Alaska's Stake in Shelby County v. Holder - Before US Supreme Court Wednesday - Updated

[UPDATE Feb. 27 8:30am AK Time:  SCOTUSBlog's coverage of the arguments before the court today suggests a majority appears ready to invalidate Section 5.]

[UPDATE Feb. 28 7:00am AK Time:  Alaska US Senator Mark Begich released this statement on the Voting Rights Act:

“I hope the Supreme Court will carefully consider the case made by Alaska Natives that we still need protections of the Voting Rights Act. I am especially concerned about protecting VRA in light of recent steps by the State and some legislators to create new barriers to voting. Unfortunately, there are still many obstacles when it comes to voting in Alaska and especially in rural Alaska where Native languages are still the primary language for elders.  The Voting Rights Act has protected thousands of Alaskans from voter disenfranchisement that does still persist today.”]

Alaska is one of 16 states required to get pre-clearance from the Department of Justice for their redistricting plans.  It's one of just seven states who are covered in their entirety by Section 5 of the Voting Rights Act (VRA).  The other states only have some jurisdictions that are covered.  

Alaska's Redistricting Board has been ordered to redraw their redistricting plan (already used in the 2012 election) because they drew it first with the VRA as their guide rather than using the Alaska Constitution as their guide.   If Section 5 of the VRA were to be thrown out, it would signifiantly change the redidistricting proceaa in Alaska. 

On Wednesday, February 27, the US Supreme Court hears a case that challenges the continuing validity of Section 5.

Here's a case overview from the NAACP's LDF (Legal and Educational Defense Fund):

Shelby County, Alabama v. Holder, et al.

On February 27, 2013, the United States Supreme Court will hold oral argument in Shelby County, Alabama v. Holder, et al.   Shelby County is challenging the constitutionality of the Voting Rights Act (VRA), one of our nation’s most effective civil rights laws. The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) will argue before the court in defense of the Voting Rights Act and repre sents Defendant-Intervenors, including five Black ministers and a councilman from Shelby County whose district was eliminated, but later restored because of the VRA. Shelby County seeks to strike down the heart of theVoting Rights Act, Section 5, which requires jurisdictions with the worst histories of persistent racial discrimination in voting to obtain federal approval, or “preclearance” before any voting changes become legally enforceable. The process of preclearance ensures that proposed voting changes in these places do not harm the voting rights of voters of color. Shelby County seeks to invalidate Section 5 not only in Alabama, but in all of the 16 states that are covered either in whole or in part.

In 2008, Calera, a city in Shelby County, conducted a legally unenforceable election after it redrew its political boundaries without receiving the required preclearance. As a result, the city’s only Black councilman, Ernest Montgomery, lost his seat. Councilman Montgomery’s district consisted of 70% registered Black voters before Calera redrew its political boundaries. After the district was redrawn, registered Black voters were just 29.5% of the population. Because it did not comply with the Voting Rights Act, Calera was required to draw a nondiscriminatory redistricting plan and to conduct another election with the legally - approved plan. In this lawful election, Calera’s voters re-elected Mr. Montgomery

SCOTUS Blog discusses this case and explains that in a previous case - NAMUDNO - the Court did not invalidate Section 5, but it did hint that Congress should revisit the need for it, which Congress has not done. SCOTUS continued:

Moreover, the Court continued, the Act’s role in improving minority voting in the past does not, standing alone, mean that the preclearance requirement can or should remain in effect going forward:  rather, “the Act imposes current burdens and must be justified by current needs.”  And in particular, the Court emphasized, because the formula that the Act uses to determine which state and local governments must obtain preclearance appeared to the Court to be outdated, the problems that Section 5 was enacted to prevent are not necessarily most prevalent in the states that are required to obtain preclearance.  To the contrary, the Court explained, states that are covered by Section 5 have a lower gap between voter registration and turnout for white and black voters than the national average.
In response, Congress left the statute unchanged; it did not modify the coverage formula.  That set the stage for Wednesday’s case.
Shelby County, Alabama, is required to obtain preclearance for any changes to its voting procedures because Alabama has been covered by the Act since 1965.  In 2010, Shelby County filed papers asking a federal court to issue the ruling that the utility district did not get in NAMUDNO:  that Section 5 is unconstitutional.
- See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Moreover, the Court continued, the Act’s role in improving minority voting in the past does not, standing alone, mean that the preclearance requirement can or should remain in effect going forward:  rather, “the Act imposes current burdens and must be justified by current needs.”  And in particular, the Court emphasized, because the formula that the Act uses to determine which state and local governments must obtain preclearance appeared to the Court to be outdated, the problems that Section 5 was enacted to prevent are not necessarily most prevalent in the states that are required to obtain preclearance.  To the contrary, the Court explained, states that are covered by Section 5 have a lower gap between voter registration and turnout for white and black voters than the national average. 

In response, Congress left the statute unchanged; it did not modify the coverage formula.  That set the stage for Wednesday’s case. 

Shelby County, Alabama, is required to obtain preclearance for any changes to its voting procedures because Alabama has been covered by the Act since 1965.  In 2010, Shelby County filed papers asking a federal court to issue the ruling that the utility district did not get in NAMUDNO:  that Section 5 is unconstitutional.

