AK Redistricting Board: The First Trial Is Over

[See message from Board Executive Director which arrived just after I posted this. At bottom]

So how should I do this?  There were five cases.  The Board had to respond to all of them.  Board attorney Singer responded to all of them except the Calista case which he delegated to Lee Baxter. 

Robin Brena was the attorney for two cases - Valdez and Skagway.  Stacey Stone for Valdez' partner case Mat-Su.  Holly Wells for East Anchorage, and Michael Schechter for Calista.  

I was hoping the closing arguments would be posted online and I could just direct you there for the details of the arguments.  But they aren't up and I doubt they'll be up before Monday if then.  The Findings of Facts and of Law are all up which is a general guide to what was said in the closing arguments.  

• Findings of Fact and Conclusions of Law

• East Anchorage Plaintiffs >
• Mat-Su Borough Plaintiffs >
• Valdez Plaintiffs >
• Calista Plaintiffs >
• Skagway Plaintiffs >
  
• Intervenor Defendants >
• Alaska Redistricting Board >

[I originally linked to the Court page with these documents, but the Board has put them on their page and I think that will be more permanent.  They've talked of preserving it, unlike the last Board website.]

There were lots of things here to talk about.  One biggie is how ridiculous and how useful the adversarial process is.  Silly because attorneys fight hard to defend the indefensible, but useful because so many important points get out and rebutted.  And this seems like a very conscientious and thoughtful judge.  The grandstanding some did, that might work (or backfire) in front of a jury is irrelevant, because the judge, this judge, seems to see through it.  He was gracious to all the attorneys and court staff and whatever he decides will be thoughtful.  The biggest obstacle for him is time - time to read through everything, time to write up his findings.  

But let me try to wing it here and just talk about a couple things that caught my attention. 

I wasn't impressed with  East Anchorage's Holly Wells' presentation.  I'd expected it to clearly identify legal criteria and then show how the Board missed them.  It was less organized than that.  But I missed the first few minutes of Wells' presenting her case - I had the video ready, but must have hit the stop button. 

So I went back to see if the video was still there. (The court doesn't save the video, but sometimes it doesn't get taken down right away.  As I post this (Saturday) it is still up and you can listen for yourself.  You can skip around to get a sense of the different attorneys to see their various styles. Maybe it will stay there over the weekend before someone takes it down - PLEASE court, just leave it there until Monday at least.)

So I've transcribed the beginning (the part I missed)  of Wells' closing argument:

Wells: This case is really one of process than anything. While process has been sidelined by the board recently Process is the heart of every substantive Constitutional requirement that faces the Board.  It’s at the heart of how it functions, how it understand its obligations.  

The board’s decisions were to abandon process and to even outright evade it on the 8th and 9th hearings and Senate pairings that led to the substantial constitutional errors that were  committed by the Board with respect to ER EastAnchorage Senate pairings..  Seems almost peripheral to focus on something like process when you’re looking at the level of extreme substantive crimes??  here..  But the truth is that it is the courts that have grounded us in this concept.  In order to understand where things went off the rails, we have to understand why.  And because it is present in every piece and every component of the Board’s decision. It’s also present in how the Board analyzes and its own perspective of its errors and its decisions not to ?? those errors and its decision to conceal them which has its own issues.  I think the best place to start is with the house districts.  

With the house districts saw a board who made every effort to try to communicate with the public.  They adopted a public testimony process at the beginning and the end of every hearing.  They put up interactive maps, they adopted software that allowed the public to go in and draw on those maps.  They made mistakes because every board makes mistakes, and they’re inevitable, but they did maintain the integrity of their process, so at the end of the day they, when the Board members were gathered at their table there was fighting there was difficult conversation, a lot of public input and at the end of the day a fair house district map resulted.  On Nov 8 they walked in and suddenly they changed their agenda.  There is no second public testimony.  They cling to the presence of senate pairings and leave the findings facts and conclusions of law of the Board, there were  talk of Senate pairing proposals of the third party plans.  But in reality when they walked in they didn’t know what they were creating or how they were going to create it.  The discussions in the transcript have questions from member Bahnke asking “What’s our plan? How are we going to do this?”  And Chair Binkley answered, “I don’t know, maybe do some on our own, smaller groups, then we’ll all get back together and then we’ll show the public what we’ve come up with.  On the record.  There were no plans there were no Senate pairings out there and the public, even without those plans, submitted over 100 comments in support of keeping ER together and keeping Muldoon with Muldoon.  There was a significant focus of the public on the house districts, it was a running theme.  Fear that ER would be split, given two house seats and combined with Muldoon and then would be fragmented.  As they start this process, Board member Bahnke makes a presentation. And the majority Board members are silent.  They say nothing. They make some comments, I think there’s some discussion on procedural issues, but there is no substantive statement of support or opposition to what she presents about ER and Anchorage senate pairings.  

Then Board member Marcum makes her presentation.  She mentions that she has four versions, she doesn’t present any particular version in a way where you are looking at a concrete, visible, clear presentation of Senate pairings.

We see that in David Dunsmore’s affidavit.  We see that very clearly when we review the transcripts.  

And yet the one thing she does do, she makes it very clear there is one goal she is trying to accomplish.  She wants JBER to be paired with Eagle River.  My biggest disappointment is that reading this is much more interesting than listening to wells tell us.  It's more like she's relating to a friend what she said after a long day at trial.  And it may be the case that she was up late last night practicing.  She starts by telling us it's about process - which is an important part - but she doesn't succinctly identify the rule or law or constitutional point that was violated with a short example of what happened.  We have to work hard ourselves to figure out what points she's making.  There's no First, Second, Third to help us get back on track.  

She does, after this, talk about the Board being a public entity that is acting like a private entity, but if she cites legal differences between the two and then gives examples of what the Board did, I missed it in the droning narrative.  

We get principles - 

"Socio Economic integration is not required for Senate pairings, but rational decision making is."

She tells us administrative record wasn't maintained.  That there was a lack of communication.  That they violated Roberts Rules of Order.  

All that's true.  Minutes didn't really tell the public what happened or who was responsible.  And if I recall correctly, they all got delivered and approved in a huge group, so late in the process, that the Board itself didn't have time to check each meeting.  And frankly, by the time they got the minutes, it would have been hard to recollect what happened when or to find what was missing.  But why exactly is this illegal and reason to do what, exactly?  Sure, the transcripts of the meetings were never actually put up on the Board's website.  It took till the end of the pre-trial hearings before they actually got transcribed. Tell us why that's illegal enough to invalidate the ER pairings.  And the board did a great job of posting the audio or video very quickly of every meeting.  They also did a good job of posting the public comments within a week of the meeting, often faster.  

But as I know too well, going through video to find what was said is a slow and tedious process.  Transcripts, good ones anyway, allow you to search key terms.  Then if you need to, you can find the spot on the video - again, if the transcripts include time.  [Next time the Board should make sure there's a clock always visible in the video to make it easier to find things.]  

I went through the East Anchorage findings of fact fairly quickly yesterday.  After listening today, I need to do that again to see if they highlight more clearly the points she made today.  I suspect they do.  And this trial has been going at a grueling pace.  I suspect she didn't get much sleep the night before.  But that makes having an organized, point by point presentation all the more important.  

She ended by saying the remedy for the ER pairings is easy - they just need to follow the Bahnke plan that was presented.  

And then comes Singer, the board's attorney.  I finally figured out why it's so tedious to listen to him at trial.  There's a smugness in his voice.  Disdain.  He knows the truth and he sounds like he's tired of having to correct all the plaintiffs' errors.  That this all is a waste of his time. (A lucrative waste.) I didn't figure this out until the Calista case today when Lee Baxter took the role of the Board's lawyer.  In contrast, he sounds respectful and sincere as he tries to counter the plaintiff's arguments.  The parts that sound a bit like Singer are the parts that I suspect Singer had a hand in scripting - He started off by saying that "Calista seeks to gerrymander NW Alaska to increase representation."  That is out of character for Baxter.  But back to East Anchorage. (And I'll stray beyond East Anchorage.)

