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.

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

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

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

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

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

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

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

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

I'd also note the timing of  the events.   

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

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

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

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

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

" . . . his father remembered a time when the dead person was carefully wrapped in birchbark and then fixed high in a tree."

 

I'm going to offer you the chapter "Cradle to Grave" from Louise Erdich's The Night Watchman. As I read it my body absorbed, in a new way, the meaning of the Anglo rulers rooting out the traditions, language, and knowledge of indigenous peoples.  And I realized that the GOP and evangelical Christian advocates of rooting out any mention of LGBTQ realities, women's rights, or the true history of the United States, of slavery, or even scientific truths,  rises from the same need to maintain one's own 'truths' by eliminating any competing 'truths.'

Stamping out other knowledge leads to ignorance which leads to total obedience.  Or so these would be tyrants believe. but the human mind has always  been resistant to these attempts.  Though the technology of modern marketing chips away and there are humans who would like to possess technology that controls what others know and think.  

Not only does such annihilation of ideas create obedience to "the one Truth" it delegitimizes the knowledge of the other culture.  This passage also shows us what we lose when we wipe out other cultural knowledge.  

My apologies to Louise Erdrich for quoting such a long passage.  This blog takes no ads and raises no money.  My hope is to share your wisdom and possibly get more people to read your book.  

"Thomas worked on the grave house while Wood Mountain finished up the cradle board.  They were working in Louie's barn because he had all of the tools - the saws, planes, rasps, the splitter, vise, hammer, and the sanding rocks.  Neither of them spoke.  Thomas was using a sharp chisel to dovetail the ends of the boards.  He didn't like using nails in a grave house.  He made a few rafters for the roof and then planed out the necessary shingles.  He'd seen them made with tar paper or bought shingles, but he felt close to Zhaanat as he worked - she had asked him to make the grave house because she knew he did it the old way.  Except, Thomas wondered, was this the really old way?  Biboon said that his father remembered a time when the dead person was carefully wrapped in birchbark and then fixed high in a tree.  It seemed better.  You were eaten by crows and vultures instead of worms.  Your body went flying over the earth instead of being distributed to the tiny creatures living under the earth. This grave house probably came about after they had been forced to live in one place, on reservations.  Mostly, they had Catholic burials.  He wanted to ask Wood Mountain which he thought was better, tree or dirt.  However, Wood Mountain was finishing the cradle board. 

"I suppose we shouldn't tell Zhaanat we were making the grave house and cradle board at the same time," he said to Wood Mountain.  

"You think it could be bad for the baby?"

"I'm not superstitious," said Thomas, although he certainly was.  Just not as bad as LaBatte with his fear of owls and his reading of random omens in everything.  Wood Mountain said that he'd light some sage and bathe the cradle board in the smoke to take the whammy off.

"That'll work," said Thomas. 

From the top of the cradle board, Wood Mountain was using Zhaanat's finest sanding tool - horsetail plant split and glued onto a piece of wood.  It was bringing out the narrow lines in the white cedar.  He had a jar of tea and a jar of vinegar in which he'd left some pennies for a week.  After he'd sanded the wood smooth, he painted the bottom of the cradle board with the tea, which gave it a soft brown color.  He painted the top of the wood with the penny vinegar, which tinged the wood with pale blue including the head guard.  He tied several pieces of sinew to the head guard.  sometimes he found small ocean shells while working in the fields.  Some were whorled;  others were tiny grooved scallops.  He drilled holes in them and hung them from the lengths of sinew. 

"Barnes was saying there used to be an ocean here," he said to Thomas.

"From the endless way-back times."

"Think of it.  Vera's baby will be playing with these little things from the bottom of the sea that was here.  Who could have known?"

"We are connected to the way-back people, here, in so many ways.  Maybe a way-back person touched these shells.  Maybe the little creatures in them disintegrated into the dirt.  Maybe some tiny piece from that creature is inside us now.  We can't know these things."

"Us being connected here so far back gives me a peaceful feeling," said Wood Mountain.

"That's what it's all about," said Thomas.  "And now we're putting another man in the earth.  Maybe a drunk, but he wasn't always a drunk."

"Sometimes when I'm out and around," said Wood Mountain, "I feel like they're with me, those way-back people.  I never talk about it.  But they're all around us.  I could never leave this place."

