History's Verdict, SCOTUS & Presidential Elections, Right Has Good Reason To Hate Pelosi, Judging Others

There's guns, abortion, Ginni Thomas, Jan 6, COVID, Louis DeJoy still running the post office, the high rejection rates in Alaska's recent all mail in election, climate change related fires and storms yet no serious action to curb carbon emissions, Ukraine, attacks on LGBTQ,  . . . 

There are just too many fronts for anyone to meaningfully comment about much.  

So I'm limiting this to a couple of very narrowly focused thoughts.  

1.  How Will History Report All This?  People have been talking about how history will judge things that are coming to light at the Jan 6 hearings.  But I've been concerned that if gerrymandering and misinformation and voter suppression work, those in control will be the people who will write history in T's favor.

But then I realized that historians around the world will also be writing this history and if we're lucky, they'll preserve the real story.  And if we're even luckier, the hearings - like the Watergate hearings did eventually - will shock enough people into realizing how close we were to a coup.  And we'll have a repeat of the post-Watergate cleaning up.  

2.  The Supreme Court And Presidential Elections.  As I watched Twitter today there was a lot of attention on Ginni Thomas, Tom Eastman, Clarence Thomas, and Alito.  Now people may think this is all just wild speculation, but I've been fairly careful with who I follow on Twitter, and I've found Twitter gives me a one to three day heads up on what gets covered in the mainstream media.  But as I was listening to the chatter that suggests Eastman thought that if the ratification of the election got delayed a week or so, then Thomas and Alito would support the T position.  Far fetched?  

Then I thought about how the Court intervened to interrupt the Florida recounts to declare Bush president.  They've done this before.  John Roberts was on the Bush side of that verdict. And I began to think about how that too was probably planned out in advance.  Scary stuff.  Maybe some researchers will get some of those involved to offer more on how that was pulled off.  

3.  Nancy Pelosi, an American Hero.  Several people gave Pelosi a lot of credit today.  First, for calling Congress back after the insurrection so they could finish ratifying the election.  Not giving the Court any time to intervene.  Second for going ahead with the Jan 6 hearings.  That she'd even pulled a fast one of McConnell who refused to participate in a joint Senate and House hearing that would have give T Republicans much more power. (As someone said, they would have subpoenaed Hunter Biden and interrogated him for three months to block everything else.)  But McConnell said no, and now the Democrats can do what they want and they're doing it well.  With the considerable assistance of Liz Cheney.  

4.  Lessons in Making Judgments About People - Exhibit 1:  Liz Cheney.  I totally disagree with most of her policy beliefs.  Never expected to be saying positive things about her. But I do share her belief in the rule of law.  And the various T insiders who have been testifying remind us that despite the many morally questionable decisions they had to make to serve Trump, they did have some red lines they wouldn't cross.

Supreme Court Removes The Stay On Judge Matthews Order To Use Option 2 for 2022 Election - Board Meeting 3pm Today

 From the end of the Supreme Court's order today:

What does this mean?  

Basically, the Alaska Supreme Court agrees that the Redistricting Board Majority unconstitutionally gerrymandered for a second time in an attempt to give Eagle River residents two seats at the expense of other Anchorage districts.  The removed the stay on Judge Matthews' order which had called for:

•  That map Option 2 be used for the 2022 election (this is the map that was proposed by the East Anchorage plaintiffs.  It combines the two Eagle River house seats into one Senate seat.  It pairs the JBER/Govt Hill house seat with downtown Anchorage - and adjusts a couple other north Anchorage house districts to form other Senate pairings to accommodate the gerrymandered pairings.
• Remand to the Board the job of making a final map for the rest of the decade continues STAYED.  (Not sure what that suggests.  That they don't trust the Board to do the right thing the next time round.  

This is a huge rebuke to the Board majority and vindication for the two minority Board members - Melanie Bahnke and Nicole Borromeo who have be strong advocates for a fair process.  

While I was writing this a saw the notice that the Redistricting Board is meeting TODAY at 3PM

TODAY, 3pm  Alaska Redistricting Board Meeting, 

The Alaska Redistricting Board will meet by teleconference on Tuesday, May 24 at 3:00PM.

The public may listen by calling one of the following phone numbers:

 - Anchorage 563-9085

 - Juneau 586-9085

 - Other 844-586-9085

Presumably, when the Board meets again this afternoon, Matt Singer will attempt to explain to the Board what the Court's Order means.   

Why did the Court stay the remand for the Board to set the map for the rest of the decade?  Because they don't trust them to do it right?  Because they want more specific instructions first?  Because they have something else in mind?  

Whoops!  I forgot to add the maps which you can also find here, larger.  

Option 2 - The map submitted by the East Anchorage plaintiffs and which today the Supreme Court said this is the map to be used for 2022 Election.  Both Eagle River house districts are in one Senate seat.  

Option 3B - Submitted by Randy Ruedrich and chosen by the Redistricting Board and thrown out by the courts.  This map paired the two Eagle River districts with other districts - one with JBER/Govt Hill and the other with South Anchorage/Hillside. 

Actually, I Do Believe There Is A Precedent . . . Response To Girdwood Plaintiff Filing

The following paragraph is the in the Girdwood Plaintiff filing of May 20, 2022 (pp.29-30)

"The Board argues that “since Section 11’s enactment in 1998, no Alaska court has

mandated the Board adopt any specific house or senate district[,]” and, in any event, the

superior court lacked the power to correct the Board’s error.106 The problem with the

Board’s argument is that the Alaska Constitution expressly contemplates in article VI,

section 11 that instances may arise where a court must exercise its mandamus power “to

correct any error in redistricting.”107 The fact that past courts have not needed to   

exercise their mandamus authority does not mean the constitutional remedy is 

unavailable; it merely means that no prior board has been so derelict as to require 

mandamus."

What is this about? 

(This is probably more than the average Alaskan cares or needs to know.)

The Girdwood plaintiffs had argued that given the June 1 deadline for candidates to file to run for the November 2022 election, there isn't time to give this back to the Board in hopes they will fix their error.  And thus it was okay for Judge Thomas Matthews to mandate - as he did in his decision - the the Board's Option 2 map be used for the 2022 election.  

The Board argued that the Court didn't have the authority to substitute its judgment for the Redistricting Board's judgment.  The Girdwood plaintiffs are arguing that, in fact, the judge does have the authority.  

I want to focus on the bolded sentence:

"The fact that past courts have not needed to exercise their mandamus authority . . ."