Basically, Singer was taking a stand that it doesn't matter what the districts are like as long as they don't violate the Constitutional requirements.  It doesn't matter if there are better maps that could have been drawn.  The plaintiffs had the chance to draw better maps but waited until after everything was over.  The Board worked hard, are smart people and they did a great job. There is no concern about having the best plan possible, just winning.  

What would happen if in Court the Board authorized the attorney to say, "You know, Brena is right about Skagway.  The court should give that one back to the Board and we'll switch Skagway back to downtown Juneau and keep all the Mendenhall Glacier  [Valley] together"? But that would take a concern for the people of Alaska that Singer doesn't seem to have.  Some things he said:

1.  "Everything within a Borough is socio-economically integrated.  End of argument."  We heard this over and over at Board meetings, from Singer and then from Board members.  I would really like for Singer's briefing to the Board on Redistricting Law to be made public so we can know if he told him about how much more flexible the SC decisions have been.  How they've emphasized things like:

"In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote."

That is precisely the point being made best by Brena in the Skagway and Valdez cases.  But also in the East Anchorage case and the Calista case.   And that's true for Senate seats as well - the voters not be denied their right to an equally powerful vote.  Even inside a Borough.

2.  Dismissing claims about overwhelming public testimony on Eagle River/Muldoon pairings (and Skagway), "This is not a popularity contest."  Actually in a way it is. We're talking about elections and democracy and he's just saying, the Board can ignore what the public has to say because that's why they were chosen to be on the board. To make the hard decisions. Over the will of the people they are deciding about.  Except if that were true the Constitution wouldn't require 60 days of public hearings.  And if it's true, the Board should pay back all the money they spent traveling the state to hear from the public.  

3.  On the other hand, he said again, that it's easy to make a map of one or a few districts.  But you really have to make a map of all forty districts because then you'll see how hard it is.  That seems to contradict the point of it being the Board's job to make the hard decisions.  If the Board tells people they will only look at their maps if they make complete state maps, that's essentially telling them "We don't care what you think."  The Board members got paid a decent fee to spend the last year making statewide maps with specialized training and staff assistance.  Simpson even testified he didn't do any mapping himself, he had staff do it for him.  That was better for him.  But the public was supposed to make 40 district maps?  They couldn't just describe their preferences for their own district and let the Board work it out?  

OK, I know it's not easy, and Tanner Amdur-Clark did a good job as an intervenor explaining how little changes in one place ripple across the state.  The presentation was effective, but I don't have the ability or time to double check what he said in detail.  And he is strongly advocating for maintaining D36 as it is, so he has a vested interest in not letting that district get altered which would happen if there are any changes to Valdez and Mat-Su maps.  But the presentation was a good illustration of the difficulty of making maps. 

4.  Right after telling us that "attacks on Doyon and Ahtna and others are an excuse to get the map they want" that "Ad hominem attacks are falacious"  Singer, in the next sentence, calls Valdez' expert Kimball Brace "Mr Gerrymander."  He's been called that on national television so it's not original to Singer, but nationally it's more a recognition of how well he knows how to map.  But Singer has made sure to link Brace to that moniker frequently.  That might work with a jury, but I think Judge Matthews sees through that.   

He also made fun of Brace for calling Hoonah, Houlihan.  But I recall Singer apologizing for not being able to pronounce all the names of the villages in the Calista case.

5.  He sounds a lot like a certain ex-president denying every allegation, even those everyone saw him do live on television.  I think I say that because of the swagger in his voice as he denies everything.  Well, not everything.  He acknowledged that Skagway joined with downtown Juneau would be perfectly ok, but it doesn't matter because that's not what the Board did and what the Board did was fine.  Because everything in a Borough is SEI so pairing with downtown Juneau or Mendenhall Valley would be equally SEI.  This just doesn't appear to be the case.  Except he's clinging to part of the Hickel case where that was said, but under different circumstances.

 I think this denial of reality is what is so frustrating. The Court early on said everything in a Borough by definition is socio-economically integrated because that was how Boroughs were defined in the legislation that created them.  But in a large, populated borough like Anchorage 50 years later, we know that in reality, that's not true.  It's a fiction.  Mountain View is not SEI with Campbell Lake. 

Brena made it clear that most people in Juneau would prefer Skagway with downtown Juneau and Mendenhall Valley whole. There is a very close government, business, and personal tie that isn't there with the Mendenhall Valley.  It really is what the people there, according to the testimony, including going through Simpson's handwritten notes person by person at the Skagway public hearing (which the Juneau Board member only attended via Zoom and not in person).  And switching them would be easy and not affect any other districts.  Yet the Board is simply going to stonewall that and go for the map that basically one person - Simpson - wanted regardless of the public testimony.  (At least that's how I heard the testimony)

I'd point the reader to my post that looks at some of what the Court has said about Socio-Economic Integration to understand my frustration with Singer's narrow view and my optimism that Brena has read those cases more closely and shaped his arguments carefully to mirror what the Court seems to believe.  

There are at least 100 posts that could be written about yesterday's closing arguments.  I'll try to get a bit more of a general summary of the arguments done.  But these were things that really stood out for me.

All my posts on the Board going back to December 2020 are indexed (latest post on top) at the Redistricting Board tab just under the Banner up top.  

UPDATE - Well really an addition that came just after I posted this.  An email from Redistricting Board Executive Director about a) they're posting court info on the Board's site  and b) a meeting Wednesday to discuss the judge's decision - which is due before midnight Tuesday. But they'll probably go into Executive Session, which would be appropriate for the parts where they discuss how they plan to react.  

From Torkelson:

It has been a whirlwind of litigation work the past several weeks with many late nights and weekends dedicated to defending the Board's adopted Proclamation Plan.  The Plaintiffs have likewise worked diligently investing substantial time and resources pursuing resolution of their concerns. 

Closing arguments wrapped up yesterday afternoon and we expect the Superior Court's decision by Tuesday, February 15.  Attorneys with decades of experience on both sides have never seen a case move this fast.

There are over 150,000 pages of litigation related documents and numerous motions and counter-motions filed by all parties.  It is easy to get lost in the flurry.

We have created a litigation web page which contains the initial complaints followed by Findings of Fact and Conclusions of Law responses – the best summary of each sides' arguments.  

• www.akredistrict.org/litigation

We will update this page with the Superior Court's decision once it is published.

The Board will meet via Zoom Wednesday, Feb 16 at 11am to receive a report from our legal team on the Superior Court's findings.  Here's the public notice link which includes the Zoom invite and agenda:

• http://notice.alaska.gov/205456

Have a great weekend,

Peter Torkelson
Executive Director
Alaska Redistricting Board

 

Findings of Facts and Law Are In - Sort Of Like A Map Of All The Plays For The Redistricting Super Bowl

The Findings of Facts and Law were due yesterday from the five plaintiffs and the Board.  They showed up late this afternoon online.  I'm starting to lose track of things.  I thought the closing arguments were due, since they'll be presented in court tomorrow.

Way too much for anyone to read tonight. Probably not necessary

But to give you a sense of what's in these, I'm offering you a bit of the Skagway Document and a few of my comments.  And further down I opened the Board's document.  I wanted to see if there were five or just one.  Just one.  

INTRODUCTION

The legislative history of that amendment includes comments from an aide to one of the Resolution’s sponsors, who explained: “It’s not supposed to be an adversary system. It’s a system of cooperation.”2

Not sure what this point is about other than the Board got very adversarial in regards to the Eagle River pairings, but that's not the Valdez case.  Brena did point out that Board member Borromeo offered a different plan for Skagway.  Board member Simpson, when questioned by Brena said Borromeo's plan was "an exercise" and nothing more.  Brena added more evidence that it was more than an exercise.   

