The Final Board Meeting - But Maybe Not Quite [UPDATED] [UPDATED a second time June 20]

The Alaska Redistricting Board members came together on Monday May 15, 2023 - three [Nicole Borromeo, John Binkley, Bethany Marcum] live and Budd Simpson and Melanie Bahnke through the ether - and dutifully went through the agenda before finally voting 5-0 to approve making the Interim Redistricting Plan the Permanent Plan until the next Census and next redistricting board.  Officially it’s the Permanent Proclamation Plan.  

As long as no one successfully challenges the final plan in the courts, this is the last meeting. If such a challenge were successful the Board would have to reconvene to redraw the part of the map that was challenged. There are only a few Senate seats in northeast Anchorage that could possibly be challenged because all the House seats and other Senate seats have been settled. (The time to challenge them was 30 days after the previous plans.) I don’t see much likelihood that anyone can convince the courts to reopen this.  Even those Board members who had their wrists slapped by the Superior and Supreme Courts offered no serious pushback.  

The NOT QUITE part?  In public testimony, one of the Girdwood plaintiffs, Louis Theiss asked the Board to instruct the Board attorney to not object to their request for attorney fees.  Board member Borromeo said they needed to do that in Executive Session.  But by the time the Board got to approving the plan, it seems this was forgotten and they didn't adjourn into Executive Session. They just adjourned. Given the Girdwood plaintiffs prevailed in the Courts, there's a good chance the Courts will award the fees to the Girdwood plaintiffs.  It would seem a waste of money to pay the Board attorney more to oppose this.  Though I guess one could argue that whatever money is saved if Girdwood plaintiffs don't get reimbursed would go back to the State. But maybe Monday was not the time for that.  Attorney Matt Singer also said they needed additional meetings to settle legal matters.  While any such meetings will probably be in Executive Session, the Board does have to announce the meetings, open in public, and then explain what they will be doing in Executive Session - the reason for the ES as well as the specific Board topic.  And when they are done they have to go back into a pubic meeting and announce any decisions they've made.  

[UPDATED May 22, 2023:  Board Executive Director Peter Torkelson emailed to say Board is likely waiting to see if there are any legal challenges to the Permanent Plan they just approved before they meet to discuss legal issues. The public has 30 days from the approval date which was May 15.  So, another meeting is likely after about June 15.]

So let’s go through the agenda - my rough transcription along with, here and there, my commentary which will be in [brackets.]  Remember these are my rough transcripts, not exact quotes.  

My Notes  [UPDATE June 20, 2023:  The Board's Draft Minutes of this meeting were posted today, so you can compare them to my rough notes.]

1.  Board meeting opens about 1:10pm

Nicole Barromeo, John Binkley, Bethany Marcum present in person.  Budd Simpson and Melanie Bahnke are online.  

2.  Agenda accepted

3.  Bethany Marcum sworn in as new member [I’ve covered this saga in a previous post - she was appointed to the Board of Regents and had to resign from the Redistricting Board.  But the legislature did not approve her Regent appointment and the governor reappointed her to this Board.]

3.  Minutes approved. [I didn’t pay real close attention here, but there were minutes from various meetings approved.  Simpson made a correction to something.]

4.  Public Testimony

[I was the only person at the meeting who signed up to testify.  The few others there I could identify were media.  I had three points I wanted to make, but I had sensed the way things seemed to be headed before the meeting started.  There was a draft resolution all written out that they were clearly going to vote on to make the Interim Plan permanent.  I chatted with members Marcum and Binkley before the meeting began and I didn’t sense any interest in prolonging this further.  

So I just focused on my first item - Thanking the Board for the hard work they’d done.  Because they were at pretty much every meeting. They spent lots of time learning the software and then working to make maps.  I thought they’d all worked hard to further those things they believed in.  I also noted that the Chair - John Binkley - had set a productive tone with his always cheerful demeanor and his commitment to making this a transparent process.  I didn’t highlight incidents, but over and over throughout this process he has included public testimony at nearly every meeting and on a couple of occasions insisted that potentially awkward discussions about how the Board was operating be held in public.  (I’m not ignoring the over use of Executive Sessions by the Board in some cases, but John wasn’t the one who pushed that.)   

All this was leading to the subject of my real focus - Peter Torkelson, the Board’s Executive Director.  Early on he’d reached out to me - having found my tab on the 2010 Redistricting Process on this blog - and I met with him and his assistant director about the website they were creating and they let me know they were open to suggestions.  Peter was a website designer and had also worked for the legislature and I pointed out that he had a unique set of technical skills and ethical standards that made him ideal for this job.  

He put up an incredible website  and put  documents and information and maps up on the website within 24 hours, usually faster.  He also was key in getting maximum communications for the public in terms of Zoom meetings and phone lines.  I could go on, but I didn’t want to delay the vote.  Peter was a truly great administrator for this Board.]

Louis Theiss - Girdwood, one of the Girdwood plaintiffs.  Last Friday attorney filed an appeal,  First I too want to thank you.  I’ve been living on Timberline Drive in Girdwood, since 1971, and poll worker.  Myself, my neighbors, fellow plaintiffs all paid for our legal fees.  So asking your attorney not to oppose our request for fees

Borromeo - we should take that up in Executive Session. [Now that I think about it, they didn't go into Executive Session and there have not been any other meetings announced.]

Yarrow Silvers - this is a long journey.  Ask you - I want to thank you, you’ve made me a lot more civically engaged.  I hope this is the last time we meet as Redistricting Board.  

Binkley - any one else?  

5.  Review by Legal Counsel

• [First attorney Matt Singer talked about Supreme Court opinion as a guide for future Boards. 
• Looked at the specific challenges  Then he 
• Went through key areas where the court added new interpretations. 
• He praised the Board for getting most of the districts - both House and Senate - right, though everyone focuses on the couple that had problems.]

Matt Singer:  Supreme Court issued an Opinion.  History of Board.  Another Summary Order May 2022, and this decision issued last month explains its decisions.  No changes, but explanations.  

Starting point to step back and appreciate the litigation process, court review and citizen involvement.  It’s part of the process, expected in the constitution.  Litigation is expected, every plan challenged, and every plan tweeted.  Just part of the process.  What comes of that - the constitution gives basically two sentences on how to redistrict.  The Court cases flesh that out.  

What I see as a gift is the Supreme Court’s 112 pages recognition that there are aspects of redistricting that haven’t been well spelled out.  Now they’ve given the next Board a road map.  These pages will be read very carefully in years to come.    Many we got right and some we didn’t.  Nature of the process.

Court’s decision provided constitutional backdrop, the  constitutional convention, due process clause, the Hickel Process, the public meetings act, and Section 6 o f the Constitution.  

In Nov. there were 5 plaintiffs who challenged the plans - a corporation and four individuals

Skagway

Valdez and Matsu - challenged their being paired

East Anchorage plaintiffs challenged ER

Plaintiffs had wide variety of theories.  

Trial court ruled against Calista - W Alaska constitutional

Against the Board and for Skagway - Hard Look standard

Against Valdez and Matsu  and they appealed

Against the Board on East Anchorage and we appealed

SC ruled in favor of the Board on Hard Look doctrine incorrect on Skagway - not most popular, not important.  Must have salient constitutional issues

. . . 

