Rafael Gets A Great White Shark Off The Venice Pier - I Get Them Both on Video

It was a beautiful day in LA.  I took the bike down to Venice and rode along the bike trail to the Venice Pier.  At the end of the pier a man with several fishing poles pointed out in the distance a whale.  I didn't see it, but we started talking.  He was fishing for sharks. 

Eventually I asked if I could take a picture
for my blog of the pier.  He said sure.  Then asked if it was on YouTube. He'd been on YouTube catching a shark.  I said that if he caught a shark today I'd video tape it and put it on YouTube.

We talked about this and that.  It was lovely just being out there at the end of the pier.  When all of a sudden he sees his pole jerk and runs to grab it.






When he sees it's a great white shark, he asks me to go get the pliers.  I didn't quite understand what he'd said at first, but I stopped the video and found the pliers and he'd cut the line before I could get the camera going again.  But at the end he talks about his great catch.  The video is pretty much the whole thing.  I cut from the fish to Rafael at one point but there wasn't much time without the cam on.

I bet his left arm is sore tonight. 









He caught the shark out at the end of the pier - you can see people silhouetted way in the distance.







These surfers were enjoying themselves next to the pier,  oblivious to the fact that not far from them Rafael had hooked a great white.

It was also a nice day to have a baby.


[UPDATE July 13, 2016:  LA Times article about a man arrested for pulling in a great white from Pismo Beach pier.  Video and photos on Facebook.  Shark was tossed back in, but was out of the water a fairly long time.  Rafael knew the law and cut the line instead of pulling his in.]

Which Right Is More Important? Right to Life? Right to Bear Arms?

The Declaration of Independence set forth the reasons the 13 colonies were declaring independence from England.

After a short preamble explaining that sometimes people have to cut old ties, the Declaration then says:

We hold these truths to be self-evident, that all men are created equal*, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Life.  Liberty.  Pursuit of Happiness.  These are the unalienable Rights our founders declared most important when they wrote to the King of England to explain why they needed to rule themselves.

Then after the Revolutionary War, the colonists came together to write up an agreement, which we know as the Constitution of the United States, on how to rule themselves.  It begins, again, setting out basic principles.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Justice.  Domestic tranquility.  Common defence.  General welfare.  Liberty.


After they finished the Constitution they added ten amendments which spelled out more rights.

As President Obama sets forth his gun control proposal, I just want to point out what should be totally obvious.

Different rights will inevitably conflict.    When Wayne LaPierre set forth the NRA's response to the Newtown shootings, he would brook no compromise to the Second Amendment.  Yet he had no trouble at all proposing to abridge the First Amendment rights of film  and video game makers.  That tells me that even the NRA recognizes that Constitutional Amendments are not absolute. 

Some rights are a means to more important rights.   The right to vote is a means to achieving liberty and the pursuit of happiness.  The right to a free press is a means to helping the people of a democracy gain the knowledge needed to vote wisely.  The right to bear arms is a means to protecting liberty. 

Some rights are more important than others.  When one person's rights infringe on another person's rights, we have to determine which is the more important right.  Some are a question of preference.  Sometimes one person exercising his rights conflicts with others exercising their rights.  A well-known, though apparently misattributed quote goes, "Your right to swing your arms ends just where the other man's nose begins."   The right to practice one's religion in the US, does not include the right to human sacrifice.  The right to life is more important.  The right to bear arms does trump the right to life.  Yet people bearing arms take 30,000 lives a year in the US. (Over half of which are suicides, but that still leaves another 15,000 or so that aren't.)

Which rights are the most important?  I believe that the rights enumerated at the beginning of the Declaration of Independence and of the US Constitution are the highest level rights.  They are the ends to which the other rights are merely the means.


There are a lot of things I don't know.  

I don't know why some people  - mostly men - have such a strong passion for guns.  So strong that it seems nothing else matters.  We can come up with plausible explanations - they bonded with their dads over guns;  they feel impotent in a world that is changing and and a gun gives them some sense of control;  they experienced loss through violence which they believe might have been prevented had they had a gun;  they grew up in a family where power was important and a gun is the ultimate source of power to them.  But I do know every individual comes to this feeling through their own individual path.

I don't know if any gun control legislation will actually make a difference.  Will it be watered down so it is only symbolic?  Will a black market for guns make it irrelevant?  There are lots of things that can dilute its intent.  (But symbolism is important or people wouldn't get upset when a flag is burned.) 

I Do Know

But I do know that guns make it easier for people to kill others and themselves than most other implements of death short of explosives.  Those who say "guns don't kill, people do" are half right.  People do the killing, but without guns, they would do it less.  So guns are only part of the answer.  The other part is working on helping people learn to resolve problems without anger and violence.  I know that people's experiences affect what they believe is possible, and some people who grow up surrounded by anger and violence do not know other ways to resolve conflict.

There's been a lot of talk about mental health in regards to mass violence.  I think we should be talking more about social health - people's ability to interact with other people in healthy ways.  Ways that lead to care and love and satisfaction, not to frustration and anger.  Most mentally ill people aren't prone to violence.  A larger percent of people not diagnosed with mental illness are likely to be violent than those with identified mental illness.  Social health, then, may be a better way of thinking about this.

I do know that life and liberty and the pursuit of happiness are higher level values than the ability to own an automatic weapon.  For those who believe they can only be happy with automatic weapons, I would hope they can find substitutes that can make them happy. There are so many neat things in the world, surely there must be something else that can fulfill them.   If not, I would point out that we are only guaranteed the pursuit of happiness, not necessarily its achievement.  But life and liberty are guaranteed.  Taking someone's life in pursuit of your happiness is not acceptable. 

