My Guess Is That The Board Majority Torpedoed Their Case In Today's Meeting

[NOTE:  May 22, 2022 7:45pm:    I cleaned up the worst of my rough notes of the meetings - though there are still gaps that I didn't catch, and made a few changes to the post.  This fits within my blogger equivalent of the 2 second rule for eating food that falls on the floor.]

 Basically, the Board met.  It voted (3-2) to 

1. approve Board response to the Girdwood Appeal (which was already submitted the other day)
2. affirm that the litigation subcommittee, made up of John Binkley and Budd Simpson, were delegated authority to consult with the Board's attorney and approve all legal actions now and into the future

The meeting went from just after 3pm to 4:30

The two minority members repeatedly objected on the grounds that the original delegation of authority to the litigation committee was limited to 'routine decisions' but did not include the final decision whether the Board should file appeals and on what.  They also argued that the litigation committee was supposed to be open to all Board members and they had not been noticed about any meetings,  that essentially the Board decisions were now delegated to two Board members and the attorney.  

The two dissenting Board members said they had repeatedly asked to be included as observers in the litigation committee and had not been responded to.  

There were also allegations about what Simpson had told Bahnke after he voted with Borromeo and Bahnke on the House Districts back in November and things that Singer told Borromeo about his views on Marcum, which Chair Binkley worked hard but in vain to suppress and which Simpson strongly denied.  

My Take On This

If the Board had actually voted to delegate full authority to the litigation committee back in December, then this last minute, Sunday Board meeting wouldn't have been necessary.  They would have already had the authority.  There was no need to vote again first to approve the litigation (which was due Friday) and second to reauthorize the litigation committee's authority, which they seemed to have expanded indefinitely into the future.  If all their rhetoric about this already having been approved were true, there was no need for this meeting.

This subcommittee was given extraordinary power.  Two Board members, meeting in secret, were given the power to determine legal strategies and to approve whether the Board was going to appeal challenges and what aspect of the challenges they would appeal.  Two Board members complained they were blocked from all information from this committee.  And that all actual decisions needed to be made publicly - by the Board as a whole.  From the Governor's memo of the Open Meetings Act:

"Is secret ballot voting allowed under the act?

Almost always, no. In addition to requiring that deliberations of a governing body be open to the public, the act also requires that the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote, including meetings conducted by teleconference. The one exception is organizational meetings of a governing body to elect members to various offices, which are exempted from the requirement that the vote of each member be made public (AS 44.62. 310(a))."

Subcommittees in the State legislature and on the Anchorage Assembly are required to notice their meetings and make them public.  While this issue didn't explicitly come up, I suspect that these were all illegal meetings.  They can argue that they were discussing litigation and that that can be covered in Executive Session.  But these subcommittee meetings were, de facto Executive Session meetings without any notice to the public, as required, on why they were going into ES.  And the final vote is required to be taken in public.  

I'm guessing that the Board majority members got together and decided that they did not want to share their discussions about legal strategy with the minority members.  They strongly disagree with the minority members.  Minority members have publicly disagreed with the Board and charged them on several occasions with partisan political gerrymandering.  I'm guessing the majority Board members were afraid the minority members would spill their strategies to opposing counsel and hurt the Board's case - I understand the logic, but there are some problems this action would have created.  They didn't declare this publicly.  They didn't confront the minority members with their concerns.  But it goes beyond that.  

The exemptions for Executive Session for legal discussions are not open ended.  They are quite limited.  

From the Governor's Guide to the Public Meetings Acy [page 3]:

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

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

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

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

(4) matters involving consideration of government records that by law are not subject to public disclosure."  [page 6]

Only option 1 here is a possibility.  But exactly how would the Board majority show that what they discuss would "clearly have an adverse effect upon the finances of the public entity"?  In this situation the minority Board members pointed out that the Board has already spent about $1 million in attorney fees.  The Superior Court has twice concluded that the Board had engaged in partisan gerrymandering. The Supreme Court has already determined that once and will decide on that allegation a second time soon. The Board minority could argue that the majority  decisions have already had an adverse effect on the finances of a public entity.  Had they followed the minority's recommendations, this would have all been over already.  But there is really no cost to the Board majority to push their cause.  The Board pays the attorney fees, and there is no personal cost to the members for going in this direction.  Even if the court finds against them again.  

