[See message from Board Executive Director which arrived just after I posted this. At bottom]
So how should I do this? There were five cases. The Board had to respond to all of them. Board attorney Singer responded to all of them except the Calista case which he delegated to Lee Baxter.
Robin Brena was the attorney for two cases - Valdez and Skagway. Stacey Stone for Valdez' partner case Mat-Su. Holly Wells for East Anchorage, and Michael Schechter for Calista.
I was hoping the closing arguments would be posted online and I could just direct you there for the details of the arguments. But they aren't up and I doubt they'll be up before Monday if then. The Findings of Facts and of Law are all up which is a general guide to what was said in the closing arguments.
Findings of Fact and Conclusions of Law
[I originally linked to the Court page with these documents, but the Board has put them on their page and I think that will be more permanent. They've talked of preserving it, unlike the last Board website.]
There were lots of things here to talk about. One biggie is how ridiculous and how useful the adversarial process is. Silly because attorneys fight hard to defend the indefensible, but useful because so many important points get out and rebutted. And this seems like a very conscientious and thoughtful judge. The grandstanding some did, that might work (or backfire) in front of a jury is irrelevant, because the judge, this judge, seems to see through it. He was gracious to all the attorneys and court staff and whatever he decides will be thoughtful. The biggest obstacle for him is time - time to read through everything, time to write up his findings.
But let me try to wing it here and just talk about a couple things that caught my attention.
I wasn't impressed with East Anchorage's Holly Wells' presentation. I'd expected it to clearly identify legal criteria and then show how the Board missed them. It was less organized than that. But I missed the first few minutes of Wells' presenting her case - I had the video ready, but must have hit the stop button.
So I went back to see if the video was still there. (The court doesn't save the video, but sometimes it doesn't get taken down right away. As I post this (Saturday) it is still up and you can listen for yourself. You can skip around to get a sense of the different attorneys to see their various styles. Maybe it will stay there over the weekend before someone takes it down - PLEASE court, just leave it there until Monday at least.)
So I've transcribed the beginning (the part I missed) of Wells' closing argument:
Wells: This case is really one of process than anything. While process has been sidelined by the board recently Process is the heart of every substantive Constitutional requirement that faces the Board. It’s at the heart of how it functions, how it understand its obligations.
The board’s decisions were to abandon process and to even outright evade it on the 8th and 9th hearings and Senate pairings that led to the substantial constitutional errors that were committed by the Board with respect to ER EastAnchorage Senate pairings.. Seems almost peripheral to focus on something like process when you’re looking at the level of extreme substantive crimes?? here.. But the truth is that it is the courts that have grounded us in this concept. In order to understand where things went off the rails, we have to understand why. And because it is present in every piece and every component of the Board’s decision. It’s also present in how the Board analyzes and its own perspective of its errors and its decisions not to ?? those errors and its decision to conceal them which has its own issues. I think the best place to start is with the house districts.
With the house districts saw a board who made every effort to try to communicate with the public. They adopted a public testimony process at the beginning and the end of every hearing. They put up interactive maps, they adopted software that allowed the public to go in and draw on those maps. They made mistakes because every board makes mistakes, and they’re inevitable, but they did maintain the integrity of their process, so at the end of the day they, when the Board members were gathered at their table there was fighting there was difficult conversation, a lot of public input and at the end of the day a fair house district map resulted. On Nov 8 they walked in and suddenly they changed their agenda. There is no second public testimony. They cling to the presence of senate pairings and leave the findings facts and conclusions of law of the Board, there were talk of Senate pairing proposals of the third party plans. But in reality when they walked in they didn’t know what they were creating or how they were going to create it. The discussions in the transcript have questions from member Bahnke asking “What’s our plan? How are we going to do this?” And Chair Binkley answered, “I don’t know, maybe do some on our own, smaller groups, then we’ll all get back together and then we’ll show the public what we’ve come up with. On the record. There were no plans there were no Senate pairings out there and the public, even without those plans, submitted over 100 comments in support of keeping ER together and keeping Muldoon with Muldoon. There was a significant focus of the public on the house districts, it was a running theme. Fear that ER would be split, given two house seats and combined with Muldoon and then would be fragmented. As they start this process, Board member Bahnke makes a presentation. And the majority Board members are silent. They say nothing. They make some comments, I think there’s some discussion on procedural issues, but there is no substantive statement of support or opposition to what she presents about ER and Anchorage senate pairings.
Then Board member Marcum makes her presentation. She mentions that she has four versions, she doesn’t present any particular version in a way where you are looking at a concrete, visible, clear presentation of Senate pairings.
We see that in David Dunsmore’s affidavit. We see that very clearly when we review the transcripts.
