This post is a followup to a previous post on the impact of the Alaska Redistricting Board's decision on allocating senate terms to staggered cycles (it favored Dunleavy loyalists and punished GOP who worked with Democrats.). This post looks at the vague and sloppy motion that passed to make it happen.
KEY POINTS IN THIS POST
- The motion to Allocate Senate Terms was so sloppy and so vague that it's impossible for anyone implementing it to not make their own assumptions about what it means. The member who made the motion never really articulated how it was supposed to work. No one seems to have written it down. The chair didn't really repeat the motion - such that it was - before the vote. This seems to violate basic procedures required of Boards and Commissions to have the most basic standards of documentation when making public decisions. Every legislative bill has to be clearly spelled out and written down. The Redistricting Board's decisions are arguably far more impactful than most legislation passed in the Alaska Legislature and should be handled with the same care. What the Proclamation itself and the Proclamation Report show are neat sets of 2022 and 2024 senate seats, but this doesn't at all reflect what is really scheduled - that 19 of the senate seats will run in 2022.
- It would appear that the staff had spoken off the record with the people who made the motion. Whether it was just when the Board was not on public record or in Executive Session is not clear. In any case, this also raises questions about what was actually considered during the lengthy Executive Sessions prior to the board's voting on an Allocation Plan, and whether the Board's use of Executive Session was in violation of the statutes on Executive Session. The session was supposed to be about the VRA (Voting Rights Act) and how the Eagle River pairings might be affected, so it shouldn't have spilled over into Allocation of Terms. But how did staff know how to interpret the motion? Why did Marcum ask the Executive Director, while making the motion, "Is that how we say it, Peter?"
- The Alaska Constitution says senators serve four year terms. Because truncation messes the required staggered terms, redistricting boards have resorted to assigning two year terms to get the cycle back in order. But this should be rare. In this round two senators were given TWO, two year terms. The Board shouldn't have the power to make a senator have two, two year terms if there is an available option to avoid that. The Executive Director clearly said they can't extend the term to six years. Then why can they cut it down to two years, twice, in some cases? When there are two two year terms for one or more senator, the board should be required to make adjustments to avoid this.
INTRODUCTION
I've mentioned in previous posts that I'm struggling to keep my head above the details of the last couple of days the Redistricting Board process. Up to the last week or so, I'd say the Board was run well. Things were mostly transparent, there was plenty of opportunity for public input, the meetings were accessible often via video conferencing and always by phone, and the Board has posted video of meetings and all the public testimony. The last three days leading to the Proclamation, though, things fell apart. The three GOP-appointed members stopped engaging in meaningful discussion with the other two members (except on Truncation which didn't have any apparent serious political implications.)
I've been trying to write posts that give readers not only the facts, but the context of the facts. But in order to get something posted, I find I have to focus very narrowly here so that all the details aren't overwhelming. There are plenty of previous posts to get some context. They are indexed on a tab above, under the blog banner.
My criterion now for narrowing my focus is: would this possibly make a difference when there are court challenges to the Board's Proclamation Plan? That's the arena where the rest of this process will be played out. Everything else, at this point, seems moot. Later there may be time to reflect on what the 2030 board should learn from this board - both to copy and to avoid.
In this post, I'm focusing on the motion to allocate senate seats to alternating terms. The state constitution requires ten seats must run in one election year and the other ten the next election year. This intended result, as I understand it, is that at least half of the Senate has some experience. One of the Board's duties is to allocate the seats to these staggered terms.
Why might the Board's decision making process make a difference in court? Like all decision making public bodies, the Board is required to follow basic procedures of documentation when passing motions. The public should understand what the motion is and how it will be carried out. I'm arguing in this post that the motion that passed 3-2 at the November 9, 2021 Board meeting did not meet that standard. It was sloppy, vague, and even the person who proposed the motion didn't clearly understand her motion. With such a motion, the staff is left to interpret it their own way. I think the staff did the best they could, but they had a motion that really, on its own, was extremely vague. If the staff 'knew' what it meant, it wasn't because of the motion; it was because the staff already had an idea of how this was supposed to work, or because of discussions that were held outside of public view. And let me emphasize that all my dealings with the staff were good - they were very responsive and helpful and forthcoming. But they serve the Board members.