Let's stop making this either/or.  Let's stop allowing the the extremists to define the debate.  Let's stop treating this as a win/lose battle.

Let's address the underlying causes of people's strong emotional responses.

• Why is owning a gun so important to you while most people live perfectly happy lives without one?  
• When did you first feel a need to have a gun?   
• Why are you so afraid of guns?  
• Under what situations is it ok for people to have guns?  

Let's start here, talking about people's core feelings and beliefs and where they came from.  Let's  find nurturing ways to talk to each other about guns and violence and alternative ways to resolve human conflicts. We can be better than this.




*Which shows the Constitution wasn't perfect since it allowed slavery and  considered slaves to be only 3/5 of a person when it came to calculating representatives.  Which is why I understand that any gun legislation is also likely to be imperfect.   But probably, like the Constitution, better than nothing at all. 

Sanderlings and Godwits at Venice Beach

Although it's been beautifully clear and sunny, our first week here with my mom has been chilly for here.  Highs in the 50s and down into the low 40s at night - and cooler if you go inland.  So, while I've been down to the beach on my morning runs, today, when the temperature was noticeably warmer, we actually biked down and spend some time on the sand.

 

My calculated guess is that these are marbled godwits.  The have a long up-curved beak.  The Venice Boardwalk is in the background.   Here they are bigger. And click to enlarge.

[UPDATE: 8pm - My Alaskan birder friend, Dianne, who got her 300th Alaskan bird onto her life list, confirmed the godwits and the sanderling.  And I'm posting one more picture I forgot to put up earlier.  Not sure what these are.]

I think these are both sanderlings - black legs and beaks - but I'm not completely sure.

There was a surfing class, but there was no surf.  Catalina's in the background.

Here we are getting ready to leave before the sun sets so we can bike home while it's still light.

Dianne says these are willets.

"The Kulluk will remain onsite in the inner Kiliuda Bay until the conclusion of the Tanner Crab fishing season."

Immediately I thought, when I read that in the Unified Command news release email (see it below),  "How long is the Tanner Crab fishing season?"

It turns out to depend on how fast they get their limit - but according to the man in charge, probably five or six days.  

I called Mark Stichert, Shellfish Management Biologist,  Alaska Department of Fish and Game, Division of Commercial Fisheries, Western Region.  The Western Region is Kodiak and to the west.

The season just opened at noon today, because of a gale which postponed yesterday's scheduled opening.

Mark said there were about 44 fishing vessels in the area.  The fleet was concerned that moving the Kulluk during the season there would be a strong risk of their gear being damaged.

He said crab pots had to be out of the water at night, so they are in during the day and most are collected in the late afternoon.  They call their reports into Mark's office so he can determine when to close the season. 

The season lasts until the fleet collectively get 520,000 pounds of crab.  He's not sure exactly how long that will take, but he thinks maybe five or six days.  Once the fish are delivered to the Kodiak processors, they'll check the receipts to confirm the called in reports.

So, for the next five or six days, at least, the Kulluk will stay in Kiliuda Bay. 

It was nice to talk to an official who clearly knew what he was talking about and was comfortable sharing his knowledge with a blogger. 



Here's yesterday's news update from Shell:

Update #41: Kulluk remains stable; Unified Command develops mitigation strategies for crab fishery

Jan. 14, 2013

Unified Command confirmed the following information today:

• The Kulluk remains in stable condition with no reports of a release.
• Data from the completed underwater assessment of the Kulluk continues to be analyzed.
• Unified Command has developed mitigation strategies collaboratively with the Kodiak Crab Alliance Cooperative. This will reduce potential impacts to the fishery during the upcoming crabbing season. Mitigation strategies include the following:
  • The Kulluk will remain onsite in the inner Kiliuda Bay until the conclusion of the Tanner Crab fishing season.
  • A Marine Coordinator will be onsite to coordinate the movement of response vessels. An update will be provided every four hours to the crab fishermen.
  • A claims process has been established for any crab fishermen losses that occur as a result of the Kulluk's presence in Kiliuda Bay during this year's Tanner Crab fishing season. 

• Unified Command’s priorities continue to be the safety of all personnel and the environment.  [emphasis added]

Did the Alaska Supreme Court Violate Separation of Powers As Redistricting Board Asserts?

This is post four reviewing the Redistricting Board's petition to the Supreme Court to reconsider its decision that the Board must come up with a new plan for the 2014 election.  There are links to the previous posts at the bottom. 


In this post I'm looking at Part B of the petition. 

"B.  The Court Violates the Separation of Powers Doctrine By Dictating the Redistricting Process Vested in the Board By the Alaska Constitution."

It goes on to say the Court

"misapplied a controlling princple, the Separation of Powers doctrine, by invalidating the Board's chosen process in its attempt to comply with the Court's order on remand."

It points out that the Constitution separates power into the three branches of government and the different branches shouldn't interfere with each other's work.  It's how the independence of each branch is safeguarded.

The Court, according to the Board petition, "violated the Separation of Powers doctrine by mandating the Board's process."  (You can read all of Part B in the petition itself at the bottom of this post)

So, is the Board correct?  I'm not going to look at this from an attorney's view - since I'm not one.  I'll just apply logic, but in the law, there's always the possibility of overlooking an important point somewhere.

1.   The Supreme Court is the highest court in the state and the judges there have a good idea of the law and of what they've done in the past.   I'm betting the five members of the Supreme Court are better judges (no pun intended) of what violates the Separation of Powers Doctrine than is the Board's attorney.  I searched their December 28 decision to see if the dissenters might have pointed this out.  I found nothing.