I would note that I have pointed out several times on this blog that I didn't think the Board had gone into Executive Session properly and that the Superior Court also cited that as a problem.  

My sense is that this meeting clearly shows that two Board members held regular secret meetings with the Board attorney to decide how to proceed with the legal case.  These meetings were not noticed to the public or to all the Board members.  They were essentially meeting in Executive Session without ever explaining why they were in ES (and it would be hard for them to demonstrate any legitimate reason to be in ES), AND they then voted outside the public view.  Even outside the view of other Board members.  

This meeting seems to be an attempt to:

1. Get a majority vote in public to proceed with litigation, though the Court could, potentially find that the decision to respond was not properly voted on, but I'm guessing they'll overlook that and simply vote against the Board on the merits, not on a technicality.  
2. To delegate authority to the Litigation Subcommittee so that it clearly allows them to meet and vote in secret.  

I don't see how the members of the Supreme Court can't see this as more evidence of political gerrymandering through secret meetings of the Board.  This time the meetings were even secret from two of the Board members.  

If the Board had a chance of winning their case before the Supreme Court before today, I'm pretty sure they've completely ruined it with today's actions.  They demonstrated in plain sight, to everyone, that they are willing to ignore the law to continue fighting for two Senate seats for Eagle River.  And to spend $1 million of public money to do that.  

I would note that Board Chair John Binkley said that the previous Board spent over $3 million in legal fees.  (Though they were still in court in 2014, and we're only in the first round this time.)  Further, Board member Borromeo said at the meeting that her and member Bahnke' legal fees are NOT being paid by the state.  The two are paying for it and hoping to raise money to cover it all.  Just that alone - their willingness to spend their own money on this - should give some evidence of their sincerity.  

I realize this post reveals that I've made a judgment on this issue.  I usually try to articulate the various sides of any situation objectively and fairly.  I've been covering the Redistricting Board since December 2020.  I do believe that I am still covering it objectively.  I've been an eyewitness to all this.  I'm just telling you what I've seen publicly and what I see as the reasonable conclusions about what happened behind the scenes.  And the Supreme Court decision will determine if I was right or wrong.  

My Rough Meeting Notes

Below are my rough notes of the meeting.  I haven't gone through to edit them yet.  But I'll put them up now - this time there is no video of the meeting. There will probably be an audio recording.  I'll try to go through and clean up the typos.  BUT REMEMBER these are my amateur attempts to record what I heard and there are gaps, typos, missing moments, but it's as reasonable a written record as is probably available now.  [I have since edited some of this.]

ARB Meeting May 22, 2022 

3pm Board Meeting to approve appeal to Supreme Court.  

John Binkley, Nicole Borromeo, Bethany Marcum,  Melanie Bahnke, 

Peter Torkelson, staff, working to get Budd Simpson

Apparently they are all just dialing in - no Zoom, no video??

Talking to each other with exaggerated politeness - at least Binkley and Borromeo are.  Bahnke is recovering from COVID.

3:06pm still waiting for Simpson to be hooked in

3:07 - Budd’s on

Binkley:  calling to order 3:06 pm 

Calling roll - all present

Binkley:  move to adopt agenda.

So moved

Borromeo:  point 

Marcum:  Second

Borromeo:  I would like to add public testimony to the agenda  We have long standing custom of accepting public testimony at meetings.  

Bahnke also has another amendment.

Binkley:  Motion to amend:  Nicole?  

Bahnke:  Can’t video or let public testify because a last minute meeting, even though we’ve been calling for a meeting since appeals.  We have always had public testimony.  Support

Simpson:  I agree there’s a role for public testimony, but probably not at this meeting.  But we have rulings from the court that gives us guidance but don’t need start this meeting.

Marcum:  I see this as procedural matter.  We haven’t taken public testimony at all meetings, if we were mapping, different.  Meeting is open to the public and have not given public notice about testimony, so not fair.  

Borromeo:  Checked with Peter yesterday because couldn’t get the streaming.  This is the only time we haven’t had public testimony.  