I want to point out that in 2012, the Courts, did, in fact, decide on what map options would be used in the 2012 election.  The Board had made a new map based on the Court's instructions, but then the Court decided to take part of that map and part of a prior map for use in the 2012 election.

I posted about this earlier.  I had thought that the original, unconstitutional map had been used for 2012 because a better map hadn't yet been approved.  But I went back and looked at my blog posts for the Redistricting Board for that round.  Here's my April 7, 2022 post looking at the old posts on this topic.

That posts lists a bunch of posts from that year regarding the appeals.  There are two that seem most relevant.  The May 7, 2012 post and the May 22, 2012 post which describes the decision.

May 7, 2012 

• The Supreme Court Substitutes Amended Proclamation for Redistricting Board's Interim Plan - Hearing Thursday 10am  

May 22, 2012

• Supreme Court Chooses Amended Proclamation Plan, With Original, Not New, SEast Districts -  Describes the court's decision. 

This May 22, 2012 post includes this paragraph:

"The court has accepted the Southeast districts as configured in the plan of April 5, 2012 rather than the reconfiguration submitted by the Redistricting Board to the court on May 14, 2012 because of the numerous objections to the reconfigured districts that this court has received.  While the reconfigured districts may comply with the redistricting criteria of article VI. section 6 of the Alaska Constitution, there is a risk that the United States Department of Justice would decline to pre-clear them under the Voting Rights Act.  Notice of the failure of the Department of Justice to pre-clear the new districts would come so late in the 2012 election cycle that a great disruption to the election process would result.  In order to avoid this possibility, the court will not require the use of the May 15, 2012 reconfigured districts for the 2012 elections." 

Now, I don't know if they invoked Mandamus here.  If not, then what happened is a little different from what the Girdwood plaintiffs are arguing.  What I do understand from this is that the court picked options from two different maps submitted by the Board at different times and that decision by the court was used for the 2012 election.  And then the Board was given everything back to come up with a better map.

That seems to me a clear example from the last redistricting round of what Judge Matthews has done this round.  He hasn't substituted his judgment for the Board's because what he has done is simply an interim plan for the 2022 election.  Instead, he's said, the Board's map (option 3B) is unconstitutional because of illegal gerrymandering.  So, rather than use an unconstitutional map for the 2022 election, I'm ordering the 2022 Option 2 map to be used.  For this election only, until the Board gives us a constitutional map.   

AK Redistricting: About that 2002 Eagle River to South Anchorage House District Singer Keeps Talking About

 The Supreme Court Docket for the Redistricting case is adding new documents.  

The Board has two major documents.  

• Motion to Stay Trial Court Order; Motion to Expedite Consideration of Motion to Stay
• Petition for Review

The first document is seven pages.  The second is an expansion on the first document and is 47 paged.  

I've read the first one fairly closely and skimmed the second one.  In this post I want to make two observations.  

From the Motion To Stay Trial Court Order

Throughout the redistricting process and again in the court hearings, Board majority members and Singer have insisted that previous court rulings have affirmed the constitutionality of combining Eagle River and South Anchorage/Hillside in a single district.  So this time I took Singer's quotes and checked on that Court decision he cites.  As I read it, the claims are exaggerated and misleading.  Let's look.  

Singer writes:

"Unlike the prior round of litigation, where the superior court identified regional

partisanship in pairing South Eagle River with South Muldoon, the superior court

departs from the framework it previously adopted with a rambling decision that fails to

articulate what a constitutional “community of interest” is or a legitimate basis for

invalidating a district that this Court has previously held was compact, contiguous, and socio-economically integrated.7"

So, let's look at Singer's footnote 7.

"7 As Judge Rindner observed, "respect for neighborhood boundaries is an admirable goal," but "it is not constitutionally required and must give way to other legal requirements." Therefore, the districts containing the Eagle River area are not unconstitutional in any respect." 

First, Judge Rindner was NOT talking about 2021 Senate District F. He was talking about 2002 House District 32.  We'll get back to this point shortly.

Second, Singer ignores the implications of "must give way to other legal requirements."  In the 2002 case, those other legal requirements were about having deviations that were too high.  So, while neighborhood boundaries are "an admirable goal," if they mean the district has too high or too low a deviation, then you have to find other alternatives. In 2002 deviation meant neighborhood boundaries needed to be sacrificed. In the 2022 case, those other legal requirements include no partisan gerrymandering.  

Singer continues:

"The superior court also ignores In re 2001 Redistricting Cases, where this Court rejected attempts to Balkanize the Municipality of Anchorage into separate areas for purposes of election districts. In that case, the Court reaffirmed that “communities within the Municipality of Anchorage are socio-economically integrated as a matter of law,” and that the community of Eagle River could be paired in a house district with the South Anchorage hillside.8 This Eagle River-South Anchorage hillside district was “not unconstitutional in any respect.”9"

Then, in the footnote 8, Singer tells us:

"Id. at 1091 (upholding House District 32, which spanned from the Eagle River Valley to the Anchorage hillside); See ARB Board Record at 10414 (2002 Amended Redistricting

Plan)."

Again, I say that the 2002 House District 32 was very different from 2022 Senate District F.

In those days, Eagle River and Chugiak weren't big enough for two House districts.  The north of the Eagle River Valley district had to go to southern Mat-Su to get enough population for a second district.  

In fact House District 30 captured most of the Eagle River Valley area.  House District 32 (the one Singer keeps harking back to) stretches from the edges of District 30 down south to Whittier and into the Kenai Peninsula, getting enough population to be a whole district by taking some population from the Hillside. 

BUT based on the only 2002 House maps I could locate, there are few if any residents of Eagle River in that district. If there are Eagle River residents, they are the leftovers once the district hit its target number of inhabitants. HD32 was called the Chugach State Park district.  This was a compromise district that went to the Supreme Court and was accepted because of problems with deviations in other districts.  It was a compromise under special circumstances.

From  the Alaska Election Pamphlet 2002 Anchorage area  here are the maps so you can see the context of that district.  

Maps of 

D 17 (ER) 18 (Military) =Senate I

D15 (Rural Mat-Su)  D16 (Chugiak/Southern Mat-Su= Sen H

D32 (Huffman/Ocean View) D32 (Chugach State Park) =Sen P

This first map focuses on the Chugiak/Southern Mat-Su district 16.  You can see a tiny District 17 on the lower left.  That's Eagle River.

