Judge Matthews Affirms Partisan Gerrymandering And Declares Option 2 The Map for 2022 Elections

The judge said the opinions would be ready by Monday and he just barely made it.  I got it from them from the Most Requested Cases just after midnight.  I'd just gone to bed when I check once again.  Rather than blog at that point I put up a couple of Tweets to let people know the decision.  

Here's the opening paragraph of the decision:

"ORDER RE GIRDWOOD CHALLENGE TO AMENDED PLAN

This is the second time this year that this Court has been called upon to determine whether the Alaska Redistricting Board fulfilled its constitutional responsibility in drawing the Senate map for Anchorage voters. After this Court found the Board failed in its first attempt, the Alaska Supreme Court confirmed the board had engaged in partisan gerrymandering. Following remand to the Board, a new map was drawn. This time, the process occurred mostly in public. But the Amended Plan still provides Eagle River with effective control of two senate seats. Girdwood Plaintiffs have challenged the map claiming it still amounts to a partisan gerrymander. This Court agrees."

Here's the ending:

"The Court has the power, by mandamus,255 to order the Board to correct any error in redistricting.256 The only practical solution is for this Court to order the Board to adopt a map of senate pairings. Having determined that Option 3B was an unconstitutional political gerrymander, the Court orders the Board to adopt Option 2 on an interim basis for the 2022 general election. With the time pressure of the impending deadline removed, the matter should then be remanded once again to the Board to correct its constitutional error and adopt a new plan of redistricting for the balance of the decade.

This Court anticipates and encourages immediate appellate review of this decision by the Alaska Supreme Court. Accordingly, unless this Order is stayed by the Alaska Supreme Court, the Board shall prepare a Second Amended Proclamation incorporating the proposed senate pairings in Option 2 not later than May 23, 2022.

IT IS SO ORDERED.

DATED at Anchorage, Alaska this 16 day of May, 2022".

NOTE:  I'm using the House district numbers of the November Plan.

Basically, the judge agreed there was still partisan gerrymandering and and ordered the Board to adopt Option 2 as the map for the 2022 general election.  (Candidates have until June 1, 2022 to declare their candidacy.)  This only affects about five or six Anchorage Senate seats. The result of going with Option 2 is this:

The two Eagle River House seats are paired into one Senate seat. (D22 and D24)

The JBER/Govt Hill seat (D23) will be paired with Downtown (D17)  

D18 (which had been paired with Downtown (D17) is now paired with D19 

D14 (had been paired with D19) is now paired with D13

The south Anchorage Hillside district 9 will be paired again with district 10 which goes along the coastal areas of south Anchorage.  

Here's the Anchorage map for Option 2.  Key districts affected

You can see the Option 2 and Option 3B maps here.

The judge expected an appeal to the Supreme Court, and according to Matt Buxton, the Board filed one today.  I haven't been able to find a copy on line.  I can see the motion on this page, but there's no link to get to it.

Meanwhile the Supreme Court has posted an initial schedule.  

" In the Supreme Court of the State of AlaskaIn the Matter of the 2021Redistricting Cases (Alaska Redistricting Board/GirdwoodPlaintiffs/East Anchorage Plaintiffs)

Supreme Court No. S-18419 Order Appellate Rule 216.5(h) Date of Order: May 17, 2022

 The court has been advised that the superior court has issued its rulings following this court’s March 25, 2022 remand. The court also has been advised by the Alaska Redistricting Board that it intends to seek our review on an expedited basis. Fo refficiency and expediency, IT IS ORDERED:

1.  A file has been opened with the above-referenced case caption andsupreme court case number. The necessity for payment of filingfees is WAIVED. 

2.  Petitions for review of the superior court’s May 16, 2022 rulings aredue by Wednesday, March sic] 18, 2022, at 5:00 p.m. Responses topetitions are due by Friday, March [sic]  20, 2022, at 5:00 p.m.

3.  Petitions and responses may not exceed 35 pages and shall besubmitted in memorandum format. The pleadings must comply withAppellate 

in memorandum format. The pleadings must comply withAppellate Rule 513.5. Amicus curiae, if any, may file amemorandum not to exceed 20 pages.

4.Although Appellate Rule 210 normally does not apply to petitionsfor review, the parties must submit excerpts of record in accordancewith Appellate Rule 210(c).ITMO 2021 Redistricting Cases Supreme Court No. S-18419 Order of May 17, 2022 Page 2 

5.Parties must submit all documents filed with the court electronicallyin PDF format to pleadings@akcourts.gov. In addition, six courtesycopies of petitions and responses should be delivered to theAppellate Clerk’s Office on the Fourth Floor of the BoneyCourthouse located at 303 K Street, Anchorage, AK 99501.

6.The service requirements of Appellate Rule 216.5(k) are relaxed to allow filing and delivery of documents by electronic mail. 

7.Justice Maassen and Justice Carney will not be participating in thismatter. 

Entered at the direction of an individual justice.Clerk of the Appellate Courts ________________________________ Ryan Montgomery-Sythe,  Chief Deputy Clerk"

Alaska Redistricting Board: Waiting For The Judge's Decisions

 When my grad students had semester (or longer) papers/projects, there would come a time when many of the students were done.  That is, they didn't want to see the project any longer. They were mentally finished.  I would have to tell them, "Yes, I understand you are done with this, but unfortunately, the project itself is not done yet.  Go ahead a take a couple of days off, but then get back to work."

