Redistricting Trial Day 2: Some Insights

[It's been a long day at the computer.  I'm putting this up now, but reserve the right to edit it later when I have more time.] 

On the surface today seemed more like a regular trial.  There were witnesses and attorneys questioned them.  Sometimes other attorneys objected and the judge had to decide whether to sustain it or overrule it.  

My rough notes are rougher than usual and it would be tedious for just about everyone if I posted them so I'll skip that today.  Instead I'll comment on what the testimony said to me about redistricting.  

I would like to make two observations on the Board's representation today after my comments yesterday.  Board attorney Matt Singer was, in my opinion, far more respectful of the witnesses than he was of the witnesses yesterday.  Also, I'd suggested he should have one of his associates take over some of the in court appearances so he can get a break, and Lee Baxter did much of the work today for the Board.  I'm sure that was arranged a while ago, but I want to let regular readers know there was a difference today.  

This was Mat-Su's day, though Valdez (which is doing the case with Mat-Su since they both object to being paired  with each other) had a witness - the Mayor - today as well because she was available today.  The district in question is 29-O  (O is the Senate seat.)

The Stated Issues

• Is District 29 (the one that pairs Valdez with suburbs of Palmer) contiguous?
• Is District 29 compact?
• Is District 29 socio-economically integrated?
• Is District 29 unconstitutionally over populated?

These are the  State and Federal constitutional requirements for a district.  

Questions and answers over these issues got just short of ridiculous, making it clear to me that it would be helpful if the Supreme Court offered some new advice on what these ideas mean and how you would test them - particularly contiguous and socio-economically integrated.

Types of Witnesses Today

• Elected Officials
• Mayor Edna DeVries - Mat-Su Borough Assembly
• Michael Brown - Mat-Su Borough Manager
• Mayor Sharon Scheidt - Valdez
• Mapping Experts
• Stephen Colligan

Insights (if that's not too lofty a word for these thoughts)

1.  Redistricting Criteria

Throughout the Board's mapping process last year - including the public hearings - I was struck by how the board used the criteria listed above.  Too often they were NOT used as criteria to measure the districts they were making.  Rather they were used to justify the districts. Perhaps that sounds like double-talk on my part.  I mean that criteria were used to justify doing things, not to stop and check whether what they had done was correct.  

This became more obvious as one criterion took precedence over another one that had been crucial earlier.  At one point we heard the all districts within a borough boundaries were socially-economically integrated (SEI) so they didn't have to consider, say community-councils in Anchorage, or whether neighborhoods were similar or different.  At other times, say when Bethany Marcum was trying to put part of East Anchorage into the same district as part of Eagle River, she was listing all the Socio-Economic Integration of the two areas.  

At one point getting low deviations was important until it fell by the wayside for other criteria.  

Today's discussion made some of the criteria look so malleable you could stretch them to mean whatever you wanted.  Let's look at three of them.  (I'm going to leave compactness out for now because that seemed to be abused the least.)

1.  Deviation - This is a federal requirement. In order for the one-person-one-vote concept to work, districts have to be as close to equal in population as possible.  In theory anyway.  Part of Mat-Su's complaint is that Mat-Su as a whole is over populated because it's districts range from 1.1% more than the ideal 2020 Alaska Redistricting population number of 18,335. (That comes from dividing the 2020 Census number for Alaska by 40 House seats.)  At one point, their challenge added up the percentages for each district and they claimed they were 13.7% above.  But as I pointed out in a post yesterday, you can't add up percentages.  If you take the population of the six Mat-Su districts and divide them by the ideal size of six districts, the deviation is 2.2 or so.  

The Supreme Court has ruled that in urban areas it should be less than two and the lower the better.  In rural areas there is more flexibility.  The absolute limit from the Supreme Court has been a 10% limit between the highest and lowest deviations.  So if the highest deviation is 5% above 18335, then the lowest allowable would be 5% below.  But even that number would have to be justified.  

Stephen Colligan, the challengers' expert today, complained about Mat-Su's overpopulation and said they didn't have as much influence in Juneau because of it.  But really, if they have 400 more people in their district out of 18,335 people, how much of a difference does that really make?  This is a theoretical equality.  At what point does it become really an equity issue?  Some districts have a much higher proportion of non-voters than other districts, such as children or non-citizens, or prisoners.  Don't get me wrong.  Equal size districts is an important criterion, but we shouldn't obsess over it.  It's become even more of an issue now that software is available to reduce the differences to 1% for most districts and under that for urban areas.  AFFER's maps did that.  And Colligan's point that Anchorage and other areas were uniformly underpopulated is a valid one.  Was that done intentionally?  I suspect not, but it probably didn't have to be that way if the Board had more professional mappers working on the maps.  But I'll pursue that later.

2.  Contiguity - This basically means that all parts of the house district are touching.  It's the main criterion for Senate pairings. (In Senate pairings the two House districts have to touch, somewhere.) Here the basic issue in District 29 is that there is no way to get from Valdez to Mat-Su by car without going through another district.  The Board argues that the land is contiguous, it doesn't matter if the road goes out of the district for 60 miles or more.  Board Attorney Lee Baxter seemed to mock witness Colligan's use of the term 'auto contiguity' which got changed then to 'transportation contiguity' which then no longer seemed to have any meaning when helicopters and chartered plane brought up.  

But I'm all for the 'auto contiguity' concept.  People should have to drive out of their district to reach other parts of their district.  Of course, there are exceptions in rural Alaska where there are no roads, or where there is water and island.  But in urban areas and in areas with roads, 'auto contiguity' makes perfect sense to me.  You shouldn't have to drive through nearer areas to get to the other side of your district.  In Valdez' case to where 75% of the population of the district is located a four hour drive away, in good weather.  But this should also apply in Anchorage and Fairbanks.  Last time a Fairbanks district was 'connected' by a military bombing range that was closed to the public.  It was done to dilute the vote of the main part of the district.  And in Anchorage this time, this same sort of thing is being done in the Eagle River Senate pairings.  Yes, the districts are contiguous by land, but not by land people can use to get to the other side.  Instead they have to drive through other districts and then eight or more miles to get to the other side of their district.  This too was for partisan reasons and if the Court recognizes 'auto contiguity' it would put an end to this sort of gerrymandering.  

3.  Socio-Economic Integration - This is the most ambiguous criterion.  In my mind, it means that there is an important relationship, a common interest, that makes it beneficial to be grouped together and be represented by on representative.  But the plaintiffs and the defendant alike are coming up with all sorts of ways areas are similar or different.  Do they use the same highways?  Where do they shop?  Do Valdez folks shop in Mat-Su or Anchorage?  The answer from the mayor of Valdez was, "if your 45 minutes from Anchorage, why stop in Mat-Su where you have to pay sales tax?"   I thought Valdez had a strong list of reasons they are connected with the Richardson Highway communities - from goods coming in the port going up to Fairbanks, to the pipeline, to electrical utilizes, to higher education, etc.  But the Board's attorney pointed out that Valdez sports teams play in Mat-Su once a year.  The Mayor pointed out they play in Kenai too, but mostly along the Richardson Highway.  The Board's attorney asked Valdez if they thought Mat-Su was socially-economically integrated with Tonsina?  Later the Board was challenged whether Holy Cross was socially-economically integrated with Glennallen?  Both had been paired in different maps that had been supported.  It just shows that not every pairing will work exactly and the different criteria have to be weighed and compromised here and there to get districts.