You can see here that Eagle River, HD 17 was relatively tiny.  Smaller than the largest districts in the Anchorage bowl.  It was paired with the Base (18) to make a Senate district because there weren't enough people for two Eagle River/Chugiak House districts.  32 goes down into the Kenai Peninsula.

In the map below you can see District 17 better.  Basically ER Valley is in one district.  What ER residents there might be in District 32 are surplus people who couldn't be fit into 17.  

This wasn't an "Eagle River/Hillside" district as Singer portrays it.  It was called the Chugach State Park district that reached to the outer edges of ER and down into the Kenai.  It was a district that was trying to scrape up enough population to be an actual district.  

It's sort of like how the Board majority characterizes HD 23 as the JBER district when it's really 1/3 north Anchorage Bowl.  

I haven't been able to find better maps to pin this down more precisely.  But it seems a point worth raising and exploring. I suspect the meme of an Eagle River/Hillside house district in 2002 that was constitutionally approved that floated around among the Option 3B supporters wasn't better supported than my points here.

Political-Gerrymandering And Zero-Sum Thinking

There are a number of issues to raise from the Board's motion to the Supreme Court and I just don't have the time to go through them all right now.  But I do want to address this one. From Singer:  

The upshot of the superior court’s order is that because it found a portion of the

Board’s previous 2021 Redistricting Plan invalid as a political gerrymander, the

Board’s new April 2022 Amended Redistricting Plan must also be a gerrymander.  On this basis, the superior court orders the Board to adopt senate pairings advanced by and preferred by democratic leadership in the Alaska Senate.6 This is wholly inappropriate.

First, the judge didn't conclude that because there was political gerrymandering in the first plan that, ipso facto, the second plan is also gerrymandered.  Judge Matthews addressed this question directly and at length.  He concluded that given the intentional partisan gerrymandering the first time round, and given that the second time round the Board continued to create two Senate seats for Eagle River, the level of proof of partisan gerrymandering  needed wasn't as high as it was the first time.  The judge also cited an email from board member Simpson 

 "to an unknown number of contacts stating in part that the Court's Order "implies that what the court perceived as a political gerrymander must be replaced with a different political gerrymander more to their liking."118 (From Court Order p. 24)

While I suspect that Simpson was probably being sarcastic, he's an experienced attorney and should know better than to write such an incriminating sentence.  Sarcastic or not, I suspect it was revealing of what he was thinking.  

Second,  

"On this basis, the superior court orders the Board to adopt senate pairings advanced by and preferred by democratic leadership in the Alaska Senate.6"

Let's see now.  Option 2 was advanced by the East Anchorage plaintiffs, not the Democratic leadership.  I'd note that Option 3B WAS drawn and advanced by one of the most partisan Republican operatives, and former Chair of the Republican Party. And supported by the three Republican appointed Board members.  

I'd note that footnote 6 refers to "Senate Minority Leader Tom Begich’s text-message communications to a board member seeking to influence Anchorage senate pairings."

It seems the Board majority and its attorney are firm believers of the zero-sum way of thinking.  It posits that what one person loses, the other person gains.  

Here, Singer posits that if the judge takes away the ill gained extra Republican Senate seat that the majority 'won.' then that translates into an intentional  extra Democratic seat for the enemy.  Singer seems to assume here that the only reason the Board minority voted for Option 2 was to gain an extra Democratic seat.  His evidence is a text message from Tom Begich, which he doesn't quote. This attempt by Singer to simply turn around and accuse the Board minority of doing what the Board majority did is classic Republican Rovian  "Tactic #3: Accuse Your Opponent of What He/She is Going to Accuse You Of."   At times it might be accurate, but the evidence against the Board majority is overwhelming while the evidence against the Board minority doesn't exist.  Was there lobbying of the Board minority?  Sure, but it was for specific things various constituents wanted, things other than partisan gerrymandering.  It wasn't to get more people elected from a particular party as the actions of the Board majority are.  

OK, enough for tonight, but there is plenty more there to chew on and spit out.  

Judge Matthews Affirms Partisan Gerrymandering And Declares Option 2 The Map for 2022 Elections

The judge said the opinions would be ready by Monday and he just barely made it.  I got it from them from the Most Requested Cases just after midnight.  I'd just gone to bed when I check once again.  Rather than blog at that point I put up a couple of Tweets to let people know the decision.  

Here's the opening paragraph of the decision:

"ORDER RE GIRDWOOD CHALLENGE TO AMENDED PLAN

This is the second time this year that this Court has been called upon to determine whether the Alaska Redistricting Board fulfilled its constitutional responsibility in drawing the Senate map for Anchorage voters. After this Court found the Board failed in its first attempt, the Alaska Supreme Court confirmed the board had engaged in partisan gerrymandering. Following remand to the Board, a new map was drawn. This time, the process occurred mostly in public. But the Amended Plan still provides Eagle River with effective control of two senate seats. Girdwood Plaintiffs have challenged the map claiming it still amounts to a partisan gerrymander. This Court agrees."

Here's the ending:

"The Court has the power, by mandamus,255 to order the Board to correct any error in redistricting.256 The only practical solution is for this Court to order the Board to adopt a map of senate pairings. Having determined that Option 3B was an unconstitutional political gerrymander, the Court orders the Board to adopt Option 2 on an interim basis for the 2022 general election. With the time pressure of the impending deadline removed, the matter should then be remanded once again to the Board to correct its constitutional error and adopt a new plan of redistricting for the balance of the decade.

This Court anticipates and encourages immediate appellate review of this decision by the Alaska Supreme Court. Accordingly, unless this Order is stayed by the Alaska Supreme Court, the Board shall prepare a Second Amended Proclamation incorporating the proposed senate pairings in Option 2 not later than May 23, 2022.

IT IS SO ORDERED.

DATED at Anchorage, Alaska this 16 day of May, 2022".

NOTE:  I'm using the House district numbers of the November Plan.

Basically, the judge agreed there was still partisan gerrymandering and and ordered the Board to adopt Option 2 as the map for the 2022 general election.  (Candidates have until June 1, 2022 to declare their candidacy.)  This only affects about five or six Anchorage Senate seats. The result of going with Option 2 is this:

The two Eagle River House seats are paired into one Senate seat. (D22 and D24)

The JBER/Govt Hill seat (D23) will be paired with Downtown (D17)  

D18 (which had been paired with Downtown (D17) is now paired with D19 

D14 (had been paired with D19) is now paired with D13

The south Anchorage Hillside district 9 will be paired again with district 10 which goes along the coastal areas of south Anchorage.  

