With thin precedent on redistricting, fate of current plan could be anyone's guess
The last round of redistricting lawsuits didn't do much to answer the question of what precisely a compact, contiguous and relatively socioeconomically integrated district should look like.
Good afternoon, Alaska! Sorry for the silence over the last few days. Covering the Alaska Redistricting Board was more draining than I really thought. Anyways…
In this edition: More about redistricting! I revisited the rulings from the last round to see what, if anything, the Alaska Supreme Court has said provides clear grounds for a challenge to this round’s maps. (Hint: It’s not clear cut.)
Coming up: The 2022 general election is a year away, but politicians are already dusting off their old hits.
When the Alaska Redistricting Board wrapped up its work last week, it was capped off with a heated exchange as board members Nicole Borromeo and Melanie Bahnke leveled accusations of racial and partisan gerrymandering against the board’s Republican-appointed members, whose majority allowed them to rush through the final Senate pairings and election schedule with little explanation or discussion. Borromeo’s drop-the-mic speech outlining her concerns with the board’s decision to split Eagle River up in an stated effort to boost the conservative community’s representation in the Legislature finished with a stinger of a line.
“I pray litigation is swift and just.”
Those claims will now be put to to the test as the plan enters its 30-day window for legal challenges to be brought against the plan. No one really knows how any of this will play out—after all court battles are frequently about much more and sometimes far less than what we might think from our layman point of view—but it’s worthwhile to revisit the previous legal battles.
I had a front-row seat to much of the legal battles over the last round of maps as a reporter for the Fairbanks Daily News-Miner, making it one of my first significant stories to cover after arriving in Alaska in the summer of 2011. Then, like now, much of the claims brought by the plaintiffs alleged intentional gerrymandering on behalf of the Republican-led Alaska Redistricting Board. It was a messy process that included allegations of one member bragging to a Democrat who they mistook for their lookalike Republican brother about how the plan would stick it to Democrats once and for all. It was also not hard to look at the map and see brazenly partisan attempts like this odd protuberance that jutted out of the conservative east Fairbanks district and into the more progressive west Fairbanks district. What could that be all about?
It was known as the “Kawasaki Finger” because the conservative board members appeared to be operating under the impression that then-upstart Democratic Rep. Scott Kawasaki lived there (For the record: He didn’t even live there. His sister did, but they seemed to also be under the impression that his sister was his wife. Weird times). Still, despite what seemed like a slam-dunk claim of partisan gerrymandering ultimately was difficult to prove to a judge. What ended up happening is that Superior Court Judge Michael McConahy rejected the map—along with a bunch of other districts that snaked around the region—on the grounds that they failed to meet the constitutional standard of compactness.
If there’s any real guidance to the pending litigation, it’s that outcome. While claims of gerrymandering and intent may seem entirely obvious to us (well, outside one major admission made during this process), they’re not exactly easy to prove and are not exactly the smoking gun that we’d hope they’d be in achieving a more fair and equitable map for Alaska’s election districts.
Turn to the Alaska Supreme Court’s opinions on the 2010 redistricting effort and you’ll be left even more wanting.
That’s because that round of lawsuits ultimately came down to process. In both its initial and final rulings on the 2010 redistricting process, the Supreme Court found the board erred by abandoning what is called the “Hickel Process” that was laid out in the lawsuits related to the 2000 round of redistricting. The board had put the requirements of the federal Voting Rights Act—which was requiring a certain number of districts that Alaska Natives could direct and some that they could influence—ahead of Alaska’s constitutional requirements of contiguity, compactness and relative socioeconomic integration. The Supreme Court ruled the board must first consider only the constitutional standards of contiguity, compactness and relative socioeconomic integration before then testing it against the requirements in the federal Voting Rights Act and then making minimal changes. From the ruling:
“The board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI Section 6 requirements when minimization is the only means available to satisfy Voting Rights Requirements.”
Because the board hadn’t followed the Hickel process, the Supreme Court found, the whole plan was moot and they wouldn’t be delving into issues over whether the Fairbanks districts and rural districts truly violated the Alaska Constitution’s framework for election districts. It leaves us with the question of what precisely does a compact, contiguous and relatively socioeconomically integrated district look like?
(Sidenote: The courts have, so far, broadly interpreted what relative socioeconomic integration means with anything within a municipality’s boundaries being generally given the benefit of the doubt when it comes to socioeconomic integration.)
The only specific issue that the Alaska Supreme Court really weighed in when it came to the maps was the claim that the city of Fairbanks, whose population made up 89% of an ideal Senate district, was warranted its own Senate district. The court didn’t explicitly order the city get its own Senate seat, but instead noted that on the next round of map-drawing “the superior court will need to make findings on the elements of a voter dilution claim, including whether a politically salient class of voters existed and whether the Board intentionally discriminated against that class.”
