What The Judge Decides Will Depend On The Intent/Meaning of Socio-Economic Integration

 I imagine the judge up late last night, writing, then stopping to look things up in the materials the attorneys submitted, in the transcripts of the Board meetings, in Hickel v Southeast Conference, and other Supreme Court rulings on redistricting.  He's busily reviewing what he's written, having staff check for typos, and generally giving himself as much time as he can, so he can get it as right and as inclusive as possible.  

Fortunately, blog posts aren't as consequential.  But I can't help thinking about the factors Judge Matthews has to balance.  While compactness, contiguity, deviation, all count, I think that the interpretation of Socio-Economic Integration (SEI) will be the most critical.  But issues about public participation and gerrymandering will also be in the mix.  

So here's a look at the cases being decided and another look aback at the Hickel case.

That case was decided December 29, 1992. (Not to be confused with a 1994 case with the same name which settled payment of attorney fees on the original case.)  

At that time redistricting was done by the Governor.  A 1998 Constitutional Amendment gave the process to a Board of five.  The Governor chooses two members  and the Speaker of the House, Senate President, and Supreme Court Chief Justice each choose two, "without regard to political affiliation."  

I add that last note because the Governor clearly used political affiliation in his choices.  Board member Budd Simpson said as much when questioned by Skagway attorney Robin Brena.  Those choices were clearly unconstitutional, but whether the courts take that into consideration remains to be seen.  While there were situations where incumbents of the same party were paired or other instances where decisions were made that will have partisan impacts, those weren't direct targets of lawsuits.  However, the East Anchorage attorney has charged that the Eagle River pairings were done to give (very Republican) Eagle River an extra Senate seat, so this is on the record for the judges to use if they see fit.  

But the critical issue as I said in all of the cases boils down to the meaning of Socio-Economic Integration (SEI), one of the four key criteria for evaluating the constitutionality of a district.  The other three are 

• equal sized districts
• compactness
• contiguity

From Article 6 Section 6 of the Alaska Constitution:

§ 6. District Boundaries

The Redistricting Board shall establish the size and area of house districts, subject to the limitations of this article. Each house district shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.

 The key guidelines the Board's attorney, Matt Singer, has used for SEI has been:  Everything within a borough is SEI. And that was said clearly

"Everything within a borough or city boundary is SEI."

 Therefore, according to Singer, talking about SEI within Anchorage is besides the point.  He even cited the Supreme Court as saying at one point that Mat-Su and Anchorage could be combined and so he stretched that, at times, to claim all of Mat-Su and Anchorage are SEI. He backpedaled on that during the mapping, but he even claimed, in the closing argument (if I recall right) that at one time the court had allowed Valdez to connect to Anchorage, and since all three shop in Anchorage and use the Anchorage Airport, they can all three be considered SEI.  

My lay reading of the Hickel case  and the Constitution make me believe Singer's interpretation is much more simplistic than the Supreme Court's.  Valdez and Skagway attorney also sees it differently. 

The Constitution says "as near as practicable a relatively socio-economic area."  Each criterion is qualified with "as near as practicable" because they all have to be balanced to form each district and then to put all forty districts together.  As you get closer to the ideal in one criterion, you get further away in others.

In the Hickel case, PART II:  LEGISLATIVE REAPPORTIONMENT begins with this quote from the Alaska Constitutional Convention:

"Now the goal of all apportionment plans is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation. And 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."

3 Proceedings of the Constitutional Convention (PACC) 1835 (January 11, 1956). [1835 is the page number]

This seems to make it pretty clear that 'the details' are a means to an end.  So, what does that mean?

Hickel then says the various criteria - size, compactness, contiguity, and SEI - have to be fit together. That's the hard part, but they help constrain the Governor (at that time) from gerrymandering. They give several definitions of gerrymandering, but the essence seems to be

Gerrymandering is the dividing of an area into political units "in an unnatural way with the purpose of bestowing advantages on some and thus disadvantaging others." 

 "Gerrymandering is `the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes. , ,'"

While people often think of gerrymandering as being directly related to giving advantage to one party over another, these definitions cited in the Hickel case are broader than that.  They include "partisan" [that would be political party] or 'personal political purposes'. [that would mean more for personal power advantage.] 