Here's the Anchorage map for Option 2.  Key districts affected

You can see the Option 2 and Option 3B maps here.

The judge expected an appeal to the Supreme Court, and according to Matt Buxton, the Board filed one today.  I haven't been able to find a copy on line.  I can see the motion on this page, but there's no link to get to it.

Meanwhile the Supreme Court has posted an initial schedule.  

" In the Supreme Court of the State of AlaskaIn the Matter of the 2021Redistricting Cases (Alaska Redistricting Board/GirdwoodPlaintiffs/East Anchorage Plaintiffs)

Supreme Court No. S-18419 Order Appellate Rule 216.5(h) Date of Order: May 17, 2022

 The court has been advised that the superior court has issued its rulings following this court’s March 25, 2022 remand. The court also has been advised by the Alaska Redistricting Board that it intends to seek our review on an expedited basis. Fo refficiency and expediency, IT IS ORDERED:

1.  A file has been opened with the above-referenced case caption andsupreme court case number. The necessity for payment of filingfees is WAIVED. 

2.  Petitions for review of the superior court’s May 16, 2022 rulings aredue by Wednesday, March sic] 18, 2022, at 5:00 p.m. Responses topetitions are due by Friday, March [sic]  20, 2022, at 5:00 p.m.

3.  Petitions and responses may not exceed 35 pages and shall besubmitted in memorandum format. The pleadings must comply withAppellate 

in memorandum format. The pleadings must comply withAppellate Rule 513.5. Amicus curiae, if any, may file amemorandum not to exceed 20 pages.

4.Although Appellate Rule 210 normally does not apply to petitionsfor review, the parties must submit excerpts of record in accordancewith Appellate Rule 210(c).ITMO 2021 Redistricting Cases Supreme Court No. S-18419 Order of May 17, 2022 Page 2 

5.Parties must submit all documents filed with the court electronicallyin PDF format to pleadings@akcourts.gov. In addition, six courtesycopies of petitions and responses should be delivered to theAppellate Clerk’s Office on the Fourth Floor of the BoneyCourthouse located at 303 K Street, Anchorage, AK 99501.

6.The service requirements of Appellate Rule 216.5(k) are relaxed to allow filing and delivery of documents by electronic mail. 

7.Justice Maassen and Justice Carney will not be participating in thismatter. 

Entered at the direction of an individual justice.Clerk of the Appellate Courts ________________________________ Ryan Montgomery-Sythe,  Chief Deputy Clerk"

Sen. Specter Questioning Alito At His Confirmation Hearing

Haven't had time to read the whole thing - it's very long - but I thought reviewing Justice Samuel Alito's confirmation hearing might offer us some insight.  Unfortunately, it's another sunny day and Alaska is calling loudly.  So I offer you this short bit where the committee chair Sen. Arlen Specter questions Alito:

Chairman SPECTER. Judge Alito, the commentators have characterized Casey as a super precedent. Judge Luttig, in the case of Richmond Medical Center, called the Casey decision super stare decisis. In quoting from Casey, Judge Luttig pointed out, the essential holding of Roe v. Wade should be retained and once again re- affirmed. Then in support of Judge Luttig’s conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart, and quotes the Supreme Court, saying, ‘‘We shall not revisit these legal principles.’’ That is a pretty strong statement for the Court to make, that we shall not revisit the principles upon which Roe was founded, and the concept of super stare decisis or super precedent arises as the commentators have characterized it, by a number of different Justices appointed by a number of different judges over a considerable period of time. Do you agree that Casey is a super precedent or a super stare decisis as Judge Luttig said?

Judge ALITO. Well, I personally would not get into categorizing precedents as super precedents or super duper precedents, or any—

Chairman SPECTER. Did you say ‘‘super duper?’’ [Laughter.]

Judge ALITO. Right.

Chairman SPECTER. Good.

Judge ALITO. Any sort of categorization like that—

Chairman SPECTER. I like that.

[Laughter.]

Judge ALITO [continuing]. Sort of reminds me of the size of laundry detergent in the supermarket.

[Laughter.]

Judge ALITO. I agree with the underlying thought that when a

precedent is reaffirmed, that strengthens the precedent, and when the Supreme Court says that we are not—

Chairman SPECTER. How about being reaffirmed 38 times?

Judge ALITO. Well, I think that when a precedent is reaffirmed, each time it’s reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don’t want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not, but it is a judgment that has to be based, taking into ac- count all of the factors that are relevant and that are set out in the Supreme Court’s cases.

Chairman SPECTER. Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I do not ordinarily like charts, but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe, where the Supreme Court of the United States had the opportunity to—Senator Hatch is in the picture now.

[Laughter.]

Chairman SPECTER. It is a good photo op for Senator Hatch. Senator Leahy is complaining.

[Laughter.]

Senator LEAHY. Just balance it on Orrin’s head. Senator HATCH. Put that over by Leahy.

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Chairman SPECTER. He wants it on his side.

[Laughter.]

Chairman SPECTER. I think the point of it is that there have

been so many cases, so many cases, 15 after your statement in 1985 that I am about to come to, and eight after Casey v. Planned Parenthood, which is why it has special significance, and I am not going to press the point about super precedent. I am glad I did not have to mention super duper, that you did. Thank you very much.

Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman’s right to an abortion. Do you agree with that statement today, Judge Alito?

Judge ALITO. Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.

Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made.

Chairman SPECTER. So you would approach it with an open mind notwithstanding your 1985 statement?

Judge ALITO. Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

Chairman SPECTER. Judge Alito, coming to the role you had in the Solicitor General’s Office, where you wrote the memorandum in the Thornburgh case, urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a pro- motion within the Federal Government. So there is a little difference between the 1985 statement and your advocacy role in the Thornburgh memorandum, is there not?

Judge ALITO. Well, there is, Senator, and what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. I’m not saying that I made the statement simply because I was advocating the administration’s position, but that was the position that I held at the time, and that was the position of the administration.

Chairman SPECTER. Would you state your views, the difference as you see it between what you did as an advocate in the Solicitor General’s Office to what your responsibilities would be, are on the Third Circuit, or what they would be on the Court if confirmed as a judicial capacity?

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Judge ALITO. Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility. That’s what an advocate is supposed to do, and that’s what I attempted to do during my years as an advocate for the Federal Government. Now, a judge doesn’t have a client, as I said yesterday, and a judge doesn’t have an agenda, and a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.