I'm sort of in that place myself when it comes to the Redistricting Board.  I'm finished.  But the project is not over yet. I do find it fascinating, but the work to sift through everything and try to come up with something meaningful AND easy for others to understand, becomes more and more difficult.   

I've had some notes that I've been writing in response to the recent hearing Thursday, but there are so many pages of documents, that I feel somewhat overwhelmed.  I want to do it right, but my being is protesting.

So, while we're waiting for the judge's decisions - due today - let me make some more specific comments.  Many of my reactions here today, are minor additions to things I've already elaborated on.  So, just some not too organized thoughts as I listened and read.  

I have to say, from the oral hearing, that the Board's attorney, Matt Singer, is a pretty good attorney.  He's put a good spin on a terrible case.  And there may be enough doubt sowed that he could prevail.

Contiguity  

Given what the judge and justices have said on contiguity, I don't think the contiguity argument will win this for the plaintiffs.  As much as I would like the Court to reconsider the absolute, either/or, nature of contiguity, particularly in an urban setting where there are plenty of 'better' ways to make two House Districts contiguous, than through a relatively wild and roadless state park.  

A member of  the constitutional convention wrote that compactness, deviation, socio-economic integration, and contiguity were criteria that helped to prevent gerrymandering. But in a Senate district, there is only one criterion - contiguity.  To accept it as either/or, regardless of there being many other far more practical options, is to take off the only protection these criteria give against gerrymandering.  And in this case, the contiguity between D22 and D9 is a joke.  An example the Board majority was trying to find a way to gerrymander.  

So, the only way I think contiguity might play a factor here is if the judge and the justices see the crazy physical connection drawn between D22 and D9 as a piece of evidence that the map was gerrymandered.  On its own, it won't hold water. 

Gerrymandering

It's clear to anyone objectively viewing this, the Board majority made all the contortions they made, all the violations of common sense and natural order, to squeeze out another Republican Senate seat.  (In addition to the unfortunately uncontested - in court anyway - slicing out of Goldstream from Fairbanks.)  I've discussed how they gerrymandered at various times.  You can look here, for example.  People who conspire to do things that are outlawed, tend not to broadcast that. So it will be up to the judge and justices to weight the Board majority's explanations for their decision against the preponderance of evidence that those are just empty assertions and excuses.  That it was political performance art to ritually satisfy the courts' orders to listen to public testimony and explain why they are deciding to do what went against that testimony.  

"Everybody Is Partisan" Accusing the Other Side of What They Clearly Did

Board's attorney, Matt Singer,  rather than put up a strong factual argument to counter the various charges made, instead starts charging the Board minority with doing what the Board majority clearly did.

Singer argued that pairing JBER with Downtown was the gerrymander. 

"This lawsuit is not about Girdwood at all. It is about attempting to force Eagle River/Chugiak/Eklutna voters into a single senate district and thus submerge the voice of JBER under a majority of Downtown Anchorage voters who strongly favor opposing candidates. This Court should reject the Girdwood Plaintiffs’ redistricting and equal- protection claims. This process is not about giving any particular political party or labor union exactly what it wants, but instead about adopting a constitutional plan and obtaining finality for all Alaskans."

Actually, 1/3 of District 23 live off base and though they are a minority of voters, the voting data I've seen shows that more of the off-base voters show up to vote than the on-base voters.  That's not unexpected.  A number of active-duty military vote in their home states, not in their temporary assignment.  And as Dr. Hensel pointed out in his testimony, local government issues - roads, housing, etc - are  taking care of by the military hierarchy and not through elections.  

And the lack of testimony from people on-base saying they prefer to be with Eagle River/Chugiak demonstrates that these are not issues of interest to them.  It is, in fact, the non-base voters of District 23 who will be swallowed up by Eagle River voters.  Furthermore,  the people who live on base, economically and ethnically, are a closer match to the folks who live in downtown than to the folks who live in Chugiak.  And, they have lots of direct street connections to go from one district to another.  There aren't any from base to Chugiak without going through other districts.

Eagle River And Hillside Voters All Vote Republican Anyway

Singer also argued that HD 22 and HD 9 were politically the same - they voted Republican.  But if you look at the Alaska State legislature, "Republican" is a simplification.  The previous Alaska Senate majority was a coalition of Republicans and Democrats with a minority Republican caucus.  And that is true today of the State House.  There are Republicans who are more comfortable working with Democrats than with their fellow Republicans.  ER tends to elect people who end up in the minority Republican caucuses.  

Contesting District L is Time Barred

That's the assertion that Matt Singer made.  No one contested the Senate pairing of District 24 (Chugiak) and District 23 (JBER/Govt Hill/North Anchorage) after the November 2021 Proclamation Plan in the 30 day time limit, so that is approved by the Board.  

That's a good try, but ignores the facts.  Once the Board was told to detach ER from South Muldoon, the Board had to solve the problem of who to pair HD22 with.  The obvious pairing was to pair ER with ER.  The two house districts are split across neighborhoods.  You can walk across the street from one district to the other.  They are clearly a community of interest.  They are called Chugiak-Eagle River by the people that live there.  

