreme Court rules in the Shelby County v Holder decision to invalidate Section 5 of the Voting Rights Act, they plan to be done with their plan by July 12.

There were several emails in the last two days for folks who have subscribed to the Board's emails.   Let's see if I can pull out the information from the emails with some explanation.

WORK SESSIONS:

First there are work session where the meeting is open to the public, but basically they are developing maps.  They have to have an announced meeting as long as three or more Board members talk about redistricting.  But much of the time will be spent on the computers making maps.

Alaska Redistricting Board Mapping Work Sessions

The Alaska Redistricting Board will hold Mapping Work Sessions at the Anchorage office, 411 West 4th Avenue, Suite 302 from 8:00AM until 5:00PM on the following days: June 12th, 2013, June 13th, 2013, June 14th, 2013, June 15th, 2013 June 16th, 2013 June 17th, 2013 June 18th, 2013 June 19th, 2013 and June 20th, 2013. This schedule may be subject to change. Notice of change will be provided.

These meetings are going on now.  I just couldn't drag myself over there over the weekend or in this hot weather yesterday and today.  I've posted about the meetings last week.  Probably there should be people there watching, but it's been more than I could handle.


Private Plans Due Friday June 21 at Noon

For anyone who wants to submit their own plan, it's got to be in by Friday at noon.  Mostly this will be done by organizations who have been tracking this - the two big political parties - Democrats and Republicans.  Several Native organizations have been following the process and have submitted plans in the earlier chapters of this process.

SUBMISSION OF PLANS
Any individual, group, or organization wishing to submit a proposed Hickel Plan for the Board to consider must do so no later than 12:00 p.m. on Friday, June 21. Hickel Plans are to be drawn based solely on the requirements of the Alaska Constitution and without any consideration to Section 5 of the Voting Rights Act (VRA).
Submissions can be dropped off in person to the Alaska Redistricting Office or emailed to info@akredistricting.org.
Then the email refocuses on the work session and then the meeting to be held Friday June 21.  You'll notice the work session sort of wraps the meeting. 

ALASKA REDISTRICTING BOARD WORK SESSION

 The Alaska Redistricting Board will hold a work session June 21, 2013 from 10:00AM until 4:00PM at their conference room at 411 West 4th Avenue, Suite 302.

ALASKA REDISTRICTING BOARD MEETING

 The Alaska Redistricting Board will hold a board meeting June 21, 2013 from 12:00PM (noon) until 1:00PM at their board room at 411 West 4th Avenue, Suite 302. The Board meeting will be teleconferenced. To listen call in at 1-855-463-5009 or streaming on AKL.TV. The Board intends to review the draft Hickel Plans created during the work sessions and also finalize the list of submitted third-party plans it will be considering.

What's a HICKEL PLAN?  Even for those of you following this, it could be confusing.  It means a plan that only considers the Alaska Constitutional requirements, not the Voting Rights Act (VRA) requirements.  The Court required the Board to draw these maps first and then stop.  Then they are to make the changes necessary to also meet the VRA requirements.  Of course, most of the Board is hoping they will be relieved of Section 5 of the VRA when the US Supreme Court issues its opinion on Shelby County v Holder, which I've posted about already.

Then Come Public Hearings

So a week after the June 21 meeting,  will be the first public hearing and people who submitted Hickel Plans will be able to present them to the Board at the hearings and anyone can testify about the plans.  The first time around I tried to present some information here for people going to the hearings and post questions people might want to ask.  I'll try to do that again.

PUBLIC HEARINGS AND PLAN PRESENTATIONS

The Board intends to hold public hearings in the following locations to solicit general comments and receive presentations on any third-party plans submitted prior to the Friday, June 21 deadline:

Anchorage (June 28, 2013) To be held at the Anchorage LIO [716 W 4th Avenue, Suite 200]  from 10:00 AM - 4:00 PM
Testimony will be taken in person and by teleconference 1-855-463-5009

Fairbanks (July 1, 2013)
To be held at the Fairbanks LIO [1292 Sadler Way Suite 308] from 12:30 PM - 4:00 PM
Testimony will be taken in person and by teleconference 1-855-463-5009

Juneau (July 2, 2013)
To be held in the Beltz Room, Capitol Building from 12:00PM - 4:00PM
Testimony will be taken in person and by teleconference 1855-463-5009

Any individual, group or organization wishing to present their submitted Hickel Plans at these hearings is required to provide reasonable advance notice to Board staff by:
Telephone (907-269-7402)
Fax (907-269-6691)
Email (info@akredistricting.org)

I'm guessing that 'reasonable advance notice' means they didn't get around to figuring out a specific number of days or hours before the hearings so they left it vague.  On the other hand, anyone turning in a Hickel Plan by the June 21 deadline, presumably, will say which public hearing they want to present it at when they turn in the plan.

My perception was that if there are minor issues that affect a neighborhood, or coincide with what the Board wants to do, your recommendations have a good chance of being adopted.  But if it conflicts with what the Board wants to do, probably not.  For example, in the first public hearings, lots of people from both Muldoon and Eagle River argued that they should not be in a single House district because they have very different interests.  And while the Board did separate them more in the House districts, they also paired one Eagle River House district with one Muldoon House district to form a Senate seat that became Republican enough to bump off Sen. Bettye Davis.

More Board Meetings For A Final Board Hickel Plan 

ADDITIONAL BOARD MEETINGS
The Alaska Redistricting Board intends to hold a meeting at its Anchorage office on
July 5, 2013 at 11:00AM ,
July 6, 2013 at 10:00AM and
July 7, 2013 at 10:00AM,
July 8, 2013 ( time to be announced) J
July 9, 2013 (time to be announced)
July 10, 2013 (time to be announced),
July 11, 2013 (time to be announced) and
July 12, 2013 (time to be announced, to adopt a final Hickel Plan.

All board meetings will be teleconferenced at 1-855-463-5009 and streamed at AKL.TV .
The Board's schedule thereafter is dependent upon the status of Section 5 of the VRA, which will determine if the Board's adopted Hickel Plan becomes the new final plan or whether further changes must be made to balance Alaska constitutional requirements with the requirements of the VRA, in accordance with the Hickel Process.

And there you have it.  I'm sure that this is getting old for the Board.  If it was fun once, it isn't so much any more.  And you can see from the last paragraph in the email that they are looking forward to the US Supreme Court relieving them of the pre-clearance requirement.  (Except Board member Marie Green who has worked hard to preserve Alaska Native districts in compliance with the VRA.) 
 

Redistricting Board Complies With Court Order, But Insists They Would Have Anyway, Not Because The Court Told Them To

On Friday June 7, the Redistricting Board met to discuss how they were going to proceed given a Superior Court ruling telling them to get moving and to hold hearings.  I've reported what happened at the meeting, but I've been thinking about what it meant and been trying to interpret what I saw and heard.  It's sort of old news, but it's not been said yet, so I'm putting this up for the record.  Which seems to me was a key goal of the Board at the June 7, 2013 meeting. Basically, it's my interpretation of what I heard with some rough quotes to support my assertions.  It's a bit tricky because:

• My notes are spotty and I don't have the official transcripts
• The comments weren't spelled out one by one - all were mixed together

It seemed to me that the Board was:

1. Upset by the Court telling it what to do
2. Trying to make a point that they were doing things (that the court told them to do) but they were doing them because they planned to all along, not because they had to.
3. They wanted to be sure that their new schedule and plans for hearings did not become a precedent for future Boards.
4. Therefore, they checked with their attorney that their legal right to challenge the Court's right to tell them how to do their job wasn't hurt if they proceeded with a new, speeded up schedule and public hearings.   (The attorney assured them they could preserve their right to appeal.) 
5. Putting on the record their response to things they felt were wrong that people seem to think about the board - We're not doing a bad job - problems are other people's fault

Things the Board was upset about:

1. The court setting their schedule
2. The court saying they had to hold public hearings
3. Faulty "public opinion" seemed to hold that
1.  That the Board had gerrymandered, when, attorney White told us in detail, that the court had found no evidence of that, and in fact so ruled
2. That the whole plan had been thrown out when, in fact,  only a few districts had been found to have problems

In past meetings, the Board - mostly Chair Torgerson - said things like "for the record" or "we can't say for the record too often."  Most notably on May 14, 2012. They didn't say that at this meeting, but it sure sounded like that's what they were doing.  Getting their side of things on the record.  You can hear the echoes from different folks.