Chairman SPECTER. Judge Alito, you have written some 361 opinions that I would like to have the time to discuss quite a few of them with you, but I am only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll, and that was a case where there was a challenge between a Pennsylvania statute, which required as a prerequisite to a woman getting Medicaid, that she would have had to have reported a rape or an incest to the police, and second, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions conflicted with a regulation by the Department of Health and Human Services. You were on the Third Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygaard entered a very forceful dissent say- ing that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by the Department counter- vail a statute.

What was your thinking in that case? Had you been predisposed to take a tough line on a woman’s right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute. What was your thinking in that case?

Judge ALITO. Well, what you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute, and I did it because that’s what I thought the law required. I thought the law required that we defer to the interpretation of the Federal statute that had been made by the Department of Health and Human Services. If I had had an agenda to strike down any—I’m sorry, to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygaard in that case, and that would have turned the decision the other way.

I’ve sat on three abortion cases on the Third Circuit. In one of them—that was the Casey case—I voted to uphold regulations of abortion, and in the other two—the Elizabeth Blackwell case and Planned Parenthood v. Farmer—I voted to strike them down. And in each instance, I did it because that’s what I thought the law required.

Again, you can find the whole transcript of the hearing here.

We are no longer at a point where these hearings serve the purpose they were intended for.  The Republicans first forays with far right judges - Bork, etc - were turned back.  But now it's just about whether one party or the other controls the Senate.  It used to be that most justices got approved by large majorities, now it's generally straight down party lines.  Not to mention McConnell block Obama appointments altogether and then rushing through Trump's.  

Bullsh*t Is A New Netflix Quiz Show That's Useful To Describe AK Redistricting Board Majority Justifications Of Latest Plan

 In this show, the contestant has to answer a multiple choice trivia question. They can win up to $1million.  They have to convince a panel of three other contestants that they know the answer.  It's sort of mishmash between Jeopardy and To Tell The Truth.  

Alaska Redistricting Board Is A Contestant Before the
Alaska Superior and Supreme Court

The strategy, when they don't know the answer, seems to be to take some bits of truth and wrap them up in lies.  They may take a story about their childhood or their job, or education, that tells a story about why they know the answer.  So it's lies wrapped up with bits of truth to make it sound plausible.  

I'd like to propose that this is exactly what the Alaska Redistricting Board majority has done to justify its most recent map.  They've talked about their experiences ("I've lived in Eagle River and it's made up mainly of military and veterans and so it is a natural connection to JBER"), they've made assertion based on anecdotal evidence ("Eagle River High School wouldn't exist if it were not for JBER" or "Pairing downtown and JBER would be political gerrymandering").  

Bits of truth wrapped up in lies. Or lies wrapped up in bits of truth.  It's the same thing.  It's how people win up to $1 million on Bullsh*t and it's how the Redistricting Board's majority is hoping to win an extra Republican seat in the Alaska State Senate which ultimately could be worth way more than $1 million.  

In the next week or so I'm going to lay out the arguments of why I think this is true and how the Board majority have taken two perfectly natural pairings (the two Eagle River house districts (HD22 & HD24 together and JBER/Government Hill (HD 23 and downtown HD 17) and substituted two far less natural and less compatible districts (HD 22 and HD 7 - Hillside to Whittier) and HD 24 with HD 23.  [Note:  I'm using the district numbers in the November 8 plan because these are the numbers that were used in the Board meetings.  Some numbers were changed in the April 13 plan.]

Judge Thomas Matthews - the Superior Court judge who presided over the challenges to the November Proclamation Plan - and the Supreme Court justices who heard the appeal, all called out the majority Board members for gerrymandering in the first plan, which is why they had to revise the map.  

But in the lead up to the first plan, the majority didn't even try to justify their decision.  Political Gerrymandering had never been a reason for a court to reject a previous redistricting plan in Alaska.  They didn't think they had to justify what they were doing.  All they needed was a majority vote.  We even had Board member Marcum say clearly that the plan would give Eagle River an extra Senate seat. 

This time around, they've heard the courts' admonitions and have created elaborate (ie Bullsh*t) explanations to justify their new map.  

Let's pause here and look at where we are in the process now.

Judge Matthews remanded the plan back to the Board and told it to make changes to specific districts.  The Board did that - with a highly vocal minority disagreeing with the majority.  Judge Matthews now has to decide whether to accept the changes.  The original East Anchorage plaintiffs have filed objections to the judge arguing why he should not accept the remanded map.  

In addition, three residents of Girdwood, who have been put into a district with Eagle River in the newest map, have challenged the new plan.  

I know it's confusing.  

• East Anchorage is trying to influence the judge's decision about the remand itself.  
• The Girdwood folks are instead challenging the new plan.  The two are on different timelines.

The judge had originally hoped to get out a decision on the remand by this past Thursday, April 28.  If he agreed with the East Anchorage plaintiffs, then the Girdwood challenge would be moot because he would have disallowed the Eagle River with South Anchorage (including Girdwood.)

Instead of making a decision about the remand on Thursday, the judge offered a time line for people who want to challenge the new maps - he expedited the deadline so there would be time for a decision by the Supreme Court before the June 1 deadline for candidates to file to run for office.

He also ordered the Redistricting Board to give the Girdwood plaintiffs all the Board's emails.  

One possibility is that the Judge wanted something more concrete than the East Anchorage plaintiffs gave him, before ruling gerrymandering again.  It's clear the judge believes the Board majority is capable of gerrymandering, because he ruled they did the first time.  Asking for the emails may be a sign that he's hoping there will be something more explicit that he can base his ruling on.  Meanwhile, he's trying to figure out how to decide.  

I've been following the Board since December 2020.  I've followed all their meetings since then either remotely or in person. I've read the documents, the court cases, the past Supreme Court cases. I've written (not counting this post) 120 posts about this 2020 round of Alaska Redistricting.  (You can see an annotated index of the posts here.  It's also among the tabs at the top of the blog.)  

In the next week or two, I will try to make the argument why I think the Board majority's explanations are Bullsh*t.  Much of the groundwork is already up in previous posts.  I plan to explore the idea of Contiguity briefly.  It's not part of the Bullsh*t claim, but it's something the Courts should think about.  I'll also look at what any non-partisan, objective reviewer would call "natural" in terms of the pairing choices that Board had in remand.  I will look at the arguments made by the majority Board members and show why they don't hold up.  