SC we should be more precise about why having Executive Session, but not productive to go back because of those violations

Some issues about court technicalities - caused by unusual, expedited trial

Hope next time there will be more time, more like normal trial

Matsu - Court agreed with us    Court did not violate the Hickel process by drawing rural districts early in the process, didn’t violate equal ?? By having larger districts

Calista did not appeal

Following first appeal - another plan

Trial court found against the Board on Eagle River pairings and SC agreed.

Highlight key reasoning from board for future

Hickel process - Voting Rights Act (VRA) important, but Board’s job is first to follow Alaska constitution.  Draft plan and then evaluate it against the VRA.  Because Board referred to districts as VRA and did them first people complained.  SC recognized that just saying the words doesn’t mean applying VRA first, Board has to have some opportunity, can’t wait until last minute.  

Open Meetings Act (OMA)- hadn’t been established when constitution amended, not clear the act covered this Board.  Court affirmed.  We assumed it did.  Executive Session, need to be more specific about topics being covered in ES.  Slightly tapped our wrists, but not in public interest to change plan due to ES violations

Taking a Hard Look and considering testimony that comes before you.  Making reasoned decision, not about popular decisions.  Superior court focus on quantity not correct.  

Compact and Contiguous - don’t need road contiguity.  But reconsider (Socio-Economic Integration) SEI

Another - took out of footnote - contiguity and compactness take precedence over SEI - my advice on Cantwell appendage.  I said you’re sacrificing compactness and you’re balancing constitutional priorities.  Start with compactness, then contiguity, and then SEI.  

Not previously articulated Sec 10 procedural requirement to have a plan - within 30 days, not only a house plan but also Senate pairings.  Not clear in constitution but understand why.  Board adopted a few 3rd party plans after the 30 day deadline - Superior court said that was not good enough, but SC said it’s ok, but should have been adopted within 30 days.  Gentle tap on the wrist, but not enough to overturn it.  

Most interesting part of the case, developing new laws - equal protection laws and Court adoption of communities of interest - geographic group of people who share SEI and believe they are part of ?community??    That body of law will impact urban folks much more than rural.

I’ve hit the highlights, after six lawsuits in total, Court found this Board had constitutionally redistricted 99.9% of house districts - Cantwell - which Board corrected in Spring last year.  

In Senate 19/20 constitutional 95%.  Compared to ten years prior, plan thrown out, new plan and it was thrown out and there was a third plan.  

[He didn’t mention partisan gerrymandering. I asked him about that afterward.  He said he spoke about equal protection which was the factor most related to the gerrymandering charge.  I’m guessing he just didn’t want to say partisan gerrymandering out loud. We also talked about the Executive Session he held to talk to the Board about the Constitution and Court cases that provide guidance for future Boards to use when mapping the state. I pointed out that the previous Board’s attorney, Mike White, did that all in open meetings.  Singer said his purpose for that meeting was to tell the Board he was hoping to have the Board produce a plan that would not be challenged and outlined strategies to do that.

This was the first time  the courts have rejected part of an Alaska redistricting plan, due to partisan gerrymandering.  I think that is a big deal and should have been mentioned by name.  When I do my post on the lessons from the Court decision, it will discuss partisan gerrymandering. ]

More fun to write about what Board disagrees about than where they agree.  You should be proud of the effort and the result.

The court directed on remand - if you feel additional redistricting necessary, then I need to show cause .  But if Board doesn’t believe additional redistricting is necessary can just approve plan.

Some litigation matters to resolve in separate meetings.

Binkley:  Questions?

Marcum- when you talk about community of interest versus SEI  - does it apply to House districts or Senate pairings or both.

Singer:  Much to be developed further .  As I read it, the court went to lengths, they are not the same thing.  Constitutional on House districts SEI.  Communities of Interest to evaluate equal protection challenge to the Board whether a House district or a Senate district.  Time will tell. 

Binkley:  Others?  Questions?

Melanie, Budd:  No

Nicole:  No questions

6.  Binkley:  Consideration of adoption of Interim Plan as the Permanent redistricting plan.

Peter:  I have draft .  There are no changes proposed.  The two plans would be the same.  

Budd:  Can we have that up on the screen?  

Melanie:  Bethany’s name is not on the page

Torkelson:  I have stationery with all the names.  He reads the Draft Final Proclamation Plan [I posted it in the previous post. https://whatdoino-steve.blogspot.com/2023/05/alaska-redistricting-board-approves.html

Binkley:  We have item for consideration for adoption - we could discuss ahead or adopt a motion and then discuss.

Borromeo:  Move we adopt this as final proclamation.  

Pause before Bahnke seconds it

Binkley:  Discussion?

Simpson:  I intend to support the motion.  Would be disingenuous to say I agree with everything and facts in their [rulings?]  I attribute this to the expedited process, but I think it would be disruptive and an exercise in futility to make any substantive changes.  

Marcum:  I didn’t read the court opinion because I didn’t know I would be here.  But Court was gracious to give us that opportunity,  We had a couple goes at it and they gave us the opportunity and time to do so.  By [the Court] adopting it, it would set a bad precedent.  Better if we are the ones who decide.  But out of respect to other Board members desire to not take the SC on the opportunity.  But setting a bad precedent by letting the Court impose this.[I think she was saying it would set a bad precedent if the Court imposed the plan rather than giving the Board the chance to do it.]

Bahnke:  I’ll vote for this.  Both courts gave us two opportunities.  All of us voted for the two plans [The Board picked plan 3A over plan 2 at their meeting in 2022.  So plan 2 was a Board plan, not a Supreme Court made plan.] up for consideration. If [create?] other plans [now?], we should have done it before.  Don’t think it good use of public resources to try another plan.  

Binkley:  I’ll associate myself with the comments of member Simpson.  Travel around the state to do a better job pulling this together.  As Matt pointed out, we did an exceptional job compared to past boards.  And maybe it gets easier as SC gives guidance to make it clear.  I agree with Bethany to make clear, it’s the Board’s decision.  But that’s preserved in this ruling.  And by adopting this plan, doesn’t jeopardize that.  It’s our plan, not the court’s plan.  Protected future boards, because we drew the plan itself.  I don’t agree with everything in the decision but I recognize the Court has the final say.  Great constitution.  Public confidence in the process, checks and balances.  I will support this.  Least confusion for the public.  Don’t have to worry if they are shuffled into new districts.  

If no further discussion, ask for a rolL call vote.

7. The Vote

Bahnke yes

Borromeo yes

Marcum yes

Simpson yeah

Binkley yes

Plan is adopted until next process.  

The Executive Session Borromeo mentioned regarding the Girdwood plaintiffs attorney fees seems to have been forgotten in the excitement and relief of bringing things to conclusion. But maybe they are planning on another meeting or two.  Attorney Singer did say that there were legal matters to settle in additional meetings.  

Alaska Redistricting Board Approves Making The Interim Redistricting Plan The Permanent Plan 5-0 [Update 1]

 I'm just getting this up now for the record.  I have notes that I'll add on later.  For now, here is the draft that was available at the meeting.  It was passed as is, though Melanie Bahnke requested that Bethany Marcum's name be on the stationery. (She was appointed to the Board of Regents in January and resigned from the Redistricting Board in March.  But when the Legislature rejected her appointment, the governor nominated her back onto the Board.)  That change was agreed to.  

