Judge strikes down Redistricting Board’s do-over as do-over of unconstitutional gerrymander

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Anchorage Superior Court Judge Thomas Matthews has for the second time struck down the Alaska Redistricting Board’s work on Anchorage-area Senate districts, finding the board’s conservative majority conspired to create maps that would give Republicans a boost in the Alaska state Senate.

The ruling, issued late last night, orders the board to adopt the alternative option for Anchorage-area Senate maps as the interim map for the 2022 elections, leaving the map’s layout open for potential changes in future elections. The ruling is expected to be appealed to the Alaska Supreme Court with an expedited timeline aimed at getting a final decision by the June 1 candidate filing deadline.

Judge Matthews’ ruling finds the board made largely hollow changes to its process in an attempt to comply with concerns raised by the courts about secretive dealings but was still, at its core, primarily driven by the goal of boosting conservative representation in the Alaska Legislature. He found that while the maps met the basic constitutional standards for districts, it didn’t erase the intent.

The remedy

The Senate pairings ordered by Judge Thomas Matthews for use in the 2022 elections. The decision can still be appealed to the Alaska Supreme Court.

Judge Matthews’ order specifically requires Eagle River’s two state House districts be kept together in a single Senate seat, the two East Anchorage state House districts to be kept together and the two South Anchorage districts to be kept together. It would place the district covering JBER and Government Hill with the downtown Anchorage house District, which is expected to be a Democrat-leaning Senate district. This layout was one of two options considered by the board—which drew bipartisan support, including from the East Anchorage plaintiffs and GOP Sens. Roger Holland and Lora Reinbold, who would have been forced to run against each other under the map approved by the board’s conservative majority. It was rejected by the board’s conservatives because they worried—both in private correspondence and on the public record—it would hurt Republicans.

Judge Matthews acknowledged it’s unusual for judges to direct redistricting matters, but said it was warranted by the tight timeline and the actions of the board.

“Having determined the Board acted in an arbitrary and unconstitutional manner, the Court must chart a path which balances the constitutional rights of Alaska voters to fair and effective representation at the ballot box with the rights of legislators and potential legislators to seek political office,” he wrote. “Given what has transpired to date, there is simply no practical way for the Board to develop, debate and approve yet another map which would correct the constitutional error.”

For the Girdwood plaintiffs, the ruling was welcome news. They released the following statement:

“The Girdwood Plaintiffs were pleased to receive the Court’s decision late last night. Pairing Girdwood with Eagle River would have drowned out the voice of Girdwood residents and the rest of District 9. District 9’s voting power should not be collateral damage of the Board’s political agenda. The courts have now three times told the board that it has engaged in partisan gerrymandering. The Girdwood Plaintiffs hope that the Board will finally take that message to heart and not waste more taxpayer dollars on an appeal.”

It’s also likely good news to independent board members Melanie Bahnke and Nicole Borromeo, who argued during the process that the board’s conservatives were hellbent on repeating the same unconstitutional partisan gerrymander and urged the courts to take the decision-making process out of the board’s hands.

The ruling

From the get-go of his ruling, Judge Matthews made clear where he was heading:

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

[Read the full ruling here]

The order begins with a lesson about the fundamental goals of redistricting: that it ensures voters a fair and equal opportunity to elect their representatives. That was the problem when the board initially approved a Senate district from East Anchorage and Eagle River, which put the deeply conservative Eagle River community in control of two Senate districts at the expense of East Anchorage.

The board, during the redrawing process, argued that the elevation of Eagle River over other communities wasn’t the problem. The problem, they argued, was that it came at the expense of a demographically different district in East Anchorage and that the issues were solved by pairing Eagle River with the similarly conservative South Anchorage district (which is solidly Republican but voted for Biden in 2020). They also argued the Senate district created from the JBER and Eagle River districts had a special status because of the military connection. The board’s approved map:

The board’s redrawn Senate pairings that were struck down by Judge Thomas Matthews as a repeat of the board’s first gerrymander.