The kink in the current Alaska redistricting process stems from the fact that Alaska is also required to get pre-clearance for redistricting because of Section 5.  If the Board hadn't needed to maintain the existing number of Native districts in Alaska, they wouldn't have the conflict they now have between meeting the VRA and the State Constitutional requirements.  (That doesn't mean they wouldn't have had other problems.) 

So one issue that came up at the last Board meeting was the possibility that Sec. 5 would be thrown out by the US Supreme Court and they should wait to redraw their lines until that decision is published.

Of course, that doesn't prevent them from doing the first part the Alaska Supreme Court ordered - making a plan that complies with the Alaska State Constitution.  That would be step one in the Court mandated "Hickel Process."  Then, if Sec. 5 of the VRA is upheld, they could go on to make the necessary changes to their plan to comply with the Voting Rights Act.    If Sec. 5 is thrown out, I'm not sure what the next steps are.  Other sections of the VRA are not being challenged in this case.

If the Board did not retain the same number of Native districts, presumably Native organizations would go to court arguing that even though they didn't need pre-clearance, they are still are forbidden to discriminate.  Except the other parts of the VRA, if I understand this, are about intentional discrimination, which is harder to prove.  If they didn't come up with the same number of Native districts, it would also strongly suggest that they were less interested in not discriminating than in not having their plan rejected by the DOJ.  Once that threat was gone, well, we should just wait and see.

More on Shelby from Scotus Blog:

In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.”  Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not.  And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure.  Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help:  because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.”  Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not.  And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure.  Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help:  because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa.

Now maybe there is a higher standard for laws that require states to get permission from the federal government before they can do something like redistricting.  But I don't think that Congress is required to justify their laws through research.  If that were the case, it seems like the Defense of Marriage Act (DOMA), which is challenged in another case coming up before the Supreme Court would stand little chance of surviving.

But then there's the government's strategy (still from SCOTUS):

When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary.

Irony after irony.  In the DOMA case, the government will definitely not being arguing to trust Congress.  But the Obama argument seems to fall flat, because of the 16 states that need pre-clearance, most voted against Obama.  Based on a formula which included whether the states had 'tests' which served as obstacles to voting and looked at the percentage of eligible voters who actually voted.  Seven states are covered in their entirety:  Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.  Only Virginia voted for Obama.  The other nine states are have only a portion of their states covered by Sec. 5:  Arizona,  Hawaii, Idaho, North Carolina, California, Florida, Michigan, New York, South Dakota. Of these nine, five - California, Florida, Hawaii, Michigan, and New York voted for Obama.


In California's case,  Kings, Merced, Monterey, and Yuba counties are covered because, according to the California State Senate (I think) website:

Results of the 1970 census led to four California counties – Kings, Merced, Monterey, and Yuba – triggering Section 5 voter thresholds and falling under the protection of the Department of Justice. What did these counties have in common? Each was a largely rural county that housed a US military base. High numbers of minority soldiers drafted and mobilized for deployment to Vietnam, with low rates of voter participation skewed voting statistics and triggered Section 5 protections.

Three of the four counties voted for Obama.   There is a provision in the Act that allows for jurisdictions to bail out of Section 5.  According to the Leadership Conference:

The VRA rewards progress in these covered jurisdictions by allowing them to “bail out” or have their coverage under Section 5 terminated after achieving a clean record of nondiscriminatory voting practices for ten years.  This flexibility ensures that the geographic reach of Section 5 applies only to jurisdictions that continue efforts to discriminate in voting based on race. Not a single jurisdiction that has sought the opportunity to leave Section 5 coverage since 1982 has been turned down. 

The Supreme Court previously clarified the bailout provision in its ruling on NAMUDNO v. Holder in 2009. Since then, more than 125 jurisdictions have bailed out.

 They had a press conference with the author of an amicus brief in the Shelby County case who they describe this way:

"Gerry Hebert, attorney to 174 bailed out jurisdictions and author of an amicus brief filed by jurisdictions that have bailed out"

When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago.  Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Just three years ago, in a case called NAMUDNO v. Holder, the Court considered a challenge to the constitutionality of the preclearance requirement brought by a small utility district in Texas.  Although the utility district did not itself have any history of racial discrimination in voting, it was still required to get “preclearance” under Section 5 for any changes because it has an elected board.  When the Court issued its opinion, it declined to decide whether Section 5 was constitutional.  Instead, it held simply that the utility district could and should apply for a “bailout” from the preclearance requirement – that is, a declaration that it was no longer subject to Section 5 because it no longer discriminated against minority voters – which in turn eliminated the need for the Court to weigh in on the constitutionality of Section 5 in that case. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

 The link takes you to the amicus brief which discusses the bail out process.  Here's a short excerpt of the page brief:

Petitioner denies that there is a “nexus” between
bailout under the current Act and the coverage for-
mula, but this claim is contradicted by the structure
and history of the bailout provisions. Pet. Br. at 57.
The current requirements of the bailout provisions
reflect the criteria of the coverage formula: both
inquire as to the use of discriminatory “tests or
devices,” and look to voter registration rates and
voter turnout. 42 U.S.C. § 1973b(a), (b).  See Section
I.B. infra. Furthermore, throughout the history of the
Act, jurisdictions in different states of varying sizes,
political compositions and demographics have suc-
cessfully bailed out of Section 5, belying Petitioner’s
contention that bailout serves to tailor the scope of
[page]4
the coverage formula “only at the margin.” Pet. Br. at
54-55.  See  Section I.A.  infra
.
Petitioners also claim that the bailout option is in
fact illusory, and too burdensome and expensive for
most jurisdictions to achieve.  Pet. Br. at 54. But this
is decidedly not the experience of amici.