I'll look at how they used assertions based on bits of truth and puffs of hot air to justify their blatant gerrymandering decisions.  How they didn't make any kind of serious comparisons between competing options, they only used 'arguments' (anecdotes mostly) that supported what they wanted or disparaged what they didn't want.  

And I'll look at the party credentials of the majorityBoard members and the map maker (Randy Ruedrich) whose map was used.  

The Netflix description of Bullsh*t is:

"Contestants strive to correctly answer difficult trivia questions.  And when they can't, they simply move to plan B, lying through their teeth."

That's a pretty good descriptor of the Board's majority:  the strive to justify their new map as fair and not political.  And when they can't, they simply move to plan B, lying through their teeth.

Bullsh*tting goes back at least as far as the Serpent in the Garden of Eden.  The Emperor's New Clothes tells the story of how people can doubt what their own eyes tell them.  The man who tried to overturn the last US presidential election has made the art of deception a key part of the Republican Party.  

Even if the emails don't show us the same sort of explicit evidence that Mark Meadows' text messages are revealing, the circumstantial evidence in this case is more than overwhelming.  

A final note.  People who know me well and people who know me because they read the blog regularly, know that I rarely declare something true or false as baldly as I am doing here.  I only do so when I have reviewed something thoroughly.  When I've looked at all the plausible alternative explanations.  And even then I leave an escape hatch just in case I've overlooked something and it turns out I'm wrong.  I'm sticking my neck out here because I don't see a shred of believable evidence that I'm wrong.  The only concession I'll make is that the majority Board members - particularly Marcum - actually believe the stories they have concocted.  But that doesn't make them true.  

Redistricting Board Press Release Cutting Time To Appeal Remand Decision

 Don't feel bad if you're wondering what exactly is going on with the Redistricting Board's latest plan.  I've been following it closely and I'm scratching my head about it too.  

I'm working on a tea leaf reading post, but in the meantime, here's a press release that came out yesterday and a link to the judge's order.

Press Release

Alaska Court System, 820 W. 4^th Avenue, Anchorage, AK 99501

 

Contact: Rebecca Koford, Public Information Officer, rkoford@akcourts.gov

 

Deadline for Challenges to Amended Alaska Redistricting Board Plan Due by May 3, 2022

Anchorage, AK:  On April 27, 2022, Anchorage Superior Court Judge Thomas Matthews issued an order establishing expedited deadlines for any qualified voter to file a new challenge to the Redistricting Board’s Amended Proclamation Plan that has not yet been filed. Any complaint or other applications to compel the Redistricting Board to correct any error in redistricting must be made by May 3, 2022.

 

The court has expedited the process and shortened deadlines to allow sufficient time for the Superior Court to hear and decide the merits of any challenge to the Amended Plan, and the Supreme Court if there is an appeal. The expedited process and accelerated deadline for any further challenges to the Amended Plan is necessary because of the June 1, 2022 deadline for legislative candidates to file for the 2022 elections.

 

The expedited process and shortened deadlines provide a reasonable but expeditious period of time for a voter to file a challenge. A copy of the order is attached to this press release. Copies of all filings and orders can be found on the Most Requested Cases page. Hearings in the case can be livestreamed on the Trial Court Video Hearings page on Judge Thomas Matthews’ channel.

###

 

Below was a link to the Judge's order.

I hope that satisfies your curiosity for the time being while I scanning the tea leaves.

I'd also note, that when the Supreme Court ruled on the Redistricting case on March 25, 2022, it only issued a brief decision on each of the cases.  There was no detailed explanation of the Court's thinking.  Without that explanation, it's hard to know what the Supreme Court might do when this new plan gets to them.  That explanation, I hope, will address some unanswered questions that were raised - such as whether ANCSA,boundaries can be considered in drawing maps  and what their thinking is about determining political gerrymandering claims.  I expect that longer explanation will come eventually.

[I have to say, the Alaska Court System's website has lots of information, but it's also like a complicated maze with lots of dead ends.  I had just downloaded the Supreme Court's decision and went back to get the link to put in here and had to spend ten minutes finding the right path back to the link.  You'd think it was in the Motions and Orders page, (It is titled "Disposition Order") but it's not.  It's on the Docket page.  I'm sure it makes sense to the lawyers, but not to me.]

Alaska Supreme Court Ruling On Redistricting In: Eagle River Pairing and Cantwell Cutout Need Fixing

 Considering some of the lengthy decisions in past Redistricting cases, this one is just eight pages.

The Court ruled:

• Senate District K (Eagle River/South Muldoon pairing) - unconstitutional gerrymandering remanded to be fixed by Board
• House Districts 29,30, 36 (Mat-Su - Valdez pairing) basically left intact EXCEPT the Cantwell cutout must be repaired by the Board
• Skagway/Mendenhall Valley House Pairing - not unconstitutional, left intact.  

The Court did not address the issue of the importance the Board must give to public testimony - other than rejecting trial court's conclusion on Skagway.

The Court also did not directly address the issue of whether ANCSA boundaries can be used in redistricting maps, but the left the intact Districts 27, 38, 39, and 40 (some of which used ANCSA boundaries) and they did not except taking Cantwell out of the Denali Borough to be with other AHTNA villages.  Though that was based on other issues.  

You can read the full decision below.  

AK Supreme Court Redistrict... by Steve

The Legal Equivalent Of Mansplaining

[Note, I was having trouble getting the video segments to start and stop where I wanted, so while I'm leaving this up, I'm also making some changes.  LATER:  I think I've straightened it out.  But I'll be revising through tomorrow if necessary.] 

My last post organized my thoughts about the Supreme Court hearing for the redistricting board cases into three categories:  

1.  PRACTICAL/POLITICAL:  WHAT WILL THE LEGISLATIVE MAP OF ALASKA LOOK LIKE FOR THE NEXT TEN YEARS?

2.  LEGAL:  WHAT LEGAL PRINCIPLES ARE THE ATTORNEYS AND JUDGES DEBATING/WEIGHING AND HOW DO THEY IMPACT #1 AND FUTURE BOARDS?

3.  PERSONAL:  HOW DO THE SKILLS, STYLES, MOTIVATIONS, AND EXPERIENCES OF THE ATTORNEYS (AND TO SOME DEGREE, THE JUDGES) IMPACT THE DECISION MAKING?  