At the Board meetings we heard that Interior Native Groups have nothing in common with Coastal Native Groups.  I understand they can have different language traditions and other traditions, but does that mean they have more in common with the White folks who are relatively recent arrivals to Alaska than to other Alaska Natives?  It became clear to me over this process that we can  find all kinds of areas of commonality and differences.  But which ones are really important in terms of having a representative?  And if you put everyone who is different in a different district does this ultimately strengthen or weaken their representation?  Packing is the type of gerrymandering where you put a lot of one group into one district.  They'll elect their representative by 50% or more.  But that also means they had 50% excess votes that could have made another district more competitive.  Lots of think about here.  

Expert Mappers versus the Board

Third party groups like AFFR (Alaskans for Fair Redistricting) and AFFER (Alaskans for Fair and Equitable Redistricting), Doyon, the Democratic Party, and the Senate Democratic Minority  attended most of the public Board meetings.  As I listened to them testify and talked to them, it became clear that they had begun mapping months before the Board even started.  They had people trained in GIS (Geographic Information Systems) that is the basis of the mapping software.  Stephen Colligan, today's expert witness is the head of AFFER and said he has people with masters and PhD's in this field working on mapping.  He said that Mat-Su had begun working on this five years ago.  

In comparison, the Board is made up of people with little or no previous mapping experience.  They had basic classes for beginners to help them learn how to use the software.  At the time I was beginning to form thoughts like - "the board is way behind the third party groups" and "the board is learning on the job."  Colligan today said that the Board didn't start until September 7 and then gave themselves two days to come up with maps.  They actually started playing with the software on August 24, 2021.  Meanwhile the third party groups had professionals and had started making maps months earlier.  [UPDATE Jan 25, 2021: I tracked down my post "Redistricting Board Meets To Learn Software" which happened on June 30, 2021.  They had a three day workshop.]

This just tells me that for 2030, the Board needs to hire professional map makers and not be dilettantes trying to do a specialists work.  I don't blame the Board itself.  The technology has changed rapidly and they didn't know enough to know how in over their heads they were.  

I suspect this is something the legislature needs to work on, because we can't settle for amateurs doing the mapping and judging the maps next time.  We need people who are trained and experienced in this.  

You could tell by the level of detail Colligan went into.  It was a totally different kind of conversation than with the other witnesses and different from how the Board members talked about mapping.  You could also tell when Doyon attorney Tanner Amdur-Clark talked.  He too was very involved with the Doyon mapping and software.  This is like the difference between lay folks and doctors talking about medical issues.  

Should Local Areas Be Required To Submit Statewide Maps To Be Listened To By The Board?

This was a Valdez and a Mat-Su report.  The Board's attorney mocked is probably too strong a word, but was dismissive that Valdez submitted a map that only made appropriately sized districts for part of the state in the map they submitted to the Board.  "The Board has a responsibility to the whole state, not just your area."  Colligan said the same thing happened to Mat-Su who submitted maps for their districts.  

Colligan felt it was unfair to ask local areas to map out the whole state.  They should only be asked to do a map that shows their preferences and it's the Board's responsibility to do the whole state.  

I think this is an issue future Boards need to think carefully about.  It's expensive to hire experts to do a whole state map.  But I also understand it's easy to do one small area if you don't have to consider how it affects the rest of the state.  I raise here just to get it on the record for the future.  

Enough now.  It's late.  This isn't the he-said-she-said report of the trial, but I think it's just as meaningful if not more.  Take care.

AK Redistricting Board Trial Day 1 - Peeling Back The Layers

Anyone who is NOT confused by this case just isn't paying attention.  

You could read Matt Buxton's account of Friday's opening court date -and it's a good version - but there is so much happening, that 100 different reporters could have written equally good accounts that were all different.  

In part, because direct testimony in this case is not happening in open court.  That decision was made because of the ticking clock between now and the date by which candidates, who need to know what districts they're in, have to file to run for office..  The court's decision has to be in 120 days before that June 1 deadline.  That's January 31 or February 1.  

So I'm going to ask readers who haven't read Matt's account, to go read it.  That leaves me free to not try to give an overview, but rather to focus elsewhere. For instance, Matt wrote:

"The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony."

With no intent of contradicting Matt, I'd say the court spent an indecent amount of time on the rules of this trial. Maybe it's more obvious because in this trial the public was able to follow the wrangling in the pre-trial hearings - stuff we don't usually see in court.  I'm now thinking back to various screen court dramas.  I think most spend 99.9% of the time in open court, not in chambers arguing rules. Maybe some chamber time with the judge, but after the trial has already begun. Usually the judge is giving one party a stern warning about following the rules, not about what the rules are.

But it's become clear to me that that is where the real battle is here.  It's the rules the court ultimately follows that will decide the outcome of this case.  

Essentially, the plaintiffs are trying to expose how the board came to their decisions when they were drawing the lines.  The plaintiffs belief the Board members either had no documented reasons or had blatantly partisan reasons.  

For the most part, the Board's process was the most open in Alaska history.  Every meeting since at least December 2020 was available via phone or online.  The Board staff listened to suggestions about their website, quickly put up audio and video tapes of meetings, and worked to set up interactive programs that the public could use to make their own maps online.  They put up all the public testimony on the website in days.  

What didn't get up were transcripts of any of these meetings.  Video's nice, but searching keywords doesn't work. (Though the Assembly has a program where you can search keywords.)  The one area I'd found the Board a little loose on was Executive Session.  These seemed a bit too long to just be covering the official reasons for them. And often the list of reasons a board is allowed to go into ES was cited, but not the specific issue they were going to discuss.  

Well, despite all this openness, the battle now is between the plaintiffs trying to extract the reasons the Board made certain decisions and the defense trying to block them.  They've been asking for the Board meeting transcripts from last November's key meetings for a month now, but the Board only just got them out a few days ago.  They've been asking for the transcripts of the Board's emails to each other and the attorney for a month.  The Board's attorney Matt Singer has been fighting that request tooth and nail.  Even after the Judge ruled in favor the the plaintiffs - with the stipulation that the Judge would read them 'in camera' and decide which were and weren't protected by attorney-client privilege - Singer asked for a stay.  When that was rejected, he asked the Supreme Court for a stay.  They granted a stay, but it was short lived and in the afternoon before the case began, the Supreme Court upheld the Judge's ruling.  

But that meant that Holly Wells had to try her case without any of the information in those emails.  But the judge did allow that this is one big case and she hasn't closed her case yet.  It's still open pending those emails and what other things come up in trial.  Despite Singer's vigorous argument against that.  