Under article VI, section 8, the Board shall consist of five members, all of whom must be residents of the state for at least one year, and none of whom may be public employees or officials at the time of their appointment or during their tenure on the Board.3Appointments are to be made without regard to political affiliation.4 The chair is selected

I think this is significant and we'll see where Brena takes it.  He did get Simpson to say in court that he was chosen for the Board because "I was a Republican from SE Alaska, and they're few and far between."  The point being he was chosen WITH regard to political affiliation.  

The requirements for the redistricting process are set forth in article VI, section 10. The Board must adopt one or more proposed redistricting plans within 30 days of the reporting of the decennial census. The Board must then hold public hearings to obtain public comments on the proposed plans. Finally, the Board must adopt a final plan no later than 90 days after the reporting of the census.10

I'm guessing this is to argue that the Board had an obligation to pay attention to the public - which in Skagway, Valdez, and the East Anchorage cases - was counter to the Board's ultimate decisions.   Brena also asked at one point:

Brena: Fair to say don’t need public process if person doesn’t listen? 

Simpson:  Fair

There is similar argument being made about the Board ignoring testimony in the Eagle River pairings - again, a different case.  But all the cases are consolidated and overlap.   

In addition, the Board is subject to the constitutional requirement of due process under article I, section 7.11 The Board is also subject to the Open Meetings Act (“OMA”).12

I think the Board abused the Open Meetings Act, as I explained in a recent post.  Several attorneys have mentioned this fact - particularly on how the Eagle River pairings were made.  I'm guessing this is going to that point.  Though the judge ruled the other day that the attorney client privilege claims he has reviewed in regards to emails were al legitimate.  

In 1992, the Alaska Supreme Court ruled as follows with respect to the redistricting process:

The Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements.13 

In the Skagway case, Simpson reported that he started out by getting the numbers right for the district, beginning in downtown Juneau and moving north.  When he got enough people for one district, he drew the line.  

I suspect Brena will point out that 'the numbers' are a federal requirement and so he should have started with the state requirements - compactness, contiguity, and socio-economic integrity - not the numbers.  

Skipping along, after discussing Board meetings and the steps taken, there is a brief discussion about the v1 and v2 being completed by the 30 day deadline.  But that v1 and v2 were, a week later, replaced by v3 and v4.  That V4 was never discussed and was entirely new 40 district map.  This raises the possibility of claiming that a) creating v4 was done secretly and b) it was entirely new  and c)  that it thus didn't meet the 30 day deadline to draw it and the public didn't have 60 days to review and comment on it.  This is an important argument for Valdez, but has implications for everything.  

Next the brief goes to general court procedures "regarding 'reasoned decision-making' deliberations":

The D.C. Circuit has also identified four principles to guide the inquiry regarding “reasoned decision-making:” deliberation, transparency, rationality, and evidentiary propriety.84 Regarding deliberation, “[T]the agency must ‘engage the arguments raised before it.’ . . . It follows that an agency’s decision is not deliberative if it fails to ‘respond meaningfully to objections raised by a party.’”85 Regarding transparency, “[T]he agency ‘must, of course, reveal the reasoning that underlies its conclusion.’”86Regarding rationality, “If an agency’s interpretation of a regulation [or constitutional provision] shifts such that the agency is treating like situations differently without sufficient

82 Fed. Energy Regulatory Comm’n v. Elec. Power Supply Ass’n, 577 U.S. 260, 289-95 (2016).

83 Elec. Consumers Res. Council v. Fed. Energy Regulatory Comm’n, 747 F.2d 1511, 1513 (D.C. Cir. 1984).

84 Sierra Club v. Salazar, 177 F.Supp. 3d 512, 532 (D.C. Cir. 2016) (internal citations omitted).

Sierra Club v. Salazar, 177 F.Supp. 3d at 532.

Facsimile: (907) 258-2001 85
86 Sierra Club v. Salazar, 177 F.Supp. 3d at 532.

SKAGWAY PLAINTIFFS’ FINDINGS AND CONCLUSIONS
ITMO Redistricting Challenges, Case No. 3AN-21-08869 CI (Consolidated)

February 9, 2022 Page 18 of 160

BRENA, BELL & WALKER, P.C.810 N Street, Suite 100 Anchorage, Alaska 99501 Phone: (907) 258-2000 Facsimile: (907) 258-2001

reason, the court may reject the agency’s interpretation as arbitrary.”87 And regarding evidentiary propriety, “[R]easoned decision-making also precludes the agency from offering ‘an explanation . . . that runs counter to the evidence before the agency.’”88

The D.C. Circuit has also explained that “[a]rbitrary and capricious review demands evidence of reasoned decision making at the agency level; agency rationales developed for the first time during litigation do not serve as adequate substitutes.”89

There's lots in this related to the cases.  First, for Skagway, there was no 'reasoned decision making' in public over why Skagway was moved to Mendenhall Valley, away from downtown Juneau.  There was very little discussion on the Valdez case either.  And particularly this is true for the East Anchorage case - the pairing of ER districts.  

And he's pointing out that explanations that happen after the fact to justify decisions in court, don't count.  

We're only on page 22 of 160 pages when they list ISSUES FOR TRIAL

Did the Board violate article VI, section 10 of the Alaska Constitution (Redistricting Process) in the redistricting process used in reaching the Final Plan?

• Did the Board violate article I, section 7 of the Alaska Constitution (Due Process) in the redistricting process the Board used in reaching its Final Plan?

• Did the Board violate the Open Meetings Act (OMA) (AS 44.62.310-.312) in the redistricting process the Board used in reaching its Final Plan?

• Did the Board violate article VI, section 6 of the Alaska Constitution (District Boundaries) with the Final Plan?

• Did the Board violate the Hickel Process by considering racial data and VRA compliance prior to drafting a redistricting plan based upon the constitutional criteria for redistricting?

• Did the Board violate article I, section 1 of the Alaska Constitution (Equal Protection) with the Final Plan?

Then the document goes through each of these in more detail.  For example, the first one (article I, section 7 is the one that says the plans have to be completed in 30 days.

In his Memorandum and Order on the 2001 redistricting cases, Judge Rindner held that “Article VI, Section 10 requires that public hearings be held only on the plan or plans adopted by the Board within thirty days of the reporting of the census.”103 The Alaska Supreme Court affirmed this holding.104 

Trial concludes tomorrow with each party giving closing arguments.  These Conclusions of Fact and of Law were due on the 9th and only posted online sometime today.  I checked a few times this afternoon and didn't see anything until I checked a little after 5pm (Alaska time).  The judge has had them since yesterday.  But he'll have them to review further as he writes his decision.  

The Board has offered 184 pages in its Findings of Facts and Law.  

On page 3 of 184 the Board gives us this information:

6. Several members of the Board are life-long Alaskans, and the Board brings over 200 collective years of experience in and throughout Alaska.16

7. In August 2020, the Board elected John Binkley as the chair of the Board.17 Binkleyisathird-generationAlaskanandriverboatcaptain.18 Bornandraised in Fairbanks, Binkley and his wife started a tug and barge business on the Lower Yukon in St. Mary’s, Alaska in 1977.19 Binkley lived in Bethel from 1978 through 1990, and was elected to represent a Bethel-centered house district and then a senate district that covered 225,000 square miles, included 74 different communities and 11 different school districts. Mr. Binkley’s senate district stretched from the Canadian Border east of Fort Yukon to Nunavik Island in the Bering Sea.20 In 1990, Binkley moved back to Fairbanks, and has since that time, among other things, served on the board of the Alaska Railroad, ran for governor of Alaska, and started the Alaska Cruise . . .

The description of Budd Simpson goes to the end of page 5 of 184.  Three pages of biographies.  Seems like filler to me.  Binkley's knowledge of interior Alaska is impressive.  But it doesn't explain why he insisted to almost the end that Fairbanks should remain in five overpopulated districts or why he didn't know that the Board's attorney was Athna's attorney in two cases currently pending before the Supreme Court when he got advice about carving out the Ahtna community of Cantwell from the Denali Borough and putting it with all the other Ahtna communities into D36.  