2.   While the separation of powers is a key principle of our system of government, it's not explicitly mentioned in the Constitution and there are lots of examples of where powers overlap. Life is not as neat as our abstract ideals.  Courts have mandated executive branch agencies to do lots of things from desegregating their schools to how they run their prisons. 

3.  The Supreme Court in 1992 already ordered a previous redistricting board to follow this same procedure and that order was followed and used as a precedent for this case. That order remained unchallenged until now. 

4.  Here, the Court says it's doing this only so it can do its own job. 

". . . we explained why failure to follow the Hickel process was fatal to the Board’s plan: The failure prevented meaningful judicial review because we could not discern whether the Board’s deviations from Alaska constitutional requirements were actually necessary."

 Basically, they say that without an initial plan that meets the Alaska Constitutional requirements, the Court can't check to see whether any deviations from the initial plan to meet the Voting Rights Act requirements are the least possible deviation necessary.

To my non-attorney eye, the separation of powers argument on its own, doesn't have much chance.  There are lots of precedents of the branches of government breaching the separation of powers - not arbitrarily, but because it makes sense.  The world is messier than our abstract models of the world.  Things don't neatly separate into three governmental branches.  There will always be sniping at the borders.

However, as I wrote in the last post on the petition, I'm not convinced that practically, the Court's logic that the maps first must be drawn without consideration of VRA is practical.  Without, minimally, keeping the Voting Rights Act in mind, it could be much harder to create a map with the minimal deviations possible.  If a redistricting board simply tried to make the most compact and the most socio-economically integrated districts they could (two key constitutional requirements), without regard to the VRA, the resulting map could be impossible to stretch and warp to make it meet the VRA standards without doing even more serious harm to the constitutional standards.

And, in fact, the Board's constitutional districts work because they paid attention to where the existing Native districts were and how they were going to keep the right number of Native districts.


I'm guessing the best way to determine if the deviations are the least necessary is to compare the Board's final plan to the final plans of the independent groups that are also submitting plans. In the current redistricting cycle there were four or five independent groups also submitting plans.  Their ability or inability to meet standards better than the Board did was critical in evaluating how well the Board did.   But this strategy only works if there ARE independent groups with interests different from the Board's and with the resources to seriously create independent maps.

I'm further guessing that by 2020, the technology will exist to make maps that come very close to meeting the necessary criteria.  Humans will only have to make minor adjustments.  But Alaska is a small market with unique challenges and software companies might not find Alaska worth their while. 

In the meantime though, the Supreme Court has told the Board to start creating a whole new map for the 2014 election.  Two dissenters - Justices Matthews and Fabe - have said this is unnecessary and would be highly disruptive to the Alaska election process.

In the next post on redistricting, I'll contemplate the idea of the Court making this decision based on the practical implications and what those implications might be.  


Previous posts:

1.  Alaska Redistricting 2010-2013 Overview
2.  Fact Checking The Alaska Redistricting Board's Petition To The Supreme Court
3.  Redistricting Bord Petition To SC - Part 2: I Can't Figure Out A Sexy Title For This 

Gays Have Gaydar - Now There's ParkieDar

Peter Dunlap-Shohl, the wickedly funny cartoonist and Parkinson's Disease chronicler has a series of cartoons on his blog on how to spot a Parkie.

Here's part of one of his cartoons in the series. [Since a cartoon is a whole piece of work, I'm just using part of it instead of putting up the whole thing.]  Can you tell which one is the Parkie?

There are five posted now at Off and On the Alaskan Parkinson's Rag.

Ugly Anchorage or a City To Match Our Mountains? The Decision is NOW

OK, I admit, we're not likely to have a city to match our mountains. (Though there are places in the world where the city scape is spectacularly beautiful and in harmony with their environments.) 


Tonight the Anchorage Assembly 'starts' public hearings on changes to Title 21 - the Municipal Code that governs design criteria for developing Anchorage into the future.  I say 'starts' because this has been going on over ten years and was all set to be adopted when Sullivan became mayor and hijacked the process.  (Yes, I'm moving out of my normal even handed perspective into a more editorial one.  Sometimes there aren't two sides.  Sometimes one side is right and the other is not.  While I don't think this is a case of right and wrong, it is a case of much righter and much wronger.)

I see several interest groups here:

1.  Planners - those who recognize that every large successful business makes plans about what they are going to do in the future so that they can stay competitive.  These folks believe that governments, involving and representing the vast majority of citizens, should come up with plans for simple things that make, in this case, our city safer, easier to walk and bike in (this includes kids, the poor, the elderly), and just a lot nicer to look at.

Anchorage has gone through a very comprehensive process over a ten year period to come up with such a plan.

2.  The Builders - those who make their living in various areas of construction - from architects to pavers.  While this group is relatively small in percentage of the Anchorage population, they have, individually, a much bigger interest in this and have wielded a lot of political power to stop the community process from being implemented and with the help of Mayor Sullivan made radical changes to the plan so that they can continue to build with as little oversight by the City planning department.  They can continue to build with just their immediate costs in mind and with little interest to the impacts their buildings have on the availability of decent, durable housing, and the visual impact of their buildings of the neighbors.  Some of these people already do forward thinking projects, but most don't and don't want anyone to restrict them in any way.

3.  The average citizen who doesn't think much about long term impacts, doesn't think she has any power to make a difference, is terribly busy anyway, and/or doesn't even know what Title 21 is.