Amici Bailed Out Jurisdictions found the bailout
process both administratively feasible and cost-
effective.  Amici simply had to gather the necessary
information and data supporting bailout from records
we maintained in the ordinary course of business,
submit these materials to the U.S. Department of
Justice, and publicize the bailout in our community
media and post offices. After we were notified by the
Department of Justice that our jurisdiction had met
the bailout requirements, our legal counsel filed suit
and the necessary bailout papers in court. As for
expense, our experience is that the total cost of ob-
taining a bailout was approximately $5,000, which
includes staff time gathering the relevant data and
the filing of bailout documents in court.  See Section II
infra.
Further, contrary to Petitioner’s suggestion,
bailout is also achievable even if a jurisdiction discov-
ers during the bailout process that one or more of its
political subunits is not in full compliance with the
Act. In the course of the bailout process, numerous
jurisdictions have discovered that some of their
political subunits had inadvertently failed to timely
submit minor voting changes for Section 5 review, but
[page] 5
were able to resolve this issue with a prompt pre-
clearance submission of the changes to the Depart-
ment of Justice.  See Section III  infra

You can see the whole brief here.

Of course, this is an attorney who has expertise in bailing jurisdictions out from Section 5.  So if Section 5 were thrown out, he presumably would lose some business.  However, that doesn't invalidate what he writes.

But even if Alaska were to be released from Section 5 of the VRA, I would guess that the Board would still be required to redo the plan based on the standards of the Alaska Constitution.  

return to constitutionality of Voting Rights Act: In Plain English

On Wednesday, the Court will hear oral argument in a potentially historic case that has both civil rights activists and conservatives on the edge of their seats:  Shelby County v. Holder, a challenge t
- See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means:  it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement. - See more at: http://www.scotusblog.com/2013/02/court-to-return-to-constitutionality-of-voting-rights-act-in-plain-english/#sthash.PMHNvI0F.dpuf

How Many Ways Can You Cut Vegies and Fruit?

I found a recipe for a salad online - we went to a neighbor's for a pot luck dinner.  I thought it was interesting that each item that needed cutting had a different verb for the idea of cutting.

• 1 mango - peeled, seeded and cubed 
• 1 avocado - peeled, pitted and diced 
• 1 tomato, cut into wedges 
• 1/2 red onion, julienned 
• 1/2 pound fresh mushrooms, sliced  

Fortunately, there's a YouTube available for each verb.

How to cube a mango.

How to dice an avocado

How to cut tomato into wedges

How to julienne an onion

How to slice mushrooms

[I tried to find videos that don't require you to watch a commercial first.  If I couldn't, then I picked ones that allow you to skip commercial after 5 seconds.]

How Important Is The Arctic? “. . . if this were a ball game, the US wouldn’t be on the field, in the stands, or even in the stadium.”

I picked up Bob Reiss' The Eskimo and the Oil Man (May 2012)  at the library the other day.  The Eskimo in the title is Edward Itta, whaling captain and former Mayor of Barrow.  The oil man is Pete Slaiby, Shell's lead man in Alaska.  I figured it might give me some insight into who this man leading Shell's troubled project to drill the Arctic. 

I'm about one-third of the way in, but it's already clear this book has information that every American should know.  And Alaskans, who think they know about the North, should be paying attention too. 

While some are still denying global climate change and humans' role in it, the world is changing fast and the North is going to take on a very big role in the world we will soon be living in. 

I suspect I'll be giving you bits and pieces as I go through this book.  Here's stuff on the importance of the Arctic and how far behind the US is compared to other Arctic nations.


Will the Northwest Passage become the new Panama Canal?

“. . . the Northwest Passage - the long-dreamed-of trade route between Europe and Asia, and the US, around the top of Canada and Alaska - could open to ships in summers as soon as 2020, some computer models predicted.

“If that happened up to 25 percent of the earth’s shipping might be passing Barrow within ten years, and if the specter of one drill rig could bother whalers, the idea of hundreds of unregulated ships out there was a nightmare.  (p. 29)

 “A single Chinese container ship sailing between Shanghai and New York could save up to $2 million on fuel and fees each way, using the northern route instead of the Panama Canal,”  Scott Borgerson, Oceans Fellow at the Council on Foreign Relations in New York, had told me." (p. 30 )

There's no permanent Coast Guard base in Arctic.  

 '[The Coast Guard has [n]o way to monitor ship traffic or know whether or not a vessel was friendly, or about to rupture and spill oil, or whether it carried proper lifeboats for passengers.'

"Arctic could become pivotal place like Arabian Peninsula, Panama Canal."  (p. 30 )

Barrow the next Singapore?

"Borgerson predicted, “In twenty years the Arctic coast of Alaska may look like the Coast of Louisiana today, lit by the lights of ships and oil rigs.  One port there may become a trade hub as important as Singapore.  Singapore, once a mangrove swamp, is now the biggest seaport in the world.”(p. 31)

The US lags way behind other Arctic nations

“By spring 2010 many offshore oil advoates and opponents could agree on one thing at least:  the United States was notoriously unprepared for changes occurring in the region.  The nation had not signed the Law of the Sea Treaty.  It had not filed a claim for territory.  The US had one functioning icebreaker to address emergencies, while the Russians had twenty.  The US lacked proper communications equipment, lacked a deepwater port, lacked even basic science that could inform decision makers as to natural processes in the region before they made plans.  There was no cohesive national policy for addressing Arctic energy extraction. 

