10:12 Walked in a few minutes late. Mike White is talking to the Court in a defensive tone.

Stowers: It started back then with the thought you needed to meet the VRA. White: Stowers: McConahy said he ruled that way because it was necessary to meet the VRA. White: He said that in footnote, but he said, hed leave it for the SC. SC didnt change the ruling. We interpret the Hickel process - give this court a plant so in the in you can tell if the districts are constitutional. If you draw a plan which you believe complies with constitution - even if you consider the federal law - how is that not Hickel. Stowers: First at lower court said district 32 was not constitutional and told us to evaluate it. We didnt see the need to evaluate it because you were going to start from scratch. White: You gave us no guidance from this court on SE. Reasonable for them to hear that the court below said hed Winfree: Thats not what he said the second time. Is that problematic White: it says: board you didnt comply with Hickel process because you didnt show compliance for every district. You have to redraw SE w/o regard to VRa. Has this court created a circumstance where perfectly Constitutional plan but someone can challenge because it didnt meet the Hickel plan? Will the court authorize that sort of appeal. I dont think the intent of the court was a two tier process. He said: 1. draw hickel report for review then 2. go back and nish. You didnt create a separate standard of review and you have to look at effect of that in the future. Heres a two step process with which you have to comply. Given the already extraordinary time constraints on the board, i cant see how it could work. They did it in good faith. Did a constitutional plan, checked with VRA expert, and then made specic ndings 15 single space pages, and those ndings are what the court indicated it wanted. Fabe: When board did proclamation plan 1, what ???? White: Other than urban/rural no. Original plan, last spring. Drew

Rural, then when it decided where to take the urban population. We did that. Fabe: Im talking about our order and HP, if Boards initial process of starting with VRA and affected the contour of the map, then it affected the initial contours **** White: Didnt look to solve u/rural problems. Looked at four urban areas to take population. The only compliant plan was by doing Fairbanks . If you look at Hickel 1 it has a horseshoe - complaints had to do with interior portion. Fairbanks is rural hub, longstanding ties with the districts. Switch to Anchorage. Started with template. In Anchorage, every single district was changed when tried to take out of Anchorage. Clearly didnt work. Kenai and Matsu the same. Board took hard look at all the options. Even if didnt redraw all the lines. ONly the ones affected by VRA. Carpeneti: What did the board look at regarding district 32. Felt it was constitutional and didnt do anything. Judge ??? would offer preliminary ruling. First time I argued before him, he told me your opponent is going to win. Here there is no indication that any district was unconstitutional. Stowers. Based on the constitution only. Did they do that? White: Did the board shut the VRA out of its mind? Not completely. Tell us whether we need to deviate from the Constitution to meet VRA. Necessary to pair Alaska incumbents if the otherwise meets constitution? Fabe: What about the C constitution requirements, contiguous and compact and where practical socio-econ integrated. Its relative. White: By comparison. Fabe: If you start with a clean slate, you will make it as compact etc. as practicable. INstead of working backwards and saying in context it meets muster. White: I dont think theres a maximization policy. You dont have to maximize, as long as it meets the constitution? minim. Fabe: What does reasonable as practicable. Matthews: We arent going to pair incumbents, and then make it as compact as possible? Constitutional? White: If . .. court wouldnt approve. But the reasonable as practicable shows Court considers the geography of the state. Water balloon analogy. Squeeze here, pops out there. Compact here, not there. 100s, 1000s of miles with no people, Yakutat and 100s of miles with no people, but they have to go in a district.

Stowers: Surely board has difcult task and we appreciate. But also rulings that odd appendages, unconstitutional and doesnt it help when raising that question. White: Yes, it raises that. Did look at it and approved it was compact enough. Stowers: With respect to VRA. White: He said it now, but not initially. If you read his opinion. He does address. This meets the constitution regardless of the constitution. Then the trail. Then Jan 3 memorandum. Two places dealing with compactness. Maybe I have some doubt in my mind now, but Im not going to change my decision. Didnt tell us he changed his mind. Told this court to take it up. This court didnt take it up. Matthews: Template plan with constitution and then changes to the plan to comply with VRA. We specied the changes would be minimal from the template reasonably required by VRA. Looking at the record. AFFR06 plan, allegedly complies with VRA and seems to make fewer changes from the Hickel plan. What are the weaknesses? White: Adopted after we submitted. 1. How do we deal with 3rd party plans that havent followed hickel plan. That plan was submitted. They said our nal plan is our HP because it complies with Constitution and VRA. We looked at it and though there were compactness problems. Matthews: Closer to your HP, than your plan. May not be VRA compliant. White: Doesnt have sufcient Native population. Matthews: Aleutians/BB? White: Problems with Constitution and VRA. Matthews: What are the problems? Gave long argument to get into the probs. White: Need to look [talking about numbers p. 581, has # on map. I mean demographics] HD 38 is only 34.56% Native VAP 6% under statewide average. Stowers: But didnt expert say this district could be lower. White: She said Aleutian district didnt comply and we had to bump them up. 34%, boards expert said that would not comply. 34% district doesnt comply. Wont be approved by DOJ. Winfree: Hickel Process. Boards view, if it crafts what it believes is a constitutionally valid plan and others submit other plans that show they are more compact, etc. that the board can just ignore those. Maybe those are constitutional too, but were going with ours. Or you have to go with the most constitutional