This passed 5-0.  [Updated May 15, 2023, 11:15pm - you can see the official signed copy with Marcum's name back on the heading here.  And other documents related to this finalized plan here.]

More about the meeting itself soon.  I'm hoping no one decides to challenge this plan.  They have 30 days to do it.  

Hoping For A Short, Boring Redistricting Board Meeting Monday - Here's Why

Quick Take:  The Board's job Monday is to either accept the Interim Plan as the Permanent Plan OR to 'show cause' why it shouldn't be the Permanent Plan.  

What does "show cause" mean?  Basically, it means they need to give good legal and/or factual reasons why, in this case, the Interim Plan, shouldn't be adopted.  

If the Board Monday has no good reasons to object to adopting the Interim Plan as the Permanent Plan until the next redistricting process in ten years (eight years now), it will be a short meeting.

If Board members feel the need to change the Interim Plan, I expect they will consult with the Board's attorney on how to do this and whether it is likely to succeed. Some, of that discussion, if not all of it, will (but not necessarily should) be held in Executive Session.  (The courts felt they overdid the Executive Session leading up the the Interim Plan.)

If they decide that they want to "show cause"  I expect they will either discuss their reasons, and/or adjourn to work on those reasons.  They may just ask the attorney to write up their response to be voted on at a later meeting.  This will then be sent to the Superior Court for consideration.  

At least, that's how I understand this.  

Background:  I don't like to repeat myself, but this opening is a quick background for people who haven't watched this saga too closely.  If you know this pretty well, just skip on down.  

Back in May 2022 the Alaska Supreme Court said the plan the Alaska Redistricting Board had approved (the vote was 3-2) was unconstitutional partisan gerrymandering.  They sent it back to the Board through the Superior Court, ordering the Board to approve the Option 2 plan that the Board considered, but had not approved.  This, then would be the Interim Plan for the November 2022 election.  Given the looming deadline for candidates to file for office, the Supreme Court just couldn't wait for the Board to come up with a new plan on their own.  More recently, the Supreme Court completed its Opinion - a long document that looks at all the issues it had raised regarding the Board's original plan (thrown out by the Court), and its second plan (which was also thrown out.)  

Actually, that's an oversimplification.  The first plan, with a couple of changes, was essentially approved WITH THE EXCEPTION of some Senate seats in Anchorage.  So, the Interim plan for all 40 House seats, as understand this, is settled. 

Purpose of Monday's Meeting From The Supreme Court's Opinion

The Supreme Court's Opinion ended this way:

"IX. FINAL REMEDY

After the second remand, the Board adopted the Option 2 proclamation plan as the 2022 elections interim plan.240 The question of a final redistricting plan for the

[I've cut out footnotes]

decade remains. Having concluded that the Board engaged in unconstitutional gerrymandering in its initial final redistricting plan and that the Board then did so again in its amended final redistricting plan, our remanding for yet another redistricting plan may be questioned. Indeed, by clear implication article VI, section 11 authorizes courts to mandate a redistricting plan when, after a remand, the Board develops a new plan that is declared invalid.241 But we will remand out of respect for the Board’s constitutional role in redistricting.

Given that the Board adopted the current interim redistricting plan for its final plan deliberations — confirming the Board’s belief that the interim plan is constitutional — and given that Alaska’s voters have not had a chance to raise challenges to that plan in the superior court:

We REMAND for the superior court to order that the Board shall have 90 days to show cause why the interim redistricting plan should not be the Board’s final redistricting plan for the 2020 redistricting cycle:

A. Upon a showing by the Board of good cause for a remand, the superior court shall REMAND to the Board for another round of redistricting efforts; or

B. Absent a showing by the Board of good cause for a remand, the superior court shall direct the Board to approve the interim redistricting plan as its final redistricting plan, allowing any legal challenges to that plan to be filed in superior court in the normal course."  [Red emphasis added.]

Basically the court said:

1. You had two final options last year - Option 3A (which you adopted, but we found unconstitutional) and Option 2.
2. We told you to adopt Option 2 as the Interim Plan.  
3. You approved Option 2, thus implying you thought it was a constitutional plan.  [Though some Board members might say they had no choice given the time constraints.  If they hadn't approved it, I suspect the Court would have imposed it anyway.]
4. You now have 90 days to give a good reason why the Interim Plan should NOT be the final plan. (The Opinion was dated April 21, 2023.  So 90 days is just about July 21, 2023.)
5. If the Superior Court deems your objection to be a worthy objection, then that Court will remand (give back) to the Board, the task of further changes to the map.  
6. If you do not 'show good cause' for making further changes, the Interim Plan becomes the Permanent Plan
7. If you show cause but the Superior, and then the Supreme Court, reject your argument, the Interim Plan becomes the Permanent Plan.  
8. Once the Permanent Plan is in place, the public will have one more opportunity to challenge the plan.  My understanding of the various court rulings and the Board's public musings, all the 40 House seats and all but a few Anchorage Senate seats are already fixed. The period to challenge them was within 30 days of the original Proclamation Plan.  There were challenges to some other parts of the map and there were other parts of the map that no one challenged.  The only parts of the map that were still in dispute in May 2022 were a few Anchorage area Senate seats.  

Reading The Rules Carefully Is Always A Good Idea

When I was writing this post in my head, I was thinking the Board, on Monday, could either agree to leave things as they are (the Interim Plan becomes the Permanent Plan) or try to tinker with the map.  But rereading the Court's Final Remedy section of the Opinion, the first step is to 'show cause' and get the courts to agree there is cause before anyone is authorized to adjust any Anchorage Senate seats.  

What Cause Might The Board Show?

I don't see any cause that the Board could put forth.  But I'm not an attorney and there are always undetected cards they seem to be able to pull out of forgotten statutes and old cases upon which to make a claim.  

Here's how I see it:

1. The Superior and Supreme Courts have both agreed that the Interim Plan was Constitutional.
2. The Board, by approving the Interim Plan last May, implied they saw it as Constitutional. (They aren't supposed to approve a plan they don't think is constitutional.)

So the Board would be hard pressed to argue the plan isn't constitutional.

At that point, what else could they argue?  That it's constitutional, but they have a better plan?  I think it's too late for that.  

In its rulings about the Eagle River and Skagway Senate pairings, the supreme court discussed the concept of 'taking a hard look' at public testimony.  It ruled with the superior court and against the Board on this ground in Eagle River because the Board violated another constitutional requirement of districts

"specifically for unconstitutional political gerrymandering." (Court Opinion, p. 43)

However, in the Skagway case it ruled against the superior court ruling on 'taking a hard look' at public testimony, because

". . .if public comments merely reflect preferences for district boundaries without implicating substantive redistricting requirements, drawing district boundaries based on demonstrated substantive redistricting requirements and not the “weight of public comment” likely would not violate the hard look requirement. We nonetheless note that a Board’s failure to follow a clear majority preference between two otherwise equally constitutional legislative districts under article VI, section 6 may be evidence supporting a gerrymandering claim."

