Merry Christmas Eve Eve, Alaska!
In this edition: The Alaska Redistricting Board had its second day in court and already there’s some big trouble brewing over access to the board’s mapping files and record. Let’s talk about omicron and uncertainty. Some bits, bobs and corrections. And some special holiday weekend watching.
Twitter status: Still suspended!
The Alaska Redistricting Board vs. The Record
The Alaska Redistricting Board and its five challengers were back in court on Wednesday for their first hearing in front of the judge, Superior Court Judge Thomas Matthews, who will be overseeing the lawsuit moving forward. The hearing continued the set-up work for the breakneck pace of the litigation ahead, of which we still don’t have a certain trial date. The plaintiffs are pushing for the trial to start on Jan. 18, which would effectively give Judge Matthews about four days to review the case and prepare a ruling by the Feb. 1 deadline it’s supposed to be handed over the Alaska Supreme Court. That Feb. 1 deadline is in flux and the plaintiffs are in the process of filing an order to get an extension.
“I’m strongly in favor of that extension,” Matthews said during the hearing.
Assuming the Supreme Court will give the Superior Court an extension, Judge Matthews said he was inclined to have the trial start on Jan. 18… which will also happen to be the first day of the 2020 legislative session and oral arguments before the Alaska Supreme Court in the lawsuit challenging Ballot Measure 2’s election reforms. It’ll be an interesting day.
[Update: The Supreme Court has approved pushing that Feb. 1 deadline to Feb. 15]
Even with possible extension, that would give plaintiffs and the board a little more than three weeks to prepare for the trial, which is just about as tight as you could possibly make it. Most redistricting lawsuits in Alaska are resolved on an expedited timeframe, but that has typically meant about six months if not more. The biggest hurdle the plaintiffs face over the next three weeks and change is gaining access to the board’s records and parsing them for information relevant to their claims (you can find my overview of the five claims brought against the board here) and that was the focus of much of Wednesday’s hearing.
The Alaska Redistricting Board, represented by attorney Matt Singer, has unsurprisingly opted for a more conservative approach to making records available. It’s released its official minutes—covering what happened in the publicly available meetings—and offered to conduct trainings so people can understand how the mapping software works. Suffice it to say, that’s not thrilled the plaintiffs especially given that it sure looks like there was a fair amount of coordinating going on behind the scenes, away from the official record.
“One of the things we’re really trying to address is the decision-making process that we don't see in the minutes or the video,” explained attorney Holly Wells, who’s representing the East Anchorage plaintiffs whose district was paired with Eagle River in a plan that emerged after a closed-door meeting. “It’s less about the device and more about the substantive request which is communications regarding the redistricting.”
On that front, the plaintiffs are all seeking the release of any and all communications the board members had with each other, with staff and with third parties. And given the pace of the trial, they want it sooner than later. Singer protested on this point, arguing that a batch release of emails and other communications would include communications protected under attorney-client privilege as well as personal information shared in the course of coordinating travel (passwords, mileage numbers and known traveler numbers, etc). He said it’d take weeks to review every single email for potential problems and then went onto suggest such a request would have a chilling effect on future redistricting boards.
Wells was unmoved, reminding Singer that the Alaska Redistricting Board is a governmental body subject to all the open meetings and records laws.
“It’s something the board should have anticipated from its formation. There were training sessions given to the board, there were discussions about what would happen with their cellphone devices, their computers and how these documents would be retained,” she said. “All the parties are asking for is whether it’s in the record or provided in discovery as soon as humanly possible that we get the documents traditionally, consistently and legally required to be given to us. ... These requests are not asking for anything unexpected or anything that you're not mandated to retain. I would hope that those board members are ready to do that and the board itself does not maintain any constitutional or otherwise right to privacy. In fact, it is quite the opposite. It is a board formed to do the business of the people, under the express language of the open meetings act. We really need to set that tone.”
Singer offered, instead, to conduct targeted searches requested by the plaintiffs, making for a smaller number of emails to review before turning them over, to which another plaintiff complained would be unnecessarily slow and hinder their ability to follow a thread through the communications.
Stacey Stone, the attorney representing the Mat-Su Borough, noted that if the board can so easily provide emails through search terms, then why not use that functionality to filter out sensitive information. Stone’s recommendation seemed to be the winning one and the court ordered the communications be produced by next week with an accompanying protective order barring any sensitive information like passwords and birthdays from being released and allowing it to be clawed back if need be.
There was a similar dispute over access to the board’s mapping software, draft maps and inputs that guided the development of those maps. That ultimately landed with the court ordering the board to grant access to three laptops with the software and information, along with 24-hour remote access to the computers.
As attorney Robin Brena, who’s representing both Valdez and Skagway, explained the information will be critical in understanding the board’s thinking as well as how closely they may or may not have complied with the Hickel Process.
“This isn't some academic exercise in understanding the software,” he said at the suggestion that a mapping tutorial and the basic mapping files would suffice. “We need to understand what the board did.”
About the Hickel Process: There’s a lot of unsettled constitutional questions around redistricting, but the Alaska Supreme Court has been very clear that the Alaska Redistricting Board must follow what is called the “Hickel Process.” In simple terms, the Hickel Process requires the board to first draw a map that satisfies the constitutional standards of contiguity, compactness, relative socio-economic integration with minimal deviation from an ideal district population before checking the plan against any other requirements such as the federal Voting Rights Act. While there were many issues raised in the 2010 lawsuit that are similar to what we’re facing today (specifically around Senate pairings), the Supreme Court ultimately didn’t weigh in on them because it found the board’s entire plan should be thrown out because it didn’t follow the Hickel Process.