The United States would be a much healthier and spiritually  richer society today had it not been for the arrogance of white, Christian conquerors who believed they had the right to dispossess the indigenous people of their land and languages and customs.  Or the right to dispossess African slaves of their freedom and their labor.  

But that need for unquestioned power and obedience still lives among many in this nation and in this world.  I have no issue with spirituality and religions that try to guide people to experience their spirituality.  The Bible or Koran and other religious texts as allegory, as fables, that bring people comfort in times of sorrow and decency in times of opportunity, are fine.  But as literal truth to be thoughtlessly obeyed, a religion becomes the tool of authoritarian tyrants and demagogues.  

Trump, among others, gave permission to many to act on these selfish, evil impulses.  We'll get past this, but at great cost.  For those whose lives have been untouched by gun violence or climate change, or racial hatred, your escape is only temporary. Actually we've all been at least indirectly impacted even if we don't realize it.  If we don't overcome the dominance of oil wealth and drastically cut back our use of carbon based products, life will be unbearable for the vast majority of human beings.  And I worry for my grandchildren.

As the passage from The Night Watchman shows, the indigenous peoples of North America had spiritual beliefs and physical skills that kept connected to each other and to the earth for thousands of years.  Knowledge the immigrants from Europe could have benefited from if they hadn't tried to wipe it out.  

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.   

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.  

Redistricting Board Conflict: Expeditiously Or Take Time?

My issue today is timing.  

One conflict between the Republicans and the other two members of the Board*  is whether the Board should respond to the remand 'expeditiously' as Borromeo, Bahnke, and the public testifying in support of what is now Plan Option 2 (that pairs the two Eagle River House districts) prefer, or to slow the process down, give more time for people to think and come up with options, and use up all the time the Judge gave the Redistricting Board - about two weeks.  This second strategy has been supported by the Republicans and the members of the public opposed to pairing the Eagle River districts together.  

Why does this matter?   I had memories of what happened in the previous redistricting round.  Because of court challenges, the Board's final redistricting plan was not complete in time to be used for the election of 2012.  I recalled that what happened was that the original proclamation plan that had been ruled unconstitutional by the court was used.  

So I was concerned that that would happen this time if the Board didn't act expeditiously.  I asked the executive director of the Board and others involved with the process this year about the deadline for getting a completed map to the Division of Elections for the 2022 election.  What I heard was: The filing date is June 1 so the map needs to be done by May 1.  

If that were true, taking as much time as possible would give the Republicans the chance to delay long enough that the 2021 unconstitutional map would be used for the 2022 election.  

My next question was:  When does this new map they're working on become "the new map"?  If they vote for a new map next Thursday, is that the date of the new Proclamation Plan?  Or, since it was remanded to the Board by the Superior Court judge, does he have to approve it?  

I emailed the director of the Division of Elections and when I didn't get a response after two days, I called.  Someone named Donna said she didn't know the answer and would have Michaela get back to me.  I called again the next day after not hearing from Michaela and Donna told me she didn't know.  I asked, is there anyone who knows?  And she said, I told you that's all I know.  I asked her to transfer my question to the Director.  That was Thursday and I'm still waiting.  

When I first called Donna, I also emailed Merideth Montgomery who was listed as the media liaison at the appellate level of the State Court system.  She was the one I'd talked to about getting media credentials for the Supreme Court hearing.  She had approved that overnight and was very helpful when I arrived for the hearing back on March 18.  

I did get an email back from her the next day.  These were my questions:

"I'm trying to figure out

a) when the new 2022 plan needs to be officially adopted - I'm waiting for Div of Elections to get back to me on that - and

b) how this new plan becomes official.  If the Board adopts a new Proclamation Plan next week, does that become the new plan?  Or does Judge Thomas Matthews have to approve it before it becomes the official new plan?  Or is there some other option I haven't thought of?"  

I emailed my questions at 3pm on Wednesday April 6 and her response was dated 8:20am on April 7. 

"I would say for question (a) that the plan needs to be "official" by the candidate filing deadline for the next general election (I think this might be June 1).  