4.  The "in their own world' delusional types.  These are folks for whom out-of-context facts and half-truths are ammunition to support their own dysfunctional fancies.  In this case they are remnants of the Anchorage Tea Party movement who have declared Anchorage's Title 21 to be a conspiracy to take over the world by the same people who are pushing the UN's Agenda 21.   Glenn Beck is one of those pushing this bogey-man to get these folks to continue to vote against their own self interests.  Sorry, I know it's more subtle than this, but not a lot. Really, there were lots of these people at the Planning and Zoning meetings on Title 21.  Lots. 

While other parts of the US not only recognize same-sex marriage, our friends at the Anchorage Baptist Temple have managed to keep the words gay and lesbian out of our anti-discrimination law.

And we're just as far behind the rest of the US in planning and zoning standards that help prevent the worst of developer practices.  Good developers support planning because then they can do well designed projects that make sense for their immediate client in the short term, and also for their client and the rest of Anchorage in the long term.  Without the guidelines, they get undercut by unscrupulous builders and get forced into shortcuts that ultimately hurt their clients and the rest of us.

The builders argue there is a shortage of land in Anchorage to develop so they shouldn't be restricted.  I'd argue the shortage means that what is left is at a premium and the price of the land will mean their clients can afford to do things that have long term value for their clients and the rest of us.

Is the Title 21 that came out of the community planning process perfect?  Certainly not.  If you want perfection, try soap bubbles.  But it's a lot more reflective of what the greater public that particiapted in its creation wanted, than the developer mangled rewrite that Dan Coffey got two lucrative contracts from Mayor Sullivan to do.  Even Sullivan didn't take all off Coffey's recommendations. 


Here's some background from those who have worked for years to improve the design quality of Anchorage including tips for what you can do: 

Tuesday, January 15, Loussac Library Assembly Chambers, 7pm.

[My sense is that this won't be finished tonight.  But you should be at the Assembly Chambers to let the Assembly members know how the public feels. And to get riled up by the nonsense some people are spewing.  And to fill my space since I'm out of town. In the previous meetings the Tea Party folks were there in number and volume opposed to any government planning because this was all an Agenda 21 conspiracy.  If you absolutely can't go, watch online.  But one of the best ways to influence the Assembly is to be there in person for your interests.  Bring the kids so they can learn how democracy works.  Let them see what happens if their voice is or isn't represented.]

You don't have to understand the newest code.  The Assembly certainly doesn't.  They only received copies of it last weekend, and it's over 700 pages long. 

Just come and talk about what you're an expert on:  Why you choose to live here, and what problems you've lived with that you want fixed before another ten years go by.  

Folks who scorn improving the city's quality of life will be there talking about their property rights and fighting sidewalks and landscaping because it's 'too expensive.'  Your voice is very much needed.

Tell the Assembly you want them to approve the 'Provisionally Adopted Title 21' that went through 8 YEARS of public review and compromises.

Anchorage Citizens Coalition will prepare technical comments after we've gone through the newest Title 21 with the help of our great volunteers.  If you can help on any particular issue, please contact us.

We have two kinds of threats from the Assembly:  

1.  The Assembly hasn't yet learned that if we want small, walkable neighborhood shopping districts they need to help by concentrating commercial/retail development, not scattering it all over town into industrial and residential districts.  We need 'Mixed Use District Zones,' that will produce compact shopping areas next to neighborhoods, and other strategies that they threw out last year.

2.  The Tea Party, the Building Owners and Managers Assoc. and the new Planning & Zoning Commission didn't get all they wanted from the Assembly's Title 21 Committee, and we can expect them to come back for more on issues such as 

• allowing taller commercial buildings inside neighborhoods (B1A and B2B zones,) 
• squeezing homes onto lots that are currently considered 'too small,'
• reducing the open space children need for outdoor play,
• dumpster screening,
• sunlight into neighborhoods, and more. 

Here's what we expect to be at stake as the Assembly votes on Title 21:

• sidewalks on both sides of the street and to connect schools, parks and neighborhoods (keep pedestrian standards.)
• keeping tall buildings from shadowing our yards and south facing windows, (keep midtown and other B-3 business zoning, business height transition standards for neighborhoods)  (Note: no standards have yet been developed that protect homes from shadowing other homes.)
• incentives to build small, active, walkable neighborhood shopping districts out on the main streets, (bring back mixed use zoning districts, do not scatter mixed uses into industrial and residential zones.)
• keeping ticky tacky cookie cutter houses out of our neighborhoods, and making sure new homes have more landscaping and less asphalt. (Strengthen standards for single family and multifamily design, landscaping, garage front domination.)
• protecting our wildlife corridors and fish habitats (Restore 50 foot stream setbacks, limits on fences & buildings next to streams.)
• making sure children have decent, attractive play space near their homes.  (Maintain 'useable' open space standards.)
• making sure it's safer to walk in midtown as it continues to grow.  (Restore height restrictions in midtown that allow for increased height only after building adds landscaping, sunlight protection, public space, plazas, etc.)

Besides going to the meeting you can:

Call your Assembly representative.  http://www.muni.org/Departments/Assembly/Pages/MemberProfiles.aspx

Work with your Community Council to adopt a resolution promoting the Provisionally Adopted Title 21 and supporting Anchorage 2020.  http://www.communitycouncils.org/  Other councils' resolutions are available for your review by contacting AnchorageCitizensCoalition@gmail.com

More info is at accalaska.org and at the Facebook site Free Title 21

The muni has posted all relevant Title 21 documents at: http://www.muni.org/Departments/OCPD/Planning/Projects/t21/Pages/Title21Rewrite.aspx

Redistricting Board Petition to SC - Part 2: I Can't Figure Out A Sexy Title For This

[I admit this is a pretty wonky subject and post.  But I believe that with a little help, this stuff is understandable.  Since I attended and blogged most of the Redistricting Board meetings in Anchorage, I have some understanding of the process and familiarity with the people involved and the events that happened.  This is the third post on the Board's petition.  I'm trying to put this into digestible helpings.  I'm hoping, after going over the petition, I can speculate on what might happen and what it means.  So far redistricting has changed the districts enough to knock out the Senate bi-partisan coalition and shift the power toward the Republicans who want to give the oil companies a giant tax break.  So this stuff isn't minor.]