THE PROCESS AND MOTION FOR DECIDING ON ALLOCATION OF SENATE TERMS
I want to start here by offering you my transcript of the motion to allocate senate terms to election year cycles. [The words on the tape aren't always easy to hear. People are wearing masks, don't have individual mics, etc. ?? indicates something was said but I didn't catch it. Mostly those don't seem to be important to the overall text. I think this fairly represents what was said. You can watch and listen to the tape yourself here. I'd note the timing numbers on the video are not always exactly the same.]
[5:12:04]
Binkley: Bethany did you have a motion?
Marcum: I propose we go in simple numerical logical order, starting with A 2 years 4 years 2 years cycle like that.?? Is that how we say it Peter? 2 years 4 years 2022, 2024? I
Binkley: So it would be 2022
Marcum: The cycles do not work?? The link to the cycle ???
Binkley: It’s the year. . .
Torkelson: It’s the year in which the election was held.
Marcum: 2022 2024 2026 ??? something like that.
Binkley: Does everybody understand the motion, Uh, is there a second?
Simpson: I’ll second it.
5:10:57 Binkley: Is there discussion on the motion? Does everybody understand the motion? Is there any objection to the motion?
Bahnke and Borromeo?? I object
Binkley: All those in favor of the motion?
Ayes.
Binkley: All those opposed same sign.
Ayes.
Binkley: Looks like two opposed, three in favor. The motion passed. Peter, what’s our next task?
Do you - the reader - understand the motion? And what exactly it tells the staff to do in terms of allocating seats to one cycle or the other? What does "A 2 years, 4 years 2 year cycles, something like that" mean? That seat A serves for two years and seat B serves for four years? All Senate seats are supposed to be four year terms. Because the truncation likely will interrupt that ten/ten alternating cycle, some seats may end up with a two year term, but they aren't assigning seats to two and four year seats. They are assigning seats to years to start their cycle.
Even the motion maker - Bethany Marcum - isn't sure. She says, "Is that how we say it, Peter?" [Peter Torkelson is the Executive Director of the Board - the staff person in charge of overseeing everything the Board needs done.] Then she says: "2022, 2024, 2026 ??? Something like that."
"Something like that" doesn't make for a very clear motion. Not a motion that's acceptable for a Board with as impactful a mission as this one has No one seemed to write the motion down. The chair doesn't restate the motion.
One of the problems here is that 19 of the 20 seats are up for election in 2022, so how can the cycle begin in 2022? To maintain staggered seats, some will have to run again in 2024 and others in 2026.
Here's what the staff wrote about this in the Proclamation Report (p.7):
"The Board then considered setting Senate term allocations and adopted a pattern of alternating election terms for the coming decade. Seats A,C, E, G, I, K, M, O, Q, S standing for election in 2022/2026/2030 and Seats B,D,F, H, J, L, N.P, R, and T standing for election in 2024/2028/2032 in keeping with Alaska’s constitutional requirement for alternating 4 year Senate terms.”
But this isn't quite right, because every seat except T under this plan will stand for election in 2022. What the Board has actually done is start the allocation of terms process in 2024. Nine of the ten seats listed as starting in 2024 are actually scheduled to run in 2022. The actual plan doesn't seem to follow the motion, but then, the motion would be hard to follow the way it was stated.
Second, that the terms of Senate incumbents – B, D, F, H, J, and N under the 2013 Redistricting Proclamation labeling system be truncated because those Senate Districts have been substantially changed by this Redistricting Proclamation, and that the term of the incumbent of Senate District T, not be truncated because that Senate District is substantially unchanged; and
Page 1 of 2
Then on the next page we have this chart that shows the cycles.
This chart implies that all those running in 2022 run again in 2026. Not true. This chart misses the fact that all the seats but seat T in the right hand column run for election in 2022.
The allocations should have been for years 2024 and 2026. That's when the differences between seats actually matter. This list doesn't reflect what's actually happening.
But no one ever said this. What they DID talk about was: “running in 2022 or 2024”; “two year terms or four year terms”; “alternating years starting at Seat A or Seat T”; and "avoiding appearance of partisanship by flipping a coin to determine if they would start at Seat A or Seat B."
But they didn’t talk about when those terms would begin. At one point in the excerpt, Peter Torkelson says, " It’s the year in which the election was held." Why does he use the past tense? That makes sense if he's talking about the last time the seat was up for election - 2018 or 2020 - but no one ever talked about that in regard to this motion.