For question (b) my general response would be that a plan becomes "official" when litigation ends, which is technically the day after any appeal or petition could be filed.  For example, if the Board puts out another plan, and no one comes to the superior court within the time allowed under Civil Rule 90.8, the plan is final.   If a lawsuit is filed, then "officialness" occurs when all appeal avenues have been exhausted.  As to the second part of your question this specific case and whether Judge Matthews still needs to do anything, I'm not sure, because I don't know what his instructions were after the supreme court sent the case back.  I suspect, though, that he has maintained jurisdiction of the case, in which case, yes, he would need to approve before the new plan is final." 

I was confused.  If the candidates have to file by June 1, how can the deadline be June 1?  People need to know what their district is more than a few hours to file.  The Division of Elections surely has to have paperwork and maps ready for people coming in to file.  

Part b was confirming my concerns.  If the Board delays long enough - say til the  15th of April and the judge doesn't accept it (whatever that might entail - like remanding it again?) it could drag on into May.  If the judge accepts it, someone could wait 25 days and then file a court challenge putting it beyond the June 1 deadline.  And then would the unconstitutional plan adopted in November be the map for 2022?  Like what I recalled happening in 2012?

Fortunately, I blogged the 2011 process - as yesterday's post shows - so I could go to the index page (see the tabs up top, right below the orange banner).  In fact, I wrote yesterday's post because I was going through what happened in 2011 looking for the posts that talked about adopting the unconstitutional plan.  

What I found is a reminder that we shouldn't rely on our memories.  The following comes from my May 22, 2012 post 

Supreme Court Chooses Amended Proclamation Plan, With Original, Not New, SEast Districts

What actually happened was this:  The Board had been asked to redo the maps a couple of times and had now submitted several options to the Court.  

"The Supreme Court issued an order today in response to the Redistricting Board 

"It is ordered:

1.  The Amended Proclamation Plan adopted by the Redistricting Board on April 5, 2012, including the Southeast Alaska districts as configured in the plan of that date, shall serve as the redistricting plan for the 2012 elections."

So, after ordering the Board to reconfigure Southeast Alaska to only consider the state constitution and not the Voting Rights Act at all, the Board met and worked hard to comply, though they all said they were not pleased with the result.    Now the Supreme Court is telling them to just use the Amended Proclamation Plan with the Southeast districts as they were on April 5.

The reasoning?  The court was concerned about the numerous objections they got over the Southeast Alaska districts and that the Department of Justice wouldn't find the plan in compliance with the Voting Rights Act.

"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." 

Two of the judges dissented - Winfree and Stowers - who thought the May 15 districts should have been adopted."

(Here's a link to the ADN article on this.)

So I was wrong.  They did not adopt the original unconstitutional plan.  The Court took part of the revised plan and for Southeast they used an earlier revised version.  And the date of the post is May 22, 2012.  So that's only a little more than a week before the June 1 deadline.  

So what does that suggest for 2022?

1.  The deadline for getting a plan to the Division of Elections can be well past May 1.  

2.  The Supreme Court can tinker with the maps and decide they which one should be used.  

Can the Superior Court judge decide on a map to use?  I don't know, but if he did, I'm sure the losing side would immediately appeal to the Supreme Court.  

Other considerations:

Timing:  

1. All the House districts have been approved except for the ones affected by the Cantwell cutout, which the Board fixed and unanimously approved with no objections from the public.  That doesn't seem like a problem.  
2. All the Senate districts except, maybe six in Anchorage are settled.  
3. So most of the map is essentially finished and the potential candidates for those districts know what their districts will be.  That can be passed on to the Division of Elections by the time Judge Thomas Matthews gets the Board's decision.  

What happens if the Judge doesn't like the changes to Senate Seat K?

1.  He could send it back again with new directions

2.  He could fix the map himself. 

3.  Either way there could be an appeal to the Supreme Court.  

It seems there is enough time to send it back with instructions and a deadline.  If the Court makes changes to the map for the 2022 election, I suspect it has to be backed by the Supreme Court.  

From the Board's discussions this week, I think that at least member Simpson would comply with a Supreme Court instruction.  But that's a just a guess.  But he spoke about following the law on a couple of occasions - Binkley's decision to vote no on the Cantwell revision because he disagreed with the Court's ruling and when he voted no on accepting the Craig Campbell proposed Senate K fix that would have required changing a House seat.  