The first post is an overview of key terms and events to get people up to speed.

The second post looked at the first part of the Alaska Redistricting Board's petition to the Alaska Supreme Court to reconsider their decision requiring the Board to redraw the districts for the 2014 election.  I focused on the first part of Part A - allegations by the Board that the Court misconstrued the number of house districts that were the same in their Hickel template.  When I looked carefully, it seemed to me that the Court had it right and that the Board's allegations got confused over the the Hickel plan and the Hickel  template.

In this post I'll look at the other allegations that the Court erred in their decision:

"Second, the Court also misconstrues the material fact that the configuration of the House districts used in the Hickel template somehow limited the configuration of the Board's final Hickel plan. . ."

"Third, the Court also misconstrues the material fact that by first drawing districts that complied with the federal Voting Rights Act ("VRA") in its original Proclamation Plan, the countours of the entire map were affected. . . "

"The Court also overlooked a material question in this case by declining to decide whether the Board's Hickel plan complies with the Alaska Constitution. . ."

Actually, all three of these seem to be variations of a single theme:  How does the order of creating the districts affect the final outcome?  The overview post mentioned above goes into the Hickel process and what all that means, but I think it makes sense to get into it again here.

The Hickel Process

In a 1992 Supreme Court decision - Hickel v. Southeast Conference* - the Supreme Court wrote:  

Article VI, cl. 2 of the United States Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land....” This mandates that provisions of state law, including state constitutional law, are void if they conflict with federal law. To the extent that the requirements of article VI, section 6 of the Alaska Constitution are inconsistent with the Voting Rights Act, those requirements must give way. However, to the extent that those requirements are not inconsistent, they must be given effect. The Voting Rights Act need not be elevated in stature so that the requirements of the Alaska Constitution are unnecessarily compromised.

I understand that to mean:  Federal law takes precedence over state law.  Thus, if the requirements of the Alaska Constitution conflict with the requirements of the federal Voting Rights Act, the VRA wins.  BUT, the VRA isn't so important that the Alaska Constitution is unnecessarily compromised.

So they told the people redistricting then, the steps to follow:

The Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements. (emphasis added)

So, first the Board must make a map that meets the Alaska Constitutional Requirements, then, they can make adjustments to that map, if necessary, to meet the VRA requirements.  But the deviations from the Alaska Constitution must be as minimal as possible.


This is the essence of the Hickel process.  The Board has to meet both the requirements of the Alaska Constitution AND the federal Voting Rights Act (VRA.)  See the overview post for more information on this.

[Update: Hickel was not on the Board's radar when the went into this process, though two Board members are mentioned as participants in the case.]  The Board decided to create the Native districts first and then, they figured, the other districts - many in more densely populated areas - would be easier.  This seemed logical to them because they needed approval of their plan from the federal Department of Justice before any plan could be implemented.

But if there are any districts that do not meet the Alaska Constitutional requirements, they have to deviate from the Constitution the least amount of necessary to meet the VRA.  The Hickel process - requiring the Board to do the districts strictly based on the Alaska Constitution first, then made deviations, if necessary, to meet the VRA - as I understand it, is the only way the Supreme Court believes it can determine if the deviations are minimal.  They would do this by looking at the Constitutional map and then compare it to the map created from it to meet the VRA.  This ability to compare the two maps is how they can determine whether a particular deviation was necessary.

Question 1:  Is it possible to to meet both the Constitutional and VRA requirements?  

Theoretically, yes. [And the Board says they've done it.]   I imagine the Board hiring some computer game wizards and letting them loose to play with the computer until they come up with such districts.  The Board members certainly were not the computer wizard type.  Perhaps member Peggyann McConnochie came closest to that.  The staff were younger and more comfortable on the computers, but they weren't total computer savants and they had a lot of different other tasks to do.

Alaska's huge empty spaces and scattered population make redistricting difficult.  Plus the Native districts are in low density regions.  There are more than enough Alaska Natives in Anchorage to make up a Native district, but they are too interspersed among the non-Native population, or so the conventional wisdom tells us, to create an urban Native district.

The Alaska Constitution's requirement for compactness is also tricky in the largely unpopulated areas of the state.  We've had a regular district that is bigger than most states - a district with most of its population off the road system.  It's very hard for a legislator to physically meet with the constituents.  By comparison, you could walk across some Anchorage districts easily in a day.

Another problem is the criterion of 'socio-economically integrated.'  By definition, they said, any Anchorage district meets that criterion, even though it could have very high and very low income populations and people whose native languages are very diverse.  The current plan includes a district with Fairbanks suburbs - on the road system, close to the second largest city in the state - and tiny Native villages along the Bering Sea far off the road system, some without running water or sewage systems. 

I suspect that by the 2020 census there should be computer programs that can generate 100 maps that humans can then scan and evaluate on the more subjective factors.

Question 2:  Does completing the Native districts first limit how well the other districts will meet the Alaska Constitutional requirements?