The arguments the Board majority made to lock in Chugiak/JBER pairing were - like most of what they said on this - fact-free assertions of their version of reality - the close ties of the military in both districts,  and the Base kids going to high school in district 24.  (But that turns out to be totally untrue.  ER High School is in District 22, not in District 24.  And if pairing JBER with downtown was as sacrilegious as members Simpson, Binkley, and Marcum kept declaring, then why did the Board create a House district (23) that was 2/3 JBER and 1/3 downtown?  And if the high school assertions they made about base kids going to school in D24 were so relevant, then why did Singer now argue that it's irrelevant where kids go to school?  The fact that  South Anchorage kids don't go to school in ER and vice versa is now evidence against Option 3B. Now we hear that they are all in one school district.  It was fine to argue schools when the Board majority thought it bolstered their argument, but when it doesn't, school attendance is suddenly irrelevant.)

Once District 22 became again a free agent,  District 24 becomes the obvious District for pairing.  Much more obvious than District 9.  In fact, District 9 was already paired with District 10 and by the Board's reasoning, it should be just as off limits to tinkering as was District 24.  

So, actually, the Board majority, by pairing D22 with D9 and NOT even comparing that option to combining D22 with D24, themselves reopened the clock to disputing the Chugiak/JBER-Govt Hill district.    But Singer does a good job of creating an argument that might be given credence by some.  Just as the Board majority created fictions to justify their preference for Option 3B.  

Enough.  There will be lots fo talk about later tonight or perhaps tomorrow morning.  I do recall the Judge's original decision came out late at night or early in the morning.  

Great Birding Day At Lakes Hood and Spenard

 I'm reasonably confident of the identifications because we went with a serious birder friend.  These are the ones that are relatively less common.  We were looking for a long tailed duck that was reported nearby, but didn't sight them.  These were cool enough.  I've saved these files larger than I normally would, so they should get bigger and sharper if you click on them.  

Crowned Grebes

Red Throated Loon

Boreal Chickadee

 Barrow's Goldeneye

When we got home for a late lunch on the deck, a downy woodpecker was banging away on an old cottonwood and some nuthatches seemed to have made their nests in the old woodpecker holes.  

A Quick Bit Of Feedback On The Court's New Online Viewing System

I'll get to the Redistricting Board court hearing later today or tomorrow, but first I want to give Judge Matthews and the court administrators some feedback on their new online viewing option.  

However, I will say right now, the Judge said he would rule on both the original remand AND the Girdwood appeal of the April Board Proclamation Plan on Monday, May 16, 2022.  

It took about 15 minutes to actually get to listen to today's Alaska Redistricting Board's hearing in Judge Thomas Matthews virtual courtroom.  The current system doesn't let you see the the Judge's name, apparently, until they are ready to go on the record.  So you can sit there and just wait.  But what if it's not working?  Or what if your internet isn't working right with the Court's new online system?  At 10:03am I called the court to ask. I've had enough questions for the clerk prior to today that I had her number and called her to check what was happening.  

Clerk:  "I think it's starting late.  Oh, there it is."  

Steve:  "I don't see anything."  

Clerk:  Try reloading the site

Steve:  Nothing

Clerk:  Let me email you a different url.

And then, finally on this new link, I could see the judge's name. I could click to watch live.  But it wouldn't load right.  I had tried this with other judges since this happened the first time this system was in place for Judge Matthews and it worked better after I upgraded my Mac's operating system.  But not great. And today's court hearing would give five seconds of sound and then stop.  I finally tried using my phone and when I shut off the wifi on my phone, it came in fine.  

My internet is slow. (That's another story)  But I can watch Netflix without trouble.  Whenever I attended Board meetings online I was able to watch without any trouble.  I can Zoom with decent connection.  I could watch the Court hearings when they were on Youtube.  But this new system just doesn't work for me over my computer.  And after I switched to cell connection on my phone  I got a couple of messages from ATT that I was pushing my monthly limit while I watched today.  

My concern here is that I live in Anchorage with internet that allows me to do all the internet viewing mentioned above without trouble.  But many people in rural Alaska have much more trouble than I have in Anchorage with internet reception.  If the Courts are going to have a new system, they should have a system that all Alaskans with internet can listen in to.  If I can't get it - even as I pay close attention to this process and how to connect, then folks with lesser attention to redistricting and lesser internet connectivity surely are blocked from meaningful access to this system.  

So, two things:

1.  The system needs a way to let viewers know before the meeting starts, that they are at the right place and the meeting is coming up.  Right now, you just go on faith alone.  If I had just waited and not called, I would have missed the whole thing. 

2.  The system should be accessible on slower bandwidth  than it is now.  As I said, I can Zoom and watch Netflix and other kinds of conferencing and viewing - including all the Board meetings and the Court's previous YouTube set up.  But I can't connect via my computer for this new system.  

I know the judge is busy with cases, but I also know he wants people to be able to watch in on important cases with Statewide impact like this one.  

I'd also note that the Most Requested Cases Page prior to today, the latest document up was the Girdwood Plaintiff's Complaint, dated 5/2/22.  Only today was I able to access 

• Opening Brief on Girdwood Challenge (ARB) dated 5/5/2022 

and 13 other documents from the last ten days.  This is an expedited case and if the public and the press are going to have timely access, these documents need to be available right after they show up on the docket.  

Again, I know everyone is speeding along with cases, but these are important if the public is going to have access to important cases.  