These are the potential next steps.  It appears that the courts can take their own action to determine what map the Division of Elections will use and that there is enough time to get a map for the regular primary in August and the November 2022 election.  

I would just add that Andrew Gray testified today and made the point that there are no negative consequences for trying to politically gerrymander the map.  It could go through without a lawsuit. But even if a lawsuit were filed, and successful, there are no negative consequences to any members of the Board for trying to abuse the process.

* The two other members are not identified with any particular party.  Whether they have leanings - well they aren't leaning with the Republicans on the Board on the issue of political gerrymandering that the state Supreme Court found.  For some of the people testifying, that seems to automatically make then lean Democratic.  But there are other options.  They don't have to lean toward a party.  They could  lean toward other issues and one that they appear to take seriously is the Alaska Constitution and the idea that the interests of ethnically diverse (I guess that's a euphemism mainly for non-White, but also includes non-Christian, and LGBTQ, and people with disabilities, etc.) should have their voices heard in the legislature.  

Redistricting - Some History To Consider What Could Happen Next

Because I blogged the 2011 Redistricting Board and have a tab at the top of this blog with an index of all the posts, it's easy to see what happened back then to compare to now.  I'd note there is also an index of all the posts I've done this round at AKRedistricting 2020-2022, under the banner above.   That 2011 process dragged out until 2014.  And there were a number of new plans that were written and rejected before the final plan was approved.  

This time round, the problems were much more focused:  

• Cantwell, which I think they have satisfactorily addressed, and
•  Senate Seat K.  Here, they are currently down to two choices.  One which will easily be approved by the Judge.  The other, which seems to be favored by the majority of the Board, stands a chance of getting rejected for the same reasons the first one did - political gerrymandering.  

That 2011 Board got its Census data on March 15, 2011 and had 90 days to approve its proclamation.  They got it done on June 13 and not two weeks later there was a legal challenge from Fairbanks.  By July 14 there were two more. 

Tuesday, June 13, 2011
Board Approves Proclamation and Other Documents, Then Goes Into Executive Session
The board members congratulate themselves on doing a great job and approve their work.  


Sunday, June 26, 2011
Fairbanks to Sue Over Redistricting  - I comment on a Fairbanks News Miner article.

July 14, 2011

Three Challenges To Redistricting Plan Arrived By Deadline - Cases Attached-Brief overview of the three challenges, one from the Fairbanks North Star Borough, one from a resident of Goldstream and a resident of Ester, and one from the City of Petersburg.  Copies of the cases are embedded in the post.  

The Board wanted the trial moved to Anchorage, but the judge denied that.  There was something of a gap and staff took other jobs while waiting for the trial.  As I recall it was in Fairbanks in January and I was glad I was listening in by phone.  

The results of the trial didn't come until January 2012.  

Monday, January 9, 2012
Four Districts Found Unconstititional  - quick look at court documents

Sounds of Silence - The court proceedings are on audio teleconference, but can't hear anything.

Paskvan Testifies - Sen Paskvan, one of two Democratic Fairbanks Senators put in the same district testifies.

Plaintiffs Trying to Show Gerrymandering - Sen. Thomas (who is paired with Paskvan) is describing strange loops moving legislators in or out of a district.

Senator Thomas Continues - More of the same.

While blog posts are still up ten years later, the pages that held the documents are no longer working.  In fact all the material from the 2011 Board's website and other state links that had documents are gone.  Peter Torkelson, the Board's Executive Director this time, says he's doing all he can to make sure that doesn't happened again with the current Board's website.  

In 2011 it took from June until February to go from Proclamation Plan to trial outcome. And then to the Supreme Court which sent the plan back to the Board for repairs on March 15 - NINE months after their proclamation and ONE YEAR after they got their Census data.    

In 2022 it took from November 10, 2021 to February  16, 2022 to go from Proclamation to trial outcome.  And it was March 25, 2022 when the Supreme Court ruled. 

This time the gap was just a little over FOUR months.  But remember, the Census data was delayed in 2020 because of the Trump administration's attempt to ask citizenship questions and because of the pandemic.  So the current Board didn't start mapping until August.  =

Here's a bit more on what happened.  Not expecting anyone to read it all, but it's there for your perusal.  You'll find some similarities to this decade's process.  