There were three witnesses Friday.  Felisa Wilson is the lead plaintiff in the Anchorage case.  I couldn't tell if she said anything that isn't already on the record or not.  I say this because - as mentioned above - it's hard to know what is already on the record.  While the affidavits and depositions are now on the record, they've only recently been available.  In a normal trial, we would have heard direct testimony and what documents were submitted as evidence.  In this trial there are thousand of pages of transcripts, much of which has only appeared in the last week.  

David Dunsmore, worked with Alaskans for Fair Redistricting (AFFR) to come up with their third-party map and was deep in the weeds of this whole process.  Again I don't know that he revealed anything new.  They also had an expert witness.  It seems he did get a few points in about the demographics of East Anchorage and why pairing that district with ER would dilute their voting power.

The Board's lawyer, Singer, did everything he could to discredit the witnesses.  He pointed out that Wilson had been treasurer of the Democratic party, implying this made the lawsuit simply a partisan maneuver. She retorted that she was more than a temporary volunteer position she had only recently taken - that she was a physician, retired Air Force Major, an African-American, and a Blackfoot Sioux and when she retired from the military she got to do a lot of volunteer work she couldn't do while in the military including in immigrant neighborhoods of Anchorage, the ones that will be hurt by the Board's Senate pairings.  

Singer did the same with Dunsmore. You were a staffer to Democratic Sen Bill Wielechowski, right?  AFFR was a union organization right?  These kinds of guilt by association arguments might work at a jury trial, but I have confidence they won't sway Judge Matthews.  

He tried to deny the expert credentials of anthropologist Dr. Chase Hensel.  He asked him questions about things he either wasn't qualified to answer (the law) or aspects of the Anchorage maps he hadn't studied.  Hensel didn't fall into the traps.  These attacks on Hensel were particularly awkward because, as Mat-Su plaintiff's attorney got on the record, Matt Singer himself had himself hired Hensel as an expert witness for another Alaska case. 

I understand that attorneys try to diminish the creditability of opposing witnesses, but given that there is no jury here, these attacks were fairly transparent and seemed sleazy.  Singer had already seemed close to whining as he repeatedly complained about 'changing the rules at the last minute'.  

Singer is one attorney (plus the backups from his law firm) who is fighting off five other attorneys.  With just one opponent it's much easier.  But here, one attorney raises a point and debates with Singer, and then the next one picks it up and adds more ammunition, then the next.  The plaintiffs' attorneys each have one big day in court and the rest of the days they can sit back and just swoop in with question when an opportunity arises.  Singer has to be in the hot seat every day.  Maybe he should have given an associate responsibility for a couple of these cases so he could recoup.  

His main accomplishment has been to block the plaintiffs from getting information that would help them find out what the Board's logic was for the districts that are being challenged.  (Most of the house districts were discussed fairly openly.  But the Eagle River pairings- the most blatantly partisan action the Board approved - was not openly discussed. It was just ramrodded through.  The Valdez pairing with Matsu was briefly discussed in open, but it seemed to be, "Well we've got most everything else done, what do we do with Valdez?"  The options they discussed were pairing it with Anchorage or Mat-Su.  Since it's with Mat-Su now, that seemed the best to them. 

I'd note that Holly Wells had planned to cross examine Melanie Bahnke about the Eagle River pairing.  Board member Bahnke had flown in from Nome specifically for this.  But at the last minute, Wells decided not to cross Bahnke.  My rough notes include this:

"Singer:  I want to call member Bahnke and Borromeo is here.  Ms. Bahnke wants to go back to Nome.  

Wells:  I was hoping to take break given Mr. Singer’s comments.  Rather not call Board.  Nervous about that."

I didn't understand the issue, only that she didn't want to open things up for Singer to question the two Board members.  Later I found a "MOTION TO PRECLUDE REDIRECT QUESTIONING IN ABSENCE OF CROSS-EXAMINATION" that was submitted the evening before the trial was to begin. (It's still, as I write this Sunday evening,  the last document up for this case.)  It's in response to things Singer said in a meeting they had Thursday afternoon.  The part that seems to most succinctly explain her concern:  

"Plaintiffs indicated that they intended only to call three of the Board members, after which counsel for the Board informed the East Anchorage Plaintiffs that he intended to conduct a re-direct examination of all the Board members, regardless of whether the East Anchorage Plaintiffs intended to cross-examine them."

Another maneuver by Singer.  I don't deny that Singer's job is to defend his clients to the best of his ability.  But what is becoming clear is that his clients' case in the Senate Pairings is pretty weak.  His defense is not - at least in the East Anchorage case - to have his clients come to the stand and explain how they got to their decisions, but rather to keep the plaintiffs from getting to his clients.  

On the other hand, he belittles the work of the East Anchorage plaintiffs' expert witness.  That's ok except that the expert actually did some analysis of the districts, while the Board member who did the Eagle River pairings, Bethany Marcum,  used, in her own words, her opinion based on having lived in Eagle River.  No demographic analysis, no numbers on the comparative racial and ethnic make up or economic differences between the two house districts she paired up.  

The wrangling in this case tends to support those who argue that the US courts are not about justice, but about winning.  

Enough.  

 

Bahnke and Borromeo will be back for the other plaintiffs, but I'm not sure Wells will be able to get more about the Senate pairings from them.  

What's A Blogger To Do? Mat-Su Case Due Monday, But Haven't Yet Addressed Friday's East Anchorage Case

 Thoughts and ideas are sloshing back and forth in my head like waves racing up the beach, that quickly sliding back down into the ocean.  And it seems the facts and actions in the combined Redistricting cases are as easy to describe as the constantly moving surf.  

So, let's hold off on Friday's hearing.  You can read Matt Buxton's account here which captures much of what you should know.   

To prep for the Mat-Su case, here's the Board's final map of the Matsu districts.  Districts 25, 26, 27, and 28 are shown completely, but 29 and 30 are cut off.  You can't, for example see that Valdez is part of 29 or that 30 includes Denali National Park but not Cantwell.  It's best to use the Board's interactive state map here.

So let's at least get a sense of what Mat-Su is complaining about and wants.  You can see their suit here - it's ten pages, not too bad.    I've tried to pull out the key points they're making from a section called "Counts".

Valdez Case Connected
I'd also note that the Mat-Su case is paired in trial with the Valdez case - both locations don't like being paired with each other.  I've done two posts on the Valdez case which you can see here (Part 1) and here (Part 2).

Mat-Su has two counts:

• Equal Protection
• In this one they point out the Federal requirement that the districts be as equal in population as possible and that the Mat-Su as a whole is over-populated, that is their districts have more people than the perfect size district of 18,335 residents. (State population as of official 2020 census/40 house districts.)  
• The plaintiffs claim that the six Mat-Su districts "Combined, the total overpopulation of the districts is 13.75 percent."  The problem here is that they are adding the percent above the ideal for each district.  That doesn't make sense with percents, because percent is district size/ideal size.  If you have two districts you have to calculate 2 districts/2*ideal size, etc.  The chart does that for each district and then shows the total percent over for all six districts - 2.3, not 13.75.  