But the court ruled that House Districts 3 and 4 were unconstitutional based solely on its “weight of public testimony” approach to the hard look analysis. Because the court otherwise agreed substantive redistricting requirements were satisfied and no salient problems were raised that the Board failed to consider, we reverse the court’s invalidation of House Districts 3 and 4 and its accompanying remand to the Board." (Opinion, p. 43-44)

It would seem that same logic would be applicable here.  Just because some Board members might prefer different pairings, that's not good enough to tamper with an already constitutional map.  The Board isn't exactly 'the public.'  However, in this situation, if the Board wants to protest against Senate pairings that the courts and the Board have already agreed are constitutional, it would seem to be up against a similar obstacle the public is up against if it "merely reflects preferences for district boundaries without implicating substantive redistricting requirements."

Furthermore, the only (true) reasons the Board majority might want to make changes, as I see it, would be to try to give Republicans some advantage they don't have with the current plan, or to mess with the Democrats, by creating new Senate pairings which would force Democratic incumbents to run against each other.    

Why do I say that?  

1.  There are only a few districts, as I understand this, that are still in play.  

1. At this point, all 40 House districts are set.  They've been approved and the time for the public to challenge them is over.
2. The only districts that could be in play now are a couple of northeast Anchorage Senate seats.  I posted the map below and incumbent lists in my previous post, but it's worth looking at again.  

I've circled the Senate seats that could possibly be in play.  The House seats can't be changed, 

they can only be paired differently to create different Senate seats.  Below are the incumbents 

of the House and Senate seats.  I'd note these are the district numbers in the Interim Plan.  

House Seats	Senate Seats
17 - Zack Fields - Democrat	I - Loki Tobin - Democrat
18 - Cliff Groh - Democrat	J - Forrest Dunbar - Democrat
19 - Genevieve Mina - Democrat	K - Bill Wielechowski - Democrat
20 - Andrew Gray - Democrat
21 - Donna Mears - Democrat
22 - Stanley Wright - Republican

2.  Why are these the only ones in play?  Because the rest of the map was approved.  The only changes were to pair the two Eagle River house districts into one Senate district.  That left district 18 an orphan and it was paired with downtown district 17. And an orphan South Anchorage district. If they do any changes it would be to the Senate pairings in the circle - and maybe with a ripple effect beyond - because everything else was locked down and approved.  (District 9 was also an orphan district, when the two Eagle River districts were paired, but I haven't even considered that the Board might want to mess around with that district.) (Actually, my description suggests the court changed Map 3B.  In fact, they adopted Map 2, the map the Board did not choose.  So these were the pairings on that map.)

3.  As you can see, the Senate seats in this area are held by Democrats.  And the six key House seats are held by five Democrats and one Republican.  

4.  The Board majority argued long and loud, but short of actual facts or data, that JBER, the military base shouldn't be paired with 'liberal' downtown. 

"The Board cited no evidence, aside from its own speculation, that JBER is a community of interest; in any case, there was no showing that the House district encompassing the populated portion of the military base as a whole would tend to share political preferences more closely with an Eagle River House district than with the downtown Anchorage House district. We thus reject the Board’s argument that concerns about JBER justify splitting Eagle River."  (Opinion p. 105)

In fact, the Board had already put  JBER in a house district with much more liberal Government Hill and other north and northeast Anchorage neighborhoods.  

Edited from Elections page to fit in one image

Note:  This was a ranked choice vote.  Most, if not all of Franks' votes had Groh as second choice.  Also, only 6% of the registered voters on JBER even voted.  

In the 2022 House District 18 house election, the Democrats got 55% of the vote and the Republican got 44%.  HD 18 voted for Democrat Mary Peltola for US House and for Democrat Zak Fields for state Senate.  

So all the arguments that Board members Marcum and Simpson made about how terrible it would be to combine the JBER district (as they called District 18) with liberal downtown was hot air.  They'd already put JBER into a House district that was more liberal than the Base.  And that elected a Democrat.  

5.  But they may think that pairing House District 22, which did elect a Republican to the state House, with their so called JBER district (18) would result in a Republican Senate seat.  And so they may want to try to do that.  This would also mean finding other Senate pairings for the orphaned House seats - 18 and 21, which aren't contiguous, so it would force even more changes.  

6.  But the District 22 Republican only won by 72 votes out of 3700 votes.  Not really a GOP stronghold.  And with the electoral reality of District 18 (the one including JBER) as a strong Democratic district.  The resultant Senate seat would still be held by a Democrat. 

7.  But the other new Senate pairings that pairing 18 with 22 would force, they could force a two or more Democratic Senate incumbents to run against each other.  

8.  But this would all be so transparently partisan gerrymandering again that neither the superior nor the supreme court would accept it.  

9.  They only reason the Board majority might do something like this would be brazen shamelessness.  After all with Trump and Santos and DeSantis as models and the rest of the Republicans either supporting them or at least staying quiet, this would not be a big step for the Alaskan GOP to take.  

It wouldn't cost them anything, and there's the possibility it would work.  

10.  But I think it's just too obvious.  Even if Marcum and Simpson were willing to try this, I suspect the third Republican on the board, Chair John Binkley has more integrity than that.  He's had time to think this over and see it would merely waste even more public funds.  While he went along the first rounds, now it's pretty clear that the courts won't support this.  

11.  And their 'cause' also needs to show why any new plan is worth the disruption to voters and elected officials having to adjust themselves to new electoral districts.

12.  I'd also draw your attention to these words in the court's "Final Remedy" quoted above:  

"Indeed, by clear implication article VI, section 11 authorizes courts to mandate a redistricting plan when, after a remand, the Board develops a new plan that is declared invalid.241 But we will remand out of respect for the Board’s constitutional role in redistricting."

The court is saying, "We have the power to simply mandate a plan.  But out of respect for the institution of the Board (not necessarily for this particular Board) we'll give the Board one more shot to do this right."

That's my take on what will happen Monday.  There could be some other scheme Randy Ruederich has hatched for the Board to try.  But ultimately, the courts will be looking very carefully and I don't see any justifications the Board could make to oppose making the Interim Plan the Permanent Plan that the courts would accept.  

But even if the Board votes to make the Interim Plan the Permanent Plan, the public will still have thirty days to challenge it in court.  But this wouldn't be on the State's dime, and with the Board joining the superior and supreme courts, it would take some ingenious soul to find a loophole here.  

 

The Alaska Redistricting Board Meets Monday May 15 To Decide To Approve Interim Plan As Final Plan - Or Not [UPDATED]

 

Alaska Redistricting Board Meeting, May 15 at 1pm

The Alaska Redistricting Board will meet at the Anchorage Legislative Information Office's Denali Conference room, 1st floor.  Live stream will be available at: http://akl.tv

Public Testimony will be taken in-person, via Dial-in Teleconference, by email to: testimony@akredistrict.org

Or from the Board website's public comment form here: https://www.akredistrict.org/map-comment/

When:
 - Monday, May 15, starting at 1 pm.

Where:
 -  Anchorage Legislative Information Office
 - 1500 W. Benson Blvd, Anchorage
 - Live stream: http://akl.tv
 - Teleconference

Teleconference public listen-in and testimony phone numbers:
 - Anchorage: 563-9085
 - Juneau: 586-9085
 - Other: 844-586-9085

 

Agenda

1. Call to Order and Establish Quorum

2. Adoption of Agenda

3. New member swearing in, pending appointment

4. Adoption of Minutes

5. Public Testimony

6. Review by Legal Counsel of Alaska Supreme Court Decision

   In the Matter of the 2021 Redistricting Cases, April 21, 2023

7. Consideration of Adoption of Interim 2022 Plan as Final 2023 Redistricting Plan

8. Board member comments

9. Adjournment

Board Member Bethany Marcum resigned from the Board [on March 23, 2023] after being appointed to the Board of Regents [on January 23, 2023] by the governor.  However, her appointment was not approved by the Alaska legislature today.  So it's possible she might be reappointed to the Redistricting Board.  