They then tell us that limiting SEI can only be done to increase compactness and contiguity, NOT to achieve some other goals.

The requirement of relative socio-economic integration is given some flexibility by the constitution since districts need be integrated only "as nearly as practicable." Alaska Const. art. VI, § 6. However, the flexibility that this clause provides should be used only to maximize the other constitutional requirements of contiguity and compactness. The governor is not permitted to diminish the degree of socio-economic integration in order to achieve other policy goals.

There's a lot more discussion, but one more quote on SEI from Hickel:

"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. 

Skagway Case 

ASIDE TO READERS:  You can see how hard it is to separate one concept from another.  I'm trying to talk about SEI, but all these other factors are intimately related.  In the case of Skagway, attorney Brena has argued with lots of supportive data, that Skagway is significantly more SEI with downtown Juneau (with which it is currently paired in a district) than it is with the Mendenhall Valley (in the Juneau Borough) where Board member Simpson put Skagway in the new maps.  Singer is using "Everything in a Borough is SEI" to say that it doesn't matter, constitutionally, if Skagway is with Mendenhall Valley or with downtown Juneau.

Brena has argued that it does matter.  He's also arguing, without saying it out loud, that there is gerrymandering going on.  He's given the court all the pieces to put together:

1.  Simpson was picked because he's a Republican

2. He and his wife have been strong supporters of building a road to Skagway from Juneau

3. He's given election results to show that Mendenhall Valley favors the road and downtown Juneau doesn't

4. He's offered evidence that a road would devastate Skagway's economy as the 'Gateway to the Klondike" and as a cruise ship destination (the source of over 90% of their income).  [Maybe it would, or maybe there would be new opportunities, but they seem to believe it would.]

5. He's shown public testimony being overwhelmingly in favor of Skagway staying with downtown Juneau and not splitting up the Mendenhall Valley.  (Another complication because I haven't cited above the part of the constitution that says the board needs to spend six weeks getting feedback from the public on their draft plan. So what the public thinks matters, but the Board's attorney brushed it off with "This isn't a popularity contest.")

So Brena, all together, is giving the Court the pieces to see that Simpson ignored the close SEI ties between downtown Juneau and Skagway to put them into a district they aren't so SEI with.  This will mean their "adequate and true representation" will be diluted by having a representative who represents mostly people who want to build the road to Skagway, which they strongly oppose.  And Simpson did this, ignoring public opinion,  to further his personal political purpose of building the road to Skagway. 

So, the court has to balance Singer's mantra of "everyone in a Borough is SEI" with all these other factors that Brena says  need to be considered.  

So it seems that in trying to provide legal perspectives on SEI, I've essentially laid you Robin Brena's case for why Skagway should be with downtown Juneau.  I'd also note, this is the easiest case to fix.  No other districts need to be affected.  Just move the line south to add about 4000 people and reunite the Mendenhall Valley community.  Then take out Skagway, Haines, and Gustavus - also close to 4000 - and put them with downtown Juneau.  

East Anchorage Case

Issues here:  Compactness, Contiguity, and Socio-Economic Integration.  Also some hints at

gerrymandering.  

1.  Contiguity is a possible big issue here, so let's see what Hickel said (in part, of course) 

"Contiguous territory is territory which is bordering or touching. As one commentator has noted, "[a] district may be defined as contiguous if every part of the district is reachable from every other part without crossing the district boundary (i.e., the district is not divided into two or more discrete pieces)."

The Board's interactive map makes the two Eagle River districts D22 and D24 purple so you can't really see which is which.  But they're paired with Elmendorf/Govt Hill (D23) and that little orange almost rectangle in the middle left (D21).  From Government Hill you'd have to drive through two districts to get to the other district in your Senate pairing.  From you South Muldoon you'd have to do the same.  Not contiguous in that sense.  Unless you want to hike over a mountain range.  

The Eagle River district maps only show parts of the districts.  It's hard to figure how they fit into this map above.  

East Anchorage is about the pairing of Senate districts and the only factor mentioned in the Constitution is contiguity.  