The board redrew the map and gave the city its own Senate district, leaving the constitutional and legal issues effectively unresolved. Still, this may be the closest my layman eyes can see in the previous rulings that would apply to today’s claims.
Board members Bahnke and Borromeo biggest claim is the board knowingly and intentionally gerrymandered the residents of East Anchorage—which has a high concentration of minority residents—out of their own representation by splitting the area. The intentionality is going to be easier to prove this time around with board member Marcum quite literally saying the plan was to give “Eagle River the opportunity to have more representation.”
That said, the issue of race here and race-based gerrymandering is not necessarily a slam dunk argument for the courts. The Hickel process established by the Alaska Supreme Court argues that decisions around contiguity, compactness and relative socioeconomic integration must come before race issues raised by the Voting Rights Act. Precisely how those two interact, however, is not entirely clear because—after all—the court argued that everything’s moot as long as the process hadn’t been followed. We never really got a clear answer as to whether Fairbanks deserved its own Senate district, just that the court needs to examine claims of dilution and intentionality.
That’s all to say that grounds centered around the Alaska Constitution’s requirements of contiguity, compactness and relative socioeconomic integration will be far more convincing to the Alaska Supreme Court than anything based wholly within the Voting Rights Act. With the exception, perhaps, of process.
In an editorial published over the weekend in the Anchorage Daily News, Senate Minority Leader Tom Begich, D-Anchorage, focuses in on precisely these issues.
He notes that there’s very little that is contiguous between the Eagle River district and the South Muldoon district that it’s paired with. They don’t share schools, don’t share utilities and don’t share the same drainage (one of the things explicitly mentioned in the Alaska Constitution). They’re connected only by a largely unpopulated swath of the Chugach Mountains, whose 57 residents could have just as easily been put in a number of other House districts.
“Through contiguity, it’s hard to justify connecting one part of Eagle River-Chugiak with the north part of Muldoon and JBER, when the only road connection goes through the other Eagle River district, and where the population at the south end that district is separated by 8 miles from JBER, and 11 to the Muldoon interchange. The same is true for the other Eagle River district, paired with south Muldoon — only reachable by road through two other districts,” he wrote. “They’re certainly not contiguous — unless you have a jet pack.”
As of writing, no legal challenges have been filed against the proclamation plan and I have no insider knowledge on any pending efforts.
Still, it’s important to keep in mind that the Alaska Constitution will serve as the ultimate rubric to grade the work of the Alaska Redistricting Board. As much as the political influences seem obvious to us, they are not as necessarily salient as the goals laid out by the Alaska Constitution, which are as follows:
The Redistricting Board shall establish the size and area of house districts, subject to the limitations of this article. Each house district shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population as near as practicable to the quotient obtained by dividing the population of the state by forty. Each senate district shall be composed as near as practicable of two contiguous house districts. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.
The process: Oh, right, it's also important to note that the process the Alaska Redistricting Board adopted in the final days of the mapping process—captured over the course of several Zoom meetings—isn't exactly what I'd describe as great. The conservative trio's refusal to meaningfully defend or justify their decisions along with their refusal to meaningful critique the plan put forward by Borromeo is glaring. When Marcum was pushed to put her problems with Borromeo's mapping on the record, she balked and claimed that doing so was not her job because, "I'm sorry, I'm a Christian."
There may also be Open Meetings Act issues given the board's decision to go behind closed doors for several hours in the final days of the meeting to apparently vet the legal claims raised against the Senate pairings. The board emerged from that with an apparent decision to support an entirely new and completely unpublicized pairings put together by Marcum that deviated from the consensus the board had reached the day before. Such closed door meetings are supposed to be narrowly tailored to identify legal issues but, instead, it appears that there were substantive discussions and debates that occurred that the public was not privy to.
One final note from the 2010 round of redistricting: One of the plaintiffs’ main claims about the faultiness of the Fairbanks-area maps was that it didn’t give the city of Fairbanks its own Senate district. It did so by pairing the west Fairbanks district with the progressive stronghold district covering the Goldstream Valley through what the Fairbanks Daily News-Miner’s editorial board wrote was a “strange slender thread that … could not have been created for any other purpose.”
The decision to split the city had the impact of packing the city’s progressives—including its two Democratic Sens. Joe Paskvan and Joe Thomas—into a single Senate district. With politics in mind, it seemed like the decision to ultimately give the city its own district would’ve benefitted the Joes—after all if it’s not what the Republicans wanted, then it should be good for the Democrats, right? But that wasn’t the case. The new pairings (which were put together by the same board that drew the first ones) put both in tougher races and the 2012 election saw both get sent packing.
I remember talking with the attorney who represented the plaintiffs after all the electoral dust settled. Was he regretful about bringing a challenge that ultimately saw the two Democrats sent home? No, he told me, because it was about doing what’s fair and just.