Expect Fireworks At Thursday's Redistricting Court Hearing

 While I've been out enjoying Alaska the last couple of days - down at Captain Cook State Park - Matt Buxton has been going through the Girdwood Plaintiffs' briefs.  [I haven't been able to get much from the Court's Most Requested Cases page - the updates are keeping up with what's coming in.  I can see the documents on the cases docket page, but I can't open those.  So I decided to just get out into nature for a couple of days before Thursday's hearing.  

I was out walking on the beach this morning, taking in the car sized boulders scattered all along the beach and into the water.  

Meanwhile, Matt's been quoting from the Girdwood plaintiffs' filings.  

As I wrote May 1, it would be hard to come up with any other conclusion that the Board majority has again  ignored what makes sense to carve out one more Republican Senate seat.  I've been watching the Board since December 2020.  There's no other reasonable explanation.  

The Court had remanded the map to the Board to make corrections.  The corrected one Senate districted, but insisted on leaving the other gerrymandered district.  

The judge let a self-imposed deadline to decide if the remanded map was ok slip [like the student who has the repeated nightmare that he missed a final exam, I too wonder if that was somehow resolved and I missed it], and then set a schedule for a somewhat different hearing - appeals of the final redistricting plan.  I know this is confusing.  Let's try again.

The judge remanded the case to the Board.  Then he had to decide whether to accept the remand.  To my knowledge, he hasn't done that, though he'd set a date to do it by.  That date passed.  

But there was also the opportunity for anyone to appeal the Board's second plan.  

Yes, these seem like the same thing.  The difference is, as I understand it, that the judge, by himself, can accept or reject the remand.  If he accepted it, then people could appeal that decision within 30 days of the decisions.  But the judge's ruling shortened the 30 day period and didn't offer his decision on the remand.  

So I speculated, in this April 30, 2022 post 

"One possibility is that the Judge wanted something more concrete than the East Anchorage plaintiffs gave him, before ruling gerrymandering again.  It's clear the judge believes the Board majority is capable of gerrymandering, because he ruled they did the first time.  Asking for the emails may be a sign that he's hoping there will be something more explicit that he can base his ruling on.  Meanwhile, he's trying to figure out how to decide." (emphasis added)

 And Matt's Twitter thread today, goes through the Girdwood Plaintiffs' submission which goes through those emails and offers a number of examples of communications between the Board majority and others which give more evidence of the Board majority's working with partisan Republicans to achieve their aim.  There's board member Marcum's joining a private national Republican group whose explicit goal is to make sure that redistricting around the country favors Republicans.  (But, again, I pointed out that she's the CEO of an organization with the same goals back in May 2021.)

There are emails that call Board members Bahnke and Borromeo "bitches of the highest order"and Matt himself is called a POS.  

But the real meat for the judge (and the Supreme Court justices after that) are the communications that show links that clearly show their partisan intent and also one from Simpson that shows he and Binkley really didn't understand much of the geography of Eagle River and Chugiak and the Hillside, even though there was plenty of public testimony explaining it to them.  It's pretty persuasive that they had an outcome in mind (preserving the Senate seat made up fo HD 24 (Chugiak) and HD 23 (JBER/Govt Hill/Mountain View).  

So go read Matt's Twitter thread.  (My understanding is that you can read Twitter without being a member.)  

Court is at 10am tomorrow morning.  You can listen in at:

https://public.courts.alaska.gov/app/acs/stream/

Close to or shortly after, Judge Thomas Matthews name should show up below "Judge".  (There may be other judges listed as well.)  This is NOT a user friendly set up, but I suspect the Court thinks it's more secure than the Youtube channel they were using.

 

Sen. Specter Questioning Alito At His Confirmation Hearing

Haven't had time to read the whole thing - it's very long - but I thought reviewing Justice Samuel Alito's confirmation hearing might offer us some insight.  Unfortunately, it's another sunny day and Alaska is calling loudly.  So I offer you this short bit where the committee chair Sen. Arlen Specter questions Alito:

Chairman SPECTER. Judge Alito, the commentators have characterized Casey as a super precedent. Judge Luttig, in the case of Richmond Medical Center, called the Casey decision super stare decisis. In quoting from Casey, Judge Luttig pointed out, the essential holding of Roe v. Wade should be retained and once again re- affirmed. Then in support of Judge Luttig’s conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart, and quotes the Supreme Court, saying, ‘‘We shall not revisit these legal principles.’’ That is a pretty strong statement for the Court to make, that we shall not revisit the principles upon which Roe was founded, and the concept of super stare decisis or super precedent arises as the commentators have characterized it, by a number of different Justices appointed by a number of different judges over a considerable period of time. Do you agree that Casey is a super precedent or a super stare decisis as Judge Luttig said?

Judge ALITO. Well, I personally would not get into categorizing precedents as super precedents or super duper precedents, or any—

Chairman SPECTER. Did you say ‘‘super duper?’’ [Laughter.]

Judge ALITO. Right.

Chairman SPECTER. Good.

Judge ALITO. Any sort of categorization like that—

Chairman SPECTER. I like that.

[Laughter.]

Judge ALITO [continuing]. Sort of reminds me of the size of laundry detergent in the supermarket.

[Laughter.]

