Redistricting isn’t just political anymore, it’s personal

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The Alaska Redistricting lawsuit is moving quick. Since last Friday, board members Nicole Borromeo and Melanie Bahnke made good on their allegations that the board’s appeal to the Supreme Court was illegitimate by filing a motion to intervene (filed by Scott Kendall, who’s gotta be one of the busiest people in the Alaska legal system), the Alaska Redistricting Board’s conservative majority responded by holding a snap meeting on Sunday where they retroactively blessed the decision to appeal—rejecting an amendment that would’ve made the conservative majority personally responsible for the cost of litigation—and the Alaska Supreme Court said it was all fine.

Whew.

The decision on the underlying litigation—the appeal of the Girdwood plaintiffs’ victory at the Superior Court level in their claims the board did, in fact, redo its original gerrymander—is still pending. The case has been briefed before the Alaska Supreme Court and a decision should be coming soon (it’s not clear if we’ll get oral arguments but we should know by the end of the day). The filing deadline for candidates is June 1 (though it’s been put on hold before because of litigation).

While it feels a bit like a sideshow, Sunday’s meeting is worth unpacking.

Board members Nicole Borromeo and Melanie Bahnke on Friday filed a motion to intervene with the Alaska Supreme Court, arguing that the board’s decision to appeal was illegitimate because it was made by the two-member litigation subcommittee. They argued the subcommittee—which is made up of conservative members John Binkley and Budd Simpson—didn’t have the power to appeal the case to the Alaska Supreme Court and it should have been brought before the whole board. It appears it was at least substantial enough for the Alaska Supreme Court to take notice. The Alaska Redistricting Board replied by saying they believed everything was legal but that, if need be, they could simply have the full board meet and bless the appeal.

And that’s what happened on a gorgeously sunny Sunday afternoon, taking up a good hour and a half.

Heading into the meeting, the writing was on the wall. The board’s conservatives were sure to approve the appeal and sure to deny any motions made by board members Borromeo and Bahnke. That didn’t stop the duo from trying.

• They put up a fight about whether to hold public testimony. The conservative members said it wasn’t needed because the board’s purpose is mapping and not litigation. Board member Bethany Marcum also suggested that whatever testimony they would receive on a Sunday afternoon would “probably would’ve been directed to by other folks.”
• They put up a fight about whether they’d get to have board member comments at the end. The conservative majority said that was no problem and allowed it.
• They put up a fight about who should pay for the continued cost of litigation, making a motion that would’ve required board members Binkley, Simpson and Marcum to personally pay for any continued litigation or have board counsel Matt Singer do it pro bono. Board members Binkley, Simpson and Marcum, of course, voted down this measure with Binkley arguing that the $1 million price tag was acceptable when the previous round cost north of $3 million.
• And they put up a fight about the motion that not only appeared to retroactively bless the decision to appeal to the Alaska Supreme Court but to approve any future actions by the board in a pretty expansive fashion.

The party-line votes weren’t at all surprising, but what was surprising was the amount of dirty laundry that members Borromeo and Bahnke aired against their conservative colleagues.

At one point, Bahnke suggested that member Simpson was pressured by his wife and people in Gov. Mike Dunleavy’s camp to toe the conservative line after he split with the conservatives in support of the Anchorage-area House maps supported by members Borromeo and Bahnke. Simpson’s support of the maps was surprising and significant, it also goes a long way to explaining why the House maps were largely maintained by the courts, and there was hope that he’d split on later issues. He hasn’t, but Simpson said it had nothing to do with his wife or the governor.

Borromeo said that counsel Singer had personally told her the positions put forward by member Marcum were “nuts” and “crazy” at some point during the process. The accusations were met with the usual tut-tutting from chair Binkley, who said such character attacks didn’t belong at the hearing, but Borromeo said they were material to the strength of appeal. If Singer really thought that Marcum’s position was “nuts” and “crazy,” then why continue to spend resources on defending it?

“I really do have a problem with the amount of legal fees we have spent here in litigation because Matt (Singer) has told me on more than one occasion that Bethany’s (Marcum) line of thinking is ‘nuts’ and ‘crazy’ and there’s other adjectives that are not very kind to describe her way of thinking,” she said, referring to the legal justifications for splitting Eagle River. “Here we are defending a plan to split Eagle River and give it more representation and I’m having a very difficult time reconciling how the board’s counsel in one respect can find her thinking to be ‘nuts and crazy” and defend it in court. … It’s completely relevant to the strength of the appeal. Why are we still appealing?”

Bahnke also got into the work of Singer, arguing that his latest appeal to the Alaska Supreme Court was fundamentally flawed and left several points of the Superior Court decision unaddressed. Basically, she said, it could’ve been better if they were serious.

Singer, for his part, said it’s his job to defend the board and its positions, which are driven by the majority, and not to answer to any single board member. He didn’t address the quality of the legal arguments at hand, something that would be reserved for a close-door meeting anyways.

“As your lawyer, I’m going to need to continue to follow directions provided to me by the board, by any collection of at least three of you and if at least three of you delegate authority to a committee, I’m obligated to follow the direction of that committee,” he said. “I’m not in a position to take a different action if one member directs me to do something other than what the board’s directed.”

Both Bahnke and Borromeo complained they have been iced out of the proces. They complained that they’re finding out about decisions to appeal from seeing them in the court filings and that attempts to even get briefed on the current action have gone unanswered by the board and by counsel Singer.

Binkley said, essentially, that it’s intentional. They’re not supportive of the board’s conservative majority or the course of the litigation so why, he asked, would they be notified about the direction of the board?

“Also, in litigation, it’s sometimes strategic and sometimes adversarial and there’s no secret that two members have dissented from what the majority has desired in terms of the final map,” he said.   

Following the board’s action on Sunday, the Alaska Supreme Court issued an order that essentially said the board’s ratification of its actions took care of any concerns there may have been. The order also denied members Borromeo and Bahnke the opportunity to file an amicus brief intervening in the latest round of litigation.

Stay tuned.