  
  

  District	Over or under	Total Pop	Ideal Pop	% above/ Below
  25-M	487	18,822	18,335	2.66
  26-M	472	18,807	18,335	2.58
  27-N	464	18,799	18,335	2.53
  28-N	458	18,793	18,335	2.50
  29-O	438	18,773	18,335	2.39
  30-O	201	18,536	18,335	1.1
  Totals	2520	112,530	110,010	2.3

  Looking at the chart, when you add the six districts and divide their total population (112,530) by the ideal size for six districts (110,010), the percent is 2.3 over the ideal size for all six Mat-Su districts combined.  That's well within the parameters for redistricting in non-urban areas.  
• One could argue that the smaller, more urban districts like Palmer (D-28) and Wasilla (D-27) should have lower deviations than the much larger and more sparsely populated D-30.  That might raise a question or two about the overpopulation of all the Mat-Su districts.  But the claim of them being 13.75% above the ideal is a specious argument.  If they really were that high, they would be automatically ruled unconstitutional because the greatest difference allowable between the lowest under populated district and the highest overpopulated district statewide is 10%.  
• District Boundaries - Here they argue the constitutional requirements of compactness, contiguity, and socio-economically integrated.  The Valdez plaintiffs, in their challenge, make a strong argument about socio-economic integrity in their long list of how Valdez is tied in with the Richardson Highway communities.  Compactness gets squirrelly when we get into rural Alaskan districts because of the sparsely populated areas.  But I think contiguity is an important factor is this case.  Valdez is connected by road to Palmer, but you can't drive from Valdez to Palmer without going outside the district.  Yes, they are contiguous by roadless, unpopulated, land, but not by road.  The courts have accepted contiguity in rural Alaska where communities are not connected by road.  But that's been in areas where there are NO roads at all between communities.  In this case there is a road that connects Valdez to a number of communities they have much closer ties to than to Mat-Su.  Valdez residents have to drive through another, much closer, district to get to the Mat-Su part of their district. This is also part of the argument in the East Anchorage case where this is an even more extreme example of using geographic contiguity to connect districts that are actually far apart.  

From Mat-Su's complaint:

"COUNTS COUNT I – EQUAL PROTECTION Paragraphs 1 through 36 are incorporated herein as if fully set forth. The Fourteenth Amendment to the United States Constitution provides that the State shall not deny any person within its jurisdiction the equal protection of the laws. 39. Article I, Section 1 of the Alaska Constitution provides that all persons are equal and entitled to equal rights and protection under the law. 40. The Final Plan violates the equal protection clauses of the United States and Alaska Constitutions. 41. The Board's plan unnecessarily divides the excess population of the MSB in a way that dilutes the effective strength of municipal voters, including by placing them in districts centered elsewhere and that have different social and political concerns; ignoring traditional senate configurations; and, failing to respect political subdivision boundaries and communities of interest, thereby depriving its citizens the right to be an equally powerful and geographically effective vote, all of which is in violation of the equal protection clauses of the United States and Alaska Constitutions. 42. The Final Plan overpopulates each of the six House Districts within the MSB in an excessive amount and out of proportion with the remainder of the State of Alaska, demonstrating that the Board failed to apply the quotient in a practicable fashion in violation of the equal protection clauses of the United States and Alaska Constitutions. COUNT II – DISTRICT BOUNDARIES 43. Paragraphs 1 through 42 are incorporated herein as if fully set forth.

44. Article VI, Section 6 of the Alaska Constitution provides the requirements for each House District. They are to be compact, contiguous, and contain as nearly as practicable a relatively integrated socioeconomic area, and consideration may be given to local government boundaries. Each must contain a population as near as practicable to the quotient obtained by dividing the population of the State by forty. Additionally, drainage and other geographic features shall be used in describing boundaries wherever possible.

45. The Final Plan violates Article VI, Section 6 of the Alaska Constitution.

46. The Final Plan overpopulates each of the six House Districts within the MSB inan excessive amount and out of proportion with the remainder of the State of Alaska, demonstrating that the Board failed to apply the quotient in a practicable fashion in violation of Article VI, Section 6 of the Alaska Constitution.

47. House Districts, including but not limited to, 29, 30 and 36 as included in the Final Plan violate Article VI, Section 6 of the Alaska Constitution, as the House Districts are not compact, contiguous, do not contain as nearly as practicable a relatively integrated socioeconomic area, nor do they consider local government boundaries."

My Conclusions  

Valdez is a tricky community to deal with in redistricting.  Its location and size make it hard to add to any district without doing some sort of stretching of the constitutional criteria.  I think Valdez made a strong case for it being with the Richardson highway communities, but that leaves Mat-Su with a partial district that needs to be paired with something.  I think the lack of road contiguity is also a big issue.  

I also get pretty suspicious of parties who make misleading arguments - like the claim that Mat-Su is 13.75% over populated.  Either they can't do the math or they're being disingenuous. Either case is bad, but shouldn't prevent the court from weighing the rest of their arguments.  

If this Valdez-Mat-Su house district is rejected by the courts, there will be a ripple effect as the Board has to find ways to make other districts that are reasonably sized and are compact, etc. 

Alaska districts are a balancing act and the courts will have to decide whether the arguments here are compelling, whether there are better alternatives, and how disruptive it would be to tell the Board to go back and draw a better map.  

Blacks Targeted On TikTok

 I was talking to an African-American friend today (who is also very much an American, by the way) who told me his TikTok account has been hampered by bots who target his messages that use words like 'white' as violating TikTok rules and it's taking just too much time to fight this.  

I don't use TikTok - I have enough online distractions so I've limited myself - so I wasn't aware of this issue.  But it seems to be longstanding and I'm guessing it's a well organized campaign - like the CRT nonsense - to suppress black voices.  From the people who use terms like 'cancel culture' to accuse others of doing what they themselves are actively doing.  

From a  July 2021 NBC piece:

"Tyler tried a number of phrases, including ones declaring his support for “Black Lives Matter,” “black people,” “black voices” and “black success,” and simply stating “I am a black man” — all of which would immediately trigger a pop-up message prompting him to “remove any inappropriate content.”

But putting “supporting white supremacy” or "supporting white success” in his bio did not prompt the same inappropriate content message. Neither did 'I am a neo-Nazi.'”

It says TikTok apologized, but it's clearly an ongoing problem for my friend.  

Here's a TIME article almost exactly one year before this article on the same issue, just to show its ongoing.   

From a January 2022 article at Insider, we can see the source of the problem my friend was reporting: 

"TikTok told Insider that all of the content cited in the Media Matters study was removed from the platform for violating its hateful behavior policy. Additionally, the company outlined anti-abuse efforts that it has built into its product, including its addition of new controls that allow users to delete or report multiple comments at once and block accounts in bulk."

