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It’s been a quiet couple weeks here on The Midnight Sun as I’ve been neck-deep in the Alaska Redistricting trial coverage, which has been mostly featured over on Twitter and The Midnight Sun Memo newsletter (mostly a product of these being 9-5 coverage days with little time to do anything else). With the regular trial wrapped up and the oral arguments set for this Friday, I wanted to take this opportunity to recap the five cases and include the coverage from the newsletter all in one place. And for those who’ve been following along, I’ve put a reference to when each section was originally published.
Let’s start off with East Anchorage:
In the big picture (new)
The East Anchorage case focuses in on the Alaska Redistricting Board’s decision to divide the two Eagle River house seats into two different Senate districts, effectively spreading out the political influence of the deep-red district over the JBER district and the South Muldoon district. At the heart of the argument is that Eagle River’s best pairing is with Eagle River, not with communities that are separated by a 15-minute drive on the highway or, in South Muldoon’s case, the largely unoccupied Chugach Mountains that require a 15-minute drive on the highway and a drive through the North Muldoon district to connect the two.
This is the one major area where the board faced serious internal division. The board’s conservative trio—John Binkley, Bethany Marcum and Budd Simpson—bulldozed over the objections raised by board members Nicole Borromeo and Melanie Bahnke that the pairings ignored the racial makeup of East Anchorage. It resulted in Bahnke and Borromeo signing onto the final report in protest (after Binkley suggested they not be allowed to sign at all).
The legal arguments here are tricky, however, because previous cases have granted broad latitude for how the board determines socioeconomic integration—finding, effectively, that anything within a municipality is automatically considered to be integrated—and particularly when it comes to Senate pairings. Here, the East Anchorage plaintiffs argue that the connection over the Chugach Mountains, which would require voters to pass through two other Senate districts, is out of line with the Alaska Constitution’s requirements for contiguity. They also point to the Alaska Constitution’s requirement of watersheds to be taken into account when drawing boundaries as further reason to invalidate the Senate pairings.
There’s also a fair amount of allegations that the board violated the public process here. The biggest point of contention is the board’s swift approval of the final Senate pairings after a closed-door meeting that spanned two days. That the plan shifted from what was agreed upon when entering the closed-door meetings and that there was never any on-the-record justification or explanation for the pairings has also continued to hang over the process.
The expedited rate of the trial has made things difficult for all plaintiffs, but particularly so for the East Anchorage plaintiffs. They were first to go during the trial, which got underway before the full scope of discovery had been completed. At issue here is a series of emails that the board had claimed attorney-client privilege over but were eventually released to the plaintiffs. It’s these emails along with some other data produced by the board that caused the East Anchorage plaintiffs to attempt to amend their complaint to include race-based discrimination in the lawsuit. The motion was ultimately denied, but Judge Thomas Matthews allowed in some additional testimony on these issues.
What they’re seeking: The main ask here is that Eagle River be paired with Eagle River. They’re less prescriptive when it comes to what happens to the South Muldoon House seat, but have suggested it be paired with the North Muldoon seat. Any change here, would likely result in a reshuffling of Senate pairings that could affect the rest of the city.
Trial recap from Jan. 21, 2022
The trial challenging the Alaska Redistricting Board’s work got underway today in what is going to be one of the more unusual trials we’ve ever seen, thanks to the lightning-quick turnaround time facing the court and the fact that it’s comprised of five distinct legal challenges. Opening arguments were written and much of the testimony has already been filed. Instead, what we got today was some cross-examination of witnesses, a bit of redirect, and plenty of procedural discussions about access to documents, the ordering of the trial and other logistics.
Talk about building the plane while flying it.
“I’m trying to grab onto the tail of this tiger as you all ran off a mile ahead of me from the starting line,” Superior Court Judge Thomas Matthews told the attorneys at the end of the day’s hearing.
The East Anchorage plaintiffs, represented by attorney Holly Wells, kicked off the trial. This challenge—which is the most high-profile case with the biggest potential impact on this year’s elections—centers on the board’s decision regarding Senate District K, which splits up the two deeply conservative Eagle River House districts and pairs one with the swingy South Muldoon district in East Anchorage (currently held by Democratic Rep. Liz Snyder, who won her election over Republican Lance Pruitt by 11 votes). The South Muldoon district is also one of the state’s most diverse urban districts. Like many of the other challenges, it’s a multi-faceted case that argues Open Meetings Act, procedural and constitutional violations.
When it comes to the specific Senate pairings, the East Anchorage plaintiffs argue the South Muldoon district holds very little in common with Eagle River, and that the two Eagle River districts are the best fit for each other because their residents primarily live, work, shop, worship and recreate in Eagle River. Ordinarily, those considerations would factor into the shape of House districts. The problem, though, is the Alaska Constitution doesn’t have a lot to say about Senate pairings:
Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.
-Alaska Const. Article VI, Section 6
In the East Anchorage plaintiffs’ pre-filed oral arguments, which you can find here, they acknowledge the scant directions but argue that there’s still directions in the Constitution that the board ignored:
“The Board placed on the record no reasons for pairing two practically dis-contiguous house districts into Senate District K, nor any reasons for disregarding the Alaska Constitution’s invitation to consider local-government boundaries, or its command to consider drainage and other geographic features. … The absence of any justification to support those departures is all the more constitutionally problematic given that the Board had before it the option of alternate pairings that would have resulted in senate districts that were constitutionally contiguous, would not have required residents of a house district to drive out of their senate district to reach other residents of the senate district, and would have properly respected local government and drainage boundaries, and better accord with sensible geographic considerations.”