White: Court ruling, clever person draws map. Fabe: Are other courts considering as practicable. White: Not designed to make it stricter, but more exible. As close as you can get considering all the other factors. SE-integration part. Under balancing act understands water balloon concept. Doesnt have to be also SE as you can. Stowers: You agree as close as you can balancing them all? YES. So, if another party plans submits another plan also constitutional but more compact, contiguous and SE integrated, then that plan should be used? White: I dont think so. Not the most. Just has to be constitutional. Winfree: But if another plan meets those more reasonably as practicable than yours, doesnt the other plan win? White: Court hasnt said, if another plan is better, we have to take that plan. If one is .4 and another .42. No, Bright line test. two plans, both constitutional and both reasonable, then board has discretion to pick which one to use. I dont think you can make this into a beauty contest. This one a little better because it has this. I dont think this is the role of the court. Discretion of the board. Could have 7 plans that meet constitutional requirements. Fabe: What do we make of 2001 scheme, the rst one that discusses the Cons. Amendment. Even tho Anchorage had deviation under the 10% (9.5) we found it violated equality of population as nearly as practicable. How can you say you have 2 constitutional plans if one is closer to SE integration, given that as practicable? White: The point here. Fabe: What do we do with the 2001 ruling - nearly as practicable. White: Means as nearly as you can get it, not 0. You had 9% deviation. No reason why you couldnt get it lower. I actually argued that in court, that they had over populated some districts. I think that has really affected .. I think you have to take practicality language for each, and then put them all together, knowing the court has to balance all that along with pop disparity. Carpeneti: Suppose we nd that 32 is compact enough only because it was needed for the inuence district and then learned no such requirement. Why would require the board to look at SE. It appears that proposed plan by that party is much more compact. Why shouldnt we require the board to adopt those, assuming those assumptions to be true.

White: Under those circumstances yes. But those assumptions dont hold. When you compare, merely because one is .98 and the other .90. Ten years ago, I lost. White: Ive gone over my time. Winfree: Original question: What happen if we afrm McConahys suggestion and rejected your interim plan. You said 2002 plan very unconstitutional. If that out, then where are we. If May 14 is drop dead, or are there other options. Not drop dead? Appoint masters and create interim. White: If rejected our interim plan? Then holdover plan. Disservice to people of Alaska and disenfranchises people - especially Matsu. In March only a couple of districts at issue. Amended Proclamation plan, I would suggest May 14 isnt drop dead. You can move primaries and other things. I would suggest under circumstances of the case. No one in the process, in 9 months thought we had to meet with Hickel Process. Never raised in process itself. appointment of masters at this point does not good at all. Stowers: Phrase: Sticking with Hickel would be a fools errand. White: Not applied in previous courts. Now, we need an interim plan. You said to x Fairbanks and come back with interim. We did that. When we got the review back from Court, we did what you said. Matthews: Dept. of Justice couldnt act in time White: Given June 1 deadline, it couldnt be done. But that could be moved. Discussions with DOA, it was considered. Assuming Board did as asked. Ruled tomorrow Monday. Board would immediately go to DOJ for clearance. If there are objections it takes the full 60 days. If by 15th May, expect clearance by mid July. What if they dont pre-clear it? Board saying now. Use interim plan court indicated in March if you cant get your work done give us interim plan. It xed the only two districts. allows the election to move forward in reasonable way. 10: 55? Mr Klinkner: I have 15 minutes dont need that much. Others here. Begin by taking questions. Carpeneti: Here to hear you. Klinkner (Petersburg attorney): Petersburg and Jeffers and sTrand. Board did not follow Hickel Process. Initially followed priorities of VRA over Constitution. Initial board thinking two VRA concerns. Pairing of Native Incumbents. Despite focus on VRA, also failed to follow Hickel Process in amended plan. Did not take hard look required to take when remanded from this court.