Judge ALITO. I agree with the underlying thought that when a

precedent is reaffirmed, that strengthens the precedent, and when the Supreme Court says that we are not—

Chairman SPECTER. How about being reaffirmed 38 times?

Judge ALITO. Well, I think that when a precedent is reaffirmed, each time it’s reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.

Now, I don’t want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not, but it is a judgment that has to be based, taking into ac- count all of the factors that are relevant and that are set out in the Supreme Court’s cases.

Chairman SPECTER. Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I do not ordinarily like charts, but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe, where the Supreme Court of the United States had the opportunity to—Senator Hatch is in the picture now.

[Laughter.]

Chairman SPECTER. It is a good photo op for Senator Hatch. Senator Leahy is complaining.

[Laughter.]

Senator LEAHY. Just balance it on Orrin’s head. Senator HATCH. Put that over by Leahy.

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Chairman SPECTER. He wants it on his side.

[Laughter.]

Chairman SPECTER. I think the point of it is that there have

been so many cases, so many cases, 15 after your statement in 1985 that I am about to come to, and eight after Casey v. Planned Parenthood, which is why it has special significance, and I am not going to press the point about super precedent. I am glad I did not have to mention super duper, that you did. Thank you very much.

Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman’s right to an abortion. Do you agree with that statement today, Judge Alito?

Judge ALITO. Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.

Today if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis. And if the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made.

Chairman SPECTER. So you would approach it with an open mind notwithstanding your 1985 statement?

Judge ALITO. Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

Chairman SPECTER. Judge Alito, coming to the role you had in the Solicitor General’s Office, where you wrote the memorandum in the Thornburgh case, urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a pro- motion within the Federal Government. So there is a little difference between the 1985 statement and your advocacy role in the Thornburgh memorandum, is there not?

Judge ALITO. Well, there is, Senator, and what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. I’m not saying that I made the statement simply because I was advocating the administration’s position, but that was the position that I held at the time, and that was the position of the administration.

Chairman SPECTER. Would you state your views, the difference as you see it between what you did as an advocate in the Solicitor General’s Office to what your responsibilities would be, are on the Third Circuit, or what they would be on the Court if confirmed as a judicial capacity?

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Judge ALITO. Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility. That’s what an advocate is supposed to do, and that’s what I attempted to do during my years as an advocate for the Federal Government. Now, a judge doesn’t have a client, as I said yesterday, and a judge doesn’t have an agenda, and a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.

Chairman SPECTER. Judge Alito, you have written some 361 opinions that I would like to have the time to discuss quite a few of them with you, but I am only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll, and that was a case where there was a challenge between a Pennsylvania statute, which required as a prerequisite to a woman getting Medicaid, that she would have had to have reported a rape or an incest to the police, and second, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions conflicted with a regulation by the Department of Health and Human Services. You were on the Third Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygaard entered a very forceful dissent say- ing that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by the Department counter- vail a statute.

What was your thinking in that case? Had you been predisposed to take a tough line on a woman’s right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute. What was your thinking in that case?

Judge ALITO. Well, what you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute, and I did it because that’s what I thought the law required. I thought the law required that we defer to the interpretation of the Federal statute that had been made by the Department of Health and Human Services. If I had had an agenda to strike down any—I’m sorry, to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygaard in that case, and that would have turned the decision the other way.

I’ve sat on three abortion cases on the Third Circuit. In one of them—that was the Casey case—I voted to uphold regulations of abortion, and in the other two—the Elizabeth Blackwell case and Planned Parenthood v. Farmer—I voted to strike them down. And in each instance, I did it because that’s what I thought the law required.

Again, you can find the whole transcript of the hearing here.

We are no longer at a point where these hearings serve the purpose they were intended for.  The Republicans first forays with far right judges - Bork, etc - were turned back.  But now it's just about whether one party or the other controls the Senate.  It used to be that most justices got approved by large majorities, now it's generally straight down party lines.  Not to mention McConnell block Obama appointments altogether and then rushing through Trump's.  

Pro Roe Rally In Anchorage

 Some photos of the Anchorage rally this afternoon.  If there were any candidates there, they weren't on stage and I didn't see/recognize them in the crowd.   There were lots of expressions of anger, but I didn't hear any of the speakers urging the crowd to vote for candidates who support women's rights, letting people know that the people who have given up voting are the people who can make a difference in the next election.  You want to keep the Court from getting even more misogynists?  Vote.  And get others who don't normally vote to vote.  More people didn't vote in the mayoral election last year than did.  10% more people voting for the right candidates would make all the difference.  

Who's Going To Clean Up The North Slope And The Pipeline When The Oil Companies Leave?

 

Like lots of my posts, I have one key points to make, but it seems like I need to give some background to this quote.  

Cold Mountain Path, by Tom Kizzia, is this month's book club selection.  The group also read Tom's Pilgrim's Progress  that told the story of Papa Pilgrim and his large family that turned out to be filled with nasty unpleasantness under the facade of a happy religious family. 

Both books take place largely in Wrangell-St. Elias National Park.  This second book expands on unpublished notes from the first book - notes that talked about the history of McCarthy the ghost town like community in the park near the Kennecott copper mine.  

Kizzia has figured out the way to tie lots of stories about the town and people in it, into a fascinating tale.