Bahnke:  Decision we make here could be important to final map.  That this will have consequences for the state for the next ten years.  Could impact state elections for ten years.

Simpson:  As I understand it, the website remains open for written public testimony all along and can continue to take that 24/7 and people can use that.

Bahnke:  Roll call vote please

Binkley:  We can have a roll call vote.  Motion to amend agenda to add public participation.

Peter:  Bahnke: yes  Borromeo:  yes, Marcum, Simpson, Binkley all three no

Bahnke:  Add, add Board member comments and 

Marcum:  Two or one amendment?

Bahnke:  Something about legislation committee.  Want opportunity to make closing comment as you’ve allowed.  Scope of litigation committee’s authority.  Need to discuss before 

Binkley:  I thought we would talk about litigation committee in #4, and no problem with comments at the end.

Objections:  

Simpson:  Assumed it was covered in number 4, so no problem.

Marcum:  same

Bahnke:  

Binkley:  I see there is only one issue, member comment.  

Unanimous consent.

 Item one - ok, adopt the agenda which has been amended

Add litigation committee authority in 4 and add member comments at end

Matt, I assume you’re on the line.

Singer:  There were two more recent legal challenges 

 East Anchorage said violated Superior court’s prior order

Girdwood moved to intervene, said violated VI and Equal Rep.

Judge dealt with that quickly 

Found Senate District E violated Equal Protection clause.  All aware of filing deadline for candidates.  Board appointed a litigation committee in December and has been supervision Board council and directed me to file a petition for review which we did, May 17, one day after Court decision and then at SC direction submitted a substantive brief on the 18th.  Girdwood Plaintiffs filed opposition 20th.  That matter is probably fully briefed.  This weekend the SC is probably working hard.

Two Board members argued that Board acted without authority.  I want to address that and make recommendation.

December committee gave the committee full authority, but changes to maps was held for whole Board.  Acknowledged that courts would be fast moving and that was the case.  Fastest pace of my career.  

I understood if settlement to be made or day to day made by the Board, management were decisions delegated to the committee.

Constitution requires 3 votes, but aware of Alaska case that would preclude a delegation of authority to staff.  We hired an Ex Dir, he’s performing an action of the Board.  Been a public entity attorney my entire career.  I find no problem.  10 years ago a single member was responsible.  

Understand the litigation committee only set up for a prior lawsuit, but now we are doing a different case.  But incorrect.  Girdwood moved to intervene, same case, judge, same case number.  

No respect to alternative points of view.  One Board member said they would not abide by the litigation committee.  But just as one member cannot adopt a new district without the colleagues.  As your lawyer.  I have to follow directions to me by the Board.  Any collection of at least three of you.  And if three of you delegate authority to a committee, then I do that.

Two Board members disagreed and hired a separate lawyer.  It’s appropriate the Board met today in respect to those concerns and to address them.

Consider and vote and ratify the decision and that the litigation committee will continue with authority.  While I disagree the committee acted inappropriate , I have no issue with raising this today.  

Also institutional issues.  Constitution gives us very little guidance about Senate district.  I have looked at past SC decisions for guidance.  We may not like this process, but final direction and clarity for people sitting in my seat ten years from now.

Judge Matthews also telegraphing it would help him too.  He’s asking for guidance from the SC.  

Last note, everyone involved is mindful of June 1 candidate filing deadline.  By all indicators the SC appreciates that deadline.  I think they are working over the weekend so I guess they are working today too.  I expect that will decide.  Either we are done or more work.  

Thank all the Board.  I know you are all very good people.  May need another public meeting if Court directs.

Marcum:  Note for the record, I’m prepared to make a motion.

Bahnke:  Request that we discuss this before motions made

Bahnke:  Thank you Matt for the update.  Unfortunately we had to go that route because we have been continually ignored when requested meeting to review the claims.  No chance to review.  Didn’t even vote. Back in February we did that process.  We were outvoted then.  And probably will again today.  We did not abrogate our authority to litigation committee.  When ordered to make final map, that map was voided.  Any action we take that can impact the final map needs to be voted on by the whole Board.  Thought we could discuss those final.  I asked to be able to observe litigation committee.  That was ignored.  Never notified about litigation meetings.  Appeal pretty weak.  Doesn’t address superior court findings.  It did not allow litigation committee to usurp the Board decision.  We may be outvoted again, but process matters.  Sounds like we won’t even vote on whether there was an appeal.  Filings unauthorized.  CAn’t retroactively do it today. 