And yet the one thing she does do, she makes it very clear there is one goal she is trying to accomplish. She wants JBER to be paired with Eagle River. My biggest disappointment is that reading this is much more interesting than listening to wells tell us. It's more like she's relating to a friend what she said after a long day at trial. And it may be the case that she was up late last night practicing. She starts by telling us it's about process - which is an important part - but she doesn't succinctly identify the rule or law or constitutional point that was violated with a short example of what happened. We have to work hard ourselves to figure out what points she's making. There's no First, Second, Third to help us get back on track.
She does, after this, talk about the Board being a public entity that is acting like a private entity, but if she cites legal differences between the two and then gives examples of what the Board did, I missed it in the droning narrative.
We get principles -
"Socio Economic integration is not required for Senate pairings, but rational decision making is."
She tells us administrative record wasn't maintained. That there was a lack of communication. That they violated Roberts Rules of Order.
All that's true. Minutes didn't really tell the public what happened or who was responsible. And if I recall correctly, they all got delivered and approved in a huge group, so late in the process, that the Board itself didn't have time to check each meeting. And frankly, by the time they got the minutes, it would have been hard to recollect what happened when or to find what was missing. But why exactly is this illegal and reason to do what, exactly? Sure, the transcripts of the meetings were never actually put up on the Board's website. It took till the end of the pre-trial hearings before they actually got transcribed. Tell us why that's illegal enough to invalidate the ER pairings. And the board did a great job of posting the audio or video very quickly of every meeting. They also did a good job of posting the public comments within a week of the meeting, often faster.
But as I know too well, going through video to find what was said is a slow and tedious process. Transcripts, good ones anyway, allow you to search key terms. Then if you need to, you can find the spot on the video - again, if the transcripts include time. [Next time the Board should make sure there's a clock always visible in the video to make it easier to find things.]
I went through the East Anchorage findings of fact fairly quickly yesterday. After listening today, I need to do that again to see if they highlight more clearly the points she made today. I suspect they do. And this trial has been going at a grueling pace. I suspect she didn't get much sleep the night before. But that makes having an organized, point by point presentation all the more important.
She ended by saying the remedy for the ER pairings is easy - they just need to follow the Bahnke plan that was presented.
And then comes Singer, the board's attorney. I finally figured out why it's so tedious to listen to him at trial. There's a smugness in his voice. Disdain. He knows the truth and he sounds like he's tired of having to correct all the plaintiffs' errors. That this all is a waste of his time. (A lucrative waste.) I didn't figure this out until the Calista case today when Lee Baxter took the role of the Board's lawyer. In contrast, he sounds respectful and sincere as he tries to counter the plaintiff's arguments. The parts that sound a bit like Singer are the parts that I suspect Singer had a hand in scripting - He started off by saying that "Calista seeks to gerrymander NW Alaska to increase representation." That is out of character for Baxter. But back to East Anchorage. (And I'll stray beyond East Anchorage.)
Basically, Singer was taking a stand that it doesn't matter what the districts are like as long as they don't violate the Constitutional requirements. It doesn't matter if there are better maps that could have been drawn. The plaintiffs had the chance to draw better maps but waited until after everything was over. The Board worked hard, are smart people and they did a great job. There is no concern about having the best plan possible, just winning.
What would happen if in Court the Board authorized the attorney to say, "You know, Brena is right about Skagway. The court should give that one back to the Board and we'll switch Skagway back to downtown Juneau and keep all the Mendenhall Glacier [Valley] together"? But that would take a concern for the people of Alaska that Singer doesn't seem to have. Some things he said:
1. "Everything within a Borough is socio-economically integrated. End of argument." We heard this over and over at Board meetings, from Singer and then from Board members. I would really like for Singer's briefing to the Board on Redistricting Law to be made public so we can know if he told him about how much more flexible the SC decisions have been. How they've emphasized things like:
"In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote."
That is precisely the point being made best by Brena in the Skagway and Valdez cases. But also in the East Anchorage case and the Calista case. And that's true for Senate seats as well - the voters not be denied their right to an equally powerful vote. Even inside a Borough.
2. Dismissing claims about overwhelming public testimony on Eagle River/Muldoon pairings (and Skagway), "This is not a popularity contest." Actually in a way it is. We're talking about elections and democracy and he's just saying, the Board can ignore what the public has to say because that's why they were chosen to be on the board. To make the hard decisions. Over the will of the people they are deciding about. Except if that were true the Constitution wouldn't require 60 days of public hearings. And if it's true, the Board should pay back all the money they spent traveling the state to hear from the public.