The particular I quote I'm offering today is part of a section describing John Denver's week in McCarthy as part of his Alaska Wilderness movie tour in 1975.  He writes about how the locals reacted to Denver and vice versa.  But here he's talking about the irony of filming an environmental film in a ghost town of a huge copper mine that made a fortune for the Guggenheim Syndicate before they suddenly pulled out in 1938 just before WWII, leaving everything behind - equipment in the Copper Mill, all the houses and furnishings for the workers, clothes, food, vehicles . . .

"In his book, Denver described Kennecott as "a wild streak of industrial violence" that "just sits there, brooding in the night."  It might seem odd that a movie about preserving Alaska's wilderness would linger amid the frontier ruins of industrial capitalism, but the allegorical setting actually suited the times.  The conservationist's fundamental truth, about the environment winning in the end, presses itself constantly upon a visitor's imagination in the Wrangell, there being no greater illustration than Kennecott itself.  Juxtaposed against the propulsive boosterism of Alaska's modern oil boom, in which Alyeska Pipeline had replaced the Guggenheim Trust, Kennecott's ruins provide an almost religious tableau, a place where spiritual reassurance might be found in the atmosphere of decline and fall, in the inning when nature bats last."

That last sentence led me to the title of this post.  Who is going to clean up the Alaska oil pipeline when the oil companies close up shop and abandon Alaska, like the Guggenheims did?  I don't ever recall hearing about a fund set aside to clean up.  But according to this 2020 LA Times piece, 

"Current bonding levels, the funds put aside by the industry to ensure adequate decommissioning of wells and other infrastructure, barely touch what’s needed for cleaning up what’s been built or drilled to date. . . Operators can hold blanket bonds for their entire operations that may not even cover a single site’s cleanup."

The article is only talking about cleaning up the oil fields and doesn't mention the pipeline. (I'm sure there are people thinking about making it the world's larges water slide.)  How much of what the state of Alaska has earned off the oil will be needed to clean up the mess the oil companies are inevitably going to leave behind.  British Petroleum has left the state after selling its stake to Hillcorp Energy,  a company that specializes in getting the last oil out of the ground on the cheap.  

"Environmental organizations and pipeline experts continue expressing concerns about a secretive Texas petroleum company with a spotty safety record that acquired the largest share of the Trans-Alaska Pipeline last year as thawing permafrost and flooding linked to climate change threatened the massive oil conduit.

The Regulatory Commission of Alaska voted 4-1 in December 2020 to allow Hilcorp Energy Co. to acquire BP’s Alaska oil and gas assets for $5.6 billion, a transaction described as the biggest Alaskan business deal in a generation. It involved one of the state’s most important pieces of economic infrastructure."(Inside Climate News)

Not the kind of company that can or would clean things up.  

Alaska Legislators - as you talk about Alaska oil revenues and taxes - please put the costs of cleaning up the oil fields at the end into any new legislation.  We need a realistic estimate of the costs and a way to get the oil companies to deposit money for the cleanup before they leave.    

Senator Sullivan, you're one of the oil companies' biggest boosters.  Show us you care about Alaska too and get an adequate fund set up to deal with cleaning the oil fields and the pipeline when the oil is gone.  Kennecott is just a blip on the map compared to what the oil companies will leave behind.

 

And for those of you who have never heard of McCarthy or Kennecott, here's a picture and link to some old posts about the area.  

 Here's part of what the old Kennecott Copper Mill looked like when we visited in 2008.  It was at the end of several hours of dirt road.  

ARB Girdwood Challenge Schedule: - Oral Arguments May 12, Findings By May 16

The April 27, 2022  order from the judge says that all documents will be available at theAlaska Courts  most requested cases link.  Google will get you there so you don't have to come here to find the link.  

I'd note until today, the last document posted there was dated 4/27/2022.  They're having trouble keeping up.  That's why I only have this document today.  

There's one really big file that my computer is taking forever to open.  I just realized it's the video of the Board meetings.  That's already available on the Redistricting Board's website.  At least I'm assuming that will be the same content.  That page starts with all the public testimony, so scroll down till you get to April 15, 2022.

For those with visual impairments, whose devices cannot read images:

• Opening Briefs, Wednesday May 4
• Opposition Briefs, Sunday, May 8
• Reply Briefs, Wednesday May 11
• Superior Court to Issue Findings of Fact & Conclusions of Law by Monday, May 16, 2022
• The oral argument shall be held on the 12th day of May, 2022, via Zoom at 10 am

Outlining The Argument That The Redistricting Board Majority's Last Map Is Gerrymandering

 It seems to me there have been several issues raised, that the judge(s) will have to rule on. [Note: when I use district numbers, I'm using numbers from the November plan, because those are the ones that were used through the court hearings and it's less confusing.]

1.  Does the newest map (and basically we're only looking at four Senate districts at this point) meet the constitutional standards?

This would seem cut and dried, and probably is. But perhaps not.  Here's what the Alaska Constitution says:

§ 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 Court has at points been pretty clear that if the boundaries of two house districts are touching, then they meet the contiguity requirement.  And while the majority Board members used anecdotes to show their new districts are Socio-Economically Integrated  (SEI), that is not one of the criteria.  Neither is compactness.  But 'communities of interest' is a term that has been mentioned, and 'equal protection'' is also a factor in Senate seats. (For example Judge Thomas Matthews decision pp.31-34 and again on 53-55) 

On page 28, Matthews also wrote: 

"The Alaska supreme Court has defined a “contiguous territory” as one which is bordering or touching.  The Court determined that “[a] district may be defined as contiguous if every part of the district is reachable form [sic] every other part without crossing the district boundary (i.e., the district is not divided into two or more discrete pieces of land)."