Riley, who brought suit against the Board, argued that by doing the Native districts first "the Board painted itself into a corner."  The original districts limit the options for the other districts, allowing the Board to say things like, "We have no choice but to . . ."

The Board argues that

 "[w]hile the configuration of these [four VRA] districts may have some ripple effect on the bordering districts, they did not impact the contours of every district in the State.  For example, the configuration of the House districts in Anchorage, Kenai, and Mat-Su Borough were not in any manner influenced by VRA considerations.

Except that they also said earlier in the petition:

The Board's Hickel template, which was nothing more than a beginning point for its Hickel Plan, used only twenty-two (22) unchallenged, constitutional House districts from the original Proclamation Plan:  Anchorage HD 12-27, Southeast HD 31-36, and HD 40.  A side-by-side comparison of the Hickel template and the Hickel plan clearly shows the district configurations are vastly different."

 In this paragraph they are trying to show that there were lots of changes from the original Proclamation Plan to the Amended Proclamation Plan.  But it seems to contradict this other claim of the VRA districts do not impact the others.  Maybe I'm wrong, but as I read this, it implies that at least 18 districts were impacted by trying to get the VRA districts right.

Let me explain my logic.  They started with the Hickel template that had 36 districts from the original Proclamation Plan.  The four they had to work on were all Alaska Native districts (HD 36, 37, 38, and 39.)  To make them work they decided to borrow population from Fairbanks districts.  This then had a ripple effect which included getting into Matsu districts and Kenai districts.  In the quote above, they don't mention Kenai and Matsu as unchanged.  That seems to contradict the quote before it which says ". . .Kenai, and Mat-Su Borough were not in any manner influenced by VRA considerations."  The way I see it, the ripples from getting districts 36, 37, 38, and 39 to work affected Matsu and Kenai districts. Though I acknowledge my own head is getting foggy at this point.

An additional issue is that they used the VRA districts 37 and 38 to justify making changes in Fairbanks that then paired two Democratic Senators (but left an adjacent open district without an incumbent in it that could have left the two Dems in separate districts) and other tricks that made incumbent Democrats more vulnerable.


I'm convinced that the Fairbanks districts were tinkered with to make it easier to elect Republicans.  The city of Fairbanks was split up - one of the subjects of the original court challenge - and there were little attempted and realized protrusions sticking into other districts that enabled a particular politician here to run in a neighboring district, or to exclude a politician from his traditional district.  Here's a post from the original court hearing before the Superior Court discussing political gerrymandering to give a sense of why I believe this.  I also watched how the original Fairbanks districts were brought to the Board and approved.

I'd note that the dissenting opinion on the Court pointed out that the 'blank spaces' on the template made up half the geography of the state and were bigger than Texas so they had lots of room to play with.  


Question 3:  Does it make sense to draw the maps to meet the Alaska Constitution without thinking about VRA?

I've pondered this question throughout the process.  I understand the Court's logic that they need a good constitutional map so they can tell if, really, only the least amount of variance from the Constitutional requirements were made to meet the VRA requirements, or if the VRA was used as an excuse to gerrymander the districts.

But I think this is where the painting metaphor fits in.  It appears (I can't prove this) that doing the districts without keeping the VRA in mind could lead you to painting yourself in a corner.  You could do the whole state with beautifully constitutional districts (compactness will always be a problem for a couple of districts though) but then getting from there to VRA approval may cause even greater variance from the Constitution than if you had kept the VRA in mind all along.  Why?  Because the constitutional districts you come up with, if you ignore VRA totally, may be so at variance with the VRA that to change them to meet VRA would cause serious boundary moving.  All this, of course, assumes the Board members have no political motivation at all. 

It is a variation of the chicken and the egg dilemma.  Board member Brodie was at odds with the rest of the Board from the beginning.  He felt that the focus on the Native districts first - really just eight or nine districts out of forty - meant the board was spending, in his words, 90% of our time on 10% of the population.  That would mean at the end, they would have relatively little time to work out all the other districts where most of the population lived. And that's what happened.

Fairbanks and Anchorage maps were brought in by members and played with in a day each - at least so fast that it was hard to know what the districts looked like and the practical implications before they voted to approve them.  Was that intentional?  My guess for Fairbanks is definitely yes.  And I'm sure they wanted to minimize the public's opportunities to see and comment on how they played with boundaries like adding a mostly white and Republican Eagle River House district to the Senate district of the only African-American in the legislature. 



Back To The Board's Assertions:

So, what does this discussion mean in terms of the Board's assertions in their Petition?

"Second, the Court also misconstrues the material fact that the configuration of the House districts used in the Hickel template somehow limited the configuration of the Board's final Hickel plan. . ."

The way I see it, once you draw one or two or eight districts and lock them in, you limit the options for all the other districts.  The Board's claim that this isn't the case doesn't ring true to me. Especially when the Native districts are so large geographically.

"Third, the Court also misconstrues the material fact that by first drawing districts that complied with the federal Voting Rights Act ("VRA") in its original Proclamation Plan, the contours of the entire map were affected. . . "

This seems to me a rewording of the previous contention.  Yes, again, once you draw one district, that limits your options for the next ones.  Not all districts will be directly affected - like those in the middle of a high density area like Anchorage.

The Board itself said, clumsily, that while the original Hickel template had most of the districts intact from the previous plan, the final plan had only 22 districts that hadn't changed.  (Here they were trying to show that the districts weren't the same as in the original plan the court threw out.)  As I read it, I thought that's the point the Court is making.  The contours of each district have to impact the contours of the adjacent districts, and then that ripples out to the ones they touch.  And since the Native districts tend to be the largest districts, they will touch the most adjacent districts.   And I didn't see any evidence in the petition to counter this. 