Marcum:  Roberts Rules - no notion so far.

Bahnke:  It’s part of the issue

Binkley:  That’s ok, no further discussion?

Borromeo:  Address Matt’s comments, but first back to Matt’s motion.  I’m talking about the Dec. 15 motion.  I’ll read it:  Came from Matt Singer:  reading:  In coordination with staff will be responsible for day to day, but any final decisions that affect our proclamation plan will be voted on by the whole Board.  Just the pending litigation.  Qualifier here.  “routine, day to day strategy”  nothing 

Hardly any decisions came before the whole Board.  As the drafter, Matt should have known that litigation committee usurps the whole Board’s authority.  

As really as 11 April, I started messaging you about concerns about the Board abdicating to committee.  I challenged you at least ten times.  It wasn’t just something out of the blue.  I asked who gave this authority.  You said you see nothing about delegation.  If go that way, what would have prevented us from a mapping subcommittee.

3.  Factually incorrect that this is not a new lawsuit.  Girdwood was not involved in early part.  You yourself say “  Any party agreed by a new, should be entitled to judicial review.  Your assertion that you are the Board’s lawyer, that needed when you became the litigation committee’s lawyer.  

You have exercised your duty to litigation committee.  Thank you very much.

Simpson:  I’ll keep short.  I agree with Mr. Singer’s analysis and interpretation of powers delegated to litigation committee.

Marcum:  can I make a motion?

Binkley:  go ahead

Marcum:  I move to approve and ratify the decision of the litigation committee to appeal theGirdwood appeal and affirm the delegation to the litigation committee until all appeals are final.  

Simpson:  Second

Marcum:  

Borromeo:  ???  

Marcum:  I believe the committee had full power for litigation, not map making.  We should ask for court’s guidance for this and important for future Boards.  Agree with what the committee has done and their authority to do so.

Bahnke:  If that were the case we wouldn’t have had the February meeting.  In Feb we took a vote to appeal to supreme court.  We haven’t had a chance to review the court’s findings and whether we should proceed.  

He told me his wife was angry and would go to the Governor when he voted for the House map.

We don’t have the power to delegate authority to member committee of the Board that will make decisions that will impact the elections for the set of Alaska

Simpson:  Once again, my wife has been brought into the discussion.  Melanie made a factual comment that is inaccurate.  My wife was not angry.  No one in the governor’s office never said anything.  However I voted was based on my own judge.  No one tried to change that.  No other Republican spoke to me angry about it or objected to it.  ONly negative comments have been the other party that has been extremely angry, personal, that upset the Democrats who are watching this process.  I reject the assertion my wife had any impact or pressured me in any way.

Bahnke:  Caution members to be professional and not question motives

Bahnke:  You told me that I don’t make stuff up.  I have no idea about the governor’s office.  I’m repeating what you told me.  When findings of secretive messages.  I’m not brining up party issues.  

Binkley:  Let’s keep it to the issue before us.  Not relevant

Borromeo:  Friendly amendment.  I would like to amend the motion in one of two ways.  If majority feels so strongly about this appeal that they should pay for it or that Matt’s team does it pro bono.  We are over $1million.  

Binkley:  If you want to make a motion and get a second.  

Your motion is an amendment to the motion on the floor.

Melanie:  I second the motion to amend.

Borromeo:  Back in Dec.  we were incurring a legal debt of $80,000.  Now we are near $1million.   We are abusing  the public trust and treasury.  If you don’t want to pay for it then Schawbe [Singer’s law firm] should do it pro bono.

Roll all:  Bahnke Borromeo:  yes  Marcum, Simpson, Binkley: no

Binkley:  We have the original message before.

Bahnke:  Clarity from Matt.  Read aloud about the Board having to vote to take action of the whole Board.

Singer:  Let me find it.  Section 9 concurrence of 3 members is required for actions of the Board, but 2 to conduct hearings.  

Simpson:  Any member who thinks it’s unconstitutional should vote against it.  There’s a filing about this from dissenting Board members.  The court can decide on that.  I think we should continue to vote on the motion.

