Adapted from The Midnight Sun Memo, a newsletter project from your humble Midnight Sun editor. For everyone who’s been asking about keeping up via email or how to support the work we’ve been doing here, we finally have an answer in this nifty newsletter… which comes with two free editions per week and extras for subscribers (though, as you might have learned from following this blog, the schedule can’t be entirely guaranteed). Sign up now!
The Alaska Redistricting trial hearing closing arguments on Friday. It was by and large a retread of the points we’ve heard over the two weeks of witness testimony. Are the maps produced by the board more socioeconomically integrated than a series of proposed alternatives? Did the Alaska Redistricting Board properly balance the Alaska Constitution’s requirements of contiguity, compactness and relative socioeconomic integration? What is the proper balance anyways? Did the board listen to public testimony? Does the board even have to consider public testimony at all? Are the population deviations in the final map allowable under law? Does having the license plate GMANDR and nickname of “The Picasso of Gerrymandering” make your expert testimony more or less credible? Do some voters have the right to be able to travel throughout their districts without leaving their boundaries?
Will Judge Thomas Matthews force the board back to the drawing table?
It’s, frankly, impossible to say. A lot of the grounds mentioned above may mean everything or they may mean next to nothing given the considerable leeway afforded to the board in weighing these decisions, balancing interests and putting down map lines. The board argues that the precedent is crystal clear that they’re in the right, while the plaintiffs argue the guidelines set down by precedent are more flexible or, in some cases, only tangentially related to the issues at hand. A final decision from Judge Matthews is end of Tuesday (it can come as late as 11:59 p.m.) and it will undoubtedly be appealed to the Alaska Supreme Court.
It’s worth, however, focusing in on the common thread shared between just about every closing argument: That the Alaska Redistricting Board failed the process.
On this front, every plaintiff raised some variation of argument that the board failed to uphold some part of the public trust, failed to be transparent in its motivations, failed to abide by the Open Meetings Act, failed to follow the public notice requirements for redistricting, failed to recognize conflicts of interests, failed to follow the underlying Hickel Process or, perhaps most critically, failed to be fair, equitable and consistent. It’s a wise argument when you consider that process was the ultimate decider in the last round of redistricting—where the courts found the board had improperly prioritize Voting Rights Act districts over the constitutional requirements. It could be critical here, too, as the few times Judge Matthews has asked questions of plaintiffs was about process. Why leave Valdez for last when Valdez has historically been a problem?
Here, I’ll be highlighting some of the process issues raised by each plaintiff with accompanying quotes from the hearing:
Process was an issue right from the start with the case brought by the East Anchorage plaintiffs, who argue that the board was wrong to draw East Anchorage and Eagle River together in a Senate district that crosses an uninhabited mountain range. Their case alleges a variety of violations of the Open Meetings Act, arguing that the board improperly shielded much of its deliberations behind closed doors and failed the public process by never registering a clear and compelling justification for the pairings. It’s that failure, argued East Anchorage Attorney Holly Wells, that shows there’s no justification for the maps. They’re arguing that Eagle River ought to be paired with Eagle River.
“This case is really one of process more than anything. I think while process has been sidelined by the board quite frequently in this case, process is at the heart of every substantive constitutional requirement that faces the board. It’s at the heart of how it functions, how it understands its obligations and it’s the board’s decision to abandon process and really evade it … that led to the substantial constitutional errors that were committed by the board with respect to the Eagle River/East Anchorage Senate pairings. It seems almost peripheral to focus on something like process looking at the level of extreme harms here, but the truth is it’s the courts that have grounded us in this concept and in order to really understand where things went off the rails, we have to understand why. It is present in every piece and every component of the board’s decision.”
Wells was also critical of the board’s largely aggressive approach to the litigation, arguing that from the get-go the board was acting as if it was a private party and not a government entity that’s ultimately accountable to the public.
“Process matters because without it the board forgets its job, it forgets what it is and doesn’t understand it’s a government entity accountable to the people and when it forgets that it breaks laws,” she said. “Here, we have it happening over and over and over again. And it happens only once the board makes that decision, only when its partisan interests and when its self-interests take control and the decisions become reactive and accountability disappears.”
The personal agendas of the board members were central to the combined case of the Mat-Su and Valdez plaintiffs, who both argue that the board erred when putting them together in a House district. Robin Brena, the attorney for both the Valdez and Skagway plaintiffs, argued that the board allowed personal agenda into their decision-making process. The board focused on achieving those goals—like the Doyon-focused House district—while leaving other issues like the positioning of Valdez until the very end. He argues that this not only negatively impacted Valdez and Mat-Su but that it left no meaningful time for the board to consider alternatives.
“This was a board that was dominated by personal agenda. Dominated by personal agenda. They did not consistently apply the constitutional criteria at all. They came in, had what they wanted to get done and found a way to get it done,” he said. “Now, that isn’t the way this is supposed to work and the result of these failures of process is the board didn’t explore options that it should have explored, it didn’t consistently apply the constitutional requirements as they were required to do, and the process broke down and failed.”
Brena had a similar approach to the Skagway case, where he argued that board member Budd Simpson was single-minded when he drew the final map that paired Skagway and Haines with Juneau’s Mendenhall Valley rather than Juneau’s downtown area. During testimony, Simpson said his main motivation with the final map was to make the districts more compact despite much testimony to the contrary.
“It’s the exercise of non-reasoned decision-making,” Brena said. “Nobody but one person wants it, and nobody but one person supports it.”
While Brena suggested that there was quite literally no support for the final maps, the board in its rebuttal noted that there were several pieces of written testimony that supported the board’s actions. It wasn’t just Simpson as Brena had claimed.
In the case brought by the Calista Corporation, which argues that the Calista region villages ought to be combined under a single Senate district, attorney Mike Schechter tied all the process complaints together. He argued that the board didn’t effectively separate its conflicts of interest from its decisions. Not only did the maps reflect personal goals, he argued, but they resulted in an unfair and unequal application of the law.
“It can’t prioritize one group over another or disadvantage one group at the expense of another. It has to be consistent. If it respects ANCSA boundaries across the state, it has to respect them in the Calista region, as well,” he said. “Even if the court concludes ANCSA boundaries aren’t equivalent to local government boundaries, as some parties have argued, it cannot avoid the equal protection requirement that the board treat the people of each Alaska Native Corporation’s region equally.
“The board had no rules, policy or process for guarding against special treatment resulting from board member conflicts of interest. The Calista region didn’t have an advocate on the board but a neighboring region that wanted more population did. The board argued that board members acted as statesmen and stateswomen who acted in the interest of all Alaskans but when you consider each board member’s special interests, and you look at the board’s plan you can see that not one board member had a special interest that was not honored in the 2021 maps. Member Bahnke in District 39, Member Simpson in Southeast, Member Borromeo in the Doyon district, Member Marcum in the Senate pairings between Eagle River and East Anchorage and Member Binkley in Fairbanks.
The written decision is due on Feb. 15 with the full expectation that it will be appealed to the Alaska Supreme Court.
Follow the thread: The closing arguments in the Alaska Redistricting trial.