I've realized a couple of things as I struggle to write the follow up posts:

• While I've separated the three categories for clarity of discussion, they are very closely interwoven.  You can't talk about one without the other two.
• There are almost four hours of video tape to repeatedly review to start to get all the points
• There's way too much content here for even hard core redistricting nerds to read and for this blogger to cover
• What I really want to write about most is how the Board's attorney, Matt Singer, presented his case

Writing blog posts - on my own, without compensation - allows me to follow my personal interest and curiosity - the angle of the story that most calls out to me.  No editor assigning stories (or correcting my typos) and no deadlines, except natural ones.  Like getting comments on the trial out before the Supreme Court issues its decision.  If I pair my passion with reason, you - the reader -  get the best posts.  My gut is telling me that the most interesting part of this case, the one that tells us the most, is the Board's attorney, Matt Singer.

Matt Singer is at the heart of this case.  He has been the Board's attorney since early March 2021 when his firm was hired to represent the Board and he has since advised them on the law - constitutional, statutory, and case law.  The Board used his advice to draw the maps, to guide them in and out of executive sessions, and on how to pair the Eagle River house districts into Senate districts.  

And he's the attorney who has been in the spotlight in the Redistricting trials - being the face of the Board as he had to defend it against five different law suits, all with another attorney or more, in one combined case.  

And he doesn't seem to be doing too well.  I say this based on Judge Thomas Matthews' ruling on the case at the Superior Court level.  And I say this based on the questions the Supreme Court justices asked him at the hearing there on Friday, March 18, 2022.  

Law-splaining

I've been closely watching the Alaska Redistricting Board for about 15 months now.  But it wasn't until after the trial, that it finally came to me that Matt Singer spends a lot of time "law-splaining."  This is the legal variation of 'mansplaining.'

So, let's look at a definition of 'mansplaining' from SHRM:  

"Mansplaining—when a man talks condescendingly to someone (especially a woman) about something he has incomplete knowledge of, with the mistaken assumption that he knows more about it than the person he's talking to does."

Those key points again:

1. condescendingly
2. about something he has incomplete knowledge of
3. with the mistaken assumption he knows more about it than the person he's talking to

All three of these apply to Singer's performances in the trials.  I didn't quite pin it down during the trial, though I did comment in a post after his colleague Lee Baxter represented the Board on a couple of occasions.  I wrote: 

"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."  

 So, at least, the condescending part was pretty clear then. [I'm having trouble embedding the part of the video I want.  But it starts at the beginning, so you should listen until he gets to calling Judge Matthews decision absurd.  Then stop and read.  After that you can then play the next few minutes as the judges ask Singer questions.] [I now seem to have got it right and it should stop there on its own and the second section of the video is below.] 

He begins by talking about the court's 'usurpation of the power of the board.'

Then he tells us

 "The first error the trial court made"    was in recasting the core role and purpose of the Board.  In Judge Matthews' interpretation, the Board has no special expertise to make redistricting decisions because its members need only be Alaska residents for one year.  Based primarily  on the absence of a longer residency requirement the trial court opined that the spirit if not the letter of the Constitution compels the Board to adopt  a number of equally constitutional plans and then let the public have a say after which the Board must follow the public's bidding unless doing so would be illegal.  This court has repeatedly said over decades that it will not substitute its judgment for that of the Board.  It's said that its role is to evaluate the plan adopted by the Board, not plans that were possible or preferred.  Implicit in that standard of review is a recognition that the Board and its members have judgement.  They get to exercise judgment.  The trial court's reasoning that it should not exercise its own judgment because the Constitution does not require a longer residency is also factually absurd.

Then he goes on to discuss how the Board appointments are made.  And describes the members as having 200 years of collective experience in Alaska.

So, let's first look at the parts marked in red.  This is just the beginning of Mr. Singer's morning before the court.  He starts out talking about "the first error the trial court made."  OK, this doesn't sound too bad, but he is unequivocally telling the Supreme Court justices that one of their brethren judges has made a number of errors (he'll enumerate others down the line.) and ends this opening by saying the trial court's conclusion is 'absurd.'    The parts in red deal with the "condescendingly" part of mansplaining.  

I get that it's the attorney's job to point out errors in his opponent's argument.  But it helps 

• if you focus on the argument, not the person,  
• if you do it with a little more grace and respect.  
• if the person you complain about actually did what you said he did.  

Singer does none of these.  Absurd is a strong word.  Dictionary.com defines it this way:

"utterly or obviously senseless, illogical, or untrue; contrary to all reason or common sense; laughably foolish or false"

He's saying that Judge Thomas Matthews was utterly senseless, illogical, contrary to all reason or common sense, laughably foolish!    

 There are times when 'absurd' is appropriate.  This is not one of them.  Mainly because the judge never said what Singer alleges.  He never said, "The Board must do the public's bidding."  

And he's saying this to the judge's judicial brethren.  It's like bad-mouthing your former employer in a job interview with your potential new employer.  It can't make a good impression.  

Moving to the blue now.  Judge Matthews did say that the Constitution assumes that the Board members don't have special expertise because they're only required to have one year's residency.  But he didn't say that this Board has no expertise.  He didn't say the board 'has to do the public's bidding' because of the one year residency requirement.  

In fact, Mr. Singer cherry picks one idea and takes it out of context to reach conclusions that grossly mischaracterize what trial court Judge Matthews actually wrote.  

Judge Matthews spent a lot of time discussing the role of public testimony and how the Board is to consider it.  He never says that the Board should simply adopt the majority opinion of the public testimony.  Rather, he concludes the Board shouldn't substitute its own personal preferences when they are contrary to the overwhelming majority of public testimony.  Rather than using personal preferences, the judge wants to hear how the facts of each district fit the criteria.   And if the Board feels it must override the overwhelming public testimony, they need to document why.  In this case, the board didn't do that.   

In this section of his ruling, he reviews the minutes of the Constitutional Convention, Judge Matthews quotes Delegate Hellenthal  (I've only copied part of Hellenthal's statement below):

click to enlarge and focus

I doubt Mr. Singer has been asking himself Delegate Hellenthal's question:  "What can I do to help the greater good of the State?"  Rather, it seems he's been asking, "How can I win this case?"  And that is his job in court.  But I don't think he was thinking about the greater good of the State when he was advising the Board either.  

Then he reviews how past Supreme Court cases discussed the role of public testimony:  

And I know this is more than most of you want to know, but I want to emphasize that Judge Thomas Matthews worked hard to find guidance in making his decision.  This isn't just Judge Matthews' perception of how it should.  He's based his conclusions on what the writers of the Constitution discussed at the Constitutional Convention, what the final and amended versions of the Constitution say, and what the Alaska Supreme Court has said over the decades.  He continues.  