In practical terms. HD 22 and HD 9 could be considered two discrete pieces of land.  Except by hiking across miles of unpopulated mountains and valleys, you cannot get from one part of the new Senate district without crossing the district boundary.  Yet that is also the case for the Valdez and Matsu pairing which both the Superior and Supreme Court said was constitutional.  

And while people have argued that 'practicable' should mean that an impassable boundary through the mountains isn't practicable, the other side pointed to court  case language that said having to drive through other districts is not a problem.  The new Senate [House] district that both Courts  approved, pairing Valdez and Mat-Su is a case in point.  

I would argue that in an urban area where there are plenty of much easier boundaries to cross, the courts have left a giant loophole for Boards that want to gerrymander. And the Board's majority walked right through that loophole.

In fact Judge Thomas Matthews quotes from the proceedings of the Constitutional Convention that the Redistricting criteria were meant to make it harder to gerrymander. 

“Addressing the appropriate method of drawing districts, the framers believed that the redistricting criteria of compactness, contiguity, and socio-economic integration were necessary to prevent gerrymandering.  The purpose of utilizing watershed boundaries was to keep communities intact, whereas roads cutting through communities should not serve as boundaries.”  [From Thomas Matthews' decision p. 132]

It would seem that this little paragraph offers a lot to attorneys who want to mine it to argue why the 3B boundaries are bad.  

• the criterion of contiguity as used here assists gerrymandering, it doesn't prevent it
• the joining of people across watershed boundaries unites people not naturally a unit instead of uniting those within those boundaries
• Eagle River's two districts are divided by boundaries that cut through roads.  Pairing them would repair rather than exacerbate this use of roads cutting through communities serving as boundaries

 Making the kind of boundary in the new Senate Seat that combines HD 22 and HD7,  that runs through the mountains and makes residents cross multiple House boundaries to actually get to the other House District in their Senate seat,  makes a mockery of the purpose of contiguity and invites the odd pairing that we get in this case.  Which helps people who want to gerrymander.  

At the Supreme Court hearing on the 2021 plan, Justice Warren Matthews asked if the Board's attorney, Matt Singer, was saying that the ruling that all parts of a borough are SEI means that the Court couldn't rule that there was gerrymandering in Anchorage?  The judge did acknowledge that there were different neighborhoods with different interests within the Anchorage bowl.  

I'd also point out that the Court has endorsed different standards for compactness and deviation for rural and urban districts.  It's easier, in areas with  high population density, to create more compact districts and districts with lower deviations.  I would argue that the courts should breathe life into the words "as near as practicable" in urban areas. 

Ultimately, I think the most likely possibility of contiguity playing a role in overturning the Senate pairings, is if contiguity is just one of many other pieces of evidence that points to political gerrymandering.  

2.  Is the final plan the result of partisan gerrymandering?  

This would seem the more likely reason for the Courts to overturn the final map. In the next week I will flesh out this section.  For now let me outline the kinds of evidence that could be used to demonstrate that gerrymandering is what happened.

A.  The results of the new map - NOT pairing the two Eagle River house seats results in an extra Republican seat in the Alaska Senate.  It also pits two Republican incumbents against each other - both of whom have not cooperated with the Governor as much as he would like. 

B.  The makeup and track record of the Board majority that voted for this map over the vocal opposition of the other two members.   Not only were these Board members chosen - unconstitutionally because they were Republicans - they are also actively involved in Republican party politics and on the side of the Governor within the party.  Both the Superior Court and the Supreme Court have found them guilty of political gerrymandering already in the first map, and so there is already a track record.  Furthermore, the map that was approved was drawn by long time Republican redistricting strategist and former State Republican Party leader Randy Ruedrich.  There is no more partisan player in Alaska.  And then you can compare the majority to the two minority Board members who were appointed by people not affiliated with any party and have no past history of party activities.  

The majority Board members also adopted - in November - a plan for determining rotation of Senate seats that mainly favored Republicans who supported the Governor and punished those who didn't.  While the Board members involved insisted they had no idea who the incumbents of the seats were, it has since come out that they had the names from Randy Ruedrich who had apparently devised the plan. They did this insisting it was random.  When the minority members said, "If it's random, then let's switch the order."  The majority refused.  It wasn't random.  

C.  An objective look at the two proposed maps shows that Option 2 made perfectly natural pairings of House Districts.  The proponents of  Option 3B (the one chosen) had to use the most twisted logic  to justify the maps,  an indication that the reasons they did use were simply cover for the real reason they wanted these pairings - gerrymandering.  

D.  The decision-making process used by the majority was a sham. Judge Thomas Matthews pointed out in his remand order, that the Board members were not subject matter experts on Redistricting.  Unlike a Board with doctors or engineers who have subject matter expertise, the Redistricting Board members were essentially lay persons.  While they did hire area experts for the mapping and for working the census data, and also to review the VRA implications, they did not  hire decision making experts to help them determine what was the best pairing of Senate seats.