Wednesday, February 1, 2012

• Alaska Redistricting for the Masses Part 3: The Trial - The Disputed Districts  - This post looks at the disputed districts and the reasons they are disputed.  With maps.

Saturday, February 4, 2012

• Redistricting Challenge:  Judge Sends 4 Districts Back To Board - Post reviews the judge's decision.

Tuesday, February 7, 2012 

• Alaska Redistricting Board To Appeal Ruling on Districts 37 and 38   -  Notes on the board meeting where the board decided to appeal the judge's ruling on house districts 37 and 38. I listened to this meeting on line from Los Angeles. 

Tuesday, March 13, 2012

• Meet You At the Alaska Supreme Court This Afternoon   - Announcement of hearing with maps of districts challenged by petitioners.

Wednesday, March 14, 2012

• Alaska Supreme Court Hears Redistricting Board Petitions  - Overview of the court hearing with photos

Thursday, March 15, 2012

• Alaska Supreme Court Sends Redistricting Plan Back To Board  Initial report on Supreme Court decision focused on what the Court required the Board to do. 

Saturday, March 17, 2012

• A Guided Tour Through the Alaska Supreme Court's Redistricting Decision - Hickel Lives On - Goes through each of the 14 sections of the decision and attempts to explain the meaning and implications.

Tuesday, March 20, 2012

• Alaska Redistricting Process - What Happens Next? - Looks at the questions:
• The Board will have to make a new plan and that has lots of possibilities.
• What are the parts they have to change?
• Can they be fixed without messing with the rest of the districts?
• Do they start completely fresh or leave most of the existing plan intact? 
  
• Are there any candidates obviously affected?

Then they come up with a new plan April 5, 2012.  I'd note that the previous Board still had to get pre-clearance from the federal Department of Justice to be sure they complied with the Voting Rights Act.  That pre-clearance requirement was gutted by the Supreme Court until the next year, when, as you'll see, the Board was still working on another plan.  

Thursday, April 5, 2012 

• Board Formally Adopts New Plan and Backup Plan - Final meeting for now as they get things ready for submission to DOJ and courts. Links to reports and maps.  My rough, detailed, notes.

 Friday, April 20, 2012  

• Way Too Busy With AQR, Press Club, Confucius Institute, and More Redistricting Stuff- After the picture of Wei Jaijiang, there are links to the objections submitted by various private parties. 
• Judge Rejects Redistricting Board's Amended Proclamation Plan - Describes the main objections and an update attaches the Judge's order.

They come up with more options;

May 1, 2012

• Redistricting Board's Supreme Court Appeal - First I wonder out loud why the board didn't tell us how they were able to come to agreement so easily without discussing many details at the public meeting.  Second, I try to explain what I think the court had asked for and what the board needed to do.  

May 7, 2012 

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

May 11, 2012 

• Redistricting Options Narrow At Supreme Court - Overview of attorneys' presentations in court and the basic questions the court seemed to want answered.

May 14, 2012 

• Southeast Maps - Redistricting Board Offers 5 Options - The Board's five maps for SE are posted.

The Supreme Court doesn't like them.  

May 22, 2012

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

 

Things drag on.

Dec. 29, 2012   

• Alaska Supreme Court Orders Redistricting Board to Start Over  - Discusses SC ruling and links to it.  

 

Feb 1, 2013
What's At Stake If Redistrict Board Has To Start Over? - Looks at:

• Form over Substance
• The Board's Task
• The Court's Task
• What Happened?
• Form Over Substance?
• My Conclusion 
  
• Impact Of Redoing The Plan From Scratch
• A Lot of Work
• Should the job be given back to the Board?
• Impact on the balance of Democrats and Republicans in the legislature
• Impact on voters' connection to their legislators  

I'm going to skip on ahead.

Wednesday, June 19, 2013

• Court Again Rules For Plaintiff Against Alaska Redistricting Board...  Brief overview of the Order which is posted in full. 

Monday July 8, 2013

• Here's The Map The Redistricting Board Approved Sunday Compared To The Old One  - I post the 2012 election map along with the new one approved Sunday for 2014 for Alaska and Anchorage.
  

Sunday, July 14 , 2013

Notes from the Last Alaska Redistricting Meeting.  Everyone Hopes So 
- My very rough notes of, what many hope, was the last Alaska Redistricting Board (unless there are legal challenges)  meeting, where they approve the Proclamation and the findings and the metes and bounds.   