“In contrast other Arctic countries - Russia, Canada, Norway, Denmark - were much further along when it came to purchasing new icebreakers and awarding undersea oil and gas leases, and they had begun the process of expanding their national territories through the Law of the Sea Treaty.

“‘The Arctic is crucial and the Arctic is now,”  said Adm Gene Brooks of the Coast Guard.  “But if this were a ball game, the US wouldn’t be on the field, in the stands, or even in the stadium.” (pp. 38-39)

 People make grandiose claims all the time, but Alaskans, because we travel a lot, understand that although we look remote on flat maps of the world, we are a in the middle of the shortest routes between Europe, Asia, and the US East Coast - about 8 hours by air to each.  From Europe to Asia via Barrow would be much shorter than the Panama Canal as the example above so clearly demonstrates.

Barrow might not become the new Singapore, but it will soon be on everyone's map.  I know a few people in Anchorage who have been very involved with Arctic issues and they are always telling me this same message.

It's understandable that the US is behind.  Alaska is the only Arctic state and we're not even attached to the other states.  The other nations - Russia, Canada, Norway, Sweden, Finland, Iceland,  and Denmark (representing Greenland and the Faroe Islands) - have a much larger proportion of their land on or near the Arctic.  You can learn more about the organization of Arctic nations - the Arctic Council - here.

But for us to ignore what we have, as these quotes suggest, will cost us dearly in the future.

Alaska Supreme Court Says No To Redistricting Board - But Changes 36 to 22

[See Alaska Redistricting Board tab above for annotated index of all posts on the Board.]

Sorry folks, I've fallen asleep on the job.  Being out of state is taking its toll and I totally missed the Alaska Supreme Court's rejection of the Redistricting Board's petition for a rehearing.  They made two minor changes, substituting the number 22 for the original 36 in two places. 


Here's the decision (the rest of the 50 pages were the same except for these numbers):

Before:    Fabe, Chief Justice, Winfree and Stowers, Justices, and Matthews and Carpeneti, Senior Justices' [Maassen and Bolger, Justices, not participating]
On consideration of the Petition for Rehearing filed by the Alaska Redistricting Board on 1/7/13,

IT IS ORDERED:    The petitionfor rehearing is GRANTED to the following extent:
On page 12 of the Opinion, "36 unchanged house districts" is modified to read "22 unchanged house districts," and on page 13 "these 36 districts" is changed to "these 22 districts."

In all other respects, the petition for rehearing is DENIED. Entered by the direction of the court.

Supreme Court No. S-14721 Order Petition for Rehearing
Date of Order: 2/15/13

Let's look at that in context:

From the original decision:

Thus, upon remand, the Board was instructed to consider the requirements of the Alaska Constitution first when constructing districts.20    However, 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

Moreover, when the Board first created these 36 districts, it did so in order to comply with the VRA; this is a clear violation of Hickel’s plain language. Although these districts went unchallenged, that does not change the fact that they were drawn with VRA considerations as the first priority. We do not know if these districts will meet the Alaska Constitution’s requirements of compactness, contiguity, and socio-economic integration, but they were not drawn with this purpose as the primary consideration.

From the Feb. 15 decision:

Thus, upon remand, the Board was instructed to consider the requirements of the Alaska Constitution first when constructing districts.20    However, 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 22 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

Moreover, when the Board first created these 22 districts, it did so in order to comply with the VRA; this is a clear violation of Hickel’s plain language. Although these districts went unchallenged, that does not change the fact that they were drawn with VRA considerations as the first priority. We do not know if these districts will meet the Alaska Constitution’s requirements of compactness, contiguity, and socio-economic integration, but they were not drawn with this purpose as the primary consideration.

The rest of the 48 page written decision remained the same.  The only other difference I can see is that because of the new language explaining this modification, what was on pages 12 and 13 was bumped to pages 13 and 14.  And the new document is now 50 pages instead of 48.

And I'm not even sure the switch is correct.  In my post Fact Checking the Alaska Redistricting Board's Petition to the Alaska Supreme Court  I pointed out there was a difference between the "Hickel Template" and the "Hickel Plan" and that in the template 36 was the right number, but in the plan 22 was, but the Board switched back and forth between those terms in their argument.



My Take On What It Means

[You can see more background on all the issues including the Board's petition in a January 10, 2013 post Alaska Redistricting: 2010-2013 Overview.  This post covers some of the same ground, but focuses specifically on this decision.]

Basically, the court had told the Board that they needed to start out by making a redistricting map that is based on meeting the requirements of the Alaska Constitution - mainly that all districts be compact, contiguous, and socio-economically integrated.  These are not exactly objective standards, particularly the last one.  And in a state as big as Alaska with so much of the land sparsely populated, it is also difficult to keep the rural redistricts compact.  [There are other federal and state requirements but they aren't an issue in this.]

The Board also had to draw the map so that it would meet the requirements of the federal Voting Rights Act (VRA).  [Alaska Redistricting for the Masses Part 1 has a section explaining VRA] Because of past law suits, Alaska (along with 15 other, mostly Southern, states) must get pre-clearance from the US Department of Justice (DOJ) before its plan can become final.  To get approved, the new plan could not have fewer "Native" districts than in the previous map.  These are districts in which Alaska Natives have sufficient voting power to elect the candidate of their choice. 

