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‘This is going to be a real nightmare.’ Redistricting lawsuit gets underway

12/22/2021 1:40 PM

“Let me state the obvious,” Anchorage Superior Court Judge William Morse said at the start of this morning’s scheduling hearing in the five lawsuits challenging the Alaska Redistricting Board’s work, “this is going to be a real nightmare for a while.”

Today’s hearing served as a place for attorneys representing the Alaska Redistricting Board, the five lawsuits challenging their work and the group defending the rural Interior district to set out the ground rules for the breakneck pace facing them.

“You folks have an enormous quantity of work to do, very important work to do and we have to put it into an admittedly artificially short time period because by Supreme Court Rule the Superior Court has to be completed by Feb. 1,” Morse said. “We all know this is going to the Supreme Court, so largely we’re trying to prepare a record that’s conducive to appellate review in an efficient and quick manner. … Luckily, based on the people I’m looking at now I’ve got extremely competent, highly talented professional attorneys who are not going to play unnecessary games.”

Morse, who will not be participating in the trial itself, said the goal is to have the Supreme Court decision returned in time to make whatever appropriate changes needed ahead of the June 1 filing deadline for this year’s elections. With the delay of the U.S. Census, the process is incredibly abbreviated compared to the last round of redistricting, which saw lawsuits filed in the summer of 2011. They’re going from about seven months to a month and change to do everything including discovery, briefings and a trial. In reaching that goal, the court and the parties will need to navigate the tricky balance between speed and fair deliberations.

That was already starting to get strained at today’s hearing. The attorneys representing the five plaintiffs have already filed a motion asking for the trial to be pushed back a week, from Jan. 11 to Jan. 18, in order to accommodate, well, everything.

“That’s leaving a Superior Court judge four days to digest all of which you have present to them which seems… daunting,” Morse said.

Morse didn’t issue a ruling on the timing of the trial but said that he would be willing to approach the Supreme Court to see if there’s any flexibility for when the Superior Court needs to be done with its work.

There were several other timing issues when it came to how evidence and depositions would be handled, entered into the record and how much time the defendants—the Alaska Redistricting Board—would have to respond.

“They’ve thrown the kitchen sink at us,” said Matt Singer, counsel for the Alaska Redistricting Board, in arguing for giving the board and its legal time to review filings before responding to them. While he asked for a week to respond to some filings, it seems like the court will cut it down to a couple days.

Singer also indicated that he plans to file several motions to dismiss some unspecified claims brought against the Alaska Redistricting Board. While Morse seemed to have some concern about these motions’ potential to delay the process, he said any worthwhile case should be able to weather a challenge. Robin Brena, the attorney representing the claims brought by Valdez and Skagway (that essentially both don’t want to be in the districts they’ve been placed in), argued that it’s not so much a matter of beating the motions but spending time on beating the motions.

“My concern wasn’t being able to defeat it. We’re in a situation where we’ve got 5,000 or 10,000 pages of discovery. We’re going to have to fight over the scope of discovery, apparently, and the scope of privilege and identify witnesses before we even get our discover completed,” Brena said. “And in the middle of all that … we’re dealing with unnecessary and wasteful motions.”

Morse replied: “I don’t think Mr. Singer is going to waste all of our time with a frivolous motion to dismiss. There may be a close one, but he’s not going to suddenly say, ‘You guys don’t get to challenge redistricting.’”

Singer agreed with the assessment, saying he would only bring dismissals that he thought the court should grant (which has a lot of wiggle room).

The scope of discovery is going to be a big issue here. Brena and the other plaintiffs are arguing that they should have access to the records and software used to create the maps beyond what the public has seen. Brena led the charge on this front, arguing that they need access to the software as well as the any preliminary maps drawn by board members and the whatever queries they made in making those maps. The problem, according to the board/Singer, is that the software is proprietary and tied to a handful of laptops that board staff and members currently using. Singer offered to make a single computer available at the Alaska Redistricting Board’s office.

“That doesn’t work particularly well,” Brena said. “They mentioned a bunch of reasons not to provide the software that the board actually used. It is absolutely critical for us to know exactly what inputs that they put into this software in creating these maps and whether or not those inputs are consistent with the Hickel process and the constitutional requirements that they were required to meet.”

There was a fair bit of back and forth on this with no clear resolution, but at one point in the arguments Singer said the board needs the computers to do their job to which Morse replied, “That comment proves their point! If the staff needs it to defend, plaintiffs need it to challenge.”

Singer conceded that there are at least three or four laptops that are currently not being used and could be cleared and turned over. Brena also noted that he doesn’t exactly need their computers as much as the programs and files that they used to make their decisions.

Those issues along with the greater access to the records as well as depositions of key witnesses is something that will ultimately be decided by a different judge than Judge Morse. Morse is set to hand off the case to Anchorage Superior Court Judge Thomas Matthews, who will oversee the Wednesday briefing on discovery.

Takeaway: While Judge Morse seems to be confident that Singer and the Alaska Redistricting Board will play this fair and straight, I doubt that the plaintiffs have quite as much confidence. Brena is already fighting an uphill battle to get access to key information that informed the board’s decisions—a key in deciding whether or not the board put the Alaska Constitution’s mapping requirements first, as the required by the Alaska Supreme Court in the “Hickel Process.” Also, as I wrote about in last Friday’s memo, Singer and the board threatened the Anchorage plaintiffs with removing their case to federal court over the claims that the board’s maps violated the U.S. Constitution (an issue also raised in other lawsuits).

And while such tactics are a normal part of the legal process, they could become fatal when trying to cram six-plus months of litigating into six weeks.

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