3. On the other hand, he said again, that it's easy to make a map of one or a few districts. But you really have to make a map of all forty districts because then you'll see how hard it is. That seems to contradict the point of it being the Board's job to make the hard decisions. If the Board tells people they will only look at their maps if they make complete state maps, that's essentially telling them "We don't care what you think." The Board members got paid a decent fee to spend the last year making statewide maps with specialized training and staff assistance. Simpson even testified he didn't do any mapping himself, he had staff do it for him. That was better for him. But the public was supposed to make 40 district maps? They couldn't just describe their preferences for their own district and let the Board work it out?
OK, I know it's not easy, and Tanner Amdur-Clark did a good job as an intervenor explaining how little changes in one place ripple across the state. The presentation was effective, but I don't have the ability or time to double check what he said in detail. And he is strongly advocating for maintaining D36 as it is, so he has a vested interest in not letting that district get altered which would happen if there are any changes to Valdez and Mat-Su maps. But the presentation was a good illustration of the difficulty of making maps.
4. Right after telling us that "attacks on Doyon and Ahtna and others are an excuse to get the map they want" that "Ad hominem attacks are falacious" Singer, in the next sentence, calls Valdez' expert Kimball Brace "Mr Gerrymander." He's been called that on national television so it's not original to Singer, but nationally it's more a recognition of how well he knows how to map. But Singer has made sure to link Brace to that moniker frequently. That might work with a jury, but I think Judge Matthews sees through that.
He also made fun of Brace for calling Hoonah, Houlihan. But I recall Singer apologizing for not being able to pronounce all the names of the villages in the Calista case.
5. He sounds a lot like a certain ex-president denying every allegation, even those everyone saw him do live on television. I think I say that because of the swagger in his voice as he denies everything. Well, not everything. He acknowledged that Skagway joined with downtown Juneau would be perfectly ok, but it doesn't matter because that's not what the Board did and what the Board did was fine. Because everything in a Borough is SEI so pairing with downtown Juneau or Mendenhall Valley would be equally SEI. This just doesn't appear to be the case. Except he's clinging to part of the Hickel case where that was said, but under different circumstances.
I think this denial of reality is what is so frustrating. The Court early on said everything in a Borough by definition is socio-economically integrated because that was how Boroughs were defined in the legislation that created them. But in a large, populated borough like Anchorage 50 years later, we know that in reality, that's not true. It's a fiction. Mountain View is not SEI with Campbell Lake.
Brena made it clear that most people in Juneau would prefer Skagway with downtown Juneau and Mendenhall Valley whole. There is a very close government, business, and personal tie that isn't there with the Mendenhall Valley. It really is what the people there, according to the testimony, including going through Simpson's handwritten notes person by person at the Skagway public hearing (which the Juneau Board member only attended via Zoom and not in person). And switching them would be easy and not affect any other districts. Yet the Board is simply going to stonewall that and go for the map that basically one person - Simpson - wanted regardless of the public testimony. (At least that's how I heard the testimony)
I'd point the reader to my post that looks at some of what the Court has said about Socio-Economic Integration to understand my frustration with Singer's narrow view and my optimism that Brena has read those cases more closely and shaped his arguments carefully to mirror what the Court seems to believe.
There are at least 100 posts that could be written about yesterday's closing arguments. I'll try to get a bit more of a general summary of the arguments done. But these were things that really stood out for me.
All my posts on the Board going back to December 2020 are indexed (latest post on top) at the Redistricting Board tab just under the Banner up top.
UPDATE - Well really an addition that came just after I posted this. An email from Redistricting Board Executive Director about a) they're posting court info on the Board's site and b) a meeting Wednesday to discuss the judge's decision - which is due before midnight Tuesday. But they'll probably go into Executive Session, which would be appropriate for the parts where they discuss how they plan to react.
From Torkelson:
It has been a whirlwind of litigation work the past several weeks with many late nights and weekends dedicated to defending the Board's adopted Proclamation Plan. The Plaintiffs have likewise worked diligently investing substantial time and resources pursuing resolution of their concerns.
Closing arguments wrapped up yesterday afternoon and we expect the Superior Court's decision by Tuesday, February 15. Attorneys with decades of experience on both sides have never seen a case move this fast.
There are over 150,000 pages of litigation related documents and numerous motions and counter-motions filed by all parties. It is easy to get lost in the flurry.
We have created a litigation web page which contains the initial complaints followed by Findings of Fact and Conclusions of Law responses – the best summary of each sides' arguments.
We will update this page with the Superior Court's decision once it is published.
The Board will meet via Zoom Wednesday, Feb 16 at 11am to receive a report from our legal team on the Superior Court's findings. Here's the public notice link which includes the Zoom invite and agenda:
Have a great weekend,
Peter Torkelson
Executive Director
Alaska Redistricting Board