My friend was reporting what he called bot accounts that would report comments with the word "white" as violations and TikTok would remove them.    Here's a message he got from someone who reported him to TikTok and got things taken down.   

This is, presumably, a white guy telling a black guy he's being racist for talking about white racism.

I'd note that for TikTok content creators with tens of thousands of followers, their income stream is  cut way back when their content is blocked.  

From a December 2021 NYTimes article specifically on the TikTok algorithm :

"the app is shockingly good at reading your preferences and steering you to one of its many “sides,” whether you’re interested in socialism or Excel tips or sex, conservative politics or a specific celebrity. It’s astonishingly good at revealing people’s desires even to themselves — “The TikTok Algorithm Knew My Sexuality Better Than I Did,” reads one in a series of headlines about people marveling at the app’s X-ray of their inner lives."

This article focuses on how the algorithm addicts users and the information it collects on users as the paragraph above indicates.  This leads to concerns about national security because of TikTok's Chinese origin.  It doesn't discuss how the algorithm determines inappropriate content.  

So, this is just a heads up for people like me who only see TikTok videos when they are reposted in other social media.  African-Americans appear to be targeted and their messages are getting censored.  My friend's issues were about using words like 'white' and having people complain to TikTok and getting things blocked.  

Your Crib Sheet For Friday's Opening Day Of The Alaska Redistricting Trial

 There were originally five separate cases (links go to the original legal complaints):

• East Anchorage challenged over the Eagle River senate pairings
• Mat-Su challenged over being put into a district with Valdez
• Valdez challenged over being put into a house district with Mat-Su and separated from the nearby communities along the Richardson Highway
• Calista challenged over  Hooper Bay, Scammon Bay, and Chevak being put in a House district separate from that of the City of Bethel.
• Skagway challenged over being paired with the Mendenhall Valley rather than downtown Juneau

The five cases were consolidated into one case.  But the plaintiffs, the Board, and the judge all agreed to have them tried separately to make it easier to keep the issues clear and to establish a record for the appellate court.  Later, they also agreed to have Mat-Su and Valdez combine because the issues are the same and to eliminate repetition of witnesses and testimony.  So that's where we are today.  

The cases will be heard in court in the order I've listed them.  So we start tomorrow and 8:30am Alaska time.  You can listen in on Judge Thomas Matthews' Youtube channel.

Different from most trials, the opening arguments and direct testimony (original questioning of the witness in the court room) was done in writing and submitted to the court before the trial.  This was done to save time because the case has to be done 120 days before the date candidates have to file to run for office - June 1. That is the end of January.  

So, since you won't hear the opening argument in court, I'm going to give you the opening parts of it and if you want to see the rest, you can see the East Anchorage pre-trial brief and opening statement here.   I'd note the lead attorney in this case is Holly Wells of the law firm Birch Horton Bittner & Cherot.  She has done many workshops for state boards on how to comply with the public meetings law in Alaska.  She's also been one of the most succinct and on point attorneys in the pre-trial hearings.  

"I. OPENING STATEMENT

“The goal of an apportionment plan is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation.” Hickel v. Southeast Conference.1 The Alaska Supreme Court in Hickel v. Southeast Conference reminded Alaska’s leaders:

in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving true representation, which, of course, is the very cornerstone of a democratic government.”2

The East Anchorage Plaintiffs will present this Court with substantial evidence that the Board systematically deprived the voters in the East Anchorage communities of interest adequate and true representation in the Alaska State Senate. The evidence will demonstrate that the pairing of House District 21 with House District 22 and House District 23 with House District 24 was arbitrary, unreasonable, and in direct violation of the due process clause of the Alaska Constitution. Both the record and testimony will demonstrate that the Board’s process and procedure regarding the senate pairings violated Art. VI, Section 10 of the Alaska Constitution as well as the Alaska Open

1

846 P.2d 38 (Alaska 1993).

Hickel, 846 P.2d at 44 (quoting from 3 Proceedings of the ConstitutionalIN THE MATTER OF THE 2021 REDISTRICTING PLAN CASE NO. 3AN-21-08869CI

EAST ANCHORAGE’S PRETRIAL BRIEF/OPENING STATEMENT PAGE 2 OF 2401163926.DOCX

2
Convention (PACC) 1835 (January 11, 1956)).

Meetings Act.3 The East Anchorage Plaintiffs will submit evidence both from the record and testimony demonstrating that Board members intentionally misrepresented their considerations of partisan motivations, misrepresented their use of partisan data to select their pairings, concealed their analysis of the risk of dilution in the districts at issue on the basis of race and minority status, misconstrued testimony by East Anchorage community members to serve their impermissible objective, and held secret deliberations and meetings to veil their partisan and discriminatory goals. The evidence will demonstrate that the Board’s intentional pairing of Eagle River districts with East Anchorage Districts favored one geographical area, community of interest, and political party over another despite overwhelming testimony from both communities detailing their lack of shared interests, goals, and commonalities before the Board, and reiterated by East Anchorage witnesses from Eagle River and East Anchorage alike.

Upholding the adopted senate pairings not only muffles the voices of East Anchorage communities of interest, as so aptly stated by Board member Melanie Bahnke, it would confirm for future boards that partisanship and discrimination are “fair game” in the senate pairing realm. Under the underlying principles of the redistricting process, the Alaska Constitution, and the most basic tenets of fairness, the Board’s pairing of the South Muldoon and Eagle River Valley house districts and the pairing of the Government Hill/JBER/Northeast Anchorage and North Eagle River/Chugach house districts cannot stand.

And from Part B:

More specifically,  the evidence will demonstrate the following impermissible Board actions:

1. Holding executive sessions that are not permitted under the Open Meetings  Act (AS 44.62.310, et.seq.);
2. Adopting final senate pairings that were not presented to the public during the public hearing process in violation of Article VI, Section 10 of the Alaska Constitution;
3. Adopting final senate pairings that were not developed in accordance with the guidelines adopted by the Board for development of its final pairings;
4. Adopting senate pairings which the public did not have access to view;
5. Adopting final senate pairings that were not one of the senate pairings options published by the Board for public comment and testimony; and
6. Adopting pairings without regard to public testimony or relying upon misrepresentation of public testimony to justify pairings.

Don't assume this is a slam dunk.  The Board's attorney has done a great job of blocking access to Board members - having them cite attorney-client privilege for many questions during depositions.  He's also managed to delay the plaintiffs' access to transcripts of Board meetings.  He says this is due to the transcription service, but as I watch, the cumulative effect is keeping information from the plaintiffs.  

But I would add for point number 4 here that in neither the initial Board plans nor the modified plans that showed all the House seats, did the Board include Senate pairings.  On the other hand, all the third party submissions did include Senate pairings.  

See you all in court tomorrow.  