On the other hand, it's reasonable that Singer wants to be sure the Supreme Court justices know that the Board members have extensive Alaska experience.  But surely what is missing from Bethany Marcum's bio is more significant that what is there:

10. Member Bethany Marcum has been an Anchorage resident for 26 years.30 She has served in the military for 20 years, and has lived in various neighborhoods throughout the Municipality of Anchorage and has traveled extensively in Alaska for work and military exercises.31 Marcum has served in the Air National Guard since 2008, originally stationed at Kulis Air National Guard Base and now at Joint Base Elmendorf Richardson.32

There's no mention of her conversion to Libertarianism, her time spent as a legislative aide to then Sen. Dunleavy, and her position as executive director of the of Koch funded lobbying group the Alaska Policy Forum.  

OK, I'm done for tonight.  There's way too much for anyone to read.  

 

Springing On Bainbridge

Saw my first crocus yesterday.  

Spending lots of gramp time with my newly turned 9 year old.  She's such a mix of mature and thoughtful and silly and mischievous.  Listening to her mom and grandpa talking about their students, she explains that sometimes kids in her class don't answer the teacher's question because they don't clearly understand the question - even though they know the answer.  I so wish people would realize kids know so much more than adults think they do and would talk to them with respect and listen.  They will surprise you.  After all, when adults ignore their ideas, they discuss them (and the adults) with their friends.  Just like adults do.  

She also hid my wallet in a drawer yesterday and it took forever to find it when I had to pay the plumber today.  

First I had them both with the words on top.  But that didn't seem right.  Then I flipped the bottom on so you can better see this was one piece of sidewalk art in Bainbridge Island's 1% for the arts program. Words are by Margi Berger.  Artist is Carolyn Law with Benson Shaw.  

The library had a display of books for Black History Month.  

Our disgraced former president has encouraged all those damaged souls with who must put others down to feel good about themselves - whether highly educated or not - to voice their hatreds and condemn those who are fighting for an opportunity to live their lives without fear of being harassed because of the color of their skin.  That so many people are so angry and so willing to do his bidding is a sign of how sick our system is.  The accumulation of money covers so many sins - from T himself to the oil companies that continue to fight against meaningful action to slow down climate change, to the Sacklers, and so many others.  We see people rot in prison because they smoked a joint, but so may of those with money buy get out of jail free passes with fancy lawyers.  

These are people who don't want truth about the US to be read by their children.  Or yours.  

Hatred is a burden not only for the oppressed, but also the oppressor.  It's a disease of the heart, in the sense of dis-ease.  How many of T's rabid supporters were abused - physically and/or psychically as children?  Were abandoned physically or mentally by a parent?  That leaves big scars and anger that searches for a target.  Yet others so badly treated find love somewhere else and heal.  

Read some good books.

And look at the moon and sky - an experience that links you to humans (and non humans) going back to before history.  

 

Redistricting : "Socio-Economic Integration" In Hickel v Southeast Conference

I wanted to do a post suggesting the Alaska Supreme Court rethink their rulings on Socio-Economic Integration.  Then I went back and read all of Hickel v Southeast Conference.   I'll lay out my argument at the end of this post, but first let's look at what the Court has actually said about socio-economic integration.   I think they probably have it right. 

I want to start with what we heard at the Board meetings.  

If you listened in to Alaska Redistricting Board meetings, you would think that all the Supreme Court has said about socio-economic integration (SEI) was this:  

Everything within a borough or city boundary is SEI.  

We heard that over and over again.  That's why south Muldoon and Eagle River can be paired.  Or why community councils districts in Anchorage don't matter.  They're all socio-economically integrated.  That was Board attorney Matt Singer's constant refrain when it came to SEI.  Member Marcum repeated it regularly until she started using SEI to justify pairing  Eagle River and Muldoon even though they are both within the Borough boundaries. 

What Board Attorney Singer Told The Board

We don't know what Singer told the Board about past cases on August 23, 2021 because it was in Executive Session.  What he said in public prior to that was (2.28-2:31 on video)

"We'll be meeting in Executive Session to review my legal memorandum and opinion and under Alaska law, law legal opinions are privileged and the reason for attorney-client privileges is to be able to have confidential discussions and for me to give my best legal advice.  What we'll be reviewing are things available to, my opinions are confidential but I can review for the public the key places where members of the public are interested can go to look at the information that will guide the Board's decisions, so 

Article 6 of the Alaska Constitution, specifically section 10 dictates the  timing for this process and many of the substantive requirements for the Board to consider are also in Section 6 of the constitution.  And then, in addition, the Alaska Supreme Court each time there's been a redistricting process there's been litigation.  Through that process the Alaska Supreme Court established what I call a set of guardrails or guidelines for the redistricting board, that include the process by which this must be done, and direction for things like deviation  of population, how the Voting Rights Act should be considered in light of Alaska's Constitutional requirements.  And also the Alaska Supreme Court Decisions have come out each of these ten year periods are another source of information for the public.  Those are available, there are public websites,  Findlaw.com is one.  The public can search those cases from the Alaska Supreme Court that deal with our redistricting process.  Without getting into my confidential advice, the public should understand we'll be guided here by the Constitution and the Alaska Supreme Court and that's all information that's available to you and we invite the public to read along and follow along as the Board makes decisions."  

Next member Borromeo moved: 

I move we transition into ES 44.62.3 Subsection 4 Matters that involve consideration of records that are not subject to public disclosure and I want to note for the record that no action will be taken in Executive Session

Last time I looked, the Alaska Constitution and the Supreme Court decisions are all documents in the public record.  But Singer has a broad sense of Executive Session.   At one point he said something like, "You can't go in and out of ES because you say something that isn't protected."  

I did a whole post on attorney-client privilege because it's come up in this trial.

Well, actually you can and it's what the law requires.  It's just not as convenient. You have to plan better.   I'm not  completely sure how what he tells the board about his opinion is confidential here.  

From Governor Dunleavy's Memo on the Open Meetings Act

What effect does attorney client privilege have in dealings between a public entity and its attorney?

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.

The emphasis is on "where matters of the public interest may be injured.  All the other examples MIGHT be reasons, are NOT automatically exempted.  There were no litigants at the time, what sort of legal liability strategies would he discuss other than 'obey the law' at this point?  There was no settlement to discuss.  

This was his interpretation of these documents which would be useful for the public - which the Board represents - to hear.  Especially for those third party map makers that Peter Torkelson had just said were important to the process before this.  [I'd note that while doing this post, I found a page on the Board's website that lists all the Constitutional language as well as Hickel v Southeast Conference language and links to the cases.  While I prowled the Board's website regularly over the last year, I don't recall seeing this page. Got to it googling Hickel v Southeast Conference.  I'm guessing Board Executive Director Peter Torkelson at some point put this up - after this August 23 board meeting.  Peter was relentless about giving the public as much information as possible.]

I'd note that Michael White, the attorney for the previous redistricting board did publicly discuss, on March 17,  2011, what the constitution and the prior court cases had said.  Singer didn't even give the public a list of the names of the cases.  

Misuse of executive sessions has been mentioned as an issue in these lawsuits.

But let's move forward.  

In reviewing Hickel v Southeast Conference I found the Court to be much more subtle about what Boards need to consider than "All parts within a Borough boundary are SEI."  

Here's the section of the decision that focuses on SEI (though it comes up frequently in other parts of the decision as well.)

3. Socio-economic Integration.

In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-economic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote.

This is a fundamental part of the Valdez and Skagway cases.  That the Board's map dilutes the power of the Valdez and Skagway voters by putting them into districts where they are a small minority among people who do not share their interests in crucial issues that they would like their legislator to support.  I'd say it's a critical part of the East Anchorage case, but that case was hardly argued at all in public and Holly Wells didn't have things lined up as neatly as Brena.  In part that was because she went first and because much of the evidence she was hoping to get wasn't released to the judge for review until after she presented her case.  Continuing with Hickel:

[W]e should not lose sight of the fundamental principle involved in reapportionment — truly representative government where the interests of the people are reflected in their elected legislators. Inherent in the concept of geographical legislative districts is a recognition that areas of a state differ economically, socially and culturally and that a truly representative government exists only when those areas of the state which share significant common interests are able to elect legislators representing those interests. Thus, the goal of reapportionment should not only be to achieve numerical equality but also to assure representation of those areas of the state having common interests.

