The court swears in David Dunsmore, who worked for Alaskans for Fair Redistricting. (Taken with court permission)

Trial challenging Alaska Redistricting Board underway and it’s unusual

1/24/2022 1:25 PM

The trial challenging the Alaska Redistricting Board’s work got underway today in what is going to be one of the more unusual trials we’ve ever seen, thanks to the lightning-quick turnaround time facing the court and the fact that it’s comprised of five distinct legal challenges. Opening arguments were written and much of the testimony has already been filed. Instead, what we got today was some cross-examination of witnesses, a bit of redirect, and plenty of procedural discussions about access to documents, the ordering of the trial and other logistics.

Talk about building the plane while flying it.

“I’m trying to grab onto the tail of this tiger as you all ran off a mile ahead of me from the starting line,” Superior Court Judge Thomas Matthews told the attorneys at the end of the day’s hearing.

The East Anchorage plaintiffs, represented by attorney Holly Wells, kicked off the trial. This challenge—which is the most high-profile case with the biggest potential impact on this year’s elections—centers on the board’s decision regarding Senate District K, which splits up the two deeply conservative Eagle River House districts and pairs one with the swingy South Muldoon district in East Anchorage (currently held by Democratic Rep. Liz Snyder, who won her election over Republican Lance Pruitt by 11 votes). The South Muldoon district is also one of the state’s most diverse urban districts. Like many of the other challenges, it’s a multi-faceted case that argues Open Meetings Act, procedural and constitutional violations.

The only map I have on hand that illustrates the challenged Senate district. It’s the Eagle River 2 district that’s paired with that teeny, little yellow South Muldoon district in the bottom left corner.

When it comes to the specific Senate pairings, the East Anchorage plaintiffs argue the South Muldoon district holds very little in common with Eagle River, and that the two Eagle River districts are the best fit for each other because their residents primarily live, work, shop, worship and recreate in Eagle River. Ordinarily, those considerations would factor into the shape of House districts. The problem, though, is the Alaska Constitution doesn’t have a lot to say about Senate pairings:

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.

-Alaska Const. Article VI, Section 6

In the East Anchorage plaintiffs’ pre-filed oral arguments, which you can find here, they acknowledge the scant directions but argue that there’s still directions in the Constitution that the board ignored:

“The Board placed on the record no reasons for pairing two practically dis-contiguous house districts into Senate District K, nor any reasons for disregarding the Alaska Constitution’s invitation to consider local-government boundaries, or its command to consider drainage and other geographic features. … The absence of any justification to support those departures is all the more constitutionally problematic given that the Board had before it the option of alternate pairings that would have resulted in senate districts that were constitutionally contiguous, would not have required residents of a house district to drive out of their senate district to reach other residents of the senate district, and would have properly respected local government and drainage boundaries, and better accord with sensible geographic considerations.”

They’re relying in large part on testimony from Dr. Chase Hensel, an anthropologist with experience throughout Alaska, as to what constitutes a “community of interest.” Hensel argues that Eagle River is clearly its own community that’s distinct from East Anchorage, citing efforts like the EagleExit plan.

Very little of this was actually in front of the court today.

Instead, the bulk of today’s hearing was spent by redistricting board counsel Matt Singer questioning Dr. Hensel’s credentials and his assertion that Eagle River ought to be paired with Eagle River. Through the questioning, Singer was setting up the case that Senate pairings can essentially be arbitrary. He questioned how the requirement of being able to traverse through a district could hold up when there are rural districts without roads connecting their population hubs (Hensel noted that planes account for most of the travel in rural Alaska) and other connections.

This is a key part of the board’s argument. The prevailing attitude has been that anything within a local government’s boundaries is automatically considered to be socio-economically integrated and that Senate pairings are ruled by nothing more than shared boundaries. That second part was a key issue during the 2010 round of redistricting, where plaintiffs argued that the city of Fairbanks was due its own Senate seat. The Alaska Supreme Court stopped short of weighing in on that issue because it found other procedural matters that ultimately sent the entire plan back to the drawing board. The city of Fairbanks did end up with its own Senate seat in the end, but that was the board’s decision and not done at the direction of the court.

Singer also challenged Hensel’s assertion that the East Anchorage vote would be diluted, to which Hensel argued that Eagle River’s solidly conservative base combined with the swingy-ness of the South Muldoon seat would all but guarantee a Republican wins the Senate seat (that Republican being Sen. Lora Reinbold).

“My point is the power of the voters of Eagle River is magnified and the power of the voters in (the South Muldoon district) is diluted,” Hensel said.

And that was… kinda all there was for the day, in terms of the meat of the underlying legal arguments facing the East Anchorage pairings.

The court spent a decent amount of time in the afternoon arguing about access to records and the admissibility of various pieces of testimony. There’s not a lot to report there, but notable is that the Alaska Supreme Court issued an order denying Singer’s motion to protect board correspondence that he claimed attorney-client privilege over. The ruling doesn’t necessarily release the documents but gives Judge Matthews an opportunity to review them to determine whether the privilege claims are justified.

Those outstanding claims, as well as other issues, means that the East Anchorage plaintiffs may end up before the court again, but even that is a matter of contention.

The trial is set to continue on Monday with a focus on the challenge to the Mat-Su area districts. The main argument there by the Mat-Su Borough is that the board erred when it decided to include Valdez in one of the region’s House districts, an arrangement that Valdez is also suing over (whose turn in front of the court comes up on Tuesday). This is an interesting case because redistricting is effectively a balancing act, where taking population out of one House district will necessarily affect other districts. The coalition that formed around Doyon, Limited is intervening on this case in order to preserve the hard-fought rural Interior district. That district unites all of the Interior villages, a feat not accomplished in several rounds of redistricting.

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