The Board, as it began, decided that it should configure the Native districts first and then, they figured, everything else would be relatively easy.  There are enough people in the urban areas that they wouldn't have trouble creating viable districts there.  So that's what they did.  There was one board member Bob Brodie of Kodiak, who argued against this, saying the Board would be spending 90% of its time on 10% of the population.  But he was voted down.

Then, when they finished getting the Native districts drawn, they went on to do the rest.

Their justification for this was that without approval from the DOJ, their map wouldn't be legal.  The federal law takes precedence here over the state Constitution.  So if it's not possible to meet both the federal law and the state Constitution, then the Constitution loses.  So, therefore, they should do the Native Districts first.

Here's what they did:

Step 1:  Blank slate

Step 2:  Draw in Alaska Native districts (this map is completely fictional for demonstration only)

Step 3:  Draw the rest of the districts.

The Court wants them to do the 40 districts using the Alaska constitutional requirements first, and then adjust them to get the Native districts.

The Court's reasoning:

1.   Once you draw these (Native) districts, you've taken this geography and the population in it, out of the picture, limiting your options for the rest of the state.  Thus, these Native Districts affect how the rest are drawn and could affect whether they are constitutional or not.

2.  If you start this way, the Court says it has no way to determine if your deviations from the Alaska Constitution are the least they can be.  They argue that they need to see a constitutional map first,  and then the VRA compliant map drawn from the constitutional map.  That way they can compare the two maps to see if the deviations are the least possible.

The Court, using a 1992 Alaska Supreme Court decision, told the Board, at several points in this marathon, to follow the "Hickel Process."  That means that first they draw a map just using the Alaska Constitutional requirements.  THEN, they make adjustments to that map to meet the VRA.  In the end, the Supreme Court believes it can look at the two maps,  to determine if there was the least deviation possible.

My sense of the Redistricting Board is that they are frustrated.  They believe that they have worked hard and done their job.  They have managed to switch enough district lines to break the Bi-partisan Senate coalition and put in a Republican majority, but they believe they did that fairly.  I suspect they believe that the Supreme Court (the then Supreme Court Chief Justice appointed the only Democrat on the Board) is acting as partisan as they did (particularly the Chair and Member Holms) and they're not happy.

Why do I say this?  Well, last March when they were told to follow the Hickel plan, they sort of responded - You want a Hickel Plan?  We'll give you a Hickel Plan, and went through the motions without conviction.  They came up with four options - the one they wanted and three more that were so ridiculous there was no way they could be approved.  But even then, when they evaluated their preferred option, they explained why the oddest parts were clearly constitutional, but when they looked at the other three they focused on why they were unconstitutional.  [You can see my post on that meeting for more detail.]

And the most recent meeting showed no statesmanship toward the Court by (particularly) Mr. Torgerson and Mr. Holm.   Board chair Torgerson didn't seem to make any effort to conceal his disgust with the Court.  He said things like (these are from my rough notes of the meeting and not quite verbatim based on listening online.  I couldn't find anything up  transcripts of the meeting on the Board's website):

"History with this judge, he allows everything, truth, untruth, no one seen it, bring it on."

Instead of Separation of Powers, it was Usurpation of Powers.

"Clear as mud."

And from Board member Holm:

"I don’t understand how they can have it both ways.  You aren’t required to submit it, but you are required to have Hickel plan.  Makes no sense to me."

And they talked about appealing the decision to the US Supreme Court.  I was wondering if these guys had even read the decision.  I saw no ability on their parts to see anything but their own view of the world.  I'm not saying they need to agree with the Court on every point, but they should at least be able to understand the reasoning and recognize there's a valid difference of opinion.

They've decided to wait to hear what the US Supreme Court does in the Shelby County v.  Holder case (pdf) which is scheduled to be heard on February 27.  It's a case in which the County is suing to be released from pre-clearance by the Department of Justice based on Sec. 5 of the Voting Rights Act.

In the meantime they are meeting again to choose a new Executive Director since the original staff needed to find other jobs since last June.

Their rough schedule (see post on their Feb. 12, 2013 meeting)  has them meeting to draft a Hickel plan from April 2-5.  Given how long it took last year, this seems like a very unrealistic schedule, unless they draw their maps privately before the meetings start.


At Wickersham's Conscience the title of his post on the decision is "Alaska Supreme Court Bitch Slaps Redistricting Board."  He concludes the post:

It’s WC’s fond hope that after an adequate interval, the supreme court will step up and write a lawful redistricting plan. After all, that’s what has happened in each of the prior redistricting efforts. It’s increasingly clear that the current Board has no interest in following the law. 

I have to say, if the new plans reflect the attitude I heard at the Feb. 12 board meeting, the Court is likely to lose its patience with the Board completely.  

Chilly Hilly - Photos and Video on Hidden Cove Road

I went out for my run this morning on Hidden Cove Road hoping to catch some of the bikers in the  Chilly Hilly bike race here on Bainbridge Island.  And I wasn't disappointed.  The race began about 8am near the ferry terminal and ends at about 3pm.  Here are some images between about 10 and 11 am.

 

 

 

 

 

There's not much shoulder on the road.