Again, what was argued vigorously by Brena in the Valdez and Skagway cases.   

Groh v. Egan, 526 P.2d 863, 890 (Alaska 1974) (Erwin, J., dissenting).

We have looked before to the Minutes of the Constitutional Convention for guidance in defining "relatively integrated socio-economic area." Kenai Peninsula Borough, 743 P.2d at 1360 n. 11; Carpenter, 667 P.2d at 1215; Groh, 526 P.2d at 878. The delegates explained the "socio- economic principle" as follows:

[W]here people live together and work together and earn their living together, where people do that, they should be logically grouped that way.

"Do they live together, work together, and play together?" We heard that over and over in the digital courtroom.  The board conceded that Mat-Su and Valdez people don't live together, but argued that they work together (both have oil workers, but no numbers were provided).  Valdez folks said their people work on the pipeline and Mat-Su oil workers work on the slope.  So no, they don't work together.   And  to show they play together the Board argued they both hunt caribou off the Glenn Highway.  The Valdez official when asked if he hunted caribou there said he did, but with friends from the Richardson Highway area, not with people from Mat-Su.  So no live, work, or play.

3 PACC 1836 (January 11, 1956). Accordingly, the delegates define an integrated socio-economic unit as:  an economic unit inhabited by people. In other words, the stress is placed on the canton idea, a group of people living within a geographic unit, socio-economic, following if possible, similar economic pursuits.

3 PACC 1873 (January 12, 1956).

In order to satisfy this constitutional requirement, the Governor [Legislation creating a Board didn't happen until 1998]  must provide "sufficient evidence of socio-economic integration of the communities linked by the redistricting, proof of actual interaction and interconnectedness rather than mere homogeneity."

The Board regularly argued about similarities - homogeneity - and didn't offer much proof of actual interaction and interconnectedness.   

Skagway went to great lengths to describe all the work connections between Skagway and downtown Juneau, NOT the Mendenhall Valley.  Valdez did the same with their connections along the pipeline corridor.   

Kenai Peninsula Borough, 743 P.2d at 1363. In areas where a common region is divided into several districts, significant socio- economic integration between communities within a district outside the region and the region in general "demonstrates the requisite interconnectedness and interaction," even though there may be little actual interaction between the areas joined in a district. Id. (declining to draw a fine distinction between the interaction of North Kenai with Anchorage and North Kenai with South Anchorage). "The sufficiency of the contacts between the communities involved here can be determined by way of comparison with districts which we have previously upheld." Id. A district will be held invalid if "[t]he record is simply devoid of significant social and economic interaction" among the communities within an election district. Carpenter, 667 P.2d at 1215.

In our previous reapportionment decisions we have identified several specific characteristics of socio-economic integration. In Kenai Peninsula Borough, we found that service by the state ferry

 7

Hickel v. Southeast Conference 846 P.2d 38 (Alaska 1993)

system, daily local air taxi service, a common major economic activity, shared fishing areas, a common interest in the management of state lands, the predominately Native character of the populace, and historical links evidenced socio- economic integration of Hoonah and Metlakatla districts with a hypothetical completely unintegrated area, as if a district including both Quinhagak and Los Angeles had been proposed. We decline to adopt petitioners' interpretation of this provision.

"Relatively" means that we compare proposed districts to other previously existing and proposed districts as well as principal alternative districts to determine if socio-economic links are sufficient. "Relatively" does not mean "minimally," and it does not weaken the constitutional requirement of integration.

B. EQUAL PROTECTION.

"In the context of voting rights in redistricting and reapportionment litigation, there are two principles of equal protection, namely that of `one person, one vote' — the right to an equally weighted vote — and of `fair and effective representation' — the right to group effectiveness or an equally powerful vote." Kenai Peninsula Borough, 743 P.2d at 1366. The former is quantitative, or purely numerical, in nature; the latter is qualitative. Id. at 1366-67.

Simpson argued that he was doing Juneau by the numbers and starting from the south end and moving north.  When he got a full district he stopped.  The fact that he had split the SEI residential neighborhood didn't matter.  He ignored the public testimony to keep the Valley whole and to move the line further south to the Fred Meyer.  Had he done this, then the inhabitants north of the Fred Meyer would have been almost exactly the same number as the Skagway, Haines, and Gustavus population.  And he could have moved them out of the Valley and back into downtown Juneau where they overwhelmingly want to be.  Attorney Robin Brena has obviously read more about socio-economic integration in these cases than just 'everyone in a Borough is SEI."   

The equal protection clause of the Alaska Constitution13 has been interpreted along lines which resemble but do not precisely parallel the interpretation given the federal clause.14 While the first part, "one person, one vote," has mirrored the federal requirement, see, e.g., Groh, 526 P.2d at 875, the second part, "fair and effective representation," has been interpreted more strictly than the analogous federal provision.

13 The Alaska Equal Protection clause provides that "all persons are equal and entitled to equal rights, opportunities, and protection under the law. . . ." Alaska Const. art. I, § 1.

14 The Federal Equal Protection clause provides that "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.Amend. XIV, § 1.

with several other southeastern 47 communities.12 743 P.2d at 1361. *47

12 We did not decide whether these characteristics were specifically necessary to pass muster under article VI, section 6 of the Alaska Constitution. Instead we merely found that a rational state policy existed in effectuating the constitutional mandate of relative socio-economic intervention. Kenai Peninsula Borough, 743 P.2d at 1361.

island

In the same case, we found it persuasive that North Kenai and South Anchorage were geographically proximate, were linked by daily airline flights, shared recreational and commercial fishing areas, and were both strongly dependent on Anchorage for transportation, entertainment, news and professional services. Id. at 1362-63.

This sounds a lot like the relationship Brena has painted into the record  between Skagway and downtown Juneau.

Respondent Southeast Conference contends that Districts 1, 2 and 3 violate article VI, section 6 of the Alaska Constitution. The trial court agreed, finding specifically that "The districts of Southeast are not socio-economically integrated and they easily could have been." We affirm this conclusion.

Again, Brena has argued this very point for Skagway.  The Board put Skagway with an area of Juneau they don't have common ties or interests, but they could have put them with downtown Juneau where they have been the last ten years and where the evidence presented shows "they easily could have been,"

There's more, but you get the point.  And the Board's mantra is there too:

As noted above, a borough is by definition socio- economically integrated. It is axiomatic that a district composed wholly of land belonging to a single borough is adequately integrated.

It's axiomatic - meaning 'by definition - because when Boroughs were set up after statehood, the law said that the people in the boroughs should have the same interests.

From Justia Law - 2001 (Alaska) Redistricting Cases - A more recent case seems to be the source of the Board's mantra:

House District 18 is sufficiently socio-economically integrated as a matter of law because it lies entirely within the Municipality of Anchorage.[8] 

 footnote 8:

"[8] See In re 2001 Redistricting Cases, 44 P.3d at 146 ("Anchorage is by definition socio-economically integrated."); see also Hickel v. Southeast Conference, 846 P.2d 38, 52 (Alaska 1992) ("[A] borough is by definition socio-economically integrated."); id. at 51 (quoting AS 29.05.031) ("By statute, a borough must have a population which `is interrelated and integrated as to its social, cultural, and economic activities.'")."

The point is that when the statue that created Boroughs it defined them as  'integrated as to [their] socio, cultural, and economic activities.'  That appears to be why the Court has said everything within a borough 'by definition' is SEI.  In a recent post I went on to look at the statute.  You can follow that discussion here.