2. Court unreasonable? You didnt appeal. The issue wasnt taken up at all, Superior court ruling became law of the case? REasonable. Klinkner: Superior Court ruled summary judgment and you didnt appeal. Why here now? 2. Saw the outcome and client.. Klinkner: REally starting all over again. 2. Did we mean everything was reopened? Klinkner: Everything reopened, esp. since board took diametrically opposed approach. We were back to square one. Also curious in developing amended plan, board made no references to SE districts without reference to courts concerns. What happened to the VRA concerns go? Not supported by VRA - protecting Native incumbents, inuence district. As to remedies, Petersburg, content using 2002 redistricting plan. Better district with similarly situated districts? Stowers: Even if DC court changes the boundaries? Petersburg: Thats a risk that we always face. 11:05 done 11:05: Walleri: Um. Here to discuss constitution. 1. ???? 2. interim plan 3. what options exist for the court

Basic issues. Clear priority. 1. First comply with US - one person one vote. But under US constitution. When redistricting authority departs from basic issues for the issue of race. Now dealing with constitutional issue. 2. Dealing with VRA. Avoid retrogression to extent practicable. 3. Alaska Constitution. Embodies the traditional redistricting principles, to the extent dont violate VRA and Constitution. VRA sandwiched between two standards of traditional redistricting. Hard to believe the boards request is. Youre ying blind. Aviation metaphor. You dont have a VRA report from Dr. Hanley on either the interim or

amended plan. You heard council for the board say. Well do that. Theres an email, says, I think and some plans are a problem. You dont have a report that says they comply with VRA or are necessary to comply. But you have her reports that talks about everyone else. Rights plan and Calista plan. But nothing about their plan. Big interesting gap. Early on the board hired a socio economic expert, but you have no report that says any district is socio-econ compliant. Matthews: You need an expert for Socio-economic integration? Walleri: I didnt before opposing counsel set it up. Started off with idea that 38 was not SE integrated. But board admitted it wasnt. They said they kept 38 intact because it was SE integrated and complied with the constitution. Brody in the record. In the ofce trying to xe Fairbanks, he left 38 in tact. What is the law of the case? 38. They never argued until today that 38 or 37 met the constitutional requirement of contiguity or SE? Never argued they had a conceptional reason to split the population. Boards argument boiled down: You didnt like the rst plan. We have a new one. Its the same plan. It was rejected because of the awed process. It does know it doesnt meet the Constitutional because of split Aleutians and SE problems of 38. Matthews: They say in formulating their HP, the district they are concerned with is Ester and Goldstream would be done independent of VRA because there has to be a mixture of urban and rural and they said they tried other urban areas. Walleri: BB said. Matthews. What do you think is better. Walleri: Cutting to the chase. I bit schizo. two answers. If Dvi. of Elections is right and May 14 is deadline, then all we need to use is benchmark plan. DE says, implementation must start on Monday. AS US SC said in Perry v. ?? You cannot implement a change unless you have pre-clearance. That means pre. If May 14 is when they begin. They cant do that w/o pre-clearance. That was the position the board provided here. They took a different position, using amended plan as interim plan. But different plan when talked about interim plan as interim plan - can fudge those dates. AK Dem party. Those dates arent as hard as DE says. Maybe a point. Critical deadline is set by move amendments. 45 days - absent overseas voter stuff. 45 days prior to primary they have to get ballots out. July 2.