[UPDATED January 21, 2022, 10:30pm:  I didn't mean to leave this part (Conclusions) in here.  It was something I'd started on, but decided to put elsewhere and it interrupts the flow of the plaintiffs argument.  Since a number of folks have already seen it, I'll leave it here, but move it down to the end.  My rule is that I can make minor non-substantive corrections but not substantive ones more than an hour after posting, so I'll leave this here.] 

Conclusions:

I'm sticking my neck out here making conclusions before the trial even starts, but this has been a rare opportunity to hear all the pretrial wrangling of the attorneys.  Since this is not a jury trial, no one had to worry about potential jurors listening in.  

Essentially, Singer has been arguing about process and procedure.  He's acted confident in the way he spoke that there was [no] other correct position than his own on attorney-client privilege.  He called the plaintiffs' arguments 'laughable.'  He's stalled in getting the transcripts from the November board meetings to the plaintiff's attorneys.  The plaintiffs' attorneys didn't have that information or the affidavits when the deposed Board members and other witnesses.  He's blamed the transcription service for some of the delays.  He's blamed all the paperwork he needs to get into the court for other delays.  And, that point has some merit.  He's got five separate attorneys filing requests and motions and he has to respond to them all.  But in his firm's proposal to be the attorney for the Board, they talked about all the lawyers who would be available to back him up."

AK Redistricting Pre-Trial Hearing - Board Strategy Is Clear And Working

Another 90 minutes or so of five plaintiffs, an intervenor, a defendant, and a judge wrangling over the rules, less than two days before the trial begins.  [NOTE:  My quotes from the hearing are based on my faulty fingers trying to keep up with the speakers and don't represent verbatim quotes, but do give a sense of what was argued.]

Biggest news:  The Supreme Court overturned Judge Matthews' denial of the Board's request for a stay in turning over the emails between the Board members and their attorney.  Matthews had granted the Anchorage plaintiffs' request that Matthews review the documents to determine if they really have legitimate attorney-client privilege content.  The Board's attorney had asked for a stay and Matthews had rejected that request because the trial is so near and the plaintiffs don't have much time left.  Singer, the Board's attorney had agreed to deliver to the court a thumb drive with the documents after the judge promised that he wouldn't look at them if the Supreme Court ordered a stay.  Then a little later, during the meeting, they did.   Both Singer and Matthews said they expect a decision tomorrow.  

Observation:  It's gotten clearer and clearer that the Board's attorney's strategy has been to keep the plaintiffs from getting the information that they need.  The plaintiffs have been asking for these emails for a month now and when they are finally delivered to the judge the Supreme Court puts a stay on them.  Even if the Supreme Court lifts the stay and agrees with the judge's order, it's getting a little late for the plaintiffs to use the information.  The Anchorage part of the trial (over the Eagle River Senate pairings) will be Friday.  Aside from everything else the judge has to do in preparation, he may also have to read the emails - though they've been narrowed down to around 200 specific ones.  And then decide which to release.  And then get them to the attorneys.  

From what I understand of the discussion today and previous hearings, Singer has limited what information the plaintiffs' attorneys could get from the Board members.  He's done this through offering affidavits from the Board members in response to some of the attorneys.  Others have been able to get depositions.  Affidavits are where the witness writes up a statement.  I've read several that are posted for this trial.  They say very little.  In other cases, where there were depositions, Singer has told the Board members to refuse to answer many of the questions based on Attorney-Client privilege.  Last week when Holly Wells, the attorney for the Anchorage plaintiffs, raised this point while arguing that the attorney-client privilege claims were too broad, Singer said that they could ask the question in court and the judge would decide if they should answer the questions.  

But today he protested those same attorneys wanting to question the Board members.  From my notes: 

"Plaintiffs are trying to amend the process at the last minute before the trial.  It was very clear.  No one has right to do direct testimony.  We get the same right as any other party about who to call and defend these cases.  These folks have jobs and other commitments.  Changing the rules of the game 24 hours before the trial.  They asked for 5 separate trials and now they want a free for all for any lawyer asking questions at any case."

There's a lot packed into that.  First there's the bravado.  Singer is good at that.  It wasn't apparent at the Board meetings, but he throws out claims like "changing the rules at the last minute" with ease.  He made that point several times.  Let's try to unpack that a bit.  

1.  Direct Testimony at trial. "No one has a right to do direct testimony."  Yes, but no.  They had agreed that direct testimony would be through the depositions and affidavits in the discovery phase and in the courtroom, they would do cross exams.  To that end all the depositions and affidavits are on the record.  But Wells had argued that when she deposed Board members, Singer advised them not to answer because of attorney-client privilege.  She said that she'd agreed to only cross exams in the trial before she did the depositions and found out that they would not answer - so she has to do direct questioning in the trial because there isn't any basis for cross exams.  

Singer: I acknowledge, none of those witnesses have anything against that case   Ms. Wells has their affidavits.  I have no obligations to provide those witnesses.  We decided on which board member to offer for which case.

Wells:  Our position is intact. A board makes decisions as a Board, they did submit affidavits and goes to their ????

Singer:  Opportunity to do direct - that’s inconsistent from pre-trial from day one.  Solution - eight/nine hours of deposition from Borromeo.  That’s the way to present testimony.  Budd Simpson will be here Friday.  He’s offered on this.  [NOTE: Yes, Borromeo has lots of deposition time, but it's for the Valdez and Mat-Su cases that she worked on and agrees with the Board decision and not the Anchorage case on which she strongly disagreed with the Board majority.]

Wells:  All Board members are on our witness list and stay in the confines of the affidavit they submitted.  

And a little later

"Singer:  Plaintiffs trying to amend the process at the last minute before the trial.  It was very clear.  No one has right to do direct testimony.  We get same right as any other party  - who to call and defend these cases."  

Singer has done a good job of blocking the plaintiffs from getting the information they need.  Transcripts of Board meeting last November only showed up last week.  He's also claimed a very broad attorney-client privilege right to keep the plaintiffs from getting testimony. [I've discussed attorney-client privilege at more length in the last two posts - here and here.]  

At a previous hearing Wells complained that there was no direct testimony to cross examine because Singer had the Board members refuse to answer based on attorney-client privilege.  Then, Singer said something like, "You can ask your questions at the trial and the judge can decide if something is privileged or not."  Now he seems to have conveniently forgotten that offer.  But Judge Matthews didn't forget and raised that and said that's how it will go.  

In addition the transcripts from the Board meetings are part of the record and Board member Borromeo said then that the decision was unconstitutional and she couldn't wait to be deposed.  I guess Wells can ask her what she meant by that.  

The judge allowed that he'd call it as it comes along.   

2.  Trial Order.  Brenna had said that he thought they'd change the order of the cases when he (the Valdez case) and Mat-Su agreed to combine their cases since Mat-Su is complaining that Valdez is in one of their districts and Valdez is complaining that they were paired with Mat-Su.  But no one else except Mat-Su's attorney had that understanding - that they would go last.  I'm guessing that Valdez and Mat-Su, meeting together to discuss how to work jointly, agreed, but failed to adequately inform the others and get it approved.  In the end they agreed to the original order:

1.  East Anchorage case (the same thing I keep calling the Anchorage case)

2.  Mat-Su

3. Valdez

4. Intervenors - intervening on behalf of the Board 

5. Calista

6. Skagawy

3.  Separation of cases and whether attorneys can cross examine witnesses for the other cases.There was some squabble by Singer over comments by plaintiffs' attorneys saying they may want to question Board members as they come up as witnesses in other parts of the trial.  