[UPDATE May 11, 2023: The governor reappointed her to the Redistricting Board on May 9, 2023]

In one sense, that would be a good appointment because she has been through the whole Redistricting process.  However, she was one of the most partisan Board members voting twice for splitting Eagle River into two Senate seats.  Both those efforts were deemed unconstitutional gerrymandering by the Alaska Supreme Court.  

The Board's decision Monday will be whether to approve the Interim Redistricting Plan (imposed by the Supreme Court in May 2022) as the Permanent Plan.  The Court imposed this interim plan after rejecting the Board's plan because there wasn't time for the Board to devise a new plan to meet the deadline for candidates filing for office.  

Most of the 40 House seats and 20 Senate seats are already approved and locked in.  There really isn't much the Board could tinker with.  Just a couple of new house pairings to make new Senate seats in Northeast Anchorage would be my guess.  Since changing districts is always a bit confusing to voters, there is no real reason to make the changes except as a last ditch effort to mess with the legislators in those seats.  

From my perspective, approving the interim plan as the permanent plan would be the best decision for the state and for the voters  and for would-be candidates in the districts that could be played with.  

I've circled the Senate seats that could possibly be in play.  The House seats can't be changed, they can only be paired differently to create different Senate seats.  Below are the incumbents of the House and Senate seats.  

House Seats	Senate Seats
17 - Zack Fields - Democrat	I - Loki Tobin - Democrat
18 - Cliff Groh - Democrat	J - Forrest Dunbar - Democrat
19 - Genevieve Mina - Democrat	K - Bill Wielechowski - Democrat
20 - Andrew Gray - Democrat
21 - Donna Mears - Democrat
22 - Stanley Wright - Republican

All the seats except one House seat has a Democratic incumbent.  The only real purpose of rearranging  the House pairings into new Senate seats would be to put Democratic incumbents in competition with each other and shake things up a bit.  

I don't think the Superior Court or the Supreme Court would approve such an action.  It would be seen, once again, as partisan gerrymandering.  

But the Republican majority on the Board did this twice before and there's no way of holding them accountable if they try it again.  It will just waste public monies to go through new court hearings and, if actually accepted by the Supreme Court, in redoing state maps and confusing voters in those districts.  

NOTE:  I'm slowly working on a post that looks at the Alaska Supreme Court's recent Opinion that explains their reasoning for the decisions last year that found the Board majority had committed partisan gerrymandering.  The Court took its time debating and writing its decision because it really isn't urgent. It's a guide for the 2030 Redistricting Board.  And I'm taking the same approach.  It's not urgent.  But I'll have something up before the end of summer, assuming that this Board meeting next week doesn't do something that will require the Court to add new discussions.  

I would note that the Court also said that once the Permanent Plan is approved by the Board, the public will have 30 days to challenge it.  I understood that to mean if they approve the Interim Plan as the new Permanent Plan.  If they do something else, that too would be challengeable.  But I also understand that those challenges are limited to the Anchorage Senate pairing changes.  The rest of the map remains the same and those challenges were already heard.  

All my redistricting posts are indexed on the Redistricting tab just below the What Do I Know? Banner on top of the blog.  You can also get to it here.  There's also a tab for the 2010 Redistricting process.

Stewart Rhodes, Witness At David Eastman Trial Found Very Guilty [UPDATED 5/8/23]

Exhibit 1:  Alaska Constitution Article XII

§ 4. Disqualification for Disloyalty

No person who advocates, or who aids or belongs to any party or organization or association which advocates, the overthrow by force or violence of the government of the United States or of the State shall be qualified to hold any public office of trust or profit under this constitution.  (emphasis added)

Exhibit 2: Head of Texas House General Investigative Committee on why a Republican member should be expelled from the House for having sex with an intern (from Austin-American Statesman):

"The expulsion of a fellow member is a level of punishment we don't take lightly," [Republican Rep. Andrew] Murr said to House members. "It's not meant to punish the member. Rather it is intended to protect the integrity and dignity of this legislative body and to provide accountability to everyone who works and serves in this building."

[UPDATE May 8, 2023 - Texas State Rep. Bryan Slaton resigned today.]

Exhibit 3:  Below - link to and excerpts from the Sentencing Memorandum for nine Oath Keepers after conviction of multiple crimes related to Jan. 6, 2021.   

Tying the threads together:

A.  Alaska state House member David Eastman is a life member of the Oath Keepers.   Its leader, Steward Rhodes was convicted this week of, among other things,  

". . . the jury found through its guilty verdict, that Rhodes led a conspiracy to use any means necessary, up to and including the use of force, to oppose the lawful transfer of power from President Trump to President-Elect Biden. Numerous co- conspirators testified that Rhodes’ repeated messages urging forcible resistance to the election results are what caused them to join the attack on the Capitol on January 6." 

B.  A lawsuit filed after the November 2022 election against then reelected, but not yet sworn in, Rep. Eastman by one of his constituents charged that he should not be sworn in because his membership in the Oath Keepers violated the state constitution provision cited above [Exhibit 1].  See ADN Dec. 6, 2022

The trial judge found that Eastman belonged to such an organization in violation of the Constitution, however, the judge also ruled that the First Amendment of the US constitution trumped Article XII Section 4.  

C.   Steward Rhodes was a key witness for Eastman in the trial, testifying electronically while in custody.

This past week Stewart Rhodes, the head of the Proud Boys, was convicted of a number of charges relating to his organization of and promotion of the attack on the US Capitol on January 6, 2021.  The prosecutors are arguing that he be sentenced to 25 years, by far the longest sentence of any Jan 6 defendant so far.  

Below are excerpts from the sentencing memorandum from the prosecutors to the judge - for Rhodes and the eight other Oath Keepers who were convicted with him.  

The first excerpt is the opening of the memorandum dealing with the group as a whole.  The second excerpt is a couple of pages the begins the 20 page justification for Rhodes' sentencing recommendation which begins at page 81.  (The whole document is 183 pages, so you can see Rhodes takes up a good portion.)

I offer this to remind the Alaska Legislature who their colleague is.  He has a life membership in this organization which he very easily could have ended, but chose not to.  

Excerpt 1:

"GOVERNMENT’S OMNIBUS SENTENCING MEMORANDUM AND MOTION FOR UPWARD DEPARTURE

These defendants were prepared to fight. Not for their country, but against it. In their own words, they were “willing to die” in a “guerilla war” to achieve their goal of halting the transfer of power after the 2020 Presidential Election. As a co-conspirator recognized, their actions made these defendants “traitors.”1

Using their positions of prominence within, and in affiliation with, the Oath Keepers organization, these defendants played a central and damning role in opposing by force the government of the United States, breaking the solemn oath many of them swore as members of the United States Armed Forces. To support their operation, they amassed an arsenal of firearms across the Potomac River and led a conspiracy that culminated in a mob’s attack on the United States Capitol while our elected representatives met in a Joint Session of Congress. Two juries found all nine defendants guilty of participating in this grave conduct. These defendants are unlike any of the hundreds of others who have been sentenced for their roles in the attack on the Capitol. Each defendant therefore deserves a significant sentence of incarceration."