Stowers: Waivers that can be obtained. Not desirable, but possible. Cutting to the chase. If May 14 not hard and fast deadline, whats your second option. Walleri: 2nd is to do what Board suggestion - Court take control of process. Fabe: They recommended? Walleri: They want court to rubber stamp interim plan. Goal is to have a plan with which the court is condent it meets the requirements. Thats acceptable to us, but I would urge you to do it very quickly. Problem is that youll need to move quickly to get pre-clearance. That would instill into the process, what Alaskans prefer. We have condence in redistricting process - something legally sufcient. 3rd. Option is to take one of the plans. Obvious the court is even more aware of the problems than I am. All the plans do one thing - AFFR and Calista, not Rights - they take Eilson out of Fairbanks and put it into rural district. Nice part of that is it solves the VRA issue. Hanley says, its ok, 3% in primary. Against our idea of integrated Fairbanks, but hard for us to argue that population that doesnt vote being taken out, doesnt really affect us. Stowers: Youve been arguing that not soci econ integration between ester and goldstream, isnt Eilson worse? Walleri: Hickel talked about SE integration - tried add Adak to Anchorage. Problem with military bases they are standalone - own schools, post ofces, stores - tend to be separate communities where located. Anomalous in terms of SE integration. Unique. One way to look at it. Another is - Yup. Looks like its gerrymandered - taking a low population district for VRA. Stowers. If not Eilson or Ester/Goldstream where? Walleri: Rights plan, does the least violence. comes in and takes N. Matsu - rural population, rural highway. Problems - three areas - urban, rural non-road, rural road. We mix and match. N. matsu does have rural area, but is road. Does go into another rural boundary, but relatively compact and doesnt have that long thing that picks up Eilson. Capacity - rural Democratic voters, not urban D voters - and puts them in there. Interesting part of case. First time Alaska is coming up with a ??? district. We think of minority districts, minority effective. Minority sufciently large enough by self. At 45%, particularly with lower Wade Hampton district. District 38 is probably not effective, probably retrogressive. First time weve taken urban non-native and put them in with rural native. Whole theory of 38 is coalition of Native and Whites will cross over and allow the Native people to be effective. Will the Native people in 38 create cohesive. Tananan, Athabascan and ?? combined with Yupik. Only evidence is statewide vote. Carpeneti: School district?

Walleri: Hanley only took Governor and other statewide districts. Matthews: What gives you condence that masters will come up with a better plan. Where is the better plan? Walleri: The bottom line is here. There has to be some deviation from the AK Constitution. Question is how to minimize that to do least violence. The BBNC brief every time Board does it, they insist in putting Ester and Goldstream - white Dems into a native districts. Every plan insists putting these Non-Native dem voters into rural district? Matthews: What is the better plan? Board tested others - Matsu, Kenai, Anchorage, and found problems with all and settled with suburban Fairbanks . If settled on central Anchorage wed have new folks here. Walleri: Straw man from get go. We keep coming up with unconstitutional plan except for one, and thats our Hickel Plan. Carpenti: You say in your brief and refer to dramatic concessions, cant nd it. Walleri: Citation correct on brief on interim plan. Just give me a second. 11:32 Carpeneti: Chair Torgerson noted that it appeared to be unconstitutional Walleri looking for the citation. Joint exhibit 156, transcript 25, 13-18. Carpeneti: Thank you Walleri: Issue of federal intervention. Dont think thats a credible concern. 1st. DOJ would le if theres a violation of the VRA. If AK went forward without pre-cleared agree with board - under current situation, with clear objections coming in, more of a problem. Nice thing about the benchmark, by law, it is non-retrogressive. Its the cleanest VRA and most certain to not be retrogressive. Winfree: Assume you mean 2002 plan. Walleri: SC has dealt with such objections before. As long as the state court is attempting to come up with a plan. the federal courts are instructed to abstain as long as the state court is coming up with a constitutional plan. Juxtaposed Branch?? rejected because the court came up with unconstitutional plan. Bench mark plan is clearly retrogressive, gives us most legal certainty. As long as court continues with process to x the mess. Except if court came forward with plan ultimately not VRA or US constitutional compliance.