Photos of the Last Redistricting Board Meeting - The Board, some of the audience, AFFER and CALISTA folks, Board's signatures.  

Such hopes!  Quickly dashed.

Thursday, August 29, 2013

• Court Sets Out Issues And Schedule For Alaska Redistricting Court Challenges - This post outlines the basic parts of the Court's order in which the Court outlines the issues and scheduling.  

But the end is in sight.

Monday, Nov 18, 2013 

• Court Rules On Redistricting: "The court accepts the 2013 Proclamation Plan"
  Title sums it up.  Judge's complete decision is included in the post.   

Dec 20, 2013

• Alaska Redistricting Plan Now Final Just the Bill Left to Settle - This post has links to the Proclamation Plan and all the maps and a copy of the court order.

 

1000 Years Of Joys And Sorrows - Ai Weiwei/ Japan Invades China 1937

As Russia moves into Ukraine, it seems that Ai Weiwei's description of the Japanese invasion of China in 1937 seems an appropriate reading.  Not just for the people of Ukraine, but for the people
of the world.  If Putin is able to 'take' Ukraine, what's next?  And what does this foretell about future relations between Europe, Russia, and the US, not to mention China, and the rest of the world?  

In July 1937.  Ai Weiwei's father Ai Qing was a young poet who had started getting noticed.  Three months earlier, the wife had their first baby on the day the Japanese began their invasion of China.  They are trying to keep ahead of the Japanese army and have arrived at Hangzhou.  Hangzhou is a little west of Shanghai and is known for its beautiful West Lake which is now a World Heritage Site.

Ai Weiwei writes:  

"The West Lake was unchanged, hazy and indistinct.  It seemed to him that the locals were drifting through life, still clinging to an illusory notion of leisure.  The onset of war had failed to shock Hangzhou;  while the fate of the nation hung in the balance, people simply continue with their routines. 'I cannot pretend to love Hangzhou," Father would soon confess.  'Like so many cities in China, it is crammed with narrow-minded, selfish residents,  with complacent and vulgar office workers, low-level officials accustomed to currying favor, and cultural types who make a hobby of hyping things up. They commonly think of themselves as living in unparalleled happiness, as though lounging in their mother's lap.'  He would write these words at the end of the year, when news came to him that Hangzhou had fallen, after he and his family had escaped to Wuhan." (p. 51)

Sound familiar?  

Ai Qing, who had moved his family further west, was once again faced with an advancing army.  This is surely happening right now in parts of Ukraine.

"When they arrived at Jinhua Railway Station at eight o'clock in the morning, wounded soldiers, freshly evacuated from battlefield, lay strewn along the platform.  One of the soldiers, a faint gray light shining in his eyes, told Father that hospitals in the area were no longer taking in casualties.  Some had covered themselves with straw for warmth, while others threw straw in a heap and set fire to it to warm up inside dirty bedrolls.  The fight had disrupted the normal train schedule, and in the confusion it was unclear whether rail service would even continue.  Ticket sales had been halted, and if a train came in everyone simply piled in,whether they had tickets or not."(pp 51-52)

Later, he writes about poetry and democracy.  Ideas to contemplate as those in power aim to abolish truth with mistruths.  

"'Poetry today ought to be a bold experiment in the democratic spirit,' he declared, ' and the future of poetry is inseparable from the future of democratic politics.  A constitution matters even more to poets than to others, because only when the right to expression guaranteed can one give voice to the hopes of people at large, and only then is progress possible.  To suppress the voices of the people is the cruelest form of violence.'  Eighty years later, his faith in poetry's freedom's ambassador has yet to find vindication in China."

For those of you unfamiliar with Ai Weiwei, he's probably modern China's best known artist, though he's living in exile now.  Here's a short bio.

I haven't seen much of Ai Weiwei's art in person.  But I did see this tree at an exhibition of modern Chinese artists at the Louis Vuitton museum in Paris five or six years ago. The link describes it somewhat.  

The Trevor Noah interview below doesn't tell you much about his art or life, but it's worth watching as we deal with an increasingly oppressive takeover of the Republican party.   

I have to add, reading a good book is so much more satisfying that scanning Twitter or other online collections of alarmism and distraction.