Excerpt 2:

"A. Stewart Rhodes

Rhodes led a conspiracy to oppose by force the lawful transfer of power following the 2020 U.S. Presidential Election. He exploited his vast public influence as the leader of the Oath

[Table of Penalty Enhancements here]

Keepers and used his talents for manipulation to goad more than twenty other American citizens into using force, intimidation, and violence to seek to impose their preferred result on a U.S. presidential election. This conduct created a grave risk to our democratic system of government and must be met with swift and severe punishment. A 25-year (300-month) sentence is compliant with the Sentencing Guidelines and necessary to satisfy the factors this Court must consider under 18 U.S.C. § 3553(a) in imposing a sentence.

All of these counts group. Accordingly, the total adjusted offense level for Rhodes would be the highest of the offense levels for the three counts, which is 33.

The government also submits that an upward departure of six levels is warranted under Note 4 for the degree to which Rhodes’ offense conduct “was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” U.S.S.G. § 3A1.4, cmt. n.4. And Rhodes deserves no credit for “acceptance of responsibility.” This would bring the defendant’s offense level to 39, for a recommended sentence of 21.8 to 27.25 years (262 to 327 months) of incarceration. The government’s recommended sentence of 25 years (or 300 months) of incarceration is just above the mid-point of that range.

a) Additional Factual Support for the Specific Offense Characteristics

The relevant conduct of Rhodes’ co-conspirators caused and threatened to cause physical injury to the law enforcement officers protecting the Capitol on January 6 and substantial damage to the building. It is appropriate to apply Section 2J1.2(b)(1)(B) simply for the relevant conduct of the conspirators he led. But there is more.

The evidence at trial established, and the jury found through its guilty verdict, that Rhodes led a conspiracy to use any means necessary, up to and including the use of force, to oppose the lawful transfer of power from President Trump to President-Elect Biden. Numerous co- conspirators testified that Rhodes’ repeated messages urging forcible resistance to the election results are what caused them to join the attack on the Capitol on January 6. See, e.g., 10/18/22PM Tr. at 4099 (testimony of Jason Dolan that Rhodes’ words constituted a call “to take up arms and fight back”); messages “regalvanized” him to “resist the fraud” and to come to D.C. on January 6 prepared to fight against “[t]he corrupt elements in the government that were allowing the election to proceed, and obviously leftists and extremists and whoever else was in the way”); 1/3/23PM Tr. at 2556-57 (testimony of Caleb Berry that he believed, based on the messages of Defendants Rhodes and Meggs, that he and his fellow Oath Keepers had a duty to “defend the Constitution” by “fight[ing] against the federal government if I had to,” because “[w]e needed to act or we would die”). And a preponderance of the evidence shows that Rhodes ordered his co-conspirators to join in the attack on the Capitol, both directly and indirectly. Indirectly, Rhodes sent his followers knowing words of approval of the riot, like his message that “the founding generation -stormed the governors mansion in MA . . . . They didn’t fire on them, but they street fought. That’s where we are now. Next comes our ‘Lexington.” Directly, Rhodes spoke on the phone with Meggs moments before Meggs led Stack One to breach the Capitol. Gov. Ex. 1500. Accordingly, this Court can and should find that Rhodes, through his offense conduct and that of his co-conspirators, caused and created a risk of injury to others and damage to property."

Message to the Alaska legislature:

Rep. Eastman acknowledged membership in the Oath Keepers, acknowledged his continuing membership in the Oath Keepers, and that he was on the Capitol grounds on January 6 (though he did not enter the Capitol).  He has not announced that he has cancelled his membership in the Oath Keepers.  In fact, Stewart Rhodes was a key witness in Eastman's December trial.  

Eastman's membership is in clear violation of the Alaska Constitution Article XII, Section 4.  

Keep in mind the words of the Texas Investigation Committee Chair, Rep. Andrew Murr:  

"'Rather [the purpose of expulsion] is intended to protect the integrity and dignity of this legislative body and to provide accountability to everyone who works and serves in this building.'"

I'd also note that Article II, Section 12 gives the Alaska legislature the power to expel a member with a 2/3 vote.  The limits on the judge in Eastman's trial do not apply here.  

§ 12. Rules

The houses of each legislature shall adopt uniform rules of procedure. Each house may choose its officers and employees. Each is the judge of the election and qualifications of its members and may expel a member with the concurrence of two-thirds of its members. Each shall keep a journal of its proceedings. A majority of the membership of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day and may compel attendance of absent members. The legislature shall regulate lobbying. [emphasis added]

I realize that there are reasons both the Republicans and the Democrats in the Alaska House feel it might be in their best interests to leave Eastman in the House.  I realize that minor compromises must often be made to pass legislation.  But harboring a member who is a member of an organization that tried to overthrow the US presidential election, and a supporter of its leader, who was convicted of multiple crimes related to Jan 6, is not a minor compromise.  

Integrity of the legislative body is also important.  Doing the right thing only when it doesn't possibly threaten your own best interests is NOT integrity.  

[I'd note that the Texas House has not yet voted to expel Rep. Rep. Bryan Slaton as I post this, nor can I find any indication that he has resigned.]  

Tackling Alaska Supreme Court Redistricting Opinion

 

The first Supreme Court order regarding the 2010 Alaska Redistricting Board cases was issued on March 25, 2022.  It confirmed some of the Superior Court's decisions - mainly the Eagle River Senate seats - but not others - Valdez and Matsu complaints (though it agreed with them on the Cantwell appendage) and Skagway complaint.  The Board incorporated the Court's recommendations except in the case of the Eagle River Senate seats.  They offered a new map which also split the Eagle River house districts into two different Senate seats.  

Another on May 25, 2022 that ordered the Board to adopt Plan 2 as an Interim Plan so that candidates for the 2022 elections would know what districts they were in.  The court rejected the Board's new Eagle River Senate seat split and ordered the Board through the superior Court to approve plan 2 (which combined the two Eagle River house seats into one Senate seat.)

"IN THE MATTER OF THE 2021 THE STATE OF ALASKA REDISTRICTING CASES" was issued on April 21, 2023.  

I've been slowly plodding through the Opinion.  I'm not an attorney, but I have been following the Board and the subsequent court proceedings closely since December 2020.

In this post I want to simply describe the process I'm using to review what the justices said and the implications for future redistricting boards - particularly the 2030 Board.  In an academic paper this would be called the methodology section, though that's probably to generous a term for what I'm offering here.  I'm briefly explaining how I'm going about this.  

Step 1:  Quickly go through the text to see 

• what issues they covered
• what decisions they made about the current plan and the Board 
• (to remand the case through the Superior Court to the Board and have the Board either approve the Interim Plan as the Permanent Plan or tell the Court why it shouldn't be the Permanent Plan and offer alternatives.  
• to clarify that after approval the public still has the opportunity to challenge it)

Step 2:  Using the Court's headings, create an outline of the plan (which you can see here)

Step 3A:  Read through the Opinion more carefully with the Outline alongside and mark things that seem important on both the Opinion and the Outline.  Here are some examples of pages I marked up.