The court does talk about people in a Borough boundary being SEI (socio-economically integrated). At one point "sufficiently" so they could be in a district together.  I didn't see anything that wouldn't accept a different set of boundaries for a  districts within a Borough because the new district was MORE socio-economically integrated than another.

The Court has put a lot of emphasis on the idea that people should be in district with people they share common interests with and who can have a legislator who will represent those interests.  

 

The discussion I wanted to have - before I read more carefully what the Court has said - is this:

No one would argue that every neighborhood in Seattle or Chicago is SEI with every other neighborhood in those cities.  When Alaska became a state, there were about 200,000 people in the whole state.  The definition of a Borough made sense at that time.* 

 Boroughs is what mattered.  But at some point Alaska boroughs/cities will become more like Seattle and Chicago.  At some point Alaska will cross the line on a continuum from" every neighborhood in a Borough is SEI with every other' to  'not all neighborhoods are not SEI within a Borough.'  

I'd argue that we can see that already in Anchorage.  The Skagway case makes that argument between downtown Juneau and the Mendenhall Valley.  Surely parts of Anchorage like Fairview and Mountain View and the Muldoon area are economically and culturally different from Eagle River and from Upper Hillside or Campbell Lake that they need different representatives to insure their vote is able to elect legislators who can fight for their issues in the legislature. 

It seems that the court doesn't  forbid taking into account neighborhood differences, but rather it allows some pairings within a Borough that might not seem to be that compatible if there are no other ways to draw a district.  But I'm guessing here.  I've learned long ago that the law has hidden traps here and there.  But I'd just raise this point - that the Supreme Court explicitly recognize that what was the aspiration for Boroughs in 1961 is not necessarily true in 2022.  I think all the language about SEI in Hickel suggests recognition of that.  

*I wondered to what extent Alaska Natives' interests were considered in those early days.  I couldn't find anything that identified ethnicity of the legislature.  However, Wikipedia tells us:

In 1958 the first senate of the state of Alaska, unanimously elected Beltz president of the first senate of the state.  [Beltz was Inupiaq from Nome]

Alaska Redistricting Trial Day 11 - Brena's Redistricting Expert Brace Closes Testimony

 Kimball Brace took the stand again.  He testified as a national expert on redistricting for attorney Brena in the Valdez case and again today for Skagway.  A lot of what we heard was rehashing of old points, but there were a few new ones.  Rather than tediously go through each line of the testimony, let me try to pull out the points I think are significant.

1.  Simpson intended to move Skagway out of Juneau from the beginning

red lines added

I don't recall seeing this from the deposition of Board Member and Valdez mapper Budd Simpson -

"It had always been my intention to make the district more compact and put Skagway and Haines with the north end."

"The north end" means putting Skagway and Haines with the Mendenhall Valley instead of with downtown Juneau.  

This raises two issues I can think of:

• It suggests Simpson had some reason of his own to do this, beyond his stated desire for compactness
• It shows that the public hearings were a sham because he'd already made up his mind and because  the people were overwhelmingly in favor of 
• putting Skagway, Haines, and Gustavus together with downtown Juneau and
• not splitting up the Mendenhall Valley

Compactness is one of the criteria for a Constitutionally acceptable district.  But there are a lot of other districts where compactness seems to have been much less important.

I'd note that it had always been Board Chair John Binkley's intent to keep Fairbanks unbroken, even if a little overpopulated.  But bowed to public pressure.  

2.   Brena posits that the map was done this way to increase likelihood of voters approving a

From AK DOT

road from Juneau to Skagway.  

In previous testimony, Brena raised the point that Simpson's wife had been a strong advocate of a road to Skagway - forming an organization to make it happen and writing articles supporting it and attacking those who opposed it.  And Simpson agreed that he supported the road too.  

Then Brena - who was born and raised in Skagway - had his witnesses over a lot of testimony how such a road would destroy historic Skagway, "The Gateway To The Klondike," and turn it into a truck stop.  They explained how the road from Skagway into the Yukon had taken all the freight business from the Skagway Railroad.  

There had also been testimony that showed in a close vote about whether to support the ferry or the road, the people of downtown Juneau voted for the ferry, but the parts of the Mendenhall Valley voted for the road.  

Kimball Brace, Brena's expert, offered precinct analysis of that vote today to argue that putting Skagway in with this part of Juneau,  and 4000 people from the Mendenhall Valley with downtown Juneau would water down the votes in favor of the ferry in both districts.  

3.  Showed other districts Simpson worked on that aren't compact at all 

Compactness was used as a justification when it was convenient and ignored when it wasn't, seemed to be the argument made here as they tried to show how tiny and compact D3 and D4 (the two Juneau districts) compared, particularly to D36.  This issue of throwing around redistricting criteria as it was convenient but totally inconsistently has been something I've observed from some of the Board members from the beginning.  

[I'd note that the D36 map they used - a redrawn map that Brace had done in response to previous criticism - got intervenor attorney Tanner Amdur-Clark to jump up and yell foul.  He pointed out the map wasn't one they'd seen before.  What I think got his attention is they started talking about the Cantwell cut out that he so carefully engineered and pulled off.  Singer joined the protests and later on when they were discussing exhibits, it was tossed.]

Brace said this was a classic case of cracking  - taking those (in this case pro-ferry) voters and dividing them into two districts would dilute their vote and allow a pro-road group to dominate.  (The Skagway people had argued yesterday and the previous day that being with the Mendenhall Valley, their votes would mean nothing to their legislator who would answer to the much larger group of Mendenhall Valley voters.)

4.  Argued that splitting the Valley and moving Skagway into the Valley destroyed both the socio-economic integration (SEI) of the Valley and the many critical common interests Skagway and downtown Juneau had.  

I've been making comments about the subjective and flexible ways different Board members have used the term SEI.  I did a whole post on the issue recently.  And their reliance on the 1982 [1993]Hickel case that said everything within a Borough boundary is SEI.  I think that declaration made sense when it was made, but there is reason to update that thinking now.  I'll try to make that case this weekend.  

But I think this is a pivotal point that the Board is relying on.  

5.  What I heard the last three days on Skagway

I heard the Skagway side produce a pile of evidence for Skagway being in the downtown Juneau district and for not splitting the Mendenhall Valley.  

• All the public testimony favored it
• The SEI between Skagway and Juneau makes keeping that linkage intact critical for Skagway, but also is very beneficial for downtown Juneau.  
• There was no evidence that anyone besides Budd Simpson favors his changes.
• Sealaska, the SE Alaska's biggest Native Corporation favored Skagway being in downtown Juneau's district.   They ok'd Simpson's realignment when he asked them to.  Oh yeah, he's been their attorney for 40 years. 
• Simpson ignored public testimony because he'd already made up his mind
• Given that testimony and the lack of a compelling reason for the Board's map of D3 and D4, Brena has offered the Simpson family's strong desire for the Juneau-Skagway road as a motive for the rejiggering of Skagway and Juneau districts
• Simpson was appointed to the board because he was a Republican.  That's just dangling there, but I did a post about how blatantly partisan the GOP picks were even though the Constitution says  "Appointments shall be made without regard to political affiliation."   Brena has done anything with that other than raise it, but I expect to see it in his closing argument.  

The Board's arguments were basically

• It meets the other criteria so it's legal
• "It's not a popularity contest"
• SEI is the same inside a borough, so we don't care if people wanted it the other way*
• Making the districts more compact
• Skagway is to the north, so it makes sense to connect them with the north of Juneau

*really, I'm not be snarky here.  This truly reflects Simpson's tone for most of his testimony.  He gave a treasure trove of examples on how to avoid answering a direct yes-no question. I'm thinking about doing a post on that one day.  And it's true that the other side had people who did the same thing.  But there was a difference.  The Skagway folks were trying to explain the nuances that a simple yes or no wouldn't reveal.  Simpson was not doing that.  He was trying to avoid revealing anything that might hurt his case.  That's a big difference.  

