This is a longish post that combines lots that's happening with the Redistricting process. The hardest part was probably leaving out relevant, but not the most relevant, issues. That still makes for a long and, for many, a complicated post. In the end I am presenting Part I - how to do the evaluation. I'm hoping next to do Part II which will look at the written testimony.
Let me give you a sort of executive summary here at the beginning:
1. The Basic Question: How should the Redistricting Board use the public testimony in deciding whether to adopt Option 2 or Option 3B?
2. Legal Background: The Court ruled that the Board did not take adequate account of public testimony after the original plan was challenged. The Board's attorney, in the appeal to the Supreme Court argued the judge wanted to substitute public opinion for the the Board's decision making. He also claimed the judge's decision would make this a more political process. He also said there was no procedure for evaluating public testimony.
3. Evaluating Public Testimony: Qualitative Research has an established history and methodologies for measuring what people say that the Board can use to evaluate the testimony.
4. Suggested Method and Examples: I offer a relatively simple procedure the Board could use. Noting attorney Singer's warning about this turning into a political rather than a rational decision making process, I offer ways the Board can avoid this.
5. Coming Next: I'm hoping to follow this post with one that takes this methodology and takes a preliminary look at the written testimony that the Board has posted on its website.
1. The Basic Question - The Board is now down to Option 2 and Option 3B. (You can see maps of the two - plus Cantwell - here.)
Option 2 was brought forward by the original plaintiffs who sued the Board over the pairing of Eagle River and South Muldoon in Senate Seat K. Both courts agreed it was political gerrymandering - that it tried to give Eagle River two seats by 'cracking' south Muldoon. That is, pairing a poorer more diverse district with an economically better off white community that always votes Republican and this would result in the South Muldoon voters not being equally represented. This plan follows the Court's ruling and pairs North and South Muldoon together, then pairs the two Eagle River districts together, and then pairs JBER/Government Hill and downtown together.
Option 3B was originally put forward by Randy Ruedrich, the former chair of the Republican Party of Alaska. He also had a hand in the original plan that was thrown out by the court. 3B also pairs North and South Muldoon. But then it pairs Chugiak/ER with JBER/Government Hill and the other Eagle River district with the Anchorage Hillside all the way south past Girdwood to Whittier. The two Eagle River districts are split through neighborhoods and then paired with districts that do not have such neighborhoods in common. House District 22 is 'contiguous' with House District 9, not with populated neighborhoods, but with the unpopulated Chugach State Park. The residents of these districts have to drive 15-87 miles to reach each other. The other ER House District 24 is paired with JBER/Government Hill (D23) - also along unpopulated areas, and again with the need to drive through several other districts to get to the other side of the district.
If my description seems biased, well I'm only stating the facts. Quite a few people who testified said that this is not a hard decision. That it's only hard because the three Republicans who voted 3-2 for the original unconstitutional pairing, seem to be headed toward doing the same thing, which will undoubtedly give Eagle River a second Senate seat and the State Senate an extra Republican Senator. There isn't much hidden here. It's pretty out in the open. It's been noted that the 2011 redistricting plan set up a similar cracked Senate seat and in the following election Eagle River voters knocked off the only black State Senator.
2. Court Ruling on Public Testimony and the Board's Pushback
The trial court ruled, in part, that the Board did not pay enough attention to public testimony when making some of its decisions.