Okay.  This is not intended to be a tease.  But this is taking a while and I want to show you why.  Issues are raised in one section and then, sometimes, in another.  And maybe this intro, will make the final post(s) easier to understand.  Probably wishful thinking.

Step 3B:  As I did this, I also started to draft notes about what I think might end up being important.  These are tentative notes which I hope will become clearer (to me)  as I write them and then go back to the opinion to check if there are other comments that support or challenge what I've written.  

I call these Step 3A and 3B because I did them more or less at the same time, but they are different activities.  For example, here are some of my tentative notes (3B): 

"There seem to be several different kinds of issues

1. Procedural legal issues that seem to relate to how the court makes decisions, but don’t seem to set precedents (other than legal procedural ones in case of a challenge) for future redistricting boards to take careful consideration of.
2. Clarifications of past court decisions which will be important to future Boards  - These are the key issues I’m looking for and hoping I understand correctly
1. Partisan Gerrymandering
2. Public Participation and degree to which it should be considered by the Board - meaning of 'hard look'
3. Clarification of the related terms:
1. Socio-economic Integration
2. Communities of interest
3. Politically salient class
4. Equal protection
5. Kenai Peninsula neutral factors test.
3. Reasoned Decision making - Board didn’t show reasoned decision-making for splitting ER"

Step 4:  This is still ahead of me.  I need to expand my notes on the important issues and then try to look at all the ways the court discussed each issue.  When they said it applied.  When they said it didn't.  When they offered similar concepts and distinguished between them, etc.  

Step 5:  Review my previous post(s) which discusses the legal issues that, given the Board's actions and their attorney's public advice, I thought needed to be clarified by the Court and see which of my concerns were addressed.  

Step 6:  Try to take all those notes and create a post (and now I'm thinking several posts, maybe different posts on different issues).  I'm also thinking I need to talk to some lawyers about this as well.  

Why does this matter? 

Future Boards need to know what the ground rules are for creating Alaska house and senate districts so they can create maps that future courts will find proper and legal.  And they might even avoid future litigation.  

For example when I pointed out to the 2010 Board attorney Michael White that it appeared that some of the districts appeared to be political gerrymandering, he smiled at me as though I were a little dim, and said, no maps have ever been thrown out because of gerrymandering.  

And I suspect that some of the Board members may have heard similar stories.  

But one thing that is clear from the Courts' 2022/23 rulings is that gerrymandering is unconstitutional in Alaska.  Will that stop attempts to gerrymander in the future?  Probably not.  But Boards will have to cover their tracks better than this Board did when they do gerrymander.  

This year, Board attorney Matt Singer took the Board into executive session to explain redistricting law in the Constitution, constitutional convention, and past court cases.  Michael White did that session in 2011 in public and I think that Singer used a pretty broad interpretation of attorney-client privilege to justify briefing the Board privately on these issues. We don't know what he told them.  I'd note that the Superior and Supreme Court agree.  

But we do know that Singer's mantra throughout the process was "All areas within a Borough or City boundary are Socio-Economically Integrated."  The Court is clearly saying in this decision that while that is technically true, there are other similar, but different concepts - like 'community of interest' - that also have to be considered, even inside of a single Borough.  

Ideally, I can come up with a guide to the rules for future Boards and for citizens that will be useful in 2030.  I would hope that others would do the same thing, because I may well be missing things or misinterpreting them.  

$229 Million Settlement Is More Than 1/3 Of Santa Monica's Budget For Sex Offenses

The Richard Winton in the LA Times writes this week: (the link should be accessible) 

"This week, Santa Monica settled more lawsuits, bringing its total payout to $229.285 million — the most costly single-perpetrator sexual abuse disbursement for any municipality in the state."

Imagine what Santa Monica could have done for poor families, for the homeless, for schools, for health care, for $229 million.  That's more than 1/3 of the total Santa Monica budget for 2022-2023!

From the City of Santa Monica, 2022:

"The total adopted budget for the City for FY 2022-23 is $665.4 million."

There's a lot to untangle in this story.  I've got other posts in draft form lined up, but this one tugs at a number of issues I've been mulling over.  With good administration, this shouldn't happen. With good accountability mechanisms this shouldn't have happened for so long.  There are ways to, if not totally prevent such things, certainly to minimize their impact.   But there are also other societal issues that need to be addressed, particularly how we deal with pedophiles.  So let's look at some of the issues here.

1.  The Cost of poor oversight

One study said it was $3 billion over the last ten years.  That's just police!  That's an average of $300 million per year.  But I'm guessing with this single, one quarter of a billion dollar settlement, almost the average annual cost reported in this study, either that $3 billion figure is low, or awards are getting higher.  

But the cost isn't just in money.  The costs include:

• impacts on the lives of people who were harmed by the police and others.  In the Santa Monica case over 200 kids have reported the employee abused them.  Eighty were part of the settlement
• impacts on public safety since police were were spending time abusing citizens instead of protecting them, when people are wrongly convicted, the actual perpetrator isn't apprehended
• impacts on trust in government - among those abused and their families and among the general public when these crimes and settlements are publicized
• opportunity costs - the costs of things this money could have done (though one of the reports says most of this comes from insurance companies, which means all other organizations pay higher insurance rates, and I'd guess it spills over to the rest of us paying car, health, and other insurance

Here's another NPR piece looking at these issues.

2.  Why we don't see  

Most people see what they want to see.  

"The confirmation bias is a cognitive bias that causes people to search for, favor, interpret, and recall information in a way that confirms their preexisting beliefs. For example, if someone is presented with a lot of information on a certain topic, the confirmation bias can cause them to only remember the bits of information that confirm what they already thought."

We also have a truth bias.  Certainly honest people have a tendency to assume others are honest as well. (And there is evidence that most people are basically honest.)

So adding these two tendencies together, we tend to discount indicators of trouble and hold on to more positive interpretations of the behavior we see.  Especially of a person we've known and respected over the years.  "Nah, he couldn't have done that." 

And the people whose behavior is problematic are often (I'm guessing here) quite capable of giving us believable stories to explain away the problems.  This is why it's often a good idea to have outsiders, people who don't know the people involved,  come in to investigate problems.  

But we also have negative biases.  People who complain might be part of an out group - many of the kids in the Santa Monica case were from poor, immigrant families whose parents might fear deportation if they report and are less likely to be believed if they report.  

Most people, I would argue, take a long time before they realize that something is seriously wrong.  And then it takes a long time to report it.  How long did it take you to acknowledge that your (car, toilet, spouse) had a problem.   Then once you accepted it, how long to take action to fix it.

"But his biggest claim to fame was his work as a volunteer in the Police Activities League, where, beginning in the late 1980s, he worked with boys and girls in the nonprofit’s after-school program.

Uller was a familiar face at the PAL center that served Santa Monica’s Latino neighborhoods, often traveling in a police vehicle and befriending generations of youths.

It took decades to uncover that Uller was a sexual predator, the center of a stunning series of crimes that destroyed the lives of children and exposed grave questions as to why it took so long for authorities to uncover what he was doing."

3.  Why why don't act when we do see

Humans seem to have a basic loyalty built in to one's 'group.'  Betraying family, friends, and community (church, work group, etc.) are seen as moral violations and we have lots of negative names for people who do that - snitch, tattletale, traitor, stool-pigeon, etc.  Among law enforcement agencies, this is often known as "the blue wall of silence."