Finally, he apples all this to this case.

The blue parts here show the other two aspects of mansplaining - "about something he has incomplete knowledge of" and "with the mistaken assumption he knows more about it than the person he's talking to"

So, what Singer calls 'absurd' is really based on an allegation that Singer himself makes up (known in logic circles as 'a straw man') and is not to be found in Judge Thomas Matthews' ruling.  

Now, moving along to the next part of this video - and this is just about six minutes of the almost four hour session, of which Singer was on almost half the time - I'll let you watch as the judges themselves question Singer's assertions.  

There is one point I would make.  Throughout the redistricting process, Singer has told the Board that the  Courts had found that anywhere within a Borough boundary was socio-economically integrated with any other place within the Borough.  That was his mantra throughout the the process.  Board members - particularly Bethany Marcum - have repeated it as gospel.  

During the trial, after hearing Valdez and Skagway attorney Robin Brena citing the old cases, I had to go back and look at them carefully and realized they were not nearly as blunt as Singer represented to the Board.  There was much more nuanced discussion about the needs of having people's interests represented in the legislature.  I posted what I found here and here.

The justices question Singer over these points. For example:   Does that (all parts of a Borough are socio-economically integrated) mean that the court can't consider gerrymandering within Anchorage?  

I'd also mention that in this section of the video, Singer claims that the South Muldoon district wasn't hurt by pairing it with Eagle River because it's 57% white and it votes Republican two-thirds of the time.  The judges don't address that, so I would point out here:

• 57% white in South Muldoon is very different from the Eagle River districts which are among the whitest districts in Alaska - in the 90% range.  
• Voting Republican two-thirds of the time means they vote Democratic one-third of the time, while the Eagle River districts NEVER vote Democratic.
• There are different types of Republicans.  Eagle River elects Republicans like like Lora Reinbold and Jamie Allard - both extreme Right anti-maskers who are cozy with White Nationalists.  And in comparison to Allard, one of Eagle River's Anchorage Assembly members, East Anchorage is represented in the Assembly by Forrest Dunbar and Pete Peterson, both Democrats, both former Peace Corps volunteers, and strong advocates for masking and LGBTQ rights and other progressive values.  
• When the 2011 Board paired an East Anchorage seat with Eagle River, it effectively ended the state Senate career of Alaska's (then) only black Senator, Bettye Davis, who was beaten soundly by Eagle River voters

Again, Singer is totally mischaracterizing the situation and it sounds like the Justices aren't buying it. 

I think I've made my point here.  I could challenge Singer's comments throughout the hearing like this.  But I'd never finish this post.  But he continues throughout the hearing to mischaracterize what Judge Matthews actually said.

You can find the three videos of the trial (one for each challenge) here.

I'd note (in relation to mansplaining point 3 - 'mistaken assumption he knows more than the person he's talking to -  that Singer (and all the other attorneys last Friday) are citing court cases to three of the judges who helped to write those cases.  Judge Warren Matthews - not to be confused with trial Judge Thomas Matthews - was appointed to the Alaska Supreme Court in 1977 and has heard all the  redistricting board cases  since the 1983 case ,  including the 1992 (Hickel) case, the  2002 case, the  2012 case and the current 2022 case.  Judge Robert Eastaugh was appointed in 1984 and served on the redistricting cases in, 2002 and the current case.  And Judge Daniel Winfree served on the 2011 case as well as the current one. 

I think if I were an attorney, I would let the judges know how intimidating it was to be citing the law that they - particularly Justice Matthews - had been writing and interpreting for 40 years.    

I'd also note that Justices Matthews and Eastaugh are no longer on the Supreme Court and are serving as Senior Justices replacing  two judges who recused themselves.  

I'd make one more observation about how Singer is different from some of the key attorneys of the plaintiffs.  

Singer appears to be less about upholding "the greater good of the State" than he is about winning his case.  He's had the Board in lengthy Executive Sessions that seemed to me - and to plaintiffs and the judge - to violate the open meetings act.  He even gave them their initial overview of the state law and court cases on redistricting in a closed meeting.  (The previous redistricting board attorney did that in public.)

His most successful strategies in the court case, haven't been based on theories of law, but have been ways to block access to documents that plaintiffs wanted.  Even transcripts from the Board's meetings in early November 2021 weren't available until late January or early February 2022, right before the trial started.  (Even though during the trial transcripts were available right after the day's session.)  Yes, the Board's staff got the video of the meetings up by the next day for most meetings.  But going through a video takes much more time than going through a transcript.    And that was due to Executive Director Peter Torkelson's vision and hard work to make sure the public got as much information as was possible.

The email and text communications among Board members were not available until the day before trial.  That made it hard for them to be used in trial.

He also had Board members refuse to respond in depositions and he didn't call the Board's Voting Rights Act expert to be a witness, depriving the plaintiffs the opportunity to cross examine him - which was critical in the East Anchorage case.  

So, blocking the plaintiffs from getting information they needed for their cases was his most successful action as an attorney.  But I also have to acknowledge that this trial made him sort of like a chess player playing five opponents simultaneously.  And perhaps he knows his case is weak and that's why he's doing what he's doing.  

But, if his case is weak, in part that's due to the advice he gave his client.  At least two of the Board members strongly and publicly objected to the Board's final decision on the Eagle River pairings, so maybe the Board didn't listen to his advice there.   Singer's advice to the Board about socio-economic integration and Boroughs, though, was fairly simplistic and in part is why we're in court now.  

However, I'm not going to guess what the outcome of the this case will be. I'm not a regular Alaska Supreme Court observer and I don't know how  judicial questioning of attorneys correlates with their ultimate decisions.  

I'll try to get another post up about the legal concepts and how they could affect future cases.  

I would note that if the Court remands the Skagway and Anchorage decisions back to the Board, and the Board dilly-dallies long enough, the current 2021 proclamation map would be used in the November election - including the Eagle River Senate Pairings and Skagway-Juneau House districts that Judge Thomas Matthews has told the Board to redo.  [Aug 1, 2022 - this turns out not to be true as a wrote in a later post.  The Court can order changes to an interim plan if it chooses. It did that in 2012.]

And there could still be more lawsuits when the Board finalizes that map.  

[March 26, 2022:  The Supreme Court rendered its ruling yesterday.  You can see it on this post.  While Singer lost the fight over the Eagle River Senate pairings, he won the Skagway case. Another change the Supreme Court is requiring (though the trial court didn't) is putting Cantwell back into the Denali Borough.]