Some examples:  [NOTE - these are not direct quotes, they're from my running notes of the meeting which you can see in their entirety here.]

Preserving Our Court Challenge While Moving Forward

The Schedule/Timelines -  We're doing them because we want to, not because the Court is forcing us to.

• Torgerson:   We could set a schedule and move forward, working on Hickel plan and following time line and at the same time pursue the appeal because we think the legal precedent is wrong.  
• PeggyAnn McConnochie:   I’d say, let’s set the schedule, it’s not because we are required to, but because we want to.  I don’t want any other board to have to deal with the stuff we have to deal with, without having some outsiders come in and dictate what we have to do.  
• PeggyAnn McConnochie - Motion to ?? they’re trying to impose timelines on us?  Is that right?  Riley Plaintiffs asked for a specific timeline and to hold hearings. 

My comment:  Well, at the previous meeting they had a schedule that had them done in January 2014 and now they have one and will be done July 2013.  It's hard to believe the Court had nothing to do with that.  

Public Hearings - Variations of "the court can't make us hold public hearings" and "but we want to on our own."

• Torgerson:  We never said we wouldn’t hold hearings, but making constitutional point it’s not required.  I personally think that public input is important and this Board thinks public input is important.  I recall PeggyAnn McConnochie and Marie Green working so hard to meet the public concerns.

•  PeggyAnn McConnochie:  McConahy [Fairbanks judge] says that public hearings are required on the Hickel Process.  If VRA is removed, then I’m not sure we would still have to do that since we wouldn’t follow Hickel plan.  .  .The Board is only required to hold public hearings on its draft plan, but not on its final plan.  Nothing after final plan is adopted. 
•  White:   It’s my understanding the Board always planned for public hearings anyway.  Waiting would only be for future Boards.  .   . [to challenge the Courts' ability to set the Board's time schedule so future Boards won't have to deal with this]
• White:  We will have public hearings because we want to, and reply to Monday’s decision.

My comment:  At the previous meeting they were saying there was no need for public hearings this time around, that they are only required in the first go around after the Census data comes in.  There was no mention, that I recall, of wanting to have public hearings at that Board meeting, because they were the right thing to do and not because the Court wants them.  But now the Board is embracing the idea of public hearings and that they always intended to have them this go around. 


SETTING THE RECORD STRAIGHT

• It's Not Our Fault and Setting The Record Straight

Torgerson:  Just because the Court doesn’t have time to do its job, not because we aren’t doing our job.

My Comment:   This is wrong on so many levels I don't know where to begin.  I'm guessing Torgerson is conflating time and process here.

• The Court said it couldn't do its job if they didn't have a plan that met the Alaska Constitutional requirements.  They needed this because their job is to determine if any deviations from the Constitutional requirements are the least necessary to meet the Voting Rights Act.  They need the first plan to compare to the second plan.  This did delay the Board's work because they hadn't taken the Hickel Process into consideration until the Riley plaintiffs argued it in their challenge and the Court agreed with them. 
  However, I'm willing to give the Board the benefit of the doubt when they first got this order and didn't quite know how to interpret it.  But they then went back to the Court several times asking, "You don't really mean this, do you?"  But that's not the issue here as I see it.
• The Board, instead of getting back to work and developing a Hickel Plan, decided to do nothing until the Shelby County v Holder opinion comes out from the Supreme Court.  They set up a very leisurely schedule that gave them about ten months (from March 2013 to January 2014).  The Constitution has the initial process getting done in 90 days, but doesn't talk about what happens after the 90 days is over and a new plan has to be done from scratch.  The Board interpreted that to mean there were no longer under any time pressure.  Given that whatever they do will probably be challenged in court, it seems to me that getting it done as quickly as possible makes sense.  If there is time leftover at the end, no problem.  That's better than not having enough time at the end.  And now the Board has a plan to get things done in about six weeks.  So why the nine months schedule before?
• The Courts have gotten their opinions back to the Board with incredible speed, with just one exception.  That was after last May's (2012) decision that allowed the Interim Plan to be used for the 2014 election.  Their next decision - to start from scratch - didn't come until late December 2012. And there I can't be sure how much of that was the Court's delay and how much was related to the filings of the different parties.

Saying that they're doing their job fine and that any problems are because the Supreme Court doesn't have time to do their job is, in my view, completely at odds with reality.

• Political Gerrymandering

White:  no political gerrymandering claim made in the filings.  In trial, Riley raised them.  I’ve looked at the orders.  Sept. 23rd order - there is not evidence in the record to find partisan gerrymandering occurred.  . . . It finds the allegations regarding political motivation are speculative, but not persuasive.
Later:  allegations that John, you said, political paybacks.
Court agrees with Board, that alleged gerrymandering unpersuasive.
Torgerson, Holm, and Bickford [all said they were] proud [of the Board's work] and not persuaded by partisan… and court finds this persuasive.
Made changes for Native districts, result lowest possible deviation.  p. 134 proclamation plan is not based on impermissible partisan . . .  Court ruled over and over again. 

My Comments:  You can prove political gerrymandering two ways:

• Revealing the intent of the Board 
• Showing the effect of the Board's work

To show the intent, one has to get inside the heads of the Board members.  One has to have recorded somehow their talking about designing the plan to put in more Republicans.  That's pretty hard to do.  Maybe you can show that there is no credible explanation for something except gerrymandering and the other side can't produce one. There was talk at public hearings about how in the previous redistricting, the Democrats had gerrymandered and switched many seats over to Democrats and thus it would be proper to just fix what they broke last time.  Is such a statement proof?  They would say that's just fixing past wrongs, not doing wrong this time.  And that was people who testified - if I recall correctly - not Board members.  So this avenue is almost impossible and the plaintiffs said they didn't try to do this.

Showing the effect - changes in the makeup of districts to favor Republicans and of the legislature after the election - can show a correlation, but you can't show the cause was intentional political gerrymandering.  The Board talked about many technical reasons that forced them to do these things.  [I use Republicans here only because the Board is 4-1 Republicans.  If it were switched, I say Democrats.]

But I was listening in to most of this and if some omniscient being were going to reveal the truth in 30 days, I'd wager a lot of money that Fairbanks and Anchorage were intentionally gerrymandered.  I watched them play with districts, such as splitting the two Fairbanks city house seats into two different Senate seats, and extracting Ester from the rest of Fairbanks and attaching it to the Bering Sea, and putting an Eagle River house seat into Bettye Davis' Anchorage Senate seat.  I know they can defend these moves, but I'm not at all convinced.  That said, as long as they can produce a Constitutional map that meets the VRA, they have a certain amount of freedom to do it their way.  No, the Court didn't find the Riley plaintiff's proof persuasive, but that doesn't mean there weren't some districts whose boundaries reflected ways to get more Republicans into the Senate. 