That is not to say that they couldn't have done this reasonably themselves.  But they never ever made even an attempt to impartially compare the alternative pairings available to them:  HD 22 and HD 24 versus HD 22 and HD 9.  Instead, they declared HD 24 off limits and only used anecdotal and unverified assertions to justify what they wanted (pairing HD 24 with HD 23 and HD22 with HD 9) and to disparage what they didn't want (pairing HD 23 with HD 17).  This was not an objective decision making process.  This was the justification of what they had already decided on.  And that was pairing D24 with D23 to create an extra Republican Senate seat.    I've covered this at length here.

E.  Public testimony was strongly in favor of Option 2.  Testimony for Option 3B was mostly canned phrases while testimony for Option 2 were more personal explanations of why people preferred Option 2 over Option 3B -  The Board's attorney argued in the Supreme Court that weighing public testimony would turn Redistricting into a political process where parties would rally their forces to show up to testify.  That did happen.  The Republican Board members Singer represented did have their allies rally the Republicans troops.  I've preliminarily reviewed the comments.  Most of the comments in favor of Option 3B fall into three sets of comments that are virtually the same. One set - "I support Option 3B" was sent in by about 40 people.  Another set had about 20 or 30 examples.  

The point of Judge Thomas Matthews' comments about public testimony was not that the Board should count the comments and then do what the majority 'voted' for, as  Singer argued, but rather was for the Board to hear the concerns of the people and take them into consideration as they created their maps. Then in their explanation of their decision they could explain why certain requests were not followed.  But the Board majority did what their attorney warned about - treated the public testimony as a vote.  When a slew of testimony came in the first day favoring the Bahnke testimony (which was Option 1 and paired the key Senate districts the same way that Option 2 did) then the Republican party sent out emails and social media messages and drummed up testimony that specifically said "I oppose the Bahnke plan".  There was even call-in testimony from Fairbanks saying they opposed the Bahnke plan but that they really didn't know anything about it so they couldn't answer any questions.

Detailed comments - pages long with very specific data that countered the majority Board members' assertions and preferred plan - were ignored.  Such clearly reasoned and fact based testimony was the noticeable exception for Option 3B.  Testimony by the sitting Senators in the districts involved was ignored.  Testimony by former Senators in the district involved was ignored.  Well, not totally ignored.  They twisted that testimony to 'prove' their decision wasn't partisan gerrymandering. Only testimony that favored their predetermined pairings was attended to.  

F.  The Board listened to what the courts said about how they were supposed to act.   They adopted the appearance of following the courts' orders, but only to cover up their actual intentions.  While I covered some of these issues in the points above - things do overlap - I think this is another key point.  The Courts need to see through the facade of following the Court's orders and of false justifications that merely mask the actual intent - in this case gerrymandering to garner another Republican Senate seat.  

G.  Do modern communications technologies make contiguity moot?  This point was argued to downplay the distance between Eagle River and Girdwood and Whittier.  People no longer need to drive the long distances, they argued, because we now can meet via zoom.  People can talk to their Senator by phone or meet with them and others via Zoom.  Perhaps this should be in the contiguity sections because it came up in those debates.  I have several observations:

• There's a significant difference between online participation and in-person participation.  In person you get to talk to the Senator or Representative one-on-one before and after a meeting.  You can also talk with other participants, exchange contact info, form bonds, and connect human being to human being.  That's much harder online and is much less likely to happen.
• Not everyone has reliable, good enough internet service for meeting this way to be viable.
• People argued this only because the Board created an Anchorage borough Senate seat that stretches the distance of the Borough - 87 miles several people testified - and so this argument came up to say it didn't matter.  Not because it doesn't matter, but to bolster the ridiculous pairing of HD22 and HD9 rather than natural pairing of HD 22 and 24.  If we can substitute online meetings for in person meetings as they claimed, then the criteria of compactness and contiguity could be dropped altogether.  One could argue that certain people who live far apart are communities of shared interest and should be allowed to form House and Senate districts.  

One of the people who argued that the various online meeting technologies made the need for geographic proximity moot was Randy Ruedrich.  He made that argument while physically present at the Anchorage Legislative Information Office.  Walking is a little hard for him these days, yet he made the effort to be at most meetings in person, not online.  Because being there in person does matter.  

Conclusions

I expected that there would be a lot of gaps, and there clearly is room for filling in details. For example in this post I haven't discussed how the majority insists that Senate Seat L is a holy union of military interests and that pairing JBER with downtown is sacrilegious.   Even though the Board must have already committed such sacrilege by creating House District 23, which has already paired most of JBER with a big chunk of downtown. There are many more such examples of duplicity in the Board majority's arguments.  Many of those details are in previous posts.  But I did a better job than I expected of outlining the key points that need to be made to prove gerrymandering.  

While it's possible the Board members' emails will show something more explicit, the circumstantial evidence of gerrymandering is overwhelming.  The Board majority put on a show to develop arguments that fit member Budd Simpson's definition of reasonable:  "Reasonable means they had a reason."  A show for the Court that they were following the Court's orders.  Presenting reasons that were factually or logically faulty, or as I argued in the previous post, that bits of facts were wrapped up in lies, didn't matter to them. 

I will try to add more detail in future posts to further support the points I've raised.  And I'll add links to previous posts.  But consider this an executive summary that these additional posts will refer to and add evidence for.    

Anyone who has immediate needs for examples and details, just email me and I'll try to help you out.