"The Court also overlooked a material question in this case by declining to decide whether the Board's Hickel plan complies with the Alaska Constitution. . ."

I haven't address this point yet.  Here the Board makes an interesting point.  They argue that the Supreme Court should simply judge the outcome and not how the Board got there.  If all the districts were found to be constitutional, then, they argue, it shouldn't matter because there is no deviance to minimize.  This is a strong point.  It's one the Court's dissenters agreed with:

"If the Hickel plan complied with the requirements of the Alaska Constitution, the Board did what we asked it to do. Today’s opinion declines to answer whether the Board’s Hickel plan meets Alaska constitutional
criteria.

I agree that this is a question that remains to be resolved." (p. 30 bottom)

I would note that there are several districts that clearly do not meet the Constitution's compactness requirement - Districts 36, 37, 38, and 39 - but given their low population density, one could argue compactness would be a problem without the VRA.  But certainly the VRA exacerbates the problem because the districts need to wander around the state, avoiding white pockets, to get enough Native population to qualify them as effective Native districts.

There are also questions of socio-cultural integration.  But neither of these criteria  - compactness and socio-economic integration - can be objectively measured. We might know if they are drastically violated, but it's hard to know when a district crosses over the line from being ok to not ok. 

Conclusion

I think the Board wins some and loses some here.  It's not clear cut.  They just need to get one more member of the Court majority to join the two dissenters to get a majority that thinks they don't need to redraft the whole plan again.



In the next post, I'll look at their claim in Part B that the Court overstepped their authority to tell the Board how to do their job.

Also to be considered in the next post (or another one) are the practical implications of this decision and whether the Court should be considering them when making their decision. 


*Linking the Supreme Court decisions is tricky.  Links to the most current decisions posted on the Court's website work until they get posted at the Pacific Reporter.  So the links have a limited life span. They are also available at the Alaska Case Law Service, but I haven't figured out how to link directly to a case. Those links don't work.  Instead you have to put in the right search terms.[See comments for more on this.]

Malaria - Clever Animation Video Particularly For Tomás

My friend Tomás is a Spanish artist who does great work in various media including cartoons and video.  I think he'll really like this video. 

But so should the rest of you.  This is very clever and original.  I'm not even sure how to describe it. 



Thanks to Five Feet Long and Luminous where I ran across it.

Fact Checking The Alaska Redistricting Board's Petition to the Alaska Supreme Court

The Alaska Redistricting Board has petitioned the Alaska Supreme Court to reconsider its decision requiring the Board to start all over again, this time using the Hickel process, to complete a new set of Alaska House and Senate districts for the 2014 election. 


In this post, I'm going to review the argument made in this petition regarding whether the Board followed the Hickel process.

This is all pretty wonky stuff, but I'm trying to make it accessible to the average person.  I have another post - Alaska Redistricting Board 2010-2013: Overview - which attempts to explain, for those who haven't kept up with the details of the redistricting process, some of the key terms and events one should know to understand this petition.   It should be particularly helpful in understanding the background of "the Hickel process."

The Board's petition is in three parts:

• INTRODUCTION
• ARGUMENTS
• A.The Court Overlooked and/or Misconstrued Material Facts and Questions in this Case
• B. The Court Violates the Separation of Powers Doctrine By Dictating the Redistricting Process Vested in the Board By the Alaska Constitution
• CONCLUSION

I'm going to focus, in this post, on the Introduction and Part A of the Arguments. (In the end, I decided to only look at the first part of A.)


INTRODUCTION (of the petition)

In the intro, the Board's petition says, 

"Specifically, the Board petitions this Court to reconsider the portion of its decision  that the Board failed to follow the Hickel process in the adoption of its Hickel Plan."

"The Board seeks rehearing because this court, in finding the Board failed to follow the Hickel process and in failing to answer whether the Board's Hickel plan meets the Alaska Constitutional criteria

• misconceived material fact
• overlooked a material question in the case, and
• misapplied a directly controlling principle.

"For these reasons set forth below, the Board respectfully requests the Court reconsider . . ." 

 
Disclaimer:   I'm not an attorney.  But I attended and blogged most of the Board's Anchorage meetings and I can, at least, apply logic and I can compare the facts as presented in the petition and what I saw at the Board meetings.

I'd note here, that first the Board's attorney, Michael White, tells the Court they are wrong - you misconceived, you overlooked, and you misapplied, he tells them.  There's no sugar coating here.  No, "we contend" or "it would appear that."   He says: You flat out screwed up.

This tends to make the next line sound hollow: "The Board respectfully requests . . ."  Respectfully?  Really?

This is either a bold or reckless approach.  Or both.  After all, none of these things are completely clear cut and the Court's decision becomes the legal reality.  But I think the Court is pretty seasoned in separating out the tone from the law in these documents, but the tone can't help but register somewhere in the justices' subconscious at the very least.


ARGUMENT - Part A

So, let's go to the argument, part A, to see what material facts and questions the Board thinks the Court overlooked or misconstrued.

"First, contrary to the Court's opinion, the Board did not start with, nor did it adopt a Hickel  plan that left thirty-six (36) House districts unchanged.  The Board's Hickel template, which was nothing more than a beginning point for its Hickel Plan, used only twenty-two (22) unchallenged, constitutional House districts from the original Proclamation Plan:  Anchorage HD 12-27, Southeast HD 31-36, and HD 40.  A side-by-side comparison of the Hickel template and the Hickel plan clearly shows the district configurations are vastly different."