• Public believes the whole plan was illegal.  The whole plan never declared illegal.   Only two districts.  .

White:  Somehow [people believe] the whole plan was illegal.  The whole plan never declared illegal.  Specific rulings on specific districts.  SC said on HP by not following that, we can’t tell if you properly balanced between the VRA and constitution we can’t do our job.  Just a couple of districts - trial court said some issue on influence district, 2006 amendments and DOJ don’t rule out influence districts, SC you may want to look. 
Torgerson:  Told board this would just be an hour.
White:  Only two districts 32 in SE which we changed and SC said never mind use your original.  And 38 . . .. can’t keep up. 
Hear people saying things about illegal plan.  Only ten out of 60 challenged.  4 that were ?? and only 2 ????

Brodie:  Thanks for the clarification.  Keep reading that the plan is unconstitutional.  They didn’t say unconstitutional, only that they couldn’t see how we reached our conclusion.  I think we did constitutional.
PeggyAnn McConnochie:  I agree. It was constitutional and good to hear that from you Michael.

My Comments:  We could split hairs here or count the angels in a census bloc.  A few districts were found unconstitutional - not every district.  But the plan is either legal or not.  If just a few bad districts make the plan illegal, then, as I understand it, the whole plan is illegal.  Not all the districts, but the whole plan.

It's always hard to have a higher authority declare you wrong.  And there are plenty of situations where that higher authority IS wrong.  Two members of the Supreme Court - one liberal the other not as much - wrote a dissenting opinion on parts of the decision.  But, it's my understanding that by definition, what the Supreme Court says is constitutional is what is constitutional.  There's no instant replay here. 

As I said, this all sounded a lot like the earlier meeting when they were busy saying things just to put them on the record.  I think that's what this was all about. 


The Board's job  is not easy.  They have worked hard. They've done a lot of good things.  They particularly worked hard to get the VRA districts right.   Some members harder than others.  Some members seem to be more political than others.  But all this patting themselves on the back is counter to what I was taught at home is good form.  And declaring it rather than offering proof -  Attorney White did offer examples when talking about gerrymandering - isn't convincing.  There's a lot they could have done better and I've not been shy  about posting those things over the last couple of years. 


Blogging comment:  There's so much to blog about, I can't keep up.  There's the court order that came out June 10 which I'll try to get up soon.  The Supreme Court still hasn't published its opinion on Shelby County v Holder which will have an impact on the Alaska Redistricting Board, because some on the Board are counting on not having to deal with pre-cleariance any more if Shelby County wins.  We'll see.  Was today's Arizona case throwing out their law requiring proof of citizenship to vote an indicator that enough Supreme Court justices do understand the problems of voter suppression or was it decided on a legal technicality?  And Anchorage is still having warm sunny weather.  I can't remember such a long streak of such weather - but I'm sure that reflects my faulty memory.  I passed on today's meeting.  These working meetings are far more tedious than usual.  Lots of computer work and little discussion of what they are doing or what it means. 

Shelby County 2: Will the End of "Racial Entitlement" Help Republicans Win?

Most of the Alaska Redistricting Board is hoping that the US Supreme Court will overturn Section 5 of the federal Voting Rights Act when the decision on Shelby County v Holder comes out soon.  (Though one member told me it was disappointing to see that the State of Alaska filed an amicus brief for Shelby County.)   I've written about this case already here.

But I wanted to point out that getting rid of Section 5 likely, at least in the short run, give Republicans a boost in elections by making it easier to set up obstacles to voting by Blacks and other protected classes. 

The conservatives - particularly Scalia, Roberts, and Kennedy - seemed to be suggesting the standards used to determine which states were required to get pre-clearance for redistricting plans and other voting regulations is outdated.  The problem is over now, they say, and the states shouldn't be singled out above all the other states for special treatment. 

This is despite a report to Congress [I think the link is to the Report], but there's a small chance it's another report] showing that serious problems still exist, and Congress passing the renewal of the VRA overwhelmingly - 98-0 in the Senate.  390 - 33* in the House.

Listening to the oral arguments, I couldn't help but think that these are the same Justices who voted to cut off the Florida voting review process and declare George W. Bush president in 2000.  And I couldn't help but think of this quote I saw on Immoral Minority (from Huffington Post) from a Texas Tea Party leader the other day:

“I’m going to be real honest with you,” Emanuelson said. “The Republican Party doesn’t want black people to vote if they are going to vote 9-to-1 for Democrats.”

I'm sure that is true.  Why would they want Blacks to vote if they're going to vote for Democrats?  But voter suppression is what's supposed to happen in phony elections in dictatorships, not the USA.  But voter suppression was one of the tactics Republicans used in the last several elections - though their spin was to fight "voter fraud" which no one could find. 

As the decision in this case is imminent and it will affect redistricting in Alaska, I do want to point out a couple of points that came up in the oral arguments.  

Scalia and "Racial Entitlement":

"And this last enactment [the 2006 renewal of the Voting Rights Act], not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes." (p. 47 of the Oral Arguments transcript)

OK, entitlement is a bad word for Republicans.  It means, for them, you get something you don't deserve.  So, whatever "Racial Entitlement" is supposed to mean, the intent would seem to be getting something you don't deserve because of your race.  Prof. Peggy Macintosh wrote persuasively about White Privilege in 1988, but I don't think that's what they mean here. 

"It's been written about" caught my eye and so I googled 'racial entitlement' and found that others noticed that term when it was uttered back in February.  Rachel Maddow's research staff found that it was indeed written about, in a paper in 1979, written by one Antonin Scalia, called "Racial Entitlement:  'In Order To Get Beyond Racism We Must First Account of Race.'"  I know it's ironic, paradoxical even, that we have to take into consideration the idea of race to fight racism, but yeah, we do.  After hundreds of years of race being used to discriminate against people you can't make it all go away by saying today everyone is equal.  But that seems to be a lot of Scalia;s thinking on this. 

Apparently here he means that the 98-0 vote in the Senate means the members have no choice but to vote for it.  He uses this logic for why the Court should overrule this overwhelming vote for renewing the Voting Rights Act in 2006 (which President GW Bush was strongly supporting.)

"I don't think there is anything to be gained by any Senator to vote against continuation of this act.  And I am fairly confident it will be reenacted in  perpetuity unless -- unless a court can say it does not comport with the Constitution."

So, the Senators are spineless and afraid to vote against it because their constituents their constituents want it.  Therefore the Supreme Court needs to step in.  I don't hear him arguing that Senators afraid to vote for gun control, and therefore the Supreme Court needs to help out.  

And, in fact, 33* members of Congress were not afraid to vote against the VRA. 


Voter Turnout Shows Mississippi is Fine But Massachusetts Isn't

The logic of the Chief Justice:

CHIEF JUSTICE ROBERTS: Just to get the --  do you know which State has the worst ratio of white  voter turnout to African American voter turnout?

GENERAL VERRILLI: I do not.

CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.

Part of the formula in the law, for determining which states must get pre-clearance from the Department of Justice (DOJ) is percent of voter turnout.  But I would argue that his conclusion, today, that Mississippi's black turnout his higher than Massachusetts', is wrong.  It doesn't indicate the problem is over.  I would argue it indicates the opposite.

The formula that the Justice Department uses in calculating, in Alaska's case, "Native Districts"  includes factors such as whether the non-Native population votes the same way the Native population votes.  If yes, then the percentage of Natives in the district can be lower to meet the standards. 

And that's why you might see lower African American turnout in Massachusetts.  African American voters know their votes are not as important because the white voters vote the same way they do.    African Americans feel their rights are protected and have less concern about voting.  They know the party that will protect their rights will be elected if they vote or not.