The lack of understanding of how exactly this was going to be carried out was made clear by Budd Simpson when he asked if the Board could extend a term to six years. He asked this about a previous motion made by Borromeo to alternate terms starting with 2024 for seat A. [As opposed to Marcum's later successful motion starting with 2022 (or 2-year) starting for seat A.] He was pretty sure the Board couldn't extend terms, but the question shows he didn't understand how this process was going to be carried out. Or it was just his way to objecting to Borromeo's proposal.
"Nicole: The motion on the floor is that we start with A and that is on the 2024 cycle.
Binkley: OK, the motion before us is: We start with A on the 2024 motion [sic]. All those in favor of the motion say Aye. All those opposed
Simpson: ???? That seat is currently on the 2022 cycle…..So that would be?? It’s already on the 2022. That is somehow it is extending that seat. It’s already on the 22.
Binkley: We don’t know? what the rotation is
Simpson: There’s kind of a 50/50 chance. I’m just saying that that seat is currently on the 2022 cycle and I don’t think we have the power to extend it to the 24 cycle. That kind of throws [5:09:40] everything off doesn’t it?
There are a number of problems here. The first one, that he knows who is in Seat A, causes Melanie Bahnke to ask about what information he and Binkley had that she didn't have because she doesn't know who is in that seat. It also is in direct conflict with what he has said previously in the discussion, that he doesn't know who anyone on the list is.
But if it is true that a seat, who's term is up in 2022, would be extended to six years for Borromeo's motion (to start with Seat A and assign that to 2024), then it would be true for some other seats in Marcum's plan, soon to be approved, which starts with seat A with (and it's not clear because she said both 2-4-2- years and 2022-2024. )
But as I check again the 2021 Senate Term Allocation Table, Seat A's previous election is listed as 2020, so the term was actually up in 2024 anyway. So Simpson was wrong. (The Term Allocation Table hadn't been prepared yet, so Simpson wasn't consulting it.) So it was used as an argument against Borromeo's motion, but it wasn't true. So it would have been useful if Bahnke could have seen, as she requested, what he was referring to, in order to verify what he was saying.
There are a number of issues here, but my point is that he didn't understand how the allocations in Borromeo's motion would be carried out if he thought one or more seats might be extended to six year terms by the process. (He rightly didn't think they could extend a term to six years.) He didn't understand that 19 seats would be up for reelection in 2022 and that the allocation of terms would really begin with 2024 and 2026, not 2022 and 2024. (I'd note that at that point Board members didn't know that 19 seats would be up for election in 2022, because the Allocation of Terms process itself would add some more to the list. But there had to be at least ten running in 2022 based on the old rotation cycles, plus they added some more through Truncation.)
The Point? That the Board members really didn't understand the motion and how this was going to play out when it was implemented. I'm convinced as I've said in the previous post on this, that the GOP-appointed members had been given an assignment to pass a certain package. They didn't quite grasp all the implications, only that they needed to pass it.
They did not really understand the motion. And if they didn't, how could the public?
So, just how did the staff members figure out how to carry out the motion? Was it discussed during the Executive Session? Probably not - it was too off topic even for them. During a break in the Executive Session? Possibly. But probably during the work session or another break. Just not on the record.
WHY IS NOT KNOWING WHAT THE MOTION IS, A PROBLEM?
Because every governmental body that makes official decisions is required to use standard procedures, whether Robert's Rules of Order or a similar set of rules so that all decisions made are clear, unambiguous, and understandable.
Here's a link to guidelines for Alaska State Boards and Commissions - for ethics and for open meetings. I'm sure there are other sources of guidance for Boards. The last pages of that document is titled:
Handout 4- Ground Rules for Good Meetings
Ground Rules for Successful Meetings
One ground rule that is directly relevant to the motion for Allocating Terms is number 4:
"4) Re-state the motion and clarify amendments. This is a simple way for the Chair to be sure that everyone on the team is on the same page as you move through the process. It also gives support staff the opportunity to clarify the language or intent if needed. As a member of the board/commission, don’t hesitate to ask for clarification if you are unsure."
Another section reminds Board members:
"Most important, the consistent use of Robert’s Rules by the appointed members of Alaska’s boards and commissions builds the public’s trust and reflects positively on all involved."
[UPDATED Nov. 26, 2021 7:38pm - From Robert's Rules of Order for Dummies:
The member states the motion.