To me, it’s clear that this is one of the areas that some of the plaintiffs—Brena/Skagway/Valdez—is keen on exploring. Proving that the board failed to follow the Hickel Process during the 2010 round of redistricting was relatively easy in large part because the board quite literally admitted that it didn’t follow the Hickel Process and was mapping based on the requirements of the Voting Rights Act. Proving such a failure this time around will likely be more difficult.
In the big picture: This lawsuit’s pace is going to create significant challenges to creating a full and accurate account of what happened with the Alaska Redistricting Board. At this point, though, it’s anyone’s guess how it will impact things at trial, but the issues at hand are relatively narrow in nature—was the board wrong to pair Eagle River with East Anchorage? Was it wrong to place Skagway and Valdez in their districts? Did it completely bungle the Mat-Su? And did it err in its layout of coastal villages?—and they may very well be decided by some unforeseen issue like the Hickel Process error in the last round (I’d keep an eye on the Open Meetings Act allegations). Regardless, stay tuned.
‘We’re not interested in documenting this pandemic’
When it comes to the coronavirus, uncertainty has been the common thread. In the early days, there was a lot we didn’t know about covid-19, how it spread, how it affected people and how to treat it. And now, thanks to the political opportunism, the confusion has lived on in just about everything from the vaccine to the quality of the numbers our health care systems are reporting. The scale-back in testing and reporting is just the latest in that trend, with the city of Anchorage seeing a complete ceding of testing to a private company providing it on its own accord and the state is set to shut down testing at Ted Stevens International Airport at the end of January after already scaling it back and moving it behind security. With the arrival of another wave of uncertainty in omicron, none of it feels great.
And as if to put a cherry on top the pile of unknowns, Alaska’s Chief Medical Officer Dr. Anne Zink said earlier this week in explaining how the state will soon move to once-a-week reporting of covid numbers that, “We’re not interested in documenting this pandemic. We just want people to be healthy and well and make sure our systems are up and going.” While the move may be justified with the evolving understanding of the pandemic, it’s not one that will engender much beyond uncertainty.
“We know we don’t catch all of the cases,” Zink said. “Our goal is not to catch all of the cases. Our goal is to provide information and resources to every Alaskan to make the best choice that they can for themselves, their family, their community.”
The problem is those case counts—particularly the alarming headlines and alarm bells rung by health care providers—went a long way to informing Alaskans about the risk they might be facing in their community. It wasn’t until the worst of the Delta-driven surge and the Anchorage Assembly’s push to revive the masking mandate that I saw masking return to anything above 50% in public indoor spaces. And, as the economists have been warning throughout the pandemic, it’s not been the government mandates that have throttled businesses, but the uncertainty around it all and it feels like we’re in for another heaping helping of uncertainty with omicron arriving at a time when the state and the state’s largest government are determined to wind things down.
And all while Gov. Mike Dunleavy files suit after suit against the Biden administration’s attempts to mandate vaccines.
While there’s a lot we don’t know, here’s what we do know:
The omicron variant of covid-19 is much more contagious than even the delta strain but, so far, it doesn’t appear to be causing particularly serious infections. It’s important, though, to understand that much of this data takes time to gather and review, meaning that initial reports about few deaths, the ineffectiveness of certain treatments is just anecdotal.
That masking is still an effective tool to limit both the spread of the virus and your chances of contracting it. Our understanding of masking come a very long way since the early days of the pandemic. At first, the advice was to not go buy up all the masks (in large part because they were trying to preserve supplies for frontline health care workers) and then came the cloth masks where the idea was to control the spread of virus-carrying breath droplets. Now, health officials are starting to recommend upgrading to more robust N95 or KN95 masks, which not only limit the spread of those virus-carrying breath droplets but will limit the chance you breath them in. For more information on the science behind the masks and on hunting down the right kind, check out NPR’s coverage: With omicron, you need a mask that means business
While at-home tests are not nearly as sensitive as drive-up lab tests, multiple tests over a span of a few days can still catch an infection. Access to those tests, unfortunately, really depends on where you live. Juneau, for example, is providing the free rapid at-home tests at several locations.
That getting vaccinated all the way through to your booster is the single most effective way to protect against serious infection. Or in a silly TikTok explainer format (reposted to Twitter because it embeds easier):
It’s Dave Bronson, not Mike Bronson as I had for some reason in last week’s newsletter.
The Mat-Su redistricting lawsuit is being brought by the Mat-Su Borough and Borough Manager Mike Brown, he’s not a mayor.
From the ADN: Anchorage’s deputy clerk of elections resigns
From the Juneau Empire: Alaska Science Forum: Plastic in the rain of Southeast Alaska
Holiday weekend watching
In the spirit of the season, I really wanted to find a video essay about my family’s all-time favorite Christmas move “Jingle All the Way” (and, yes, I’m being serious, it’s fantastic). Instead, one of my favorite YouTube videomakers, Pushing Up Roses, has a great recap of what is possibly the polar opposite of “Jingle All the Way” in “Dear Christmas,” which features no Arnold, no Phil Hartman, no Sinbad, no mailbombs and, critically, no real conflict. It does, however, have Melissa Joan Hart and a guy named “Chris Massey.”
Have a nice holiday weekend, y’all.
I’ll be back next week with some year-end recaps of the best and the worst that 2021 had to offer. Any suggestions for what should make the list? Lemme know!