There is no slam dunk here.  The Board's district isn't a technical violation of the criteria, even if the evidence is that switching Skagway, Haines, and Gustavus back into downtown Juneau is a better choice and won't have a ripple affect on other districts.  Will Brena's pile of evidence be enough to give the judge enough to legally justify overturning the Board's map of districts 3 and 4?  

After the witness was dismissed, the attorneys wrangled over which exhibits could be entered into the record and which couldn't. 

They also continued a discussion about whether Calista attorney Schecter's offer of a program that would allow the judge (and each other) to overlay maps so they could see differences, say between ANCSA lines and new district lines.  Or school district lines, and other variables.  It was presented as a way to make it much easier to compare maps than looking from one to the other. 

Only attorney Brena balked at this.  He argued that the tool wasn't neutral as the others claimed, that, for example, it was biased by what information was in the maps.  The others countered they are only maps that have already been entered into the case. 

As someone who grew up with Marshall McLuhan's "the medium is the message" I'm sympathetic to Brena's position.  

In the end the judge ruled that since they had decided to keep out interactive evidence such as the Auto-Bound software the Board used to map - because it was dynamic and you couldn't save the record for the appellate court - he was going to say no because the group didn't agree unanimously.  He acknowledged that this tool wasn't interactive in the same way, but he wanted to leave a clear record for the Supreme Court.  After the ruling, if I caught it right, Brena offered to see if his expert could supply their information.  

If I understand this correctly, the attorneys have until February 9 to get their Findings of Fact and Findings of Law.  Closing arguments will be on February 11.  

Looking at Judge Matthews' Youtube channel I see there is a hearing set for Monday, Feb 7.  I have to admit I gave myself a bit of a break while they were talking about exhibits so if they said anything about the Monday hearing, I missed it.  

Alaska Redistricting Trial Day 10 - Budd Simpson On The Hot Seat

[Beware of typos.  Read at your own risk.  Too tired to clean this up anymore now.]

There is just sooo much to look at today.  More than I have time for.  So today I'm going to try to outline the key areas that attorney Robin Brena tried to make.  

But first, my conclusion based on all the testimony of Simpson, Skagway Mayor Cremata, City Manager Ryan, and business owner Wrentmore.  The Doyon Map and the Senate Minority Map did as well.  The AFFER and AFFR maps did not - the AFFR map treated SE very differently puttSkagway with all the SE Islands down to the Canadian border and up the coast including Yakutat.

Judge Matthews (r),Brena (l) Simpson below

In all day yesterday and today there were lots of reasons - mainly the close ties between Skagway and downtown Juneau over many, many things from cruise line issues to that's where Skagway does all its business.  

There were no compelling reasons given for drawing the map the way Simpson drew it except to make it compact and to get the right number of people in the two districts because Juneau doesn't have enough people for two districts.  On redirect Simpson didn't dispute that it could work just as well  with the Skagway people in downtown and the Valley joined together.  He didn't deny that the overwhelming testimony was to keep Skagway in downtown and to keep the Valley together.  Singer, the board's attorney, to counter the public testimony asked, " Is redistricting a popularity contest?"  

Not sure if the judge can find a constitutional hook to overturn this pairing, but it really seemed that no one, except Simpson and the Board, are opposed to Skagway being with downtown Juneau and the Mendenhall Valley all together in its own district.  If there is opposition, it didn't come out in the trial.  

Points that Skagway attorney Brena seemed to have on his list.  I'll try to look at some of these in more detail over the weekend, because there  is a rich trove of issues.  

1.  Why was Simpson appointed to the Board and his ties to the GOP

In this section Simpson said that Sen. Giessel recommended him to the Governor and "she knew I was a Republican in SE and was interested in geographic diversity and knew me well enough to think I might be ok."  I've pointed out in a previous post that the Alaska Constitution says 

 "Appointments shall be made without regard to political affiliation."

  So already we have a constitutional violation if he was picked because he was a Republican.  Some discussion of holding GOP fundraisers and donating money to the party and to GOP candidates.  His wife very much a member of the party.  

2.  Simpson's connections to and knowledge about Skagway.

Partly this continues some of the political ties from #1.  Simpson hasn't spent a lot of time in Skagway.  Overnighted there once in the 1980s on Alcan trip.  More recently he stayed in a lodge outside of Skagway because he won an overnight  there at a political fundraiser.  They have a cabin near Haines so they spend more much more time there

3.  Sealaska is Simpson's biggest client

He's represented them for 40 years.  Brena pointed out that the district lines are closely to Sealaska boundaries in SE.  When pushed by Brena for how much they pay him, he said, "It's nobody's business."  Judge Matthews intervened and asked, Would it be accurate to say in the six figures?  Simpson said yes.  Brena asked, "Seven figures?"  Simpson said no.  

Brena also pointed out that Sealaska was part of the Doyon Coalition and their map had Skagway with downtown Juneau.  Did you get Sealaska's sign off to do it differently?  The gist was if he didn't get their signature, he did get their approval to change it.  

4.  A road from Juneau to Skagway

Brena spent some time on the fact that Simpson's wife had started a group that was pushing a road to Skagway.  He showed a Must Read Alaska column on the road.  [When I looked for the link to that article I saw there was a new article today "Redistricting sexism: Lawyer Robin Brena attacks wife of redistricting member because she favored Juneau Access Project."  Does that mean criticizing a woman is sexism?]

Brena got Simpson to say he agreed with the idea that a road is needed.  Brena asked Simpson if he could imagine why people might oppose the road and he said he couldn't.  

Then Brena walked him through a long explanation of how the road from Skagway to the Yukon put the freight business of the Skagway Railroad out of business and the people of Skagway know that a road from Juneau to Skagway would turn Skagway into a truck stop.  They were spending a lot of money building new port facilities to accommodate larger cruise ships but the road could ruin it all.  

The Skagway witness buttressed this when it was their turn.  Business woman (and sometime lobbyist) from Skagway added more to this argument.  She, as others had said, emphasized the need for a legislator who would understand Skagway's issues and downtown Juneau folks work with Skagway folks very closely on cruise line issues and many, many other issues.  But the people in residential Mendenhall Valley really are not connected with Skagway.  She gave an example of a Skagway issue she raised with another legislator in Juneau.  He was very sympathetic to her concern, but said she wasn't in his district.  Unless he got permission from her rep, he couldn't support her.  It was a courtesy among legislators.  So, if people continued pushing for a road to Skagway, and people in Mendenhall Valley thought, oh that would be nice, their rep would represent their interest and not the interests of the tiny fraction of his district in Skagway.  

5.  Testimony from Skagway and Juneau supported overwhelmingly keeping Skagway with downtown Juneau and not splitting up the Mendenhall Valley

Brena went through Simpson's handwritten notes person by person and got Simpson to confirm  all the Skagway people wanted Skagway and downtown in one districts.  All but one.  That one was Kathy Hosford.  Remember the lodge they stayed at outside of Skagway?  She owns it.  She's also the Republican District 3 chair.  And Simpson allowed that he may have already known her, that she may have been to his house, but he didn't remember for sure.  

Brena  went through Simpson's notes again on the Juneau public hearing.  Simpson allowed that those who spoke to Skagway wanted it with downtown.  Others didn't want to split the Valley (which has the same effect of putting Skagway with downtown, since the 4000 or so voters from the Valley put with downtown could be traded for about that number from Skagway, Haines, and Gustavus.

The Board's attorney's response to this when he questioned Simpson was, "Is redistricting a popularity contest?"  Can you get more cynical than that?  

6.  Why draw the line here?  

Some time was spent with Brena showing Simpson's line splitting Juneau and another line that would have split it at Sunny Point or at Fred Meyer.  Simpson didn't disagree that that could work too and keep Skagway with downtown.  He just said he started in Juneau south until he needed more people (Juneau is about 1.5 districts in population).  Brena pointed out that instead of splitting the Valley, he could move the white line (Simpson's D3/D4 split) to Fred Meyer (orange line) and add the Skagway group (Haines and Gustavus) into downtown Juneau and it would be even.  Simpson didn't disagree. (Which is as close to a yes as he came many times.)  