Chilly Hilly Bike Race - My Trial Run Friday

I saw the name Chilly Hilly on the Bainbridge Island maps.  There were trail markers and it looked like a race.  Then I learned it was a bike race.  Then Wednesday I saw a poster on the ferry to Seattle warning that the ferries would be very crowded Sunday due to the Chilly Hilly race.

I like to run.  I like to bike.  But I'm not really into doing those things in big crowds.  But  the route passes very close to where we are staying and also close to where our daughter lives.  It said 33 miles.  Last time I biked 33 miles was on the Denali Highway - it was an unpaved road with lots of hills.  I ended up with a knee that took a couple of years to fully recover.  (I could run on it, but it hurt when I biked.)

But this was on pavement.  And I've done 14 mile roundtrip rides around Anchorage in recent years.  And this race is coming to me.  While there is a signup at the ferry terminal in Seattle, I'm already on Bainbridge Island.

So Friday I decided to try out the southern part of the route - about ten miles.  The Chilly Hilly website FAQ's mention it here:

Q: What if I can not make it the entire 33 miles?

A: At the Cider Rest Stop, mile mark 19.3, you can take a short cut back to the ferry that cuts off 10 miles (23 miles total).

I'll just try that ten miles at the end.

So I got my daughter's bike and decided to brave the rain and wind.  Ten miles.  I should be able to do that in what, an hour?  The road where I'm starting out - Wyatt - is a narrow two lane road and here it has maybe a foot or less on the bike side of the white line.  It gets wider at some points and then back to narrow.  You just have to trust that cars will give you some space as they zip by, and most do.  Somehow, despite checking the map several times, I take Blakely instead of the road out to Point White Dock.  I realize my mistake and look for a road that will take me west.  I get to Fort Ward Road hoping it will get me back to do the Point White loop.  But I've gone too far and didn't realize the road had curved and now I'm headed south instead of west.

I've already done several hills. (There's been lots of up and down, but I'm only talking about serious hills.)  One I finished walking.  But the downs are also pretty steep and the bike's brakes aren't that great.  I'm afraid to go too fast down because I won't be able to stop.  Plus the road's wet and in some places there's mud or sand.  I don't know this bike well enough to handle a skid.  And there's branches and other debris from the wind.  

I check the map and decide I can make my own loop to the south and that should make up for what I missed.  I come down Fort Ward Hill.  That's the name of the street now.  There are a lot of streets with hill in them on Bainbridge.  They aren't just cute names made up by developers - there's really a serious hill involved.  Anyway, I get to the bottom and I'm at open water.  The wind is blowing hard, the water is moving toward shore, there are big clouds, and a giant ferry - it must be the Bremerton ferry.  Even a hint of sun.  I've been out an hour. 



I'm at South Beach and the map shows I can make a loop here and get back to where I was supposed to be.                             







Now that I have my camera out, there's even a hint of sun along the beach.






Now, this NOT on the Chilly Hilly route, but this turns out to have been my favorite spot.  There's a narrow road with houses on the water side.  Then a sign that says "one lane road" and sure enough, the road gets even narrower and there's a row of maybe a dozen houses along this perfect spot on the rocky beach.




 There was a couple - red coats - walking their dog and a faint  rainbow in the distance (it comes down into the pier.)  I talked to the couple - I wanted to know if the road that goes around the end of the point would be less hilly than the one that cuts across which the map shows has a very steep hill.

Yes, the map shows the hills with blue single, double, and triple arrows.  Here are some on the loop that I missed.  The Chilly Hilly is in purple lines. 

Yes, the road along the water would be less hilly, but it's a private road.  And the road ahead - Toe Jam Hill Road - was very steep up on this end and down on the other end.  But I'd already come down Fort Ward Hill and didn't want to go back up it. 


I tried to take this picture looking back down Toe Jam Hill so that you could get a sense of how steep it was.  It's hard to capture.  Trust me, it was steep.  I didn't even try to ride up this one.

When I got down the other side, I saw why the other road was now a private road.  It went to the country club.

I got back onto the Chilly Hilly route and went around another loop which got some great views of downtown Seattle between the houses across the sound.






Eventually, I made it back to my daughter's place, happy for having gone on the ride.  I felt pretty good, my body wasn't too beat up.  I was comfortably tired, but I was rethinking the idea of joining the race on Sunday.  It had taken me two and a half hours.  When I checked my route on Running Ahead - a website where you can map out your run and get data on mileage and elevation changes - I found my route had been 13.2 miles, not ten.  And to give you a sense of the Hilly part of the race name, here is the mile by mile elevation change I had:

I thought I might do the other 23 miles Sunday and leave off the part I did.  I don't think the hills in the first 23 miles are quite as frequent.  But I think I'll just do the route when there aren't a million people here and in shorter stints where I can stop and take my time and enjoy the scenery.

The sun has been out more than usual today, but there are also a lot of clouds and it was colder than normal this morning - there was frost out on the lawn and the thermometer said 35˚ at about 8am.  

I know the bikers will enjoy themselves tomorrow and I hope to get some pictures. 

TowPLow Follow Up - DOT Replies With More Details

[There are a number of well known epistolary novels.  Well, this is an E-pistolery blog post.  I didn't intend it that way, but my correspondent said what he had to say succinctly and it doesn't make sense to rearrange his words.  And blogs have no space limitations. This way you get everything in context including the interchange between blogger and the department's public relations officer.  Including my dumb mistake which we got past with civility.] 