The lawsuit brought by the Girdwood residents argued the board never solved the underlying problem with the original gerrymander, arguing that the special status afforded to the military is not supported by law. Judge Matthews agreed, finding that the board never truly addressed the underlying problems with the map and therefore were working from an unsound foundation when they addressed the remand.

“The only way to fix the constitutional error was to start the process over from the beginning. … The error remains that the Board, for inappropriate purposes, sought to give Eagle River more representation. Girdwood thus argues that the error has not been fixed as the Board continues to split Eagle River for improper purposes,” Judge Matthews wrote, later adding, “Ultimately, this pairing strikes the Court not as a conscious decision to pair Eagle River and South Anchorage, but rather another ‘down-the-road consequence’ of a majority of Board members insisting that the JBER and Eagle River Districts remain paired in a single senate district.”

The nexus of the case hinges on the reasoning for the board conservatives’ rationale for splitting the recognized communities of interest in Eagle River and South Anchorage. The board relied on caselaw that says communities of interest can be split with good reason, but it’s that reason that the court found suspect. Essentially, the board argued that the military voters deserved special treatment and that they’re conservatives who need to be protected against the likely Democratic representation at the Senate level they’d get if paired with any adjacent Anchorage-area House district (as they currently are). While the board was more careful about showing its hand during the remand process, several members made these political goals clear in their statements—fretting that putting the JBER district with a Democratic district would “drown out the military voters”—a fact that Judge Matthews zeroes in on.

“The Board’s primary ‘purpose’—and its only stated goal on the record—was to protect military voters. But, as explained below, the Board effectively admits that partisan politics is exactly what drove its decision. … Although Board members repeatedly couched their reasoning in terms of ‘military voters,’ as the Board’s argument confirms, Board members either knew or assumed that JBER residents preferred the same political candidates as Eagle River, i.e., Republicans. The Board thus candidly admits that its decision to pair JBER with North Eagle River was to amplify conservative voices by creating a safe Republican senate seat. … It thus appears that the majority of the Board adopted Option 3B for political reasons—to protect conservative voters.”

By seeking to protect military voters specifically because they’re viewed as conservative voters, the board once again stepped into the realm of partisan politics and into the realm of unconstitutional partisan gerrymandering. That the record also showed a concerted effort among the board’s conservative majority—chair John Binkley and members Budd Simpson and Bethany Marcum—to coordinate their efforts leading up to the decision didn’t help.

The record indicates a disregard for the weight of public testimony, and lack of geographic awareness of what was in the districts at issue. Instead, totality of the circumstances indicates a goal-oriented approach; they paid attention to the details only as much as they needed to say the right words on the public record when explaining their choice. In summary, the totality of the circumstances leads this Court to conclude that the majority of the Board acted in concert with at least a tacit understanding that Eagle River would again be paired in such a way as to provide it with two solidly Republican senate seats—an unconstitutional partisan gerrymander. The result deprives the voters of District 10 of fair and effective representation—the right to group effectiveness or an equally powerful vote—in violation of the Equal Protection clause of the Alaska Constitution.

Why it matters

From the redistricting perspective, Judge Matthews is setting some pretty clear standards about what constitutes unconstitutional partisan gerrymandering and is clearly concerned about eroding the ostensible nonpartisan goals of redistricting.

“Regardless of intent, the public’s trust of the Board’s integrity is vital, and is jeopardized by correspondence of this nature,” he wrote. “Given this court’s findings and given the possibility that a future Board may operate with similar or even more grave intent, the Court is wary of an order that effectively lights a path both legally and procedurally to creating a gerrymandered map.”

On a political level, the ruling is a loss for Republicans who sought to stretch their advantage in Alaska’s largest city to the max even as voting trends have seen it start to swing towards Democrats. The previously adopted plan would have put four of the region’s eight senate districts into the solidly Republican column while just two would have been safely Democratic and two would have been swings.

The new map is more even-handed with three safe Senate districts in each party’s column with the remaining two being swing districts that, I think, have a slight to moderate Democratic advantage.

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