Marcum:  Appeal and delegate to the litigation committee until there is final court approval.  

Borromeo:  I thought the motion had to be one topic only in Robert’s Rules of Order.  Would she be amenable to first vote to approve the appeal,  

Binkley:  I understand that.  Legitimate motion and the chair accepts it as such.  

Bahnke:  Seems we are taking several actions on one motion.  Just as Simpson wanted to separate SE issues into two motions.  And I think we separate them into two motions.  

Marcum:  I would note that it was mischaracterized.  Not treading new allowances for the litigation committee.  It’s just confirming what we already gave the committee.  Nothing has changed and they can continue operating.  So I’ll  vote against.

Simpson:  My understanding that this is affirmation.

Borromeo:  Then why are we holding this meeting?  If the majority’s opinion is right, there is no need for this meeting.  

Binkley:  The filing by the dissenters caused some confusion and hope this clarifies it for the SC.

Bahnke:  Yes, Borromeo Yes - Others all no

Motion to amend fails.

Discussion on main motion.

Borromeo:  Want to know what litigation committee is being advised.  It was agreed back then  that others could listen in and we have never been noticed of meetings.  Singer has characterized Marcum as nuts but goes along with the splitting of ER.

Binkley:  Not relevant

Borromeo:  It is relevant

Bahnke:  I think we’re asking something new.  Expanding it to allow for continued secrecy that excludes member of the Board from being privy to strategy.  Creating a mechanism to cloak the secrecy and outcome based work Board was accused of.  Hiding it by keeping it secret and exclude other Board members.

Binkley:  Call the roll

Bahnke no Borromeo no  Marcum  yes  Simpson yes   Binkley yes.  

3-2 motion carries

4:19  Board member comments

Bahnke:  Glad we are finally having a meeting.  Even if outvoted, it at least happened open to the public.  We took proper procedural actions in February to appeal the case.  That didn’t happen this time.  Appeal not properly sanctioned, we missed the deadline.  The Courts will maki a decision we will have to abide by.  Board process has silenced those of us against the Supreme Court.  Baffled by lack of respect of the process.  Probably last time.  $1million later.  

We did not have a vote to appeal.  The appeal is not valid.

Borromeo:  I do want to thank the Board for noticing and holding a board.  While we don’t have the votes to stop the appeal,  But not about that, about having our meetings in public.  If we could have met as a Board, two of us wouldn’t have had to hire counsel to have a public meeting.  Hopefully the next Board will do it better.

I noticed the Board two days before filing, but Board ignored us.  We filed - we are paying for that attorney ourselves, not the public.  I’m ready to work with the Board, but won’t rubber stamp the Board and wait to find out the decisions when the public does.

Marcum:  Note for the record we are not silencing the public.  They can still use the portal and I welcome comments the public and encourage them to comment.  

Bahnke:  Once again request that we be kept informed of the litigation committee.  We’ve been completely cut out by the litigation committee is going to happen and I have the same info shared with me as with the rest of the board.  

Binkley:  There has been about $1million in litigation so far.  Previous Board spent about $3.5 million.  That went over a number of years.  That went over a couple of years.  This may too.  Not unusual.  Sometimes adversarial.  No secrete that two Board members differed and that’s the situation we find ourselves in.  It makes sense to confirm the authority of the litigation committee.

4:28  -  Adjourned 

McHugh Creek And Potter March Beat Out Computer Screen

 

I remember as a kid, in the city in LA, there were so many more butterflies than I see nowadays.

Spruce tips.

This robin led me along the trail, presumably away from the nest.  It kept look back to see if I was following.

The nasty thorns of the devil's club shining in the sun, the leaves just opening.

The Arctic Terns are back at Potter Marsh and on high alert when a gull strays into their territory. 

And the swans are passing through.  

And while geese are all around in town, I don't get good opportunities to catch them flying.

Meanwhile. . .

I did check the Supreme Court docket.  There are two new filings today.  Scott Kendall informs the Board he's representing minority Board Members Nicole Borromeo and Melanie Bahnke.  He also asks if the Court won't allow them in as Board members, then they'd like to be  Amicus Curiae.  