Another reason Simpson gave, when questioned by the Board's lawyer, was that Skagway was closer to Auke Bay than to downtown Juneau.  And when they looked at what he called the donut district (which put Skagway with downtown, by surrounding the valley with that other district, he complained it wasn't compact and - listen carefully - he said 

"[it's barely contiguous.  Northenr to Southern part almost has no people in it.  It’s basically a fiction."

I point this logic out because he and Marcum and Binkley say the opposite about compactness and contiguity when they defend the pairing of the Eagle River districts with south Muldoon and Government Hill.  

7.  Differences with Borromeo on Juneau maps

Brena began this session by asking if different Board members were given deference in decisions for the areas they were most familiar with.  Simpson agreed that they did that, and they did that with him and Southeast.  

When Brena first asked Simpson about the disagreement he had with member Borromeo over the Juneau districting, Simpson said there was no disagreement.  She merely made another map just as an exercise.  

But Brena went back to transcripts of the Board meeting.  It was clearly more than an exercise.  Borromeo wanted to know why it was different from the Doyon map.  Why he drew it that way even though the overwhelming testimony from Juneau and Skagway was against it.

In the end Borromeo says this givers her pause because of the Doyon maps. She also says she's heard from the Juneau residents (doesn't mention Skagway) and knows that the Juneau residents will be well represented, so she defers to Simpson.  

8.  Brena Continues Search For Conflict of Interest Waiver for Singer

I've mentioned before that Brena asked Board Chair Binkley if he had been aware, when they were moving Cantwell out of Denali Borough to be with other Ahtna villages in District 36, whether he knew that Board attorney Singer was representing Ahtna in two cases pending before the Alaska Supreme Court.  He said he didn't.  Singer said this was all taken care of and the letters sent in.  But Brena pointed out that it still hasn't been produced.  And they have a letter that there is another letter about conflicts that the Board never signed saying they were aware.  Singer led Simpson through questions which basically said it doesn't matter.  They didn't know that Ahtna would be involved.

Not sure this is related specifically to the Skagway case, but it did come up

10.  Why did Simpson make these pairings? 

Simpson never answered the question about all the testimony being for Skagway being with downtown Juneau and the Mendenhall Valley not split.  The only answers were vague comments about numbers, compactness, and contiguity.  And they also mentioned it didn't matter which part of Juneau Skagway was paired with because everything in a Borough is socio-economically integrated. Therefore, if Skagway was socio economically paired with downtown, then they were socio-economically paired with Mendenhall Valley.  

Those are are technical reasons, but not any more true than pairing Skagway with downtown.  

So why do what everyone was opposed to them doing?  Simpson didn't give a real answer to that.  I'm guessing that Brena's brining up the road from Juneau to Skagway was an innuendo of why.  And his mention of Kathy Hosford as the only person testifying for putting Skagway in the Mendenhall Valley was another oblique hint for the judge, suggesting some personal ties there.  

OK, It's 10pm Anchorage time and I've been at this since 9 am Anchorage time.  This will have to do.  

I did include my rough notes of the today's court session.  Simpson and Brena speak slower than most of the others so I was able to catch more.  But still, this is not verbatim and things are missing.  It's just to have a sense of what they talked about.

ARB Trial Day 10 Feb 3, 2022 by Steve on Scribd

Trial Day 9: Skagway Explains Their Close SEI With Downtown Juneau

Judge Matthews, Mayor Cremata, Attorney Brena

The judge hadn't ruled on the East Anchorage petition and said he'd do so today.  It's now up and he's denied the East Anchorage amendments, but with some wiggle room.

We're onto the Skagway case now.  They don't like that their house district pairs them with the Mendenhall Valley part of Juneau instead of downtown as they are now in their present district.

We heard the Mayor of Skagway, Andrew Cremata, Brad Ryan, Borough Manager Municipality of Skagway Borough, and John Walsh, lobbyist for Skagway.  

Basically they all made the same argument:

Skagway's interests are very closely tied to downtown Juneau with whom they've shared a district these last ten years.  Those interests are most strongly connected by the fact that the cruise line industry has a huge economic impact on both communities.  Mayor Cremata pointed out that the long term lease of Skagway's port ends in March and Skagway will soon own and control the port.  He emphasized how important it has been to be able to work closely with the port people in Juneau in planning funding for expanding the port and dealing with the infrastructure needs of having so many passengers disembark downtown.  He mentioned they had to build Skagway's first crosswalk. Skagway's all year round population is about 1000 and it triples when a ship comes in.  

In addition to the socio-economic relationship with downtown Juneau because of the port, the witnesses testified that all the services Skagway government, businesses, and citizens use are in downtown Juneau -engineers, doctors, dentists, lawyers, shopping, government offices, and on and on.  

The Board's attorney, Singer, eventually gave up asking about connections the Mendenhall Valley Skagway (and Haines and Gustavus) residents have - hammering on the fact that the ferry terminal is in their new district.  They replied that the terminal is just a stop on the way to Juneau and pointed out that the airport is part of the downtown district.  

His next tack was to keep saying that all of Juneau borough is socio-economically integral because it's all in the same borough.  

It went on and on with examples of what specific things Skagway and downtown Juneau have in common and how little sense it makes to split the Valley in half to put Skagway there instead.  

Skagway is up against the ruling that every place within Borough boundaries is socio-economically integrated.  On the other hand, Skagway is outside the Borough boundaries.  The issue is to convince the judge and then the Supreme Court that they are more SEI with one part of Juneau than the other.  

Judge Matthews at one point asked John Walsh, the lobbyist, if the downtown Juneau legislator was already an enthusiastic supporter of Skagway's interest, wouldn't it be better to have two legislators instead of just one.  

Skagway lobbyist Walsh and
Board Attorney Singer on right

Walsh said that it was a presumption the Valley legislator would work hard for Skagway's interests, but it might work out.  If not they would have to find support elsewhere, like Ketchikan (also a cruise line port of call.) He was worried a Mendhall legislator would have maritime interests and wouldn't have the urgency a committed legislator would have.

Then Matthews followed up asking if the Mendenhall legislator would be opposed to Skagway's interests or just less interested in them?  The latter, was the response

Skagway's argument is similar to Valdez' argument that being paired with downtown means they have more clout in the legislature.  Except in the Valdez case, they didn't just argue they'd have more clout with communities along the pipeline corridor.  They also showed that they were actually in competition with Mat-Su on some very significant issues.  

While Skagway said a Mendenhall Valley rep wouldn't know their issues as well and thus wouldn't represent them as well, they didn't show any actual competing interests with the Valley.  I'd note that Brena is the attorney for Valdez and for Skagway.  

Singer, the Board's attorney, might point out that in the Valdez case, they argued that the Valdez port was in competition with the Mat-Su port, but in this case he's saying both having ports gives them a common interest.  I imagine Brena's response would be that it's a very different situation.  Mat-Su would be competing for the cargo shipping to the interior that Valdez currently has, and can put that cargo on a train rather than the road.  

But in the case of Skagway and Juneau, they are on the same cruise ship tour route so they aren't in competition.  They can work together as Alaskan ports for better port management and to learn from each other.  What wasn't mentioned was teaming up to get better terms from the cruise lines.  

Though no one made that argument and my suspicion is they are all very cosy with the cruise lines and that Skagway is making enough revenue from the cruises they are willing to give up the small town quaintness that makes Skagway a good place to live (and for cruise lines.)  While the mayor talked about all the impacts of the cruise line passengers - need for more infrastructure to handle them, more police, more fire fighters, more roads, more health care, more housing - he didn't say anything negative about that kind of growth. Only that they needed to work with Juneau to learn how to handle it.  

Tomorrow Board member Budd Simpson will be testifying.  He's from Juneau and drew the map.  Brena said he'll need a lot of time with Simpson.