In the Redistricting Board's response to trial court Judge Matthews decision that the Board must take public testimony into account, Board's attorney Matt Singer argued:
"the trial court’s rule asks the Board to compromise the requirements of Section 6 in order to do the bidding of a majority of public testifiers."(p.32)
He also wrote:
"The trial court places quantity of testimony over quality" (p. 30)
Actually, the judge's ruling was a lot more subtle than that. He explained his decision and reasoning in detail from page 131 - 143 of his ruling. He concludes the discussion thus:
"If the Board adopts a final plan contrary to the preponderance of public testimony, it must state on the record legitimate reasons for its decision." (p. 143)
The Board's attorney went on to argue that the judge's ruling turns redistricting into a political popularity contest - the most votes win. I've highlighter some parts of that argument:
"Contrary to the trial court’s intent, its new rule will further politicize the redistricting process and be harmful to Alaskans. The following foreseeable harms will flow from the new constitutional rule and duty:
The trial court places quantity of testimony over quality. This provides incentive for political parties, partisans, and interest groups to pack public hearings and file volumes of pre-written testimony. The rule even encourages interest groups to pay participants, as is occurring already in other states.134 Dark money will be used to buy written testimony and will pay for the public testimony of political partisans.135
The judge did not put quantity over quality, but I can see that words like "preponderance" could lead Singer to think that.
The rule places power in special interest groups who mobilize partisans to attend hearings and hijack the process. With Skagway, for example, the trial court emphasized in-person testimony over written testimony, suggesting that the Board should give special treatment to those who have time and resources to appear before it.136
Actually, this is how public participation works. Different groups mobilize their supporters by letting them know what issues are being decided and getting them to attend meetings and write letters, etc. Usually politicians can distinguish between legitimate personal testimony and partisan manufactured testimony. Though in many legislative bodies it's lobbyists, not the public, who have sway anyway.
The rule turns a task of “Herculean” proportions into an impossible task. The Board will now be required to tally and quantify public testimony in real time. It will have to endure public hearings that could go for days, as competing interest groups each try to gain an upper hand in the quantity of testimony. And instead of balancing the demands of achieving a 40-district map that is compact, contiguous, and socio-economically integrated for all Alaskans, the Board will also have to adjust map lines because 23 out of 36,000 people in Districts 3 and 4 want a Skagway-Downtown Juneau district, 15 people in Fairbanks want the Board to use a specific road as a district boundary, 20 people in Wasilla want the hospital in its district and not the Palmer district, 8 people in Spenard did not want their district to stray into downtown, and on, and on, and on.
If by tally, he means, they need to look carefully at the public testimony - not just sit there appearing to listen until the meetings are over - then this is a good thing. It's useful to sort through testimony to see what arguments were raised and rebutted and then to carefully determine the best route. Since the Board's staff was not really equipped to research all the kind of issues that came up, it's useful to have an active and competent public to supply that kind of information. It needn't be just a quantitative measure.
There is no legal standard for determining the “clear weight of public comment.” If only one person testifies on a topic, is that the weight of public testimony that trumps the judgment of the five Board members?
Actually, there is a well developed field of qualitative research analysis to help review testimony in a more meaningful way than just counting those for and against. This is particularly useful here because:
"Data collected in qualitative research are usually in narrative rather than numerical form, such as the transcript of an unstructured, in-depth interview. Analysis of qualitative data organizes, summarizes and interprets these nonnumerical observations." (From National Library of Medicine)
Evaluating public testimony doesn't need to be a complicated social science dissertation. We can use simple principles of qualitative research to get something reasonably useful for the Board.
The last two weeks at the Redistricting Board have been an incredible demonstration of the power of open government. All the hearings have been available in person at the Legislative Information Office (LIO), via Zoom, and by phone through the LIO system. There has been a steady stream of people testifying via the phone and in person. Only one day were there some gaps between testifiers. Chair Binkley looked at the lack of callers online and lack of people waiting at the LIO and asked the Board if they should call it a day. Member Borromeo argued that since it was advertised until 2pm they should go to 2pm and offered to chair the meeting. Binkley signed off and the lines were held open. Four or five more people showed up after that.
In addition, people have used the Board's online feedback page to write their comments and I guess others have emailed comments. There's been a wide array of comments. It's been amazingly frank and sometimes partisan. A few people have made comments five or more times. But cumulatively, it was a chance for different arguments to be presented and for others then to counter those arguments. Much of the written testimony was one-liners. Other testimony was longer thoughtful explanations of why the person felt that way. Some testimony added lots of factual data to counter the mostly anecdotal testimony of many. The Board has heard a lot more about the advantages and disadvantages of their two competing options. (I originally wrote "The Board has learned" but we don't know that. They did hear it though.)