Yesterday, Nicole Borromeo file a notice to the Court that the Board's motion asking for a stay and the brief explaining why was illegitimate because the Board never voted to approve it as was their procedure.  She included the vote to have the Board as a whole needed to approve such actions.  

This is starting to seem like the plot of new Netflix drama.  

AK Redistricting: About that 2002 Eagle River to South Anchorage House District Singer Keeps Talking About

 The Supreme Court Docket for the Redistricting case is adding new documents.  

The Board has two major documents.  

• Motion to Stay Trial Court Order; Motion to Expedite Consideration of Motion to Stay
• Petition for Review

The first document is seven pages.  The second is an expansion on the first document and is 47 paged.  

I've read the first one fairly closely and skimmed the second one.  In this post I want to make two observations.  

From the Motion To Stay Trial Court Order

Throughout the redistricting process and again in the court hearings, Board majority members and Singer have insisted that previous court rulings have affirmed the constitutionality of combining Eagle River and South Anchorage/Hillside in a single district.  So this time I took Singer's quotes and checked on that Court decision he cites.  As I read it, the claims are exaggerated and misleading.  Let's look.  

Singer writes:

"Unlike the prior round of litigation, where the superior court identified regional

partisanship in pairing South Eagle River with South Muldoon, the superior court

departs from the framework it previously adopted with a rambling decision that fails to

articulate what a constitutional “community of interest” is or a legitimate basis for

invalidating a district that this Court has previously held was compact, contiguous, and socio-economically integrated.7"

So, let's look at Singer's footnote 7.

"7 As Judge Rindner observed, "respect for neighborhood boundaries is an admirable goal," but "it is not constitutionally required and must give way to other legal requirements." Therefore, the districts containing the Eagle River area are not unconstitutional in any respect." 

First, Judge Rindner was NOT talking about 2021 Senate District F. He was talking about 2002 House District 32.  We'll get back to this point shortly.

Second, Singer ignores the implications of "must give way to other legal requirements."  In the 2002 case, those other legal requirements were about having deviations that were too high.  So, while neighborhood boundaries are "an admirable goal," if they mean the district has too high or too low a deviation, then you have to find other alternatives. In 2002 deviation meant neighborhood boundaries needed to be sacrificed. In the 2022 case, those other legal requirements include no partisan gerrymandering.  

Singer continues:

"The superior court also ignores In re 2001 Redistricting Cases, where this Court rejected attempts to Balkanize the Municipality of Anchorage into separate areas for purposes of election districts. In that case, the Court reaffirmed that “communities within the Municipality of Anchorage are socio-economically integrated as a matter of law,” and that the community of Eagle River could be paired in a house district with the South Anchorage hillside.8 This Eagle River-South Anchorage hillside district was “not unconstitutional in any respect.”9"

Then, in the footnote 8, Singer tells us:

"Id. at 1091 (upholding House District 32, which spanned from the Eagle River Valley to the Anchorage hillside); See ARB Board Record at 10414 (2002 Amended Redistricting

Plan)."

Again, I say that the 2002 House District 32 was very different from 2022 Senate District F.

In those days, Eagle River and Chugiak weren't big enough for two House districts.  The north of the Eagle River Valley district had to go to southern Mat-Su to get enough population for a second district.  

In fact House District 30 captured most of the Eagle River Valley area.  House District 32 (the one Singer keeps harking back to) stretches from the edges of District 30 down south to Whittier and into the Kenai Peninsula, getting enough population to be a whole district by taking some population from the Hillside. 

BUT based on the only 2002 House maps I could locate, there are few if any residents of Eagle River in that district. If there are Eagle River residents, they are the leftovers once the district hit its target number of inhabitants. HD32 was called the Chugach State Park district.  This was a compromise district that went to the Supreme Court and was accepted because of problems with deviations in other districts.  It was a compromise under special circumstances.

From  the Alaska Election Pamphlet 2002 Anchorage area  here are the maps so you can see the context of that district.  

Maps of 

D 17 (ER) 18 (Military) =Senate I

D15 (Rural Mat-Su)  D16 (Chugiak/Southern Mat-Su= Sen H

D32 (Huffman/Ocean View) D32 (Chugach State Park) =Sen P

This first map focuses on the Chugiak/Southern Mat-Su district 16.  You can see a tiny District 17 on the lower left.  That's Eagle River.