The two house districts paired here are contiguous geographically.  There is a large part where both districts touch.   But it is roadless land - mountains and different river drainages.  To get from the South Muldoon district to the Eagle River district you have to drive out of the district through other districts about eight or ten miles.  

The courts allowance of contiguity via roadless areas was originally in recognition that the State has many communities off the road system.  So that makes sense in rural areas.  It doesn't making sense in urban districts.  (Urban districts are also expected to have lover deviations (from the ideal population) than rural districts.  

2.  Socio-Economic Integrity

The two Eagle River districts which adjoin each other like the two halves of an apple (a very odd shaped apple) are among the whitest and wealthiest districts in Alaska.  The homes are large and many on large secluded lots.  The south Muldoon district is has a population made up of a large percentage of people of color and immigrants - actual population is close to 50%, voter age population is lower.  When a Muldoon house district was paired with an Eagle River district in 2013, the State's only black Senator was trounced in the next election.  

So the goal of reapportionment, from the Constitutional Convention of "adequate and true representation by the people in their elected legislature, true, just, and fair representation" is what the Court should be considering closely, because the people of south Muldoon are not going to get fair representation in the Senate with this pairing.  Continuity and compactness were also sacrificed to form this and the other Eagle River district that goes to Government Hill and parts of downtown.

Gerrymandering is also an issue here.  Board member Marcum said at the Board meeting that this pairing would give (Republican) Eagle River an extra Senate seat.  

Putting the two Eagle River house districts into one Senate seat is the most obvious and natural pairing on all factors, for both Eagle River and the two Anchorage districts they were paired with.  It would require repairing [pair them with different house districts*] some of the north Anchorage bowl house districts, but wouldn't be difficult and wouldn't affect other parts of the State.  

*Someone was confused with 'repairing' thinking I meant to fix, but I meant to re-pair them with other districts.

Calista

I have much less sense of this case.  Essentially, there are enough Calista Native Corporation members for one and a half house districts and about 70% of a Senate district.  The Board's map spreads them out over three house districts (D37, D38, D39) and two Senate districts.  They didn't come up with a map that puts all their members in two districts, but they did, if I understand this right, manage to increase their percentage in the third district from 1% to 10% (or something like that.)  

From Calista's Findings of Facts and Conclusions of Law:

From the Board's Interactive Map

"Calista’s goal was to achieve more effective representation for its region by consolidating more of its population into fewer districts, specifically by having Hooper Bay, Scammon Bay, and Chevak—which were historically in a district with Nome (District 39)—moved into the Bethel district (District 38), and shifting other Calista villages into the district to the south (District 37). While the Calista Region would still be split across three house districts and two senate districts, this would concentrate more of the region’s population into two house districts and one senate district in a manner that would have a meaningful effect on future election outcomes."  [emphasis added]

The goal, according the Calista President and CEO Andrew Guy, is to gain more control of a Senate seat.  

This would appear to be consistent with the idea of 

"the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation"

This case specifically raised the issue of gerrymandering:

"Multiple Board members had actual conflicts of interest. Member Bahnke is the President and CEO of Kawerak, Inc., the nonprofit arm of Bering Straits Native Corporation, which has an interest in District 39.7 Member Borromeo is a Doyon shareholder and the evidence at trial demonstrated that she was in close communication with the Doyon Coalition’s attorney about District 36 throughout the redistricting process.8 Member Simpson is outside counsel to Sealaska, an ANC in the Doyon Coalition, and testified that he receives six figures in billings from Sealaska annually and communicated with Sealaska about District 36 while working on the maps.9"

Particularly that the drawing of D36 and D39 unfairly impacted how D37 was drawn.   

Part of their proposal would move Tyonek out of D37 and put it back with Kenai Borough which it is part of.  (The fact that Kenai Peninsula Borough was broken twice, but the Board stubbornly refused to do that with Fairbanks raises questions about the consistency of the Board's rules.)  This will cause a ripple effect that Doyon Intervening attorney Admdur-Clark argued would ripple into many other districts, meaning the Board would have a bigger job.  