3. So How Should We Evaluate The Data?
A first step is to go through the testimony and identify the concepts/ideas/ points made and codify them. This doesn't have to be as complicated as it sounds.
Having heard most of the oral testimony and having looked at much of the written testimony I'd say we can divide the testimony into
- For Option 2
- For Option 3B
- Other
Here, "Other" would include comments that don't choose an option or that discuss other redistricting issues than the Senate seat K pairing.
Yes, that sounds a little like what attorney Matt Singer was warning about, but this is just the first step. While we divide the comments into those three categories, we won't stop there. Then we'll go through them to see the extent to which they add information to the discussion that is relevant to the decision.
The Board's attorney warned it would turn into a simple partisan drive to drum up testimony. He obviously doesn't think that's a good idea and neither do I. The Board shouldn't just make a pile for Option 2 and one for Option 3B, count how many in each pile, and then say that equals the preponderance of public testimony. ]I'd like to offer a way to think about the comments.
This needs to be fleshed out more, but here's basic idea.
Attorney Singer pointed out the dangers of quantifying public opinion. This is not a vote, it's information gathering. The Board is responsible for creating a plan that meets all the constitutional and other legal requirements.
The purpose of public testimony is
- To raise issues - often local ones - that the Board overlooked to add to their decision making
- To provide preferences that can be taken into consideration once the Board has some clear, constitutional plans.
- To avoid making politically partisan decisions by creating districts that are less constitutional but favor one particular political party.
Process for evaluating comments
First we divide the comments based on topics. In some cases there will be several topics in one comment. We can put those into a "multi topic' pile and then go through them later.
Second, divide the comments in each group based not on content, but how the content is conveyed. For example:
- Opinion - unsupported - basically "a vote"
- Opinion - Supported
- by Feeling
- by Facts
- by Concepts/Principles
- Legal
- Other
- by argument that combines principles and supporting facts to show how the principles are or are not supported by the facts.
- Other factors that could be considered
- Does it add new data?
- Does it raise issues and data that have-not been discussed before?
- Does it add new data that supports or counters previous testimony?
- Is it accurate?
Third, is to review the information to see how it affects the decisions the Board is going to make. When you put all the data together does it change assumptions that Board members made about a community or about whether a constitutional requirement is met?
Then the Board can make its decision based on the constitutional requirements supported by facts.
If the Board has two or more options that appear equally good or at least equally constitutional, then the Board can assess whether there is an obvious public preference for one option over others.
But remember, that the Board took feedback about Cantwell and then broke some basic redistricting rules - breaking borough boundaries and compactness - to accommodate the suggestion. The Court overturned that decision.
Final Notes
One of the criticisms of the Board from the courts was that they made decisions based on personal preferences. It was pointed out that the Board members are not professional redistricting experts. They don't have special technical, professional training in this field. Merely stating personal preferences is not enough. They need to test the validity of those preferences. Do the facts support them? For example: Is there a unique military connection between districts? Personal perception needs to be tested against hard numbers about where military live, their age, income, ethnicity, etc. For most districts meeting constitutional requirements that don't upset the communities was not much of an issue. For a few it was and the Board was challenged. And if the Board doesn't do it right this time the Court likely will reject their decision again.
What about "the preponderance of public opinion" that Judge Matthews mentioned? The judge wrote that a Board member's personal preference does not override a preponderance of public opinion.
So this process reviews that public opinion, tests the assertions and the facts presented, then writes up the reasoning for making the decision the Board makes. It's not a popularity contest. It's not a vote. It's not an invitation for political parties to get their supporters to simply say they support one plan or another without any reasons given. The point is for the Board to make a more informed and defensible decision and document how they did it, so the court can review it.
Next
I'm hoping in the next post to look at the written comments that came in to the Board and try to apply this. But it's sunny out, I've got a long todo list, and I'm more than tired of looking at a screen. But I'll try.
