Alaska Supreme Court considers greater checks on Alaska Redistricting Board

From the "hard look" standard to the Open Meetings Act to the standard of evidence for gerrymandering, the Alaska Supreme Court heard oral arguments on greater controls over the process.

Happy sunny evening, Alaska!

In this edition: The Alaska Supreme Court heard oral arguments on Friday as the Alaska Redistricting trial nears its conclusion and there’s a load to unpack; The board’s maintaining its argument that it has broad powers to draw maps and gerrymandering isn’t gerrymandering if you don’t have hard evidence that it was intentional, but the court didn’t seem particularly convinced; The board argued it’s within its rights to have varying priorities around the state and that it’s not subject to the Open Meetings Act or the “hard look” standard, but the court didn’t seem particularly convinced; and should ANCSA boundaries have a role?

Spice level: 😎

In the hands of the Alaska Supreme Court

The Alaska Redistricting Board’s days of getting away with just about anything as long as they followed the basic set of rules outlined in the Alaska Constitution could be coming to an end.

While it’s always a risky endeavor to read into a justices’ line of questioning, the Alaska Supreme Court on Friday appeared inclined to uphold a higher standard of scrutiny on the board’s actions with several lines of questioning that challenged the Alaska Redistricting Board’s assertion that it should have broad, largely unchecked powers to draw politically advantageous districts. The ruling could have long-term impacts on not just how legislative districts are drawn but how the board weighs public testimony, conducts its business and how it factors in the concerns of Alaska Native communities.

First, some background. If there’s one thing to have known heading into Alaska’s latest round of redistricting, it’s that there’s a lot of room for the Alaska Redistricting Board to decide how to apply the Alaska Constitution’s requirements that districts be contiguous, compact, relatively socioeconomically integrated and as near as possible to the ideal population. The five politically appointed members of the Alaska Redistricting Board knew that, and board counsel Matt Singer certainly knew that. That understanding ruled the process from day one, continually reinforced in closed-door executive sessions, and was wielded effectively… for the most part. For the first time, the board produced a map that a court found satisfied the basic requirements for redistricting. On the other, the board’s conservatives pushed this understanding so far past the breaking point that, as I’ve written previously, that it was just too much to for Superior Court Judge Thomas Matthews to ignore, sinking parts of the plan.

Matthews’ ruling, which fundamentally found the board disregarded public input while pushing for their personal agendas in two areas, was at the heart of Friday’s oral arguments in front of the Alaska Supreme Court. And if the Alaska Redistricting Board was hoping that the high court would find Judge Matthews was wrong and rule that the Alaska Redistricting Board should, in fact, have nearly unchecked power to draw maps, they can’t be feeling good about Friday’s performance.

Follow the threads: Part 1 (East Anchorage), Part 2 (Skagway), Part 3 (Mat-Su/Valdez)

Watch the hearings: Part 1, Part 2, Part 3

A gerrymander by any other name

Attorney Matt Singer argues in defense of the Alaska Redistricting Board during the March 18 oral arguments in front of the Alaska Supreme Court.

Board counsel Singer repeated many of the arguments heard in the Superior Court about the great deference the board should be afforded. He argued redistricting is an inherently political process, argued there was no evidence of gerrymandering and, if there was, that the court couldn’t do anything about it. He argued that the board shouldn’t have to revisit the East Anchorage/Eagle River senate pairings and the Juneau/Skagway house maps that were roundly opposed by the public, arguing that doing so would overly empower the public in future rounds of redistricting.

“When we do care about the public will,” he said, “we hold a public election.”

But the Alaska Supreme Court justices were less convinced. Several justices posed questions about the practical limits of the board’s discretion and when, if ever, the public could challenge unfair maps. They were particularly focused in on what limitations there should be within local government boundaries. A previous ruling found that anything within a local government is automatically considered to be socioeconomically integrated, which the Alaska Redistricting Board and Singer leaned heavily upon while drawing these maps. Anchorage is Anchorage whether it’s Eagle River or East Anchorage, they argued, as so is Juneau’s downtown and Mendenhall Valley are the same, so it makes no difference on how they’re paired, even if it runs contrary to public input or harms a communities’ representation.

The justices were less than convinced that it should be so broad, questioning where the line should be.

“What are the bounds of partisan politics in the redistricting board,” asked Chief Justice Daniel Winfree. “As long as you’re compact, contiguous and socioeconomically integrated then you could do whatever you want in terms of favoring one political party or another?"

“Well, first this board did not consider election returns,” Singer replied. “It did not—”

“Just answer my question,” Winfree interrupted. “Isn’t that your position? That we cannot do anything about political gerrymandering, I think I saw it in your brief, it’s not justiciable.”

Singer argued that other courts had ruled partisan gerrymandering isn’t an issue they can take up, a point that didn’t sit particularly well with the Alaska Supreme Court justices who noted the Alaska Constitution specifically talks about how political affiliation should not be part of the process. He also trotted out the same paper-thin defense of the East Anchorage Senate pairings, arguing that because East Anchorage is spread between three separate Senate districts it will have a “head start” when wrangling the votes for its legislative priorities. Singer said it’s proven fact that legislators represent their constituents, a fact undercut by testimony in the Valdez case where they accused Sen. Mike Shower of refusing to even take their meetings in Juneau. It didn’t fly with the justices either.

Singer never really did answer the question of how the system should check against gerrymandering within a local governments’ boundaries other than to suggest that one would need concrete evidence of nefarious intent—pretty much nothing short of a declaration “I am doing a gerrymander” from a board member. And, no, he said Board Member Bethany Marcum’s on-the-record statement that the pairings would result in Eagle River having more representation in the Legislature didn’t count… another claim that the justices did not seem particularly convinced on.