They’re relying in large part on testimony from Dr. Chase Hensel, an anthropologist with experience throughout Alaska, as to what constitutes a “community of interest.” Hensel argues that Eagle River is clearly its own community that’s distinct from East Anchorage, citing efforts like the EagleExit plan.
Very little of this was actually in front of the court today.
Instead, the bulk of today’s hearing was spent by redistricting board counsel Matt Singer questioning Dr. Hensel’s credentials and his assertion that Eagle River ought to be paired with Eagle River. Through the questioning, Singer was setting up the case that Senate pairings can essentially be arbitrary. He questioned how the requirement of being able to traverse through a district could hold up when there are rural districts without roads connecting their population hubs (Hensel noted that planes account for most of the travel in rural Alaska) and other connections.
This is a key part of the board’s argument. The prevailing attitude has been that anything within a local government’s boundaries is automatically considered to be socio-economically integrated and that Senate pairings are ruled by nothing more than shared boundaries. That second part was a key issue during the 2010 round of redistricting, where plaintiffs argued that the city of Fairbanks was due its own Senate seat. The Alaska Supreme Court stopped short of weighing in on that issue because it found other procedural matters that ultimately sent the entire plan back to the drawing board. The city of Fairbanks did end up with its own Senate seat in the end, but that was the board’s decision and not done at the direction of the court.
Singer also challenged Hensel’s assertion that the East Anchorage vote would be diluted, to which Hensel argued that Eagle River’s solidly conservative base combined with the swingy-ness of the South Muldoon seat would all but guarantee a Republican wins the Senate seat (that Republican being Sen. Lora Reinbold).
“My point is the power of the voters of Eagle River is magnified and the power of the voters in (the South Muldoon district) is diluted,” Hensel said.
And that was… kinda all there was for the day, in terms of the meat of the underlying legal arguments facing the East Anchorage pairings.
The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony. There’s not a lot to report there, but notable is that the Alaska Supreme Court issued an order denying Singer’s motion to protect board correspondence that he claimed attorney-client privilege over. The ruling doesn’t necessarily release the documents but gives Judge Matthews an opportunity to review them to determine whether the privilege claims are justified.
Those outstanding claims, as well as other issues, means that the East Anchorage plaintiffs may end up before the court again, but even that is a matter of contention.
The trial is set to continue on Monday with a focus on the challenge to the Mat-Su area districts. The main argument there by the Mat-Su Borough is that the board erred when it decided to include Valdez in one of the region’s House districts, an arrangement that Valdez is also suing over (whose turn in front of the court comes up on Tuesday). This is an interesting case because redistricting is effectively a balancing act, where taking population out of one House district will necessarily affect other districts. The coalition that formed around Doyon, Limited is intervening on this case in order to preserve the hard-fought rural Interior district. That district unites all of the Interior villages, a feat not accomplished in several rounds of redistricting.
Follow the thread: Day one of the Alaska Redistricting trial.
Motion denied from Feb. 2, 2022
Before I get into the day’s progress in the redistricting trial, Judge Thomas Matthews finally issued a ruling on the East Anchorage plaintiffs’ attempt to amend their complaint to cover race-based discrimination (find the order here). The claim was based on the allegation the board had manipulated racial data in its analysis of the East Anchorage house districts in order to dodge potential issues with the federal Voting Rights Act. While amending a complaint once the trial is underway is only done in the most extreme of cases, the East Anchorage plaintiffs argued that the board intentionally concealed this information from the board and that emails purportedly revealing this ruse weren’t released until after the trial began.
The board argued that it was all overblown, chalking up the differences in data to how minority population is determined (whether you could white Hispanics as a minority or non-minority population), and that the data was available to anyone who had the capability of crunching the raw U.S. Census data on their own.
After hearing pretty heated oral arguments over the motion on Tuesday, Matthews denied the motion finding that the board’s arguments were more convincing. He had blame for how the East Anchorage group had approached the case and argued that introducing a new claim at this point would be unfair to the board. He agreed with the board’s contention that they should’ve been able to process the U.S. Census data on their own (and pointed to the Valdez case as establishing this as a reasonable expectation) and said the email, while “suggestive,” was not a smoking gun.
Here’s his conclusion:
“While the East Anchorage Plaintiffs’ raise serious allegations and arguments, the Court concludes that amendment, at this late stage of expedited litigation, would be unduly prejudicial and inappropriate. Any hardship to the plaintiffs is at least in part a result of strategic decisions made earlier in the litigation. On balance, the hardship to the plaintiffs in denying an amendment does not outweigh the prejudice to the board in granting the motion without a meaningful opportunity to defend against the new claim.”
He did, however, signaled he’s open to considering allowing in a sizable chunk of the East Anchorage’s analysis of the data… subject to any objections from the groups.
Zoomed out: In talking with a lawyer who’s been following the case, none of this should be all that surprising. In the normal course of a trials, the attempt to amend a complaint after the deadlines and once the trial is underway would be laughable. Of course, nothing about this trial is all that normal. The expedited course of this trial, which will see it handed off to the Alaska Supreme Court in less than two weeks, has played into the hands of the Alaska Redistricting Board and its legal team, helmed by the pugnacious Matt Singer.
Important to note, too, that the board successfully scared several plaintiffs off of making claims under the federal Voting Rights Act. East Anchorage and Mat-Su dropped their claims under the board’s threat to remove the case to federal court, a prospect that would potentially have delayed resolution of the trial before this year’s elections need to get underway.
In talking with that lawyer, the general understanding though is that claims under the federal Voting Rights Act could still be filed despite it being past the Alaska Constitution’s deadline for filing a challenge against the maps because, after all, it’s the federal government and the federal government plays by its own rules. If that case were to come after this year’s elections, the results could go a long way to proving the allegations that the board intentionally violated the Voting Rights Act.