In Mississippi, if African Americans don't vote, they know the White voters will vote against their interests.


This could be a lot longer because there is plenty to raise one's eyebrows in this case.  For instance, Justice Kennedy brought up the term "reverse engineering" to explain why ther VRA standards are a bogus way to give an after the fact rationale for picking the states they wanted to pick.  (Others argue that those standards are still a good proxy for the states that need to be watched most closely and the number of lawsuits correlates with that reasoning.)  But I just don't have time for more. 

This should at least get some people aware of the thinking of the Justices who are likely to vote in favor of Shelby County. 

Undoubtedly, removing the checks on states and localities who have traditionally discriminated against Blacks and other ethnic groups, is likely to increase the number of disenfranchised voters.  After the fact remedies don't unelect people who got elected by voter suppression.  

I would note, that some argue that the Voting Rights Act actually helps Republicans by packing all the left leaning protected classes into a few very heavily Black (or in our case Native) districts, thus getting Democratic voters out of other districts.  There may be merit to that argument (some Black representatives win 90% of the vote), but just getting rid of Section 5 (that requires pre-clearance of changes) seems to do more harm to Black (and Native) voters than good.   I need more time to think this through. 

 *House members voting against renewal in 2006.  

State	# of No Votes	Congress Members Voting No
Alabama	2	Jo Bonner (R-AL) Terry Everett (R-AL)
Arizona	2	Trent Franks (R-AZ) John Shadegg (R-AZ)
California	6	John Campbell (R-CA) John Doolittle (R-CA) Wally Herger (R-CA)  Gary Miller (R-CA)  Dana Rohrabacher (R-CA)  Ed Royce (R-CA)
Colorado	2	Joel Hefley (R-CO) Thomas Tancredo (R-CO)
Georgia	6	Nathan Deal (R-GA)  Phil Gingrey (R-GA)  John Linder (R-GA)   Charles Norwood (R-GA) Tom Price (R-GA)   Lynn Westmoreland (R-GA)
Iowa	1	Steve King (R-IA)
Indiana	1	Dan Burton (R-IN)
Louisiana	1	Richard Baker (R-LA)
Maryland	1	Roscoe Bartlett (R-MD)
North Carolina	2	Virginia Foxx (R-NC) Patrick McHenry (R-NC)
New Jersey	1	Scott Garrett (R-NJ)
South Carolina	1	J. Gresham Barrett (R-SC)
Tennessee	1	John Duncan (R-TN)
Texas	6	Joe Barton (R-TX) Mike Conaway (R-TX) Jeb Hensarling (R-TX) Sam Johnson (R-TX)  Ron Paul (R-TX) William Thornberry (R-TX)

 Lavender indicates former member of Congress.

Shelby County Wants To Be Freed From Section 5 Of The Voting Rights Act - Supreme Court Decision Coming Soon

In Shelby County v  Holder, the Alabama county is asking the US Supreme Court to free it, and all other states affected, from Section 5 of the Voting Rights Act (VRA) which requires them to get pre-clearance from the Department of Justice  (DOJ) when it does things that affect people's ability to vote.

Alaska is also required to get pre-clearance form DOJ.  The case was heard in the US Supreme Court last February.   People who know more than I expect the decision to be announced sometime this month.

The Alaska Redistricting Board is hoping the decision will overturn Section 5 which requires them to get pre-clearance for any new redistricting plan before it can become adopted.  Indeed, the State of Alaska filed an amicus brief on behalf of Shelby County.  The Board had postponed finishing their plan until after the decision was made.  The Superior Court told them to get moving, but they've dawdled long enough that it's likely the decision will come out before they finalize their plan. 

A previous post has audio of the oral argument at the Supreme Court and a link to the transcripts.


What exactly is Section 5 of the Voting Rights Act (VRA) all about?

From the DOJ website:  (read this carefully, there will be a quiz)

Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained. [That's the pre-clearance part.]

The requirement was enacted in 1965 as temporary legislation, to expire in five years, and applicable only to certain states. The specially covered jurisdictions were identified in Section 4 by a formula. The first element in the formula was that the state or political subdivision of the state maintained on November 1, 1964, a "test or device," restricting the opportunity to register and vote. The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. Application of this formula resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina were covered. It also provided a procedure to terminate this coverage.

Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. [Pre-clearance] This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable.

What are the issues in Shelby County v Holder?

(This will be what I got from listening to the oral arguments and some internet research.  I'm not a lawyer.  Nor have I read all the briefs.  So take this for what it's worth.  I'd also note that these issues are intertwined, so there is some overlap.)

First, note that the law was temporary - for five years.  That was back in 1965.  But it's been renewed various times, the last time being 2006 (under Bush) when the Senate approved it 98-0 and the House 390 -33.

1.  One key objection is that the law still uses the 1965 formula.  Shelby County argued that

• The laws and voting percentages in the formula are ancient history and none of the states still has them in place.  The problem is over.  Section 5 should be retired.
• The old formula is just a way to keep sticking it to the original covered states and that other states have worse problems.  All the states, or none, should be covered.

The DOJ argued that while the original problematic laws are gone, the jurisdictions covered keep finding "second generation" discriminatory practices that restrict or otherwise make it harder for Blacks and other protected classes to vote.   They argued the original formula is still a good proxy for the states with the biggest problems.

2.  Things have improved since 1965 and there is no longer a need for pre-clearance.  

DOJ points to a study of discrimination that found the problem still serious that was used by Congress to justify renewing the VRA in 2006.

3.  "On face review" or "applied"?

As I understand this distinction, an on face review looks at the formula in general, for all the states covered, and questions whether the formula is still a reasonable one.  An applied test would look at Shelby County and determine if Shelby County is still discriminating.  Shelby County chose to make an on face challenge, which allows it to focus on other jurisdictions rather than on Shelby County.

Justice Sotomayor challenged this approach:

"You're asking us to do something, which is to ignore your record and look at

everybody else's."

Justice Kagan questions this on the grounds that Alabama is number 1 in successful Section 2 suits and number 2 for Section 5 enforcement actions. (p. 5 15-22)


4.   Is Section 2 just as good as Section 5 for dealing with discriminatory practices?

•  Section 2's reactive remedies (you can file suit after the fact) works well enough making the extraordinary remedy of requiring pre-clearance of any voting law change unnecessary.

The DOJ argued that the deterrent effect was powerful and had made this an extremely effective piece of legislation.  Also, it was argued that while you could sue reactively to last minute changes such as moving polling places, the election would be over before it ever got to court and citizens would have been disenfranchised requiring far more disruptive and costly remedies than pre-clearance.

• Intent versus Effects - Section 5 looks at effects, Section 2 looks at an array of factors which you can see here.

This was discussed in an article in the National Review.  

"Section 5 bars changes in voting-related policies not only when they have a discriminatory purpose but also when they have a discriminatory “effect.” So, for example, a voter-ID requirement can be blocked even if it is nondiscriminatory in its terms, application, and intent — so long as a federal bureaucrat finds it might be more likely statistically that members of one racial group versus another will not have the needed identification. "

I'm sorry, but this seems to me a blatant attempt to discriminate.  He sees nothing wrong with a discriminatory effect as long as it wasn't intended.  The crux here is that it's extremely difficult to prove intent.  So legislators can make all the discriminatory laws they want, as long as they say it was not their intent and they haven't left any evidence of that intent.  I also don't see the relevance because as I read the Section 2 factors to be considered by a court, effects seem to be included. 