Competing against that loyalty, we have the Rule of Law - a set of moral expectations for people living in a community, in a society.  

When group loyalty comes in conflict with rule of law, individuals face a moral quandary.  Which set of rules should one follow?  We recognize this in the law with rules that allow spouses to not testify against each other, that ban nepotism and other forms of conflict of interest.  I'd argue that the group loyalty is built into our genes, our emotional make up.  The rule of law is something we learn logically.  And strong emotion generally beats out logic.  

“You have to understand in this liberal city, this is a Black and brown part of the city, and no one in the government was watching out for our kids. The Pico neighborhood was marginalized in that era,” said De la Torre, noting that Uller’s abuse occurred “under the shield of law enforcement” and “not one person lost a job” in response to the oversight.

Reporting people in our in-group for breaches of the rule of law  has real, immediate consequences on our families, our social circle, and even on our employment.  

This conflict keeps many from speaking up, even when they see wrong doing.  If you've ever lied to protect a friend, a family member, or someone else you have a close bond with, you understand what I'm talking about.  

3.  When Good Employees Also Do Bad

Seeing wrongdoing becomes particularly difficult when

• the employee is otherwise exemplary in their job performance

"In nearly three decades as a civilian employee with the Santa Monica Police Department and the city, Eric Uller was considered a standout public servant who won awards for his technological innovations."

• has work activities where they work independently, where supervision is not close - such as working with youth after school. (I should mention I was an after school playground director at an elementary school to help pay for college, and I was usually alone with the kids, without supervision. No, I didn't abuse that independence, and I suspect most people don't.)

4.  How the US deals with 'wrong' sex

 Right now in the US, there probably aren't many people considered lower than pedophiles. Gay sex used to have a similar stigma (which, given all the anti-trans laws were seeing introduced across the US now), isn't completely gone either.  Sex and marriage between people of different races was also illegal.  Despite a US Supreme Court ruling banning such laws, 

"As of February 3, 2021, seven states still required couples to declare their racial background when applying for a marriage license, without which they cannot marry. The states are Connecticut, Delaware, Kentucky, Louisiana, Minnesota (since 1977),[42] New Hampshire, and Alabama."

There are good reasons for our laws against adults having sex with children, though the lines get blurry as the age of the child gets higher and the age of the adult gets lower.  There's no question about why a 30 year old shouldn't have sex with a nine year old.  Yet according to NBC news in 2019:

"Idaho and California are not alone in not having a minimum marriage age. A majority of states, which issue marriage licenses, allow 16- and 17-year-olds to marry, a few allow 14-year-olds, and 13 states have no minimum marriage age as of September. Before 2016 — when Virginia became the first state to put its marriage age into law — more than half of the states had no minimum marriage age fixed by statute."

While it appears there are requirements for parental or court approval, it does appear that there are no minimum ages in these states.  I would guess that the proponents for allowing  young marriage often argue that pregnant girls should be allowed to marry the fathers - but I didn't look that up and could be wrong.  

My point in all this is that some sexual preferences are seen as evil while others are perfectly ok. (Though for many, still, sex outside of marriage is frowned on.)  

People don't choose at some point in their lives to be sexually stimulated by one type of sexual encounter or another.  Some argue some attractions are genetic.  Some argue that sexual preferences are based on early sexual encounters.  

People with heterosexual preferences would appear to be the luckiest.  These are what our society condones.  While some people frown on any sex out of marriage, heterosexual sex among the consenting, unmarried seems to be alive and well.   The kinkier the sex and the more people will disapprove.  As people's preferences stray from heterosexual, single partner sex, there is more disapproval.  

But imagine if a person were forbidden from having unmarried heterosexual sex and punished if they did.  Buzzweed lists a number of ways women have been punished in the US, some of which involved sexual acts.

For many people the sexual urge is very powerful, even irresistible.  I suspect that is probably the case of people who view child pornography and who engage in sex with children.  I would only request that people who have been in situations where they could not resist their sexual urges with another person, consider what it would have been like if that other person were legally a child.  Or for people who couldn't resist opening a porn site and watching porn that turned them on.  

I'm not defending pedophiles.  But simply labeling them monsters and locking them up forever is not a good way to reduce pedophilia.  I'm only suggesting that such urges can be hard to control.  And many such relationships that are considered taboo today, have in different periods of time been acceptable.  And sexual practices condoned today were in past times seen as evil.  

But we've evolved in our beliefs that sex should be consensual.  We've evolved in our beliefs that people in positions of authority have a power in the sexual relationship that makes consent, at best, a morally difficult determination.  

And we believe that adults having sex with young children is, without question, non consensual and also an example of an unbalanced power relationship.  

Child pornography is a problem because children have been exploited to produce the images.  Is viewing drawings of child sex as viewing photos and videos?

If AI could produce child pornography (I suspect it already can and does) without any actual children being involved, would that be ok?  Some will argue that such pornography would lead to actual sexual encounters.  But we really don't know how many viewers of child pornography actually go out and find victims.  

My goal here is to raise the question of whether there are ways to recognize some people's sexual attraction to children, even let them indulge in pornography that didn't exploit actual children, and also figure out ways to protect children from sexual predators?  

The person in this article excelled in some aspects of his job.  But he had a taboo sexual attraction to children.  What do you think his options were to seek help from a counselor?  In many situations people who professionally learn about child abuse are mandated to report that to the authorities.  

If this were not such a reviled and taboo attraction, would this employee have been able to seek and get counseling and treatment that would have helped him deal with his inappropriate attractions?  Psych Central says:

"Pedophilic disorder treatment options include medication, hormone, and psychosocial therapies. “Stigma often discourages people from seeking help, but resources are available."

Most mental health problems are stigmatized making it difficult for people to seek help.  Pedophilia  is probably one of the most stigmatized.  

That leads me to offer a few options for reducing sex between adults and children.

Some ways to lessen the incidence of work related pedophilia:

1. General education to let people know that there are treatments for people sexually attracted to children and reducing the stigma connected to it so people are more likely to seek such treatment  (I realize that this is a long term solution, since people with more common, more visible mental health problems also avoid getting help because of the stigma involved.)
2. Education in schools that teaches children how to recognize inappropriate touch, acts of grooming, and steps to take when they encounter such behavior.  Erin Merrin came to Alaska in 2015 and got such a program (Erin's Law) adopted, despite the obstacles set by then Senator Dunleavy, under the guise of 'parental rights.'  Now Governor Dunleavy is still using 'parents rights' as a cover for trying to weaken Erin's Law.  Erin's Law has been adopted in a number of states and seems like one of the more promising ways to reduce pedophilia, by educating the potential victims. 
3. Increased vigilance for situations where children are vulnerable to predatory adults - situations where adults work with children such as playgrounds, social services that care for children, recreational activities such as sports and Boy Scouts.  
4. Changing the laws that give public employees immunity for lapses at work.  There do need to be protections against lawsuits or people wouldn't become public servants.  I think the bulk of monetary punishment still needs to be born by the agency.  But individuals who make serious mistakes, who don't report abuse they know about (not just sex related) should also have some monetary consequences.  

That's a start.  I'm sure others can think of other ways to do this sort of work.