Overview:  
I got more details

• On the costs of the snow plows and transportation
• Why Juneau and Soldotna got the first two
• Why they came by barge instead of ferry (Jeremy mostly said Alaska Marine Highway)

Basically, tow plows are one-third the cost of a regular snow plow, but they have to be towed by a regular plow.  So if you have four lane or bigger roads, it can make sense to use them and free up a regular plow to do other roads.
 
Intro:

Before I posted up my previous post on the Alaska TowPLow experiment I sent an email reply to the Department of Transportation and Public Facilities (DOTPF) Public Relations Officer, Jeremy Woodrow, whose contact information was on the original press release and asked a few questions about the costs and benefits of the new equipment.

I asked:

"is there any information on the costs of the TowPlow compared
 to regular equipment and analysis of whether the extra costs will be
 balanced by savings or just by faster clearing?"

Meanwhile, I saw that the ADN already had up an article that included the costs that they'd gotten from DOT and so I added that into my piece and posted.

Then I got an email back from Jeremy:

Thanks for your inquiry. The numbers you requested are as follows:
 
 New Snowplow = $260K
 New Towplow = $90K   

Monthly Operating and Replacement Costs for Snowplow = $3700 Monthly Operating and Replacement Cost for Towplow = $1100   

While the cost savings are significant with the towplow, I should point out that a towplow might not necessarily work for every snow removal situation. This is why the department is taking a slow approach with introducing the new device across the state. With that said there will also never be a situation where we can replace snowplows outright, as there are many situations where the benefits of a snowplow outweigh that of a towplow.   

Please let me know if I can be of any more help.
 

Since my initial inquiry, I'd done online research and so I had more questions:

"Jeremy, I appreciate your reply.  Since I emailed you, the ADN had the $90,000 figure and said it included "shipping and installation."  I found reports online that said North Dakota and Pennsylvania paid right around $74,000 for their tow plows.  Does installation refer to modifying the existing plows to attach the tow plows to them?  How much was installation and how much was transportation?  How did they get to Juneau and Soldotna?  Did the Juneau [tow plow] come by ferry from Bellingham? 

That would seem a good way to go since DOT also owns the ferry system and traffic in the winter should mean there was plenty of room.  At  the very least, the state ferry would get the payment."

And I got a pretty quick and long response that answers a lot of questions.

 Hi Steve,

 I read your blog post regarding the towplow. Journalists and bloggers usually identify themselves, which helps folks, such as myself, provide timely and accurate information. [This is a valid point and I shouldn't have assumed that he would know I was a blogger simply because I was on their mailing list and my email address contains the name of the blog.  There are things that good journalism training would have embedded in me.  I do introduce myself as a blogger when I talk to people and I shouldn't have made assumptions here.  I did apologize in the next email, which he graciously acknowledged.] I've worked with numerous bloggers throughout my career and appreciate the personal viewpoint that bloggers can convey where many professional journalists cannot.   

I noticed that you found some very good information online and raised some valid questions as to what DOT's must consider when purchasing a towplow. Those, among others, are all items that Alaska DOT&PF must weigh against the benefits before ultimately deciding to purchase any snow removal equipment (snowplow, towplow, grader, etc.). In your blog post, you cited PennDOT's break down of the cost for modifications from the actual cost of the towplow. In order to provide you similar numbers, I spoke with our State Equipment Fleet (SEF) manager and was able to gather the following information.
The actual cost for each towplow was $89,127, which included shipping to Seattle and installation and training by the manufacturer. The cost of the towplow has a few variables which include the ballast used on the trailer (tanks, sander, etc) and number of towplows purchased.  

Each towplow then had to be shipped to the respective destinations. The cost to ship the towplow to Soldotna was $7,170, a little less to Juneau. The department did not ship via Alaska Marine Highway because it would have actually cost much more when combining the cost of trailering the towplow from Seattle to Bellingham, modifying a truck in Washington that would be capable of trailering the towplow, and then having a truck on the receiving end be capable of trailering the towplow from Whittier to Soldotna. Logistically and fiscally this did not make sense. The best solution for safe transport of the towplow was to pay for shipping from Seattle to Soldotna/Juneau and then
arrange to modify only the truck intended to trailer the towplow at each location.

[The tow plow has to be pulled by an existing snow plow, so the snow plow has to be modified so the new tow plow can be connected to it.]

The required truck modifications came to $5,700 in Soldotna and $10,000 for Juneau.  The Juneau cost was higher because it's an older truck that required more equipment. In both locations the modification cost included a rear-facing camera on the trucks that provide the operator a more complete view of the trailer while in motion - the department viewed this as a necessary item for both the safety of the operator and other drivers.  

From my understanding the first weekend deployment for the towplow went well in Soldotna. Juneau is still waiting for snow, as it's been unusually warm and rainy the last two months. In both situations, only time will tell if the towplow is the right piece of equipment for Alaska's roads. The potential cost savings, as illustrated in my  previous email, are significant but more importantly the towplow must meet the performance standards that our Maintenance and Operations crews have set for clearing roadways in a timely, safe and professional manner.  

Lastly, Alaska DOT&PF is always actively researching new or improved methods for operations. This is in an effort to operate the department, as a whole, more efficiently. The towplow serves as an excellent example by providing an improved level of service through more efficient means.

 If you have any more questions, please feel free to contact me at your convenience.

 Best Regards,
 

I did have more questions, but first let me just point out that the company that makes these tow plows has offices in New York and Missouri.