Mat-Su and Valdez

I've spent a lot of time on this in previous posts.  Again Brena made a strong argument about competing interests between Mat-Su and Valdez, which means Valdez wouldn't achieve 

"the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation"

There are also contiguity issues because you have to cross into District 36 for over 100 miles to get back to District 29 and drive into Mat-Su where 76% of the population of the district lives.

Brena also raised the issues of various Board members protecting their interests - getting all the Doyon and Ahtna villages into D36 for example - that meant that Valdez' normal pairing with the Richardson Highway communities was foreclosed.  

Ruling in favor of Valdez will cause the Board the most headaches, because it will affect a lot of other districts, either directly, or through ripple effects.  

So, sometime in the next 12 hours the Judge Matthews' decision should be known.  

I'd make a correction to what I wrote in the previous post.  I said if they can't get a final map done in time for the Division of Elections, then the Proclamation Plan map would be used.  That's what happened in the 2012 election.  But as I read the Hickel case again, I saw that another option is to have the trial court judge get a map done in time for the election.  

"In a separate Order of Remand, later corrected, we directed the superior court to remand the case to the Board for formulation of a final plan. However, because of time constraints, we also directed the court to formulate an interim plan so that 1992 state elections might proceed in conformity with the requirements of the United States Constitution, the Alaska Constitution and the federal Voting Rights Act. Further, we authorized the court to employ experts or masters to assist in the formulation of an interim plan. See Appendix C.

Thereafter the superior court appointed three masters. After receiving instructions from the court and reviewing alternative plans proposed by the parties, the masters presented a recommended interim plan to the court on June 14. In Orders dated June 18 and 19, the superior court accepted the Masters' recommendation, with several modifications including a redrawing of the Fairbanks House Districts. The parties cross-petitioned this court for review of the court's orders. On June 25, after considering oral and written arguments, we granted the petition and affirmed the court's interim plan with modifications required by our determination that the court had erred in redrawing the Fairbanks House Districts."

First Draft Of Suggestions For Next Alaska Redistricting Board

 

Lessons

Starting from scratch every ten years is hard Need way to maintain institutional memory Start much earlier  Get professional help Don't require local areas to make 40 district maps Do map making sessions with public at public hearings Enforce:  board members not selected based on party affiliation Guidance to Board on Alaska constitution, laws, and court decisions regarding redistricting should be public Better rules about incumbents:  Not protecting incumbents should be paired with not target incumbents

I think it might be helpful for everyone involved in this process to think about what happened and write up some lessons learned for the next Board.  People playing different roles will see different things.  

So I'm starting my list now before I forget things.  This won't be the 'final report' but at least I'm doing a first draft

What have I learned from this round of redistricting?

Maybe I should start with lessons learned from the 2010 round of redistricting:  

1.  We aren't done yet.  If the courts agree with any of the lawsuits, the Board will be reconvened and begin mapping again. It will be easy if just Skagway or East Anchorage needs to be changed.  Calista has the potential to have wide ranging statewide impacts if Tyonek is pushed back into the Kenai Peninsula Borough.  The Valdez-Mat-Su complaints will require significant remapping and strong opposition from Doyon which worked hard to get all its communities and Ahtna communities into one giant (physically) district.  

2.  The 2021 Proclamation Plan will probably be the plan for the 2022 election.  June 1 is the deadline for state candidates to file for office.  I wasn't exactly sure the timeline so I checked with Board executive director.  His response was: 

"We expect a decision on Feb 15. The timeline is that appeals have to be filed in 2 business days. So if the decision comes Tuesday the 15th, appeals are due by Thursday the 17th. The court will convene a status hearing, likely by Monday, Feb 21.  Appeal briefs are due 10 days later, or about March 2. Appellee’s response is due 5 days after that, and then the court will likely hold an oral argument the week of the 14th or 21st of March. If the court sticks to the appellate rule, it will decide the appeal by April 1.

I think the idea here is that an April 1ish decision would give the Board some time to potentially resolve a remand order (make a change) with enough time for Div Elections to still do their job properly leading up to June 1.  But of course, if it's a complicated remand (like start over), that could be very difficult."

And I would add, if the revision is challenged, there probably won't be time and the new Proclamation Plan districts (the ones being challenged) would be used.   