And,  I can't find this argument in the oral arguments.  There's discussion by Shelby County about results versus effects (which isn't clear enough for me to understand).  The NAACP speaking for upholding the VRA as it is, argued:

"What we've seen in Section 2 cases is that the benefits of discrimination vest in incumbents who would not be there, but for the discriminatory plan.  And Congress, and specifically in the House Report, I believe it's page 57, found that Section 2 continues to be an inadequate remedy to address the problem of these successive violations."

5.  Is the problem the original discriminatory voter tests or discrimination?

 There was some discussion about the problem that the VRA was aimed at.  Shelby County argued that the original problems - the ones in the formula such as voting tests - were long gone and thus Section 5 was no longer needed.  The DOJ argued that the problem was discrimination.  Voting tests were an indicator of discrimination, that were gone, but discriminatory practices were regularly created and updated. 

There were a couple of terms that were brought up by Justices Scalia ("racial entitlement") and Roberts and Kennedy ("reverse engineering") that I think are well worth commenting on and I'll try to do that in a future post.  

Although this legislation was approved in 2006 98-0 in the Senate and 390-33 in the House, court observers think there is a good chance the conservatives on the Court will overturn Section 5.  The oral arguments suggest a clear 4-4 split* with Justice Kennedy sounding skeptical of continuing the VRA Section 5, but at least open to change his mind.  And the oral arguments were just a 76 minute window in a case with lots and lots of documents, so we'll just have to wait and see. 

*This, of course, assumes that Justice Thomas will go along with the other conservatives, since he didn't ask any questions. 

It would be ironic because Shelby County and Alabama have a clear record of discrimination.

Shelby County is in Alabama, a state whose record makes clear that voting discrimination persists. During the last reauthorization period, Alabama had 240 discriminatory voting laws blocked by Section 5 or remedied by Section 2, another portion of the VRA that prohibits discriminatory tests or devices and applies nationwide. Today, even though African-Americans constitute more than one-quarter of the population, Alabama has no African-American statewide elected officials. For years, Shelby County relied on at-large districts to minimize black influence. Only after settling a lawsuit brought under the Voting Rights Act did the county agree to institute single-member districts. In 2008, Calera, one of the county’s six municipalities, submitted a redistricting plan that eliminated the town’s sole majority-black district, again in violation of the Voting Rights Act.   [From The Brennan Center.]

Their strategy was to sue, not on the facts of their situation, but by claiming the formula, for all the states and localities affected, was no longer valid. 


"Racial Entitlement" and "Reverse Engineering" were the ways that Antonin Scalia was framing the Voting Rights Act Section 5 that Shelby County was trying to get rid of.


Finally, I said there'd be a quiz and I try to keep my word:

1.  What are the two formulas from the 1965 Voting Rights Act that, if met, require states to get preclearance?
2.  What actions require preclearance?
(Answers above in post.)

ADN Says Toss Em. Board Says They Did Nothing Wrong And Sets Schedule To Comply With Court

As a backdrop to today's Alaska Redistricting Board, this morning's editorial in the Anchorage Daily News had two points to make about the Board:

• It's too late for this board. They've had their chances. It's time to heed opponents of the redistricting plan who have said they'll ask the state Supreme Court to appoint independent masters to draw a new plan.
• That leads to the second point. Let's take the partisanship out of this process and create a more independent redistricting board law, for boards that have no eye to the results of the next election but aim to draw districts that abide by the Alaska Constitution first. Force of law should make these boards beholden only to the constitution and the people of Alaska.  [Yes, there's more than that, go to the link for the rest.]

Fortunately for me, I'm back in town, and on this beautiful day I was able to bike to the meeting.  Fortunately because the teleconferencing didn't work, though there was a phone in number to listen in.  

My rough running notes on the meeting are below.  Let's see if I can pull out the key points.

1. The Board set up a schedule for getting the Hickel Plan going. The schedule is flexible, but gets them done by July. (See schedule below)
2. There will be public hearings
3. Third party plans will be accepted by June 21.
4. Starting will not set a precedent of allowing the Court to set the Board's schedule because
1. The Court didn't actually give them a schedule, it just said to hurry up
2. They can still appeal this later
5. The Board is waiting still for the US Supreme Court's decision on Shelby County v. Holder.
6. They've got Voting Rights Act (VRA) consultant Lisa Hanley on contract again to advise them if the US Supreme Court doesn't go their way.
7. They've confirmed that the benchmark for VRA districts is the Interim Plan because it was used for the last election.  (That has to do with how many Native districts are required to meet VRA standards.  It's also one less, I think, than last time.)
8. The Board has done nothing wrong, several members' opinion is that the trial court and  Supreme Court are wrong.  Also wanted to clear up popular misconceptions:
1. There was no gerrymandering - the courts found no evidence and it wasn't in the complaints that were filed (though it was brought up at trial)
2. The whole plan is not unconstitutional, just a couple of districts
9. The Board gave the chair and the attorney the power to file any necessary appeal if there isn't enough time to have five days notice for a meeting and a deadline would be missed.

(l-r) Stenographer, White, Corr, Torgerson, and Core

I'd also note that only Chair John Torgerson was present.  Three other members - Jim Holm, Bob Brodie, and PeggyAnn McConnochie - were there by phone.  Marie Green was caught by delayed flights between New Orleans and Chicago and only managed to send a message that she had to rush to her next flight because of the delay. 

Here's the scheduled copied from the handout at the meeting. 

Draft BOARD WORK SCHEDULE

June 7:  Notice Board work session (5 day notice requirement)  Notice tht third party plans will be accepted no later that 12:00 (noon) on June 21.
Wed:  June 12:  Start mapping sessions
Thur:  June 13
Fri:  June 14
Sat:  June 15
Sun:  June 16
Mon: June 17
Tue:  June 18
Wed:  June 19
Thur: June 20
Fri:  June 21; Board meeting to adopt draft plan or plans;  Staff will place all third party plans and board adopted draft plans on the we site for public distribution.
Fri:  June 28: Public hearing to present third party plans:  Anchorage testimony and state wide teleconference
Mon: July 1:  Public hearing in Fairbanks:  Teleconference for northern Alaska
Tue:  July 2: Public hearing Juneau:  Teleconference for south east Alaska
Thur:  4th of July
Mon:  July 8th*:  Board meeting Anchorage
Tue:  July 9:  Board Meeting Anchorage
Wed:  July 10: Board Meeting Anchorage
Thur:  July 11:  Board Meeting Anchorage
 Friday  July 12:  Board Meeting Anchorage

*I understood the Chair to say that board members had suggested preference for the weekend following July 4, and all this was flexible depending on Board members' needs and flight and hotel availability. 


Below are my rough notes.  CAUTION - these notes are a close approximation of what was said, but many words are missing, some are close but not exact.  This should, though, give an idea of what was covered until the official transcripts are available.  If I can escape the temptation of this gorgeous day, I'll try to add some of my own questions and thoughts about what happened at the meeting in a later post. [One more added to the list of posts to write up.]

Redistricting Board June 7, 2013  11am


11:01 - There is one Board member present - Chair John Torgerson.  Attorney Michael White is dressed for court - in a suit and tie, and it's horribly hot in here. Also here are his legal colleague Nichole Corr,  Mary Core, the Board's administrative assistant, the transcriber, and the other attorney. The All Caps numbered headings are from the official agenda handed out. 

1.  CALL TO ORDER [I don't actually remember this ever happening, it just started.]
2.  ROLL CALL
Bob Brodie is on the phone, PeggyAnn McConnochie, Holm,  Marie Green is on a plane from New Orleans and may or may not join us.

Please identify yourselves so the transcriber can keep track. 