"Singer: These folks [Board members and other witnesses] have jobs and other commitments.  Now we're changing the rules of the game 24 hours before the trial.  They asked for 5 separate trials and now they want a free for all for any lawyer asking questions at any case."

There were five separate cases filed against the Board.  The court consolidated all five cases into one case.  And they agreed early on that instead of one big case - which might be hard to organize and would leave a confusing record for the Supreme Court - it would be easier to try each case one by one.  The judge allotted two days for each case - one day for the plaintiffs and one for the defense. 

Then they further agreed since the Mat-Su and Valdez cases were about the same issues and would have the same witnesses giving the same testimony, to combine them, the judge allowing the two attorneys to work out how they would schedule.  

 In response to Singer's free-for-all comment Wells said:

"This is still a consolidated case, Pretrial clear.  This is one case with evidence taken at several times.  Not five distinct trials with distinct findings.  Much more important that case remains consolidated.  We will rely on the whole case for final argument.  I want that distinction to be clear."

Judge Matthews, after listening a while, said that things would be fluid.  

"Matthews:  A touchy subject for everyone.  Court’s function is to make the best possible decisions I can.  You all are shaping the testimony.  I’ve been given a hybrid case - but it may well be I’m listening to witnesses and if I don’t hear an answer to a question I need, I’ll ask that question.  If affidavits of Board members weren’t available before  Plaintiffs were allowed to get affidavit from Board members. . .  Plaintiffs have listed some or all of the Board members as witnesses.  These witnesses are important to the decision the court has to make.  I’m going to hone in on Bahnke and Borromeo, and I won’t stop cross even if there is no direct testimony.  Second question with privilege assertion - if there are questions that weren’t allowed at the time, if the Supreme Court allows it, I’ll allow the questions."

4.  Time 

As people were asked about how much time they would need, it sounded like they thought the trial would take less time than anticipated. Singer said he didn't plan to spend much time cross examining  the Anchorage lay witnesses, but more time - perhaps an hour or so for the expert witness.  And Wells seemed to think she could do things in half a day and so the Anchorage trial would be over in one day, not two.  That even led to a request to start on Monday, but the judge resisted, saying witnesses already had travel plans and there was also concern about it getting tight on the other end. But this was a heads up that the trial could shorter.  

Final Thoughts

Essentially, Matt Singer, the Board's attorney, has been arguing about process and procedure. He's the defense attorney and he's been defensive.  He's been doing a lot of blocking 

He's acted confident in the way he spoke that there was no other correct position than his own on attorney-client privilege.  He called the plaintiffs' arguments 'laughable.'  He's stalled in getting the transcripts from the November board meetings to the plaintiff's attorneys.  He's used attorney-client privilege to block Board members from saying much in some depositions. The plaintiffs' attorneys didn't have the Board meeting transcripts or the affidavits when the deposed Board members and other witnesses.  He's blamed the transcription service for some of the delays.  He's blamed all the paperwork he needs to get into the court for other delays.  And, that point has some merit.  He's got five separate attorneys filing requests and motions and he has to respond to them all.  But in his firm's proposal to be the attorney for the Board, they talked about all the lawyers who would be available to back him up.

In a normal two party court case, there would be two lawyers duking it out of these rules.  But here, when one is finished, another jumps in, and then another.  

The most focused and on-point attorney appears to me to be Holly Wells, the attorney for the Anchorage plaintiffs.  She keeps her comments short and to the point and cites relevant laws succinctly.  Robin Brena, the attorney for both the Valdez and Skagway cases, is a bit talkative, but he does make important points.  The other attorneys have said much less.  

Attorney - Client Privilege: Thoughts Sparked By Redistricting Board Law Suit

Observation:  If you look at all the filings on this case  you'll see they're coming in at great speed.  The judge and the defendant (the Board) have to read them all.  All this is preface to this post and the fact that as I finally get this up, 

• the judge has already ruled in favor of the plaintiffs on attorney-client privilege
• the Board has requested a stay
• the judge has denied the stay

It's great that the court is posting these documents so quickly - the denial of the stay was signed and posted today.  But that means my post on attorney-client privilege is a little behind the times.  Nevertheless, it still has general relevance.  So here it is:

The Alaska Redistricting Board attorney claimed a very broad interpretation of Attorney-Client Privilege (ACP here).  

The Plaintiffs claimed that the Board made decisions out of the view of the public - the Anchorage plaintiffs say this about the Eagle River Senate pairings, the Valdez plaintiffs and Mat-Su plaintiffs say this about the decision to put Valdez in a Mat-Su district - and so they want to know what happened at the lengthy Executive Sessions held the last week of the proclamation process.  They also want to see what the attorney told the Board members in emails.  

The plaintiffs were not willing to let the Board attorney decide which emails were privileged and which weren't.  They wanted the judge to let them have all the emails with the caveat they are all confidential until they are approved to be used.  

The Board attorney strongly disagreed.  He said this would be a massive abuse of ACP and damage future Redistricting Boards if members can't speak with their attorney in confidence.  He's said they've gone through as many as they could, but there are thousands of emails and it takes time they don't have as they do depositions and respond to requests from the judge and the plaintiffs and prepare for trial.  Two of the plaintiffs said they got caches of email the morning of the Sunday hearing.  But there were still problems and redactions.  

Here's Valdez and Skagway attorney Robin Brena showing pages of redactions at the Sunday hearing.

Sunday's hearing was about whether the judge should get the emails and review them.  It also spilled into what would happen in trial when Board members were asked about how and why they made certain decisions.  Anchorage plaintiffs' attorney, Holly Wells, said that when she asked those question in deposition, the Board's attorney, Matt Singer, told them not to answer because of ACP.  Wells wanted to know if that was going to happen in trial.  Singer responded that the judge will have to decide if they can answer.  

A big chunk of Sunrday's pre-trial hearing was devoted to ACP.  Board attorney Singer argued for an extreme, no exceptions interpretation - citing a federal case where a man committed suicide not long after talking to an attorney and the US Supreeme Court ruled ACP is still valid after death.  

Valdez plaintiffs' attorney Robin Brena, Mat-Su plaintiffs' attorney Stacey Stone, and Anchorage plaintiff's attorney Holly Wells  all argued for a much more restricted  application, especially when applied to a a public body.  Wells has given Open Meetings Act training to state boards and commissions which includes instruction of the limits of the Executive Session for such bodies.  

Wells pointed out that with public boards there is even a question of who the client is - the Board, the individual Board member, the State, the Public?  With a background in public administration, I had similar thoughts.  