3.  The Board might want to start mapping new options right now.  Let me rephrase that because the Board does NOT want to do that.  Why do possibly unnecessary work?  But they could get started before the final court verdicts are in.  At the very least they will know what the Superior Court decision is by Wednesday.  And they have a meeting already set for Wednesday at 11am.  The hardest adjustment will be, as I said above, if the Mat-Su/Valdez and Calista cases win.  The other two they should be able to fix easily.  But to the extent that Board members have vested interests in the existing maps, that's another reason to delay so that the current Proclamation Plan goes into effect for the 2022 election.  

Suggestions For The Next Board (The Legislature May Have To Help With This)

1.  Starting from scratch every ten years is difficult -  To rev up a brand new organization every ten years has some advantages but also some real problems.  The Board members don't get appointed until the decennial census year.  That was 2020 this round.  They then have to find office space, get equipment, hire administrative staff, hire legal counsel, learn all the rules, learn the mapping technology, figure out how to do the public participation road show (I really don't like that term, it makes it sound like it's superficial and it emphasizes the "show" part and not the listen part.  

On the plus side, you get fresh perspectives and new ideas.  But there has to be better continuity and some sort of institutional memory established.  

2. There should be a way to maintain some institutional memory - Perhaps having a state agency that's responsible for keeping up the Board's website, and ideally an employee who was involved with the Board who can help get basic things done for the Board.  \

The last Board's website disappeared.   And even it it had been kept alive, much of the material would have disappeared because it was on various State websites which got cleared when new governors got elected.  The best available record for the public of what happened in the 2010 cycle is my redistricting page with an annotated index of all my posts.  And a lot of my links are bad because the Board's documents are gone.   That isn't how it should be for an important government agency.  

Peter Torkelson tells me he's doing what he can to make sure the current Board's website is preserved. But that responsibility should be institutionalized, not just depend on a former Board employee. 

3.  Start much earlier - This current Board should leave a todo list and a time schedule for the next Board and even meet with them early on.  Steve Colligan, Mat-Su's redistricting/mapping consultant said that they began planning for redistricting five years ago.  They were keeping up with changes in the Census Bureau's advances in technology and data.  They started mapping ideal districts early.  Sure, you're working in a  bit of a vacuum because you don't know the ideal size of a district.  But by the time you get that information, you've spent a lot of time working the mapping software and overcoming technical obstacles.  He also said he has highly skilled GIS people to do much of the work.  This Board got appointed in the second half of 2020.  They didn't start playing with the software until July 2021.  They may have learned some basics quickly, but they are still amateurs. 

4.  Get professional help - Even if the software gets much easier to use in the next ten years, Board members learning it on-the-job is not a good model.  I know the Board members believe they got proficient and did a good job, and that's probably true.  But a trained, skilled GIS person knows a lot of tricks hidden in the software and lots of shortcuts.  I suspect Board member Simpson had the right approach - he says he didn't actually.  I've taken a couple of semester long university level classes in Photoshop and I can do a number of things, but the software has capabilities way beyond my level.  

5.   Don't require local areas to make 40 district maps - This Board's attorney explained in court that they required local governments to do whole 40 district maps, not just do maps of their area.  The justification was that it's easy to just do your area, but that you have to the whole state to see how your boundaries affect other districts.  That's logical, but it's also an easy excuse to not pay attention to what local people do.  It's the Board's job to listen to what local areas want and to try to incorporate them into a whole state map, not local communities.  

6.  Do map making sessions with public at public hearings where the Board techs work with local residents to try to fix boundaries that work with other areas' concerns.

7.  Enforce:  board members not selected based on party affiliation

8.  Guidance to Board on Alaska constitution, laws, and court decisions regarding redistricting should be public

9.  Better rules about incumbents:  This round's Board made a rule not to protect incumbents.  That's fine, but only if they also have a rule not to target incumbents.  

My granddaughter has a serious sibling rivalry with my laptops.  So this is going to have to do for now. This is just a first draft.  I'll also try to make a list of things the Board did well later.  And I'd encourage Board members, staff, the public, and others to make suggestions too.

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]