3.  APPROVAL OF AGENDA
PeggyAnn McConnochie  I move to approve the agenda, Holm seconded. 
Torgerson: roll call since on the phone - all approve.
4.  LEGAL REVIEW
Last year SC approved the interim plan.  Then December 28 issued their decision.  Then Board appealed.  Court ruled Feb 15.  We asked for Clarification March 18.  SC ruled April 17?.  Plaintiffs filed seven days later.  Trial court issued order and set briefing schedule.  Trial court on May 30 disagreed with Board’s decision saying to start meeting and to hole public hearings.  Trial court anticipates an appeal and recommends a 30 day time schedule be set.  Next day, the Board began polling members and on June 3 noticed today’s meeting.  May 30 SC said it didn’t retain jurisdiction and sent to trial court.  Plaintiffs petitioned to have SC set a schedule.  Set to meet Monday June 10.
1. The Board could [I think he said do nothing yet]
2. It could appeal and file petition for review - for process
3.  Board could move forward and pursue the appeal.  Disagree about interpretation of constitution, not so much for this board, but for other boards.
4.  Board could move forward and not file petition for review, it could be done after the Board’s adoption of the plan

Torgerson: #2 again.  We could set a schedule and move forward, working on Hickel plan and following time line and at the same time pursue the appeal because we think the legal precedent is wrong.  We never said we wouldn’t hold hearings, but making constitutional point it’s not required.  I personally think that public input is important and this Board thinks public input is important.  I recall PeggyAnn McConnochie and Marie Green working so hard to meet the public concerns.
We can move forward, but need compliance. 

Torgerson:  I meant another one
#1.  Do nothing and appeal. 
#3  Was what I just said as #2.

PeggyAnn McConnochie - Motion to ?? they’re trying to impose timelines on us?  Is that right?  Riley Plaintiffs asked for a specific timeline and to hold hearings.  McConahy says that public hearings are required on the Hickel Process.  If VRA is removed, then I’m not sure we would still have to do that since we wouldn’t follow Hickel plan.  We will ask for clarification.  The Board is only required to hold public hearings on its draft plan, but not on its final plan.  Nothing after final plan is adopted. 
PeggyAnn McConnochie  One option is to do two things at once.  Some kind of plan for public hearings while we file the motion.
White:  Yes, we’d have to give notice, opportunity for 3rd parties to present plans, reasonable for them to have enough time to prepare. 
PeggyAnn McConnochie - lost me at the end - if we waited, until rule on Petersburg?
White:  We don’t have to file at all and could raise it later in appeal of any challenges.  Adopt our plan, expect legal challenges, get ruling, the go back to SC and then this issue could be raised.  Don’t have to do it on petition of review at this time. 
PeggyAnn McConnochie - Pros and cons of doing it now or later - maybe something for executive session.
White:  pausing - we don’t have Executive Session scheduled.  I think should be in Executive session.  It’s my understanding the Board always planned for public hearings anyway.  Waiting would only be for future Boards.  We know there will be litigation.  Perception percolating in public is that Board’s entire plan was thrown out.  That’s not the case.  First time only two districts he didn’t uphold, which we admitted because we could meet both VRA and Constitution and trial court said no, SC reversed it but said we can’t determine if you met the standard because you didn’t follow the Hickel Process.
Depending on the Board’s wishes, you might want to do it, or worth waiting, or fifth option to authorize the Chair to work with me and take appropriate action as necessary.
Torgerson:  We made a motion similar to that on something else.  Since we don’t have the court order coming out Monday.
Holm:  To Michael but part of discussion.  I’m more inclined to move forward and to do something as soon as practical.  But my concern about setting precedence that a judge can set the schedule for any Board outside the Constitutional requirements.  I’m concerned that our following this makes us complicit, not sure I agree with judge’s opinion in the first place.  Will it set a precedence for future boards.
White:  Good question, something I thought about.  If you proceed but then appeal, I don’t think you are setting any precedent.  Our opinion is that Court can set its schedule and follow the Constitution.  It can say ‘get to work’ and the judge hasn’t actually set a schedule yet.  If, when, and where, and how many, and that could be appealed as you move forward, so no precedent.  We need you to decide this and we aren’t setting a precedent because we need to move forward.  There are ways to move forward without losing our final appeal on this. 
Holm:  Thank you for the clarification.  I think I agree with that assessment.
PeggyAnn McConnochie I agree, this is the first thing we have to do.  I’m loath to do just one thing at a time.  I’d say, let’s set the schedule, it’s not because we are required to, but because we want to.  I don’t want any other board to have to deal with the stuff we have to deal with, without having some outsiders come in and dictate what we have to do.  Give the Chairman and Michael the latitude to figure out what needs to be done.
Torgerson: Mr. Brodie any comments?
Brodie:  Not at this time.
White:  I’d like to see you get the authority to work with me to determine any legal work we need to do.  We will have public hearings because we want to, and reply to Monday’s decision.  We have ten days appeal time, but changes when motion for reconsideration.  Court doesn’t have to rule, if not reaction after 30 days, it’s denied.  Under no time line now.
PeggyAnn McConnochie - I appreciate that Michael.  Make a stab, tell me if off-base.  I move Chair and counsel to work on appeal on the judge’s ruling, keep the Board informed, but they get to decide the timing of appeal. 
Torgerson: Was that a motion?
Holm:  Second for purpose of discussion.
White:  Motion well stated, but one little tweak - “if a petition should be filed and when.”
PeggyAnn McConnochie I agree wholeheartedly,
Holm:  Yes
Brodie:  My question. If there is a time we decide to file one day or another, is the 5 days notice for a board to meet prohibitive if we decide to wait several months and things need to be challenged or will you need to act sooner than five days.  I don’t see the urgency.
Torgerson:  good point.  Michael.  I don’t mind having another Board meeting.  A little difficult tog et people together for this one.  We have people in Chicago and all over the state.  How hard to do executive session over the hone.
White;  could be ES, but don’t see a reason to.  Whatever the Board wants to do, after we have ruling from the trial court, bottom line is we think everyone’s position is clear, fine that your raising the concerns that you are.  I think that can be done if that’s what you want to do.  If we file our responses Monday the 12th and Judge McConahy will respond quickly - shown his ability to do that.  Wait until later and determine to have another meeting    .
PeggyAnn McConnochie - John knows we all want to know what’s going on and we also need a schedule, what our needs for five days notice are, and you could determine the whether there is a need to file before we can meet . . . I’m comfortable.
Torgerson: If judge rules on 11h, there’s time . .
White:  yes
Torgerson:  Asking people to meet on the 21st - Friday June 21.  That’s 8 days, so we could go for approval then. 
White:  I would expect, I would like a couple of days for petition of review  . .
Torgerson:  I’d have you start before, but Bob wants to be able to look at.  If we couldn’t get together on the 21st I’d be bothered, but if you start, we could get Board’s approval on the 21st.
PeggyAnn McConnochie I’m comfortable with that.
Torgerson:  Want to remove your motion?
PeggyAnn McConnochie I see no need to remove it.  If we can afford the time for a notice, then we will.
Brodie:  I’m comfortable with that.  As long as we have a chance to look at it.
Torgerson:  We authorize the chair and legal to write an appeal, but want the Board to pull the trigger.
Brodie: If it proves impractical, then you should have the authority, but we’d like at least a cursory review. 
Vote:  All yes

Torgerson:  It seems like we’ve won some issues in the court, but they seem to keep coming up.  Even this one from McConahy isn’t against the Board.  Just because the Court doesn’t have time to do its job, not because we aren’t doing our job.
White:  Some issues hanging around:
1.  political gerrymandering - no political gerrymandering claim made in the filings.  In trial, Riley raised them.  I’ve looked at the orders.  SEpt. 23rd order - there is not evidence in the record to find partisan gerrymandering occurred.  . . . It finds the allegations regarding political motivation are speculative, but not persuasive.
Later:  allegations that John, you said, political paybacks.
Court agrees with Board, that alleged gerrymandering unpersuasive.
Torgerson, Holm, and Bickford all said proud and not persuaded by partisan… and court finds this persuasive.
Made changes for Native districts, result lowest possible deviation.  p. 134 proclamation plan is not based on impermissible partisan . . .  Court ruled over and over again.  Dean and not an issue.

