Redistricting trial wraps up. Legislature works to understand Oath Keepers' oath.
Redistricting trial wraps up. Legislature works to understand Oath Keepers' oath.
It’s worth, however, focusing in on the common thread shared between just about every closing argument: That the Alaska Redistricting Board failed the process.
Good morning, Alaska!
In this belated edition: The Alaska Redistricting trial’s time in the Anchorage Superior Court is nearly at its end with plaintiffs making their closing arguments on Friday, and a common theme of process violations emerges; The House Military and Veterans’ Affairs Committee held what was, honestly, a surprisingly useful and informative hearing on the Oath Keepers as legislators work to understand just what the group that Rep. David Eastman belongs to and whose leaders were arrested on seditious conspiracy is all about; and postponed weekend watching.
Legislative day: 28
Spice level: 🥱
A matter of process
The Alaska Redistricting trial heard closing arguments on Friday. It was by and large a retread of the points we’ve heard over the two weeks of witness testimony. Are the maps produced by the board more socioeconomically integrated than a series of proposed alternatives? Did the Alaska Redistricting Board properly balance the Alaska Constitution’s requirements of contiguity, compactness and relative socioeconomic integration? What is the proper balance anyways? Did the board listen to public testimony? Does the board even have to consider public testimony at all? Are the population deviations in the final map allowable under law? Does having the license plate GMANDR and nickname of “The Picasso of Gerrymandering” make your expert testimony more or less credible? Do some voters have the right to be able to travel throughout their districts without leaving their boundaries?
Will Judge Thomas Matthews force the board back to the drawing table?
It’s, frankly, impossible to say. A lot of the grounds mentioned above may mean everything or they may mean next to nothing given the considerable leeway afforded to the board in weighing these decisions, balancing interests and putting down map lines. The board argues that the precedent is crystal clear that they’re in the right, while the plaintiffs argue the guidelines set down by precedent are more flexible or, in some cases, only tangentially related to the issues at hand. A final decision from Judge Matthews is end of Tuesday (it can come as late as 11:59 p.m.) and it will undoubtedly be appealed to the Alaska Supreme Court.
It’s worth, however, focusing in on the common thread shared between just about every closing argument: That the Alaska Redistricting Board failed the process.
On this front, every plaintiff raised some variation of argument that the board failed to uphold some part of the public trust, failed to be transparent in its motivations, failed to abide by the Open Meetings Act, failed to follow the public notice requirements for redistricting, failed to recognize conflicts of interests, failed to follow the underlying Hickel Process or, perhaps most critically, failed to be fair, equitable and consistent. It’s a wise argument when you consider that process was the ultimate decider in the last round of redistricting—where the courts found the board had improperly prioritize Voting Rights Act districts over the constitutional requirements. It could be critical here, too, as the few times Judge Matthews has asked questions of plaintiffs was about process. Why leave Valdez for last when Valdez has historically been a problem?
Here, I’ll be highlighting some of the process issues raised by each plaintiff with accompanying quotes from the hearing:
Process was an issue right from the start with the case brought by the East Anchorage plaintiffs, who argue that the board was wrong to draw East Anchorage and Eagle River together in a Senate district that crosses an uninhabited mountain range. Their case alleges a variety of violations of the Open Meetings Act, arguing that the board improperly shielded much of its deliberations behind closed doors and failed the public process by never registering a clear and compelling justification for the pairings. It’s that failure, argued East Anchorage Attorney Holly Wells, that shows there’s no justification for the maps. They’re arguing that Eagle River ought to be paired with Eagle River.
“This case is really one of process more than anything. I think while process has been sidelined by the board quite frequently in this case, process is at the heart of every substantive constitutional requirement that faces the board. It’s at the heart of how it functions, how it understands its obligations and it’s the board's decision to abandon process and really evade it ... that led to the substantial constitutional errors that were committed by the board with respect to the Eagle River/East Anchorage Senate pairings. It seems almost peripheral to focus on something like process looking at the level of extreme harms here, but the truth is it’s the courts that have grounded us in this concept and in order to really understand where things went off the rails, we have to understand why. It is present in every piece and every component of the board's decision.”
Wells was also critical of the board’s largely aggressive approach to the litigation, arguing that from the get-go the board was acting as if it was a private party and not a government entity that’s ultimately accountable to the public.
“Process matters because without it the board forgets its job, it forgets what it is and doesn’t understand it’s a government entity accountable to the people and when it forgets that it breaks laws,” she said. “Here, we have it happening over and over and over again. And it happens only once the board makes that decision, only when its partisan interests and when its self-interests take control and the decisions become reactive and accountability disappears.”
The personal agendas of the board members were central to the combined case of the Mat-Su and Valdez plaintiffs, who both argue that the board erred when putting them together in a House district. Robin Brena, the attorney for both the Valdez and Skagway plaintiffs, argued that the board allowed personal agenda into their decision-making process. The board focused on achieving those goals—like the Doyon-focused House district—while leaving other issues like the positioning of Valdez until the very end. He argues that this not only negatively impacted Valdez and Mat-Su but that it left no meaningful time for the board to consider alternatives.
“This was a board that was dominated by personal agenda. Dominated by personal agenda. They did not consistently apply the constitutional criteria at all. They came in, had what they wanted to get done and found a way to get it done,” he said. “Now, that isn’t the way this is supposed to work and the result of these failures of process is the board didn’t explore options that it should have explored, it didn’t consistently apply the constitutional requirements as they were required to do, and the process broke down and failed.”