OK, so what did the Supreme Court actually say:

. . . what the Board actually did upon remand was to create a Hickel template that maintained the boundaries of unchallenged districts from the original Proclamation Plan, resulting in 36 unchanged house districts. The Board asserts that these districts “were drawn with only the Alaska Constitution in mind” and thus they complied with the Hickel process.21

[For those whose heads are spinning already, you can go back to my overview post to get a better understanding of the Hickel process, Hickel template, and Hickel plan.] 

Watch carefully.  We have a Hickel template and a Hickel plan.  And if you don't look carefully, they might get switched on you.

A reminder here, there are 40 House districts. 

One more time.

The Board petition says the Court claimed said there were 36 unchanged districts in the plan.

The Court actually said there were 36 unchanged districts in the template.

"Hickel" map template

I went back to my March 26, 2012 post where they unveiled the Hickel template.  I wrote then:

"They started with a template that kept the parts of the state from their submitted plan that met the constitutional requirements (Southeast, Anchorage, Matsu, Kenai, and North Slope) intact. 

They left blank the interior and Fairbanks districts and Western Alaska and Aleutians.  (see map)"

There were four districts in the original Proclamation Plan (that the Board originally proclaimed as the new set of districts) that the Supreme Court ruled unconstitutional.  That day it wasn't totally clear to me which districts they left blank.  The Supreme Court dissent (Matthew and Fabe) identifies the four as Districts 36, 37, 38, and 39 which went from the western Fairbanks suburbs west to the coast and looped around Fairbanks to the east, similar to the old district 6.  This map - the Hickel template - is consistent with that.  As I recall, they then decided to fix the unconstitutional issues with Districts 1 and 2 in the Amended Proclamation Plan. 

NOTE:  The old maps - the Hickel template and Hickel plans drawn from it are no longer on the Redistricting Board website list of maps, the map above is a photo I took of one posted on the wall, so it's hard to tell the details. (I did find the maps in with the transcripts for March 26, 2012.  They are here. The Template is the little map on top with the big blank space in the middle.  As I recall, a fourth one was added later.)

I then checked the Board transcripts from March 26.  Starting on page 41, the Board's Executive Director Taylor Bickford explains how they came up with the Hickel template.  He tells us that the Chair John Torgenson told them how to do it.

And so the guidance he gave us was to basically incorporate any aspects of the current plan where no Voting Rights Act justifications existed; in other words, parts of the plan that were really drawn under a Hickel process to begin with, parts of the plan that were drawn with only the Alaska Constitution in mind and not the Voting Rights Act.

And so obviously, the Anchorage District, for example, those were drawn originally to state constitutional standards, had nothing to do with the Voting Rights Act. The Mat-Su, the Kenai Peninsula, and the Kodiak District and Southeast.

He explains why each of these were done without considering the Voting Rights Act and then goes on.

So this was the starting point. So I started by importing the Southeast districts. I then imported the Kodiak districts, the Kenai Peninsula districts, the Anchorage districts, the Mat-Su districts, the Highway District and then the North Slope. (p. 42)

Then attorney White asks the critical question:

MR. WHITE: How many districts then need to be drawn?· How many districts exist in the template right now, just total number?
MR. BICKFORD:· The total number of districts would be 36. (pp.43-44)

It's clear from this exchange that the template had 36 districts filled in and the rest was blank.  Since there are 40 districts, there were four districts left blank.

It seems to me that the Supreme Court had their numbers right.

And if we look at the Board's wording again it's not altogether clear.  First it says:

"nor did it [the Board] adopt a Hickel  plan that left thirty-six (36) House districts unchanged."

 No, but it did adopt a template that left 36 districts unchanged.  And the Court said template, not plan, when it said 36 districts.   Then Board's petition says:

  "The Board's Hickel template, which was nothing more than a beginning point for its Hickel Plan, used only twenty-two (22) unchallenged, constitutional House districts from the original Proclamation Plan:  Anchorage HD 12-27, Southeast HD 31-36, and HD 40."

This is where commas make a big difference.  Grammatically, this says their Hickel template used only twenty-two (22) unchallenged House districts from the original Proclamation Plan.  I think he meant the Hickel Plan. We know the template had 36 districts left from the Proclamation Plan.

Let's look at the districts he lists:

• Anchorage 16 districts
• Southeast     6 districts (except that Southeast only has three [five-ish] districts now)
• HD 40         1 district 

Actually, this adds up to 23, not 22 districts.   In any case, there is no way that he is talking about the template, because, as the transcripts show, it began with 36 unchanged districts.  He has to mean the plan, not the template.  And, yes, as they started working out those four districts in the blank space, they needed to borrow population from the Fairbanks area to get districts big enough to meet the one person one vote requirement.  And then there was a ripple effect that caused them to make minor changes in the Matsu and in the Kenai districts. 


There are three more allegations that the Court erred in Part A of the petition.

"Second, the Court also misconstrues the material fact that the configuration of the House districts used in the Hickel template somehow limited the configuration of the Board's final Hickel plan. . ."

"Third, the Court also misconstrues the material fact that by first drawing districts that complied with the federal Voting Rights Act ("VRA") in its original Proclamation Plan, the countours of the entire map were affected. . . "

"The Court also overlooked a material question in this case by declining to decide whether the Board's Hickel plan complies with the Alaska Constitution. . ."

I think there's more than enough already in this post for people to attempt to digest, so I'll leave these three allegations for the next post.  I will say that at first blush, these all seem to be hinged on the same issue - to what extent does setting up the first districts affect what happens to the rest of the districts?