2.  Somehow the whole plan was illegal.  The whole plan never declared illegal.  Specific rulings on specific districts.  SC said on HP by not following that, we can’t tell if you properly balanced between the VRA and constitution we can’t do our job.  Just a couple of districts - trial court said some issue on influence district, 2006 amendments and DOJ don’t rule out influence districts, SC you may want to look. 
Torgerson:  Told board this would just be an hour.
White:  Only two districts 32 in SE which we changed and SC said never mind use your original.  And 38 . . .. can’t keep up. 
Hear people saying things about illegal plan.  Only ten out of 60 challenged.  4 that were ?? and only 2 ????
Torgerson:  Any other questions
Brodie:  Thanks for the clarification.  Keep reading that the plan is unconstitutional.  They didn’t say unconstitutional, only that they couldn’t see how we reached our conclusion.  I think we did constitutional.
PeggyAnn McConnochie:  I agree. It was constitutional and good to hear that from you Michael.
5.  BOARD SCHEDULE
Torgerson:  I didn’t talk to any one of you if you can make it or not, but everyone has conflicts.  Eric Sandberg will be here June 12.  DNR GIS person, had two possible to loan, not sure which one we get.  That will happen.  That person will be here on the 12.  We’ll RSA money from our budget to DNR. 
We have Marie will be here 14,15, 16 Fri, Sat. Sun.  Dates she could be here to help formulate districts.
Ask Michael for update - contract with Dr. Hanley set.  Last time didn’t have that in place and lost time waiting on that data.  Trying to prepare that in case VRA is not thrown out, we’ll be ready to rock and roll.
White:  Working, I and Lisa, on what is now the benchmark now that we have a new plan and election held on it, and agreement appears to be the benchmark is now the 2012 plan.  What that means if the VRA is upheld and we have to go through other steps.  She’s crunching numbers, but nothing to work on.  Continues to be complicated, even more complicated based on . . . 
Torgerson:  I asked Eric to give her the data she needs.
Back to the schedule.  Court order on Thursday.  To Mary Core to set up meeting, five day  requirements.  five day notice, work sessions begin on the 12.  I plan to be here every day.  mr. Brodie you have pretty open period of time.  Anyone who can come, just talk to Mary for travel.  take home piece, this afternoon we’ll send out email to 3rd party groups to submit Hickel plans, they would be do on the 21st as well as our plan. 
PeggyAnn McConnochie Can we require that they submit with proper information to actually document what their variations and deviations are?
Torgerson:  I would hope they would, we can ask, but we have to do some quarterbacking, good idea.

White, Corr, Torgerson

White:  Clarification.  I don’t think the proposal has been distributed.
Torgerson:  I sent it to board and hour ago.
Hickel ??? about ten days we’ll be working - notice them all as work sessions.  on ?? a short time to adopt a plan to go out to public hearing and at the same time post the third party plan, then 28th public hearings - Anchorage, Juneau, teleconference to Fairbanks, Juneau, Board meet July 8, start drawing plan, taking into consideration the public testimony.  Somewhere around July 12 have board adopt a plan and have Eric do metes and bounds.  A couple of folks said they’d rather work on the weekend July 5,6,7, and I’m fine with that.  Sort of dropping this on everyone, just have to side a bit.  Haven’t called LIO or anything, it may slide a day.  21st shouldn’t slide much.  Public hearing might to find location and airlines.  Day trips out of anchorage to go to Fairbanks.  Done nothing on reservations.  4th of July worst day - middle of the week.  That’s my suggestion. 
Brodie:  I guess, plan draft plan, 21st, then the 3rd party plan.  Clarification for me - will the plan be drafted in deference to Constitution and then wait to change it to comply with VRA which could be a significantly changed plan.  Will third party do without consideration of VRA and then change theirs too?
Torgerson: I’m only talking Hickel process and we’d ask the third party proposals to also be Hickel Plans.  Never been required to have public hearing on Hickel plan.  I’m treating this as we did in the first 30 days.  As for the VRA even though the Court didn’t see the wisdom of waiting the judge’s plan waited 30 days.  By July 8 we’d have everything to meet the process.
White:  We are in the Hickel process phase.  1.  Just draw as if Alaska is own independent country and there is no federal law.  That’s what this is about and let the public do the same thing.  Then on 21st.  Get the 3rd party plans noon that day.  Week for public comment, and 28th public hearings.  When Board comes in on July 8, I believe conclusively the SC would have ruled.  If not we have to do VRA part of Hickel Plan. 
Torgerson:  Some dates may have to slide, but we needed a starting point.  Want to start Wed. the 12th? ?
PeggyAnn McConnochie:  I can come in 17, 18, 19, after that a few where I could do evening or call in.  Schedule works, but we have to be flexible.
Torgerson:  It may be the 20th works better for Board.  We need a draft plan before we go on the road. 
Legal says there might be another hour meeting, but need a starting point.
PeggyAnn McConnochie - I appreciate getting something on paper.  I move we accept the timelines, understanding it can and will be changed as necessary.
Holm:  second
Torgerson: other discussion?  I’ll send out email later today.  Remember planes are full and flying might be difficult.  Hotels full.  Another restraint.  Suns out. Tourists in town.  Other discussion? 
White:  We have two spare bedrooms, so if the wife oks, we have room. 
Torgerson:  Maybe we can all do that.  I plan on being most of these days.  Some other board meetings.  We’ll notice these as work sessions, not ?board meetings?.  Work here in the conference room.  Get GIS person and individuals can go in their offices.  Further discussion?  Roll call vote:
12:05  All vote yes.  Marie still missing.
Torgerson: Got message from Marie, apologies.  Plane got in late and rushed to get the next one.  Any other comments?  Mr. White?
White:  No, we can comply with this.  Summer time in alaska, doing our best. 

6.  BOARD MEMBER COMMENTS
7.  ADJOURNMENT 
PeggyAnn McConnochie move to adjourn
Holm: second
All approve.  12:07
I’ll send out an email and try to get travel schedules set. 

Alabama and Alaska Waiting To Hear the US Supreme Court Shelby County v Holder Decision [UPDATED]

The Alaska Redistricting Board meets at 11am Friday to hear a legal report from its attorney Michael White.  Much of the discussion, surely, will relate to the Superior Court's recent decision telling the Board to get moving and stop delaying completing their plan.

Another part of the discussion will be about Shelby County v. Holder - a US Supreme Court case expected to be decided sometime this month.  It challenges section 5 of the federal Voting Rights Act that requires Shelby County (and Alaska) to get pre-clearance before promulgating a redistricting plan.  Based on the discussion at a March Redistricting Board meeting, it would appear that the Board is hoping that requirement will be struck down for Shelby County and for Alaska.

Below is a C-Span recording of the one hour and sixteen minute Supreme Court hearing on Shelby County.  I also have links below that help explain the case in writing.  [UPDATE 6/9/13:  You can read the transcript of the oral arguments here.]






Cornell's Law Information Center has a good overview of the case and the issues.

This site seems to have most, if not all, of the documents filed in this case.