You can see here that Eagle River, HD 17 was relatively tiny.  Smaller than the largest districts in the Anchorage bowl.  It was paired with the Base (18) to make a Senate district because there weren't enough people for two Eagle River/Chugiak House districts.  32 goes down into the Kenai Peninsula.

In the map below you can see District 17 better.  Basically ER Valley is in one district.  What ER residents there might be in District 32 are surplus people who couldn't be fit into 17.  

This wasn't an "Eagle River/Hillside" district as Singer portrays it.  It was called the Chugach State Park district that reached to the outer edges of ER and down into the Kenai.  It was a district that was trying to scrape up enough population to be an actual district.  

It's sort of like how the Board majority characterizes HD 23 as the JBER district when it's really 1/3 north Anchorage Bowl.  

I haven't been able to find better maps to pin this down more precisely.  But it seems a point worth raising and exploring. I suspect the meme of an Eagle River/Hillside house district in 2002 that was constitutionally approved that floated around among the Option 3B supporters wasn't better supported than my points here.

Political-Gerrymandering And Zero-Sum Thinking

There are a number of issues to raise from the Board's motion to the Supreme Court and I just don't have the time to go through them all right now.  But I do want to address this one. From Singer:  

The upshot of the superior court’s order is that because it found a portion of the

Board’s previous 2021 Redistricting Plan invalid as a political gerrymander, the

Board’s new April 2022 Amended Redistricting Plan must also be a gerrymander.  On this basis, the superior court orders the Board to adopt senate pairings advanced by and preferred by democratic leadership in the Alaska Senate.6 This is wholly inappropriate.

First, the judge didn't conclude that because there was political gerrymandering in the first plan that, ipso facto, the second plan is also gerrymandered.  Judge Matthews addressed this question directly and at length.  He concluded that given the intentional partisan gerrymandering the first time round, and given that the second time round the Board continued to create two Senate seats for Eagle River, the level of proof of partisan gerrymandering  needed wasn't as high as it was the first time.  The judge also cited an email from board member Simpson 

 "to an unknown number of contacts stating in part that the Court's Order "implies that what the court perceived as a political gerrymander must be replaced with a different political gerrymander more to their liking."118 (From Court Order p. 24)

While I suspect that Simpson was probably being sarcastic, he's an experienced attorney and should know better than to write such an incriminating sentence.  Sarcastic or not, I suspect it was revealing of what he was thinking.  

Second,  

"On this basis, the superior court orders the Board to adopt senate pairings advanced by and preferred by democratic leadership in the Alaska Senate.6"

Let's see now.  Option 2 was advanced by the East Anchorage plaintiffs, not the Democratic leadership.  I'd note that Option 3B WAS drawn and advanced by one of the most partisan Republican operatives, and former Chair of the Republican Party. And supported by the three Republican appointed Board members.  

I'd note that footnote 6 refers to "Senate Minority Leader Tom Begich’s text-message communications to a board member seeking to influence Anchorage senate pairings."

It seems the Board majority and its attorney are firm believers of the zero-sum way of thinking.  It posits that what one person loses, the other person gains.  

Here, Singer posits that if the judge takes away the ill gained extra Republican Senate seat that the majority 'won.' then that translates into an intentional  extra Democratic seat for the enemy.  Singer seems to assume here that the only reason the Board minority voted for Option 2 was to gain an extra Democratic seat.  His evidence is a text message from Tom Begich, which he doesn't quote. This attempt by Singer to simply turn around and accuse the Board minority of doing what the Board majority did is classic Republican Rovian  "Tactic #3: Accuse Your Opponent of What He/She is Going to Accuse You Of."   At times it might be accurate, but the evidence against the Board majority is overwhelming while the evidence against the Board minority doesn't exist.  Was there lobbying of the Board minority?  Sure, but it was for specific things various constituents wanted, things other than partisan gerrymandering.  It wasn't to get more people elected from a particular party as the actions of the Board majority are.  

OK, enough for tonight, but there is plenty more there to chew on and spit out.  

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.