Brena had a similar approach to the Skagway case, where he argued that board member Budd Simpson was single-minded when he drew the final map that paired Skagway and Haines with Juneau’s Mendenhall Valley rather than Juneau’s downtown area. During testimony, Simpson said his main motivation with the final map was to make the districts more compact despite much testimony to the contrary.
“It’s the exercise of non-reasoned decision-making,” Brena said. “Nobody but one person wants it, and nobody but one person supports it.”
While Brena suggested that there was quite literally no support for the final maps, the board in its rebuttal noted that there were several pieces of written testimony that supported the board’s actions. It wasn’t just Simpson as Brena had claimed.
In the case brought by the Calista Corporation, which argues that the Calista region villages ought to be combined under a single Senate district, attorney Mike Schechter tied all the process complaints together. He argued that the board didn’t effectively separate its conflicts of interest from its decisions. Not only did the maps reflect personal goals, he argued, but they resulted in an unfair and unequal application of the law.
“It can’t prioritize one group over another or disadvantage one group at the expense of another. It has to be consistent. If it respects ANCSA boundaries across the state, it has to respect them in the Calista region, as well,” he said. “Even if the court concludes ANCSA boundaries aren’t equivalent to local government boundaries, as some parties have argued, it cannot avoid the equal protection requirement that the board treat the people of each Alaska Native Corporation's region equally.
“The board had no rules, policy or process for guarding against special treatment resulting from board member conflicts of interest. The Calista region didn’t have an advocate on the board but a neighboring region that wanted more population did. The board argued that board members acted as statesmen and stateswomen who acted in the interest of all Alaskans but when you consider each board member’s special interests, and you look at the board’s plan you can see that not one board member had a special interest that was not honored in the 2021 maps. Member Bahnke in District 39, Member Simpson in Southeast, Member Borromeo in the Doyon district, Member Marcum in the Senate pairings between Eagle River and East Anchorage and Member Binkley in Fairbanks.
The written decision is due on Feb. 15 with the full expectation that it will be appealed to the Alaska Supreme Court.
Follow the thread: The closing arguments in the Alaska Redistricting trial.
An oath to the alternate constitution
The House Military and Veterans’ Affair Committee held an informational meeting on the Oath Keepers on Thursday that was, frankly, a lot more interesting and useful than I was expecting. The committee is holding a series of meeting on the Oath Keepers following the chamber coming up short of the votes needed to strip Rep. David Eastman, who is a member of the group whose leaders have been convicted indicted on seditious conspiracy, from his committee assignments. While the committee’s two presenters were firmly on the side of seeing the Oath Keepers as a dangerous, anti-government group, the committee’s chair Rep. Chris Tuck made it clear that the committee is interested in hearing its side of the story.
“I also want to remind everybody that we are actively trying to find someone with Oath Keepers to be able to present in front of the committee to be able to tell their story,” he said. “At this time, we haven’t been able to find anyone.”
It’s not only Oath Keepers representatives that were missing from the meeting, but any Republican members. Every Republican member—all of whom have found themselves backing Eastman’s membership of the group—were no shows.
The entire hearing is worth watching as it lays out one of the most complete and succinct looks into the history and path of anti-government militias from their early days around Waco and the Oklahoma City bombings to the formation of the Oath Keepers and the events of Jan. 6. One of the really important takeaway messages here is that Oath Keepers and their ilk at least ostensibly believe that they’re upholding the constitution against tyranny but it’s a belief that’s been built on decades of anti-government conspiracy and a warped view of what’s constitutional.
“It’s important to differentiate between the rhetoric that the Oath Keepers use of constitutionality from what is the reality and understand that these guys are frequently using the language and rhetoric of constitutionality as cover for their beliefs, which are warped by conspiracy,” said Alex Friedfeld, an investigative researcher from the Anti-Defamation League’s Center on Extremism.
These anti-government attitudes also seem to conveniently ebb and flow depending on what party is in the White House, with the researchers noting how incredible it was to see the leaders of the Oath Keepers calling on President Donald Trump to use the military to quell the Black Lives Matters protestors. The researchers noted that the fluidity of the militia groups’ conspiracy thinking is particularly troubling because it’s laying the foundation and creating justification for continued violence.
It’s also clear from the hearing that Rep. David Eastman was not part of the militaristic response of the Oath Keepers on Jan. 6., at least when it came to the coordinated pseudo-militaristic attack mounted by the militia on Jan. 6. But what is clear is just how much of his own personal rhetoric—particularly his repeated comparison of covid-19 health mandates to the Holocaust—that mirror much of what the Oath Keepers and other anti-government militias have been saying, an extreme comparison that lays down the justification for potentially extreme action.
The House Military and Veterans’ Affair Committee is set to hold a second meeting on the Oath Keepers on Tuesday. It still has a standing invitation for any one from the Oath Keepers.
Follow the thread: The House hears about the Oath Keepers.
Weekend watching — Mathematics
Staring into the abyss of unfounded hate and convenient unrealities reminded me of this spoken word piece by the brilliant Hollie McNish from all the way back in 2013 that took a crack at the mathematics behind racism.
Hope y’all had a nice weekend!