Missouri is the headquarters for people ordering TowPlows from the Midwest and Western US.  So the cost to ship it to Seattle should be more than to North Dakota or to Pennsylvania, the two places I found significantly lower purchase costs for (@$74,000).

Also, Jeremy followed up with info on their subscription list:

Hi Steve,

 I didn't mean to put you on the spot, but apology accepted. As an FYI, your email
is on our distribution list managed through the department's GovDelivery
email service. You can manage your subscription via the following link:
https://public.govdelivery.com/accounts/AKDOT/subscriber/new

Regards,

 -Jeremy

When I looked there I saw different types of stories checked off and I vaguely remembered doing that.  I clearly did subscribe, but I can't remember what instigated it.  Other releases come by email too and I know I didn't ask for them.  But it's interesting to  see what I get and then see what other media do with the releases.  And sometimes I find something interesting enough to post about it.  Like this one. 


My last two questions:

Jeremy, not an issue, it was a good reminder for me.  But as I'm trying
to write this, I have a couple more questions:

1.  Why were Soldotna and Juneau picked instead of Anchorage or Matsu or
Fairbanks which have a lot more road where the tow plows could be used? 
I got a comment from a Juneau reader that they only have ten miles of
four lane road, the ADN got comments on Soldotna.

2.  I understood that the Marine Highway wouldn't have made sense for the
Soldotna tow plow, but I don't see why the Juneau one couldn't have been
shipped directly to Bellingham.  I'm assuming that they didn't come on
one truck from the manufacturer to Seattle.  Bellingham's only 90 miles
from Seattle and the added distance would probably be less if it was
going directly to Bellingham from the factory, so I can't see that that
would add that much after the a cross-country trip.  I'm sure there's a
good reason and I don't want to waste your time unnecessarily, so I'll
stop at just these two questions.

My assumption, based on what you've written so far is that there are
good, if not obvious to the outsider, reasons.  And those details will
probably reassure my readers that DOTPF was doing their job.  We all seem
to know much better than those involved when we don't have the relevant
details.

Thanks,

Steve

And a speedy response from Jeremy:

Good questions. Soldotna and Juneau were both selected because each
location was in need of an extra snowplow truck for its maintenance
fleet. Given the price of a brand new plow truck, the department did not
have the funds to purchase a truck for both locations. It would have been
one or the other. This required the department to think outside the box
and explore alternative methods for how we could achieve the same
function of two trucks with limited funds. In both cases a towplow seemed
to be an appropriate solution given that it would allow one truck to
clear the major multi-lane arterials using a conventional snowplow truck
trailering a towplow while freeing up a second truck to clear other
roads. Anchorage, Mat-Su and Fairbanks did not have an immediate need for
a new snowplow truck. If/when either of those locations expresses the
need for a new snowplow truck, then the department will evaluate whether
a towplow would be an appropriate replacement/addition. In regards to
your Juneau reader: whether there are 10 or 50 miles of four lane road,
it still requires two trucks in procession to safely and timely clear the
road.

In regards to shipping via the Alaska Marine Highway. DOT&PF often uses
AMHS to transport construction equipment, etc. when space is available
and it is usually the first option explored when transporting any item.
The shipping to Seattle was negotiated as part of the purchase price for
each towplow. I'm not sure how they were actually shipped (rail or
truck). I do know that the department explored the ferry option and, due
to logistics and the expense, it made more sense to ship via barge to
both locations.

If you would like more information, please feel free to call me and I can
explain my above answers with further detail

Thanks again for you interest,

Jeremy

And that's it.  We could drill down further - and Jeremy seemed to enjoy providing the information - but I don't think there's anything here to 'uncover.'   Instead I'd say we probably had public officials doing their jobs well. 

New Blogging Partner Needs A Lot of Attention

When you take on a new partner in any activity, there's a period when the new person is learning the ropes and you wonder if it isn't more trouble than it's worth.  And so it is with my new partner.  She sleeps a lot on the job which often means I'm typing with just one hand.  And after meals she's given to me in my new role as digestion specialist and we do a lot of moving around to get those bubbles percolating through her system.  Movement of all kinds - rocking, calisthenics, up and down, back and forth, back patting - seems to do wonders in distracting her and giving the server some time to sleep or do other things.  (One thing she can do as well as any adult - hiccup.)

But this is a long term partnership and if the blogging gets a little behind, I hope you'll understand.  And the training investment will have big long term benefits.

Seattle Chilly Rain Back - We Go To Flower Show

I remember being entranced by the giant flower shows in LA as a kid and have wanted to check out the one in Seattle for years.  So now I find myself a ferry ride away when the flower show began in downtown.

My childhood memories set me up for disappointment.  There was lots of stuff to see (and buy) and really big fancy displays.  I was a bit overwhelmed - there was too much going on.  It took a while before I even got my camera out.

I thought these narrow vases were cool. But you do need lots of flowers to put in them.

Here's another thin vase with calla lilies in it.  I got too many reflections on the glass, so I used the photshop colored pencil filter.  The lilies were under water in the vase.

 This booth had art pieces made out of dried fruit and vegetable slices.  I liked the kiwi.

 

This was the Washington Park Arboretum's display - a hobbit garden.  It won a gold medal.

 

Returning to rainy Bainbridge by ferry.

Spring Preview

It was sunny today and suddenly all the crocuses that were about to open, opened.