We may be voting in illegally formed districts

Much of the time watching the Washington State Redistricting Commission was spent waiting for the Washington State Redistricting Commission.

Once the public hearing phase of the yearlong process was completed, the commissioners met mostly behind closed doors. Very little of the real work – dividing up the state’s 49 legislative districts and 10 congressional districts in a way agreeable to both parties – was apparent to the public.

How and where was it done? A clue came one day in October, after a 90-minute lunch break in which the four partisan commissioners met privately with partisan staffers.

The commission was reconvened by its non-voting chairwoman. Republican commissioner Slade Gorton, the former U.S. senator and state attorney general, made an announcement: The four partisan members had agreed on a process in which each side would produce maps and then try to reconcile the partisan differences later.

Agreed? That sounds like a vote, and there was nothing done in open session. After I asked, a sheepish commission didn’t admit to a violation, but promised not to do it again.

That nonpublic agreement suggested that commissioners were pushing the edges of the state open public meetings law.

Now, emails obtained under the state public records act and interviews with the commissioners have raised even more questions about how closely the commission followed the law.

State law requires not only that final votes of public bodies be taken in public, but that the public be able to watch all actions “including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. ‘Final action’ means a collective positive or negative decision, or an actual vote by a majority of the members.”

While there are exemptions to the law, none apply to the work of the redistricting commission, except perhaps discussions with attorneys about potential litigation. Even then, all action must be done in public.

With one exception, commissioners never discussed in public the dominant factor in redistricting – the partisan makeup of each district and how it affects elections for the Legislature and Congress.

After receipt of census data, both parties used government staff – some permanent and some hired temporarily – to analyze past election results to try to create new districts favorable to their candidates. Incumbents were given special protection. Both sides even allowed incumbents to identify the locations of potential rivals – sometimes dubbed “persons of interest” – so as to exclude them or at least disadvantage them.

While the level of partisanship and dealmaking might stun some, it is not surprising to insiders. No one ever said the process adopted by constitutional amendment in 1983 would be nonpartisan, only that there would be a balance of power and that the parties had to agree.

But it is, by law, supposed to be public.

Commissioners are adamant that they followed the law.

“When we were in recess, the three of us never met,” Democratic commissioner Tim Ceis said.

Much of the deal-making was done in private meetings where only two commissioners were present. Gorton and Ceis worked on legislative districts in the northern half of the Western Washington and all 10 congressional districts. Meanwhile, Democratic commissioner Dean Foster and Republican commissioner Tom Huff worked on the rest.

Such meetings do not trigger open meetings because they do not make up a quorum. But how did they make the final deals, how did the agreements reached by Ceis and Gorton, for example, get the sign-off from Huff and Foster without any substantive discussion in public?

The law not only requires that formal final votes be done where the public can watch. It also prohibits “collective positive or negative decisions” in secret.

Each time new tentative deals were reached, maps were produced and presented in public where they were formally approved without significant debate or amendment by commissioners. Their comments usually focused on issues such as population equality and the way lines respected counties, cities and communities of interest.

So either they made crucial decisions with very little real deliberation or debate, or else those happened outside the public’s view.

Despite common understanding, a majority does not have to be in the same room to trigger the law’s demand for openness. In the 2001 ruling in Wood v. Battle Ground School District, the state Court of Appeals found that the definition of “meeting” could be met if board members used email to communicate, discuss and reach agreement on an issue that was coming up before the board.

But the court also spoke of other methods that could create a meeting under the law.

“We conclude that the legislature intended a broad definition of the word ‘meeting,’ ” wrote Judge Karen Seinfeld. And later, she wrote that, “Washington broadly defines ‘meeting’ as ‘meetings at which action is taken’ regardless of the particular means used to conduct it.”

Because Washington has very few cases under the meetings law, the appeals court looked to other states with similar statutes. One California ruling quoted by Seinfeld said “any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members … to develop a collective concurrence as to action to be taken on an item by the members … is prohibited.”

I found no emails that sought consensus among the redistricting commissioners. But there are strong suggestions that other methods were