The Board's attorney, Singer, called such claims 'laughable'.  Wells responded that Singer's claims  "were misrepresentations of the law and extremely inaccurate."

The judge tried to referee this as neutrally and diplomatically as he could, not tipping his hand - at least not to this non-lawyer - but he did make sure that Singer had all the emails on a thumb-drive ready for him should he decide he wants to review them.  [I shake my head in wonder as consider how the judge is going to find time to review them all.  The tradeoff between getting work done, getting sleep, and being awake and sharp in court is vicious in this rushed process.)

My quick review of on-line explanations of ACP suggest that Singer has stretched the concept way beyond what is commonly accepted.  His demeanor at the hearing was dismissive, that this was all well trodden legal ground.  He laughed and acted as if the plaintiffs' attorneys were just making up legal theory out of thin air. 

I did some checking on Attorney-Client Privilege based on that, I'm guessing the Board's attorney Matt Singer's case is not that strong.  

Here are some things I found:

From Law Practice CLE  

Singer argued that ACP was sacred and couldn't be breached.

And this from the same CLE source seems relevant here.

THE ADVICE OF COUNSEL EXCEPTION

• The advice of counsel exception is designed to prevent a party in litigation from using the attorney-client privilege as a mechanism "to prejudice his opponent's case or to disclose some selected communications for self- serving purposes"

• Attorney-client privilege is a shield not a sword

This Photo by Unknown Author is licensed

A question the judge has to decide on is whether the Board is using Attorney-Client privilege   "to prejudice his client's case."

Additional questions I had included:

Does it protect the client or the attorney?  From what I can tell online, it clearly protects the client, not the attorney.  If that's the case, why did Singer argue that future law firms are going to be wary about working for the Board if their communications are all public.  (No one said all, and all parties agreed that confidential information should be redacted.)

What kinds of communications are protected?  Another source says things like legal advice is protected, but not business advice.  How do you make those distinctions here?  The Board is getting legal advice in the sense that the attorney is interpreting laws and court rulings regarding how districts can be drawn.  But he's not giving them legal advice to help them personally avoid legal consequences.  If he says one choice for drawing district lines is more likely to pass the Supreme Court's scrutiny, is that business advice or legal advice? It would appear that advising the Board on options based on the attorney's legal knowledge would be covered as legal advice, at least according to this decision:

"It is hoped that legal considerations will play a role in governmental policymaking. When a lawyer has been asked to assess compliance with a legal obligation, the lawyer’s recommendation of a policy that complies (or better complies) with the legal obligation– or that advocates and promotes compliance, or oversees implementation of compliance measures–is legal advice. Public officials who craft policies that may directly implicate the legal rights or responsibilities of the public should be encouraged to seek out and receive fully informed legal advice in the course of formulating such policies....26"

But this trial is about whether the Board's Proclamation plan was prepared legally and whether the outcome is legal.  None of the Board members is threatened personally with consequences other than having to go back and redo the plan based on the court's instructions.  

Singer rejected the Alaska Open Meeting Law as pretty much irrelevant here.  

Here's the part about Executive Sessions.

Alaska Public Meetings Law  https://codes.findlaw.com/ak/title-44-state-government/ak-st-sect-44-62-310.html

(b) If permitted subjects are to be discussed at a meeting in executive session, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that are listed in (c) of this section shall be determined by a majority vote of the governmental body.  The motion to convene in executive session must clearly and with specificity describe the subject of the proposed executive session without defeating the purpose of addressing the subject in private.  Subjects may not be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question.  Action may not be taken at an executive session, except to give direction to an attorney or labor negotiator regarding the handling of a specific legal matter or pending labor negotiations.

(c) The following subjects may be considered in an executive session:

(1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the public entity;

(2) subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion;

(3) matters which by law, municipal charter, or ordinance are required to be confidential;

(4) matters involving consideration of government records that by law are not subject to public disclosure.

(d) This section does not apply to  [None of these are relevant, but you can go to the link to double check.]

 

From a guide to the Alaska Open Meetings Law by Gordon Tans, specifically on the question of Attorney-Client Privilege:

6. Attorney-client privilege

Under limited circumstances communications between a governmental body and its attorney qualify for executive session treatment, according to Cool Homes, Inc. v. Fairbanks North Star Borough.92 This exception is based on the attorney-client privilege, but for Open Meetings Act purposes, the privilege is defined narrowly.

This executive session exception is not available for general legal advice or opinion. It applies only when the revelation of the communication will injure the public interest or there is some other recognized purpose in keeping the communication confidential. It is not even enough that the public body is involved in pending litigation.93 Rather, the specific communication must be one that the confidentiality rationale for the privilege deems worthy of protection. The court cited a number of examples of attorney-client communications that might qualify for executive sessions: candid discussions of facts and litigation strategies; a conference on a decision to appeal; a conference about settlement; and advice about how a body and its members might avoid legal liability. A discussion generally about the "ins and outs and status" of litigation, and "what has happened in the year . . . as to court findings" did not qualify for executive session.94

It does seem the plaintiffs' arguments that the Board has interpreted when they need to be in Executive Session a little broadly and also they were a bit sloppy in what they said before going into Executive Session.  

It's time to pick up my granddaughter from school so I'll end this here.  There's another preheating at 4pm this afternoon (Alaska Time).  

Other opinions

1.  For public boards - especially school boards.

"Confidentiality is the cornerstone of the lawyer-client relationship. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.1 Its availability to public sector clients has been widely assumed, but only recently have courts and scholars begun to focus squarely on whether the privilege exists, and the special obligations placed on government lawyers."

2,  For split boards - particularly school boards  https://cdn-files.nsba.org/s3fs-public/Legal_Ethics_Rubin_Bennett.pdf

Attorney-Client Privilege

"A board attorney’s allegiance to a majority faction also implicates the attorney-client privilege, when the board majority pressures the attorney not to share their communications with the minority. Although the case law remains sparse, the weight of authority holds that public entities do enjoy an attorney-client privilege,13 which may be asserted or waived only by the entity itself through those authorized to do so on its behalf.14 Since the board attorney’s client is certainly not the majority faction but the board as a whole, there is no legal authority that would permit the attorney to deny the board minority access to this information." 

In a Sixth Circuit case,15 a city and its former police director were defendants in a § 1983 failure-to-promote case. When the police director asserted qualified immunity, relying on legal advice he had received from the city’s attorneys, the city objected to the attorneys’ depositions on the ground that there was an attorney-client privilege that only the city could waive. The court found that the police director had no standing to waive the city’s attorney-client privilege, even if revealing those communications was essential to his defense.

A Washington federal court rejected a federal agency officer’s claim of attorney-client privilege, in a challenge to an indictment based on the testimony of two agency lawyers who revealed communications he had with them concerning the behavior giving rise to the charges.16 The court rejected the official’s claim of privilege because he was not the “true client,” even though he was communicating with the attorneys with the expectation of confidentiality. The agency was the client and, as such, the only party with standing to invoke or waive the privilege.