Offer your motion concisely (and with only minimal advance comment, if any at all) by saying, “Mr. Chairman, I move that. . . .”
"For all but the simplest original main motions, write out the motion ahead of time and be prepared to immediately submit the written motion to the chair or the secretary after making the motion. "
This was hardly the simplest of motions.]
This is a fundamental given of all meetings where decisions that affect people are made. John Binkley served in both the State House and State Senate. Phrases like "Is there a motion?" or "All opposed?" slip easily off his tongue. So should clarifying the motion. The state legislature has very precise rules for the wording of bills (p.17), for instance. He did ask Board members if they understood the motion, but that's not enough. This was a very flakey motion. "Is that how we say it Peter?" and "2022 2024 2026 ??? something like that." Even the person making the motion couldn't state the motion.
But no one, not those favoring the motion, nor those opposing it, actually pointed out how vague and confused the motion was. I suspect, perhaps, that different Board members thought they understood the motion, and those understandings were not the same.
In fact, I suspect that, right after the motion was passed, the Board members had been asked, separately, to write down the motion, they all would have written down something substantively different.
And if they had been asked, again, separately, to write down instructions for the staff on how to carry out the motion, they would have all written something different.
And without a clear motion that clearly spells out how the task of allocation is to be carried out, I don't see how the allocation process can be valid.
PROBABLE ABUSE OF EXECUTIVE SESSION
The Board went into Executive Session around 5pm on Monday, November 8 and based on my blog posts that day, they were still in Executive Session around 7:45pm, because when I got home, I turned on the ZOOM and it was still running with a sign that said "Executive Session." That continued the morning of November 9 until 10:35am.
They came back into public view for about 20 minutes to pass Bethany Marcum's Senate pairings that split the Eagle River house districts and attached each one to other House districts giving Eagle River two Senate seats. There was also a new map that changed the rest of the Anchorage Senate pairings. Then the Board adjourned until 1pm to allow the staff to work on calculations needed for the Truncation process.
The public is still in the dark about what happened in the Executive Session and how the Bethany Marcum Anchorage Senate pairings got discussed. Two of the Board members had serious objections.
The same documents I linked to above with guidance for Boards and Commissions includes material on Open Meetings and Executive Sessions. Alaska's statue on Executive Session leans heavily toward openness.
"Executive session procedure requires that the reason for calling the executive session is clearly stated. The attorney-client privilege exemption to the Open Meetings Act is limited to matters where public interest may be injured. This might include how to avoid legal liability, litigation strategies and candid discussion of facts, a proposed settlement conference, and a conference on a decision to appeal." [emphasis added]
It seemed to me that the Board did not carefully weigh whether the matters they were to discuss in Executive Session would "injure public interest" if they were in public. They have assumed throughout this process that whenever they were talking to the attorney, they were covered by attorney-client privilege, although the statute says 'might.'
I'd argue that the attorney telling the Board his interpretation of the Voting Rights Act was something the public should have been able to hear. At that point, there were no cases against the Board. And to my knowledge, none have yet been filed. If the attorney's interpretation of the VRA was an unusual one, or aimed at supporting what the Board wanted to do, the public ought to know. The rationale that the Board is discussing legal strategy in case the Board is sued and thus should be covered by ES is also questionable. Indeed, "the public interest may be injured" by the Proclamation Plan of the Board and thus it would be in the interest of the public to have this information public. This is not a situation where the Board wants to keep secret what they are willing to accept in a potential settlement. This is not a discussion that might cause a defendant in a law case with the Board to know in advance what kind of deal the Board is willing to make. This is advice to defend the Board's plan. We already know that the pairing of Eagle River districts was in defiance of the overwhelming public testimony against that pairing. And my previous post on Allocation of Terms shows that the Allocation process resulted in punishing Governor Dunleavy's Republican 'enemies' and rewarding his loyal Republican allies. These are partisan political moves that harm the public interest.
And we don't know if in Executive Session the Board discussed other related but not ES covered topics, like Marcum's Allocation proposal that led her to ask: "Is that how we say it Peter?"
While the Board is in Executive Session, they may only discuss the narrow topics that they went into ES for and nothing else. Their reason for going into ES was very broad - to give the Board advice on how the Voting Rights Act would be affected by Marcum's plan for Eagle River. They appear to have been in ES for roughly four hours. It's hard to believe that everything they discussed had to be hidden to keep the public interest from being injured. But I wasn't in the meeting, And it was Borromeo who called for ES.