[Pushing 2002 plan. Not retrogressive and 2. Courts continuing to struggle. Below, we suggested to McConahy to appoint masters and he kinda wish he had done that. Stowers: Familiar with Perry v. Perez - increasingly likely pan wouldnt be in compliance, but old plan couldnt be used because of population changes. If I understand our data correctly - we have variances from -46 to -325 - how can that work? Walleri: Specic issues at Perry - factual and procedural differences. Minorities were expanding in areas where minorities where they had political salience. In Alaska, same if rural area was growing, not shrinking. Thats what is happening in Texas, Arizona, Fl. Stowers: Happening in Anchorage? Walleri: But no salience. By 2020, we could have a native district in Anchorage. Has to be close enough to be politically salient. Here we have the opposite. Procedural diff. Perry v. Perez - federal law started much earlier. While we were going to trial in Fairbanks Perry was going to trial in DC. So Court, we had decision by US SC well in advance before any deadline in Texas. Feds had jurisdiction. They just went straight in. SC looked there at problem of what remedy was being put into place by Fed district court. Here not fed court involved at this time. Roots of Baker v. Carr - US SC abandoned historical review that redistricting was political process. Followed by ???? Here very different. Our R. Board, basically set on a particular result and keep coming back to this court and saying, do you like it now. Different problem from ?? v. Simms where people refused to deal with the issue. here Alaska is struggling hard to come up with plan. Some result oriented process with current board. If you are going to do anything. Justice Burke in Hickel in minority - if gov is unable or unwilling to come up with plan - not majority. Problem now ts both the majority and Burkes dissent. Essentially the board is unwilling or unable to come up with legal plan, refusing to follow mandate of court regarding process to use. Court needs to either strike down the plan and either let the default - benchmark - or . McConahy exercising judicial restraint, perhaps too much. this court needs to get involved and strike it all down and go with benchmark or appoint masters. Fabe: Back to J. Matthews question. Appointing masters doesn't change the fact the plan needs to be ????. 2. Isnt there a timing problem still? Walleri: 2 rst. Yes. Huge timing problem. If DV of Elections is correct. Then anything they do after May 14 is unpre-cleared plan. Fabe: If timing problem and couldnt get interim plan even if appoint masters today. Is there a play you are proposing?

Walleri: Sorry, ears havent popped. Fabe: If Benchmark problematic based on one person one vote a problem, which plan would you use? Walleri: Rights or Calista. Fabe: Which Calista? Walleri: Calista 3 or they call it. If going to use masters, I would direct the masters to look at all three. Fabe: You just indicated not enough time for masters. Answer, none is ok? Walleri: No. We believe that either the Calista 3 or Rights plan and maybe the AFFR plan, all do a better job of doing less violence to AK Constitution than either the interim or Amended plan. Our preference to solve problem is the Rights plan. Goes to basic way developed. Originally developed and submitted to board. Based on concept to focus on borough boundaries rst. Create a plan that maintained the borough boundaries the best. BB dene Socio-Economic Integration and are contiguous. Matthews: These are great arguments but arent we ying just as blind? Walleri: I agree 100%. Thats why better to make sure we have a constitutional plan that complies with VRA. Keeps Alaska out of problem of retrogressive plan. Another problem with Masters, we have to deal with problem - had with Dr Hanley Matthews: None in the records. Walleri: Attached to our original briefs. In trail, evidence put on - Joe Hardenbrook, outlined that Ester Goldstream had highest turnout rate of any area in the state and rural areas have lowest turnout, particularly in primaries. District Court rejected it even though no one contested it, and Hanley said she never looked to see if statewide averages applied to 38. Not that Judge didnt believe him, but he runs Democratic campaigns in Fairbanks and is biased. We never asked Superior Court, because you asked to bring it to you. No legal citation, no record to show developing plan it went through Hickel Process. Original petition with no documentation. My view, most conservative - go with Benchmark. Answering Justice Fabes questions are there plans that do less violence. my answer is yes, There are 3. 11:58 Nine minutes for White:

White: Walleri, absolutely wrong. DE can make changes they have to make changes. Key is that election cant be held without pre-clearance. Court needs to pull back. Made a lot of allegations. Amended Proclamation plan is constitutional. Only question is SE. I think board was right. Stowers: I know we have separation of powers issues. What authority in your view under the constitution. White: I dont think you can tell us how to draw it. You can say its unconstitutional. Winfree:. How can we tell if there hasnt been Superior Court hearings? White: We did all the stuff. Winfree:. Flying blind issue. VRA? White: Giant red hearing. Whether put in record or not, this court reviews de novo. Dr. Lisa Hanley, a leading expert in the country, says, it complies. Winfree: Isn't there a question of fact? White: No. First, hes a cultural anthropologist, not a VRA expert. Talking about percentage in 38. 2. this court cant say we believe it complies with VRA, only DOJ can do that. Winfree: Looking at dont we have to know VRA compliant. White: No doubt what it requires. That very district has been pre-cleared by DOJ. And plaintiffs own expert p 206. I talked to Arrington and he agreed it is effective. For them to raise bogey man about not getting pre-clearance. It was pre-cleared by DOJ. . . They are just wrong. Putting 2002 into place does more harm because of malapportionment is huge. 43% - 43 have greater than 5%. Thats a fundamental right. Rationale for Reynolds v. Simms. Will bring to close. Only difference between our plan and Calista 3 is which part of Fairbanks - not in our back yard issue. 12:06 Thank you