But whether there needs to be concrete evidence of gerrymandering was a question the justices had for Holly Wells, the counsel for the East Anchorage plaintiffs, who had the main job of defending Judge Matthews’ ruling. She said it’s important that the court allow the inference of gerrymandering be enough for action—as Judge Matthews had found—noting that the board shielded much of its discussions and communications from the public eye, preventing a full analysis of their actions.

“I don’t think it’s in Alaska's best interest for our court precedent to go to a place where we say, ‘If you engage in secret procedures and your process is designed to manipulate … we no longer are going to infer intent. It is really easy to hide racism, it’s really easy to hide discrimination,” she said. “People generally, although we have some evidence of it here, do not stand on the record and say, ‘I’m doing this because I don’t like you and I like them a little bit more.’ They hide it, they hide it in their documents, they hide it in their actions, they meet outside, they meet secretly so they can make these decisions outside the public eye and that’s exactly why that inference, I think, is fundamental.”

The ‘hard look’ process and process problems

Another main issue in this case is the application of the “hard look” standard by Judge Matthews. The concept largely comes from federal law, where lawsuits challenge whether regulators or other federal agencies took a “hard look” at concerns raised by the public. That process hinges on a fundamental assumption that those concerns are worth at least exploring before dismissing. The Alaska Redistricting Board argued this would fundamentally change how the process works and invite partisan efforts to load up favorable testimony. The court at least seemed somewhat open to exploring these issues but didn’t seem particularly convinced that it would bring on the end of the world as Singer had suggested. Other justices argued that the public testimony and going through the steps of the “hard look” process would at least create a record by which to judge the legal soundness of a map.

Robin Brena, the attorney for Skagway, hit hard on this point, noting that Board Member Budd Simpson seemed particularly intent on ignoring public input when he paired Skagway with Juneau’s Mendenhall Valley rather than the more progressive downtown because he felt strongly that it was more compact.

“What if you decide this case before you read the briefs? Is that alright, is that OK?” he asked. “That’s what member Simpson did. ... He decided what he was going to do before heard anybody speak.”

Wells, during her portion of the oral arguments, also noted that the “hard look” standard doesn’t make the board beholden to public testimony. That it only requires the board dedicate some time and effort to exploring issues raised by the public and demonstrating that there was no legal way to meet those concerns.

There were other process problems that were brought up in all three portions of the oral arguments. Brena argued that the board inconsistently applied its guiding principles, focusing on compactness over socioeconomic integration in the case of Skagway while focusing on socioeconomic integration over compactness with the carveout of Cantwell from the Denali Borough into the rural Interior district. This argument over consistency is one of the more compelling arguments raised in the effort to challenge the board’s handling of the maps outside the two areas that Judge Matthews ruled on. The board has never really been able to satisfyingly explain why one standard in one area is more important than another area of the state.

A big overarching issue was the board’s overuse of closed-door meetings, attorney client privilege claims and several apparent violations of the Open Meetings Act. Though the board had adopted the Open Meetings Act, the board has since backed away from that and has argued that it’s not subject to the requirements. When asked about it at oral arguments, Singer said it’s an open question.

Stacey Stone, the attorney for the Mat-Su Borough plaintiffs, argued along with pretty much everyone else that the litigation’s accelerated pace meant a full and clear record was never truly established because of the board’s overly secretive approach.

“I do believe we have to err on the side of public discussion in these matters,” she said.

ANCSA boundaries

Finally, there was the points raised by Calista Corporation, which was in the unusual spot of defending a ruling that it had lost. The Alaska Native corporation had argued in the Superior Court that the western House districts should be reworked to better-reflect the corporation’s boundaries, a ruling that Judge Matthews didn’t deliver. Instead, Calista Corporation was there in defense of his other rulings that found the Calista Corporation region was, in fact, socioeconomically integrated and deserving weight in future deliberations. This reflects a larger and largely unremarked-upon outcome of this redistricting cycle: That it gave deference to Alaska Natives in a way they haven’t before and produced maps that were more broadly representative of the unique concerns of different Alaska Native communities.

Here, Calista Corporation counsel Eva Gardner argued that ANCSA boundaries should serve the same purpose as borough boundaries: As a clear indicator of socioeconomic integration. She said Alaska Native interests have long been ignored in the process, directing the justices to consider the giant state seal behind them.

“There is no hint of Alaska’s Native people in that seal,” Gardner told the court. “That’s not right.”

The issue here is that the ANCSA boundaries are one of the main impediments to the Valdez and Mat-Su plaintiffs from getting their way. As board counsel Singer and Doyon counsel Tanner Amdur-Clark both argued, accommodating those communities’ concerns would necessarily require massive overhauls to the Interior districts, which would require overhauls to the rural districts, which would require broadly violating ANCSA boundaries, which would require overhauls to the Kenai districts, which would require changes to the Anchorage districts. The judges seemed convinced to uphold the decisions on the mere amount of work required elsewhere.

The path ahead

The Alaska Supreme Court is set to produce a decision on the case by April 1, giving the board a little less than a month to accommodate any changes. In the case of East Anchorage and Skagway, the changes could be accomplished relatively quickly, but it’s also possible that the board goes a different direction by attempting to stick by their original maps but just gin up an explanation to meet the “hard look” standard. If the Supreme Court orders a larger redrawing of the maps or finds some other flaw, it’s also possible the board could be sent back for minimal changes for this year and return for a second map to be done in 2024. That’s what happened in 2012.