UNNECESSARILY GIVING SENATORS TWO YEAR TERMS
When Budd Simpson raised the issue of adding two years to a Senator's term to make it six years, Board Executive Director Peter Torkelson said "You do not have the power to extend a term from four years to six years." But they do have the power to shorten a term from four years to two years because of truncation and allocation of terms. But it seems that this power should be used only where there is no possible way to avoid it. The process previous boards have used and that was copied by this board, to just alternate starting election years alphabetically through the Senate seats A through T is a process that seems to make it more likely that more seats will be shortened.
But should they have the power to give a senator TWO two year terms? Under this plan two Senators get two, two year terms. Senators Wilson and Wielechowski ran last in 2020. Truncation requires them to run again in 2022. And term allocation requires them to run again in 2024. Two, two year terms, when the state constitution stipulates a senate seat is four year.
In such situations, if there were a way to make adjustments to the plan to eliminate the two, two year situation yet keep everything in compliance with the guidelines for truncation and allocation of terms, shouldn't the Board then have to go back and try to make adjustments? After all, Peter said, "You do not have the power to extend a term from four years to six years." Why should they have the power to shrink a senator's term to two years, twice? The constitution say four years.
In Wielochowski's case, he's been cut short first by truncation. But his district had a 24.5% constituency change. That's well within the limit of 30% maximum change given the Board by their attorney based on past Alaska Supreme Court decisions. In fact, Budd Simpson had proposed cutting it off at 25%, which would have left Wielechowski untruncated. If Wielechoski were not truncated, he would fall in the same category as seat T. He'd run next in 2024 (when his term expires) and he'd already be on the right cycle. I'd note that setting the cutoff at 25% would also "untruncate" two more seats - Sen. Myers (21.7%) and Sen. Begich (16.3%).
Wilson's district was changed too much to escape Truncation. But Wilson's cycle (2024) could be swapped with someone who is already being moved to a 2026 cycle. Say, give Sen. Stevens (who is not truncated) Wilson's 2024 year cycle, when he would normally run next and Wilson takes Steven's 2026 cycle.
Why shouldn't the Board be instructed to go back and make alterations, if possible, to prevent them from forcing a Senator to have two, two year terms? I understand that the Board did Truncation without knowing exactly which seats were being truncated. But in the end if the Board sees that their anonymous truncation and allocation decision results in forcing a senator to have two, two year terms, shouldn't they be able, even required, to go back and see if they can adjust things so that the senator's normal four year term is only shortened once? If as Peter said, they don't have the power to make a senator's term six years, why do they have the power to unnecessarily shorten a senator's term twice?
To my knowledge, these double two year terms have been part of the redistricting process from early on and no one has challenged it, but it seems like an issue that should be presented before the Supreme Court. Is it better to have truncation at 16.3% and above and force a senator to have two two year terms, when a higher cutoff level - which is comfortably below the 30% threshold the Court has previously said was OK - is easy to do? I think not. The Constitution's requirement of four year senate seats shouldn't be violated so easily.
Note to readers: I've been writing this post for over a week.
First, the writing and then double checking the video to ensure I'm accurate is helpful for me to better understand what happened. But as I find new wrinkles, I end up searching the internet to fill in new missing details. And the post starts to bulge in a different direction.
But a key goal here is to bring light on the process and share anything that might be useful to attorneys challenging the Board's Proclamation Plan so that, whatever the outcome, the Supreme Court will have had a chance to review all the relevant issues.
Second, this is all so full of details and nuances, that it's hard to write without forcing readers to go into all those details with me, something I know most readers won't do. Just having a label for what I'm writing about is difficult. What the hell does "Allocation of Terms" mean? Nothing to someone not paying close attention to the redistricting process. But finding clearer labels like "Assigning Senate seats to staggered terms" is almost as opaque and way too long. There are lots of examples of that kind of problem
That's why I have now narrowed this to issues that might have bearing on the Superior and Supreme Courts' decisions. Imagine - this is the narrowed down version. There is more that I have edited out, than I'm leaving in. I hope to look at a few more issues in the next few days. Like the constitutional requirements for those choosing Redistricting Board members with out consideration of politi