One more site which a good explanation of the VRA and the implications of the decision and analysis of the Court's politics on it.

For the Alaska Redistricting Board, there are several possible outcomes:

1.  The Court leaves the Voting Rights Act intact and does not end section 5's requirement for pre-clearance for Shelby County or anyone else.
Result for Alaska:  Nothing changes.

2.  The Court lifts the pre-clearance requirement for Shelby County, but leaves it for everyone else.
Result for Alaska:  Nothing changes.

3.  The Court lifts the pre-clearance requirement for all the jurisdictions currently required to get pre-clearance.
Result for Alaska:  The Board only has to use the Alaska Constitution to establish the new plan.  However, the rest of the VRA is likely to stand and if the Board violates the VRA, they are sure to be sued.  However, as I understand it, the level of proof of discrimination is much higher in the other sections than in section 5 which just looks at the outcome, not at intention.

There are other possible variations - say, the Court says that certain jurisdictions that meet certain standards are released from getting pre-clearance.

Here's The Superior Court Decision - Short and To The Point: "Poor Alaska"

Here's Judge McConahy's ruling. 

Superior Court's Redistricting Ruling

I've read the court filings and the judge's ruling.  Was the Board unfairly treated?  Or is the Board the problem?  As a close observer of the process since it began, it's my sense that Board chair tends to be fairly stubborn.  There's also a strong pressure to make sure the plan protects the Republican majority in the Senate which enabled the oil companies to get their $2 billion a year tax relief.  And the Board doesn't like anyone telling them what to do. 

The Board's attorney, Michael White's style in his briefs is confrontational.   He rarely allows for any ambiguity - his opponent is flat out wrong, his position is unquestionably right.  His response in this case wasn't much different from that.  Yet I can't help but wonder what he really thinks about his argument?  Does he really believe it?  Or are these the marching orders he got from the Board? 

The basic issues in the case were:

1.  Should the Court set a faster schedule for completing their Proclamation Plan?  (The Plan is the redistricting plan for the state.  Our 2012 elections used an interim plan that included some districts that were ruled unconstitutional.)

2.  Is the Board required to have public hearings on the final Proclamation Plan?

Others were raised in support of these, but the judge narrowed his ruling to these two questions.  In both he gave a resounding 'yes.'  Though he did not give the Board any specific timeline or deadline.

Below are just a few of my thoughts on this.  You can go to each of the four documents submitted to the court at Wednesday's post on this.

Scheduling

On the schedule, the Board's response allowed no possible other right interpretation.

“Beyond complying with the Open Meetings Act, the Public Records Act, and Article VI, Section 10 of the Alaska Constitution, the Board has the discretion to conduct its proceedings in a manner that it believes best facilitates the formulation of a new redistricting plan that is in compliance with the Supreme Court’s December 28, 2012 Order.  The Plaintiffs’ baseless arguments to the contrary have already been rejected by this Court.”

When I read this Tuesday, I thought about other situations where courts have intervened and told other agencies how to do their jobs.  School integration came immediately to mind (and Judge McConahy used that example in his ruling) as well as mandating the release of prisoners to relieve overcrowding of prisoners.  It seemed to me if the Court felt that the Board's schedule would lead to another election with an interim Plan, they really would have to intervene.



I was particularly struck by this argument by the Board:

“The Board is fully aware of its constitutional obligations as well as the deadlines it must meet in order to complete its work and allow for judicial review of that work in time to implement its Second Amended Proclamation Plan for the 2014 elections, and it will, as it has done in the past, act accordingly.”  (Emphasis added.)

REALLY?!  "As it has done in the past?"  The facts are indisputable that the Board was unable to complete its Proclamation Plan in time for the 2012 election and we had to settle for an Interim Plan which was seen as unconstitutional. 

One of the issues the Court pointedly did not rule on was the idea of waiting until the Shelby County v. Holder case is decided by the US Supreme Court.  It's nearly June and the Court will most likely decide the case in the next 30 days.  However, there is no reason that the Board has offered that to me would justify waiting.  And there seems no legitimate reason to wait.

The Hickel Process that the Court has said the Board must follow requires the Board to FIRST come up with a redistricting plan that meets the Alaska Constitutional requirements.  Then, and only then, should they consider the Voting Rights Act requirements.  They are waiting on the Shelby County decision on the hope that it will remove the requirement for pre-clearance of their plan by the Department of Justice. 

But because the Hickel process requires them to use the Alaska Constitution first, there's no reason why they couldn't have begun back in March.  Or February.  Or January.  If the US Supreme Court maintains the pre-clearance requirement, the Board would at least have done the first part of the process.  They would have created a map of the districts using only the Alaska Constitutional requirements.  The next step would be to make the most minimal adjustments necessary to also meet the Voting Rights Act.

If the US Supreme Court decision results in eliminating the need to get pre-clearance, then the Board would be done.

But this does raise other issues.  Even though they wouldn't need pre-clearance, they would still have to meet other sections of the Voting Rights Act.  But those other sections, if I understand it right, require proof of intent, whereas section 5 only looks at the outcome compared to benchmark districts from the past and doesn't concern itself with intent.  Short of documents or public statements, it's very hard to prove intent. 

Will the Board, freed of pre-clearance requirements, gut Native representation?  The Board's Response raised the issue of not having to meet the seven benchmark Native districts. Do they have some strategies for redistricting if they are free of the pre-clearance requirement?

There are no legitimate reasons to wait for Shelby that I can think of, but the Court didn't rule on these arguments directly.  But the general ruling seems to suggest he didn't think much of the Board's argument for waiting.

Public Hearings

On the second issue - whether a public hearings are required - the Board argued that while the Board hadn't decided whether to hold public hearings (where the the public can testify, as opposed to their regular board meetings where the public can attend but not talk), it was at their discretion because such hearings are not Constitutionally required.   The judge succinctly disagreed.

The Constitution clearly required the Board to have public hearings before they finalized their plan.  Since they are developing a completely new plan, even if the Constitution doesn't specifically say that "if the first plan fails they need to do public hearings again," it would seem to thwart the intent of the Constitution to not have public hearings.

Yes, as the Board argued, they had lots of public hearings already.  But not on the new plan.  And it doesn't make administrative sense to not have such hearings.  Local people can let the Board know obvious mistakes that locals see that the Board wouldn't see.  This allows a lot of simple things to be corrected.  But they might also see politically motivated quirks that the Board would rather not have people discovering.   Not having hearings increases the likelihood of court challenges.  I realize these challenges are inevitable, but there will be more issues raised and possibly more people raising them if there are no public hearings and the obvious problems aren't worked out before the Plan is final.


Conclusions

It would seem that the Board should be moving as expeditiously as possible.  They should have the first step of the Hickel process done and be waiting to do the second step - comply with the VRA - as soon as the Shelby County case is decided.

Why might they be taking their time?  To make it harder for people to see and review what they do?  That would be consistent with cutting out public hearings.  Or, as the Petersburg Plaintiffs hypothesized, to let the interim plan stay in place for the 2014 election too?

Maybe they just have a different sense of time and urgency than I have.  But when I saw their arguments, I just saw, well nothing that was a strong case.  And the judge apparently didn't either.

They also should be pursuing the idea of public hearings.  They don't have to do the ridiculous schedule of visits all over they state they did last time.  Much of that can be done through telecommunications.  And their hearings should involve much more information about the maps the Board proposes to the communities before the fact, so people can study them and make informed comments.

The Court should [showed] its impatience with the Board.  What will it take from the Board to have the Courts step in and set up their own process for getting this done?  It's happened in the past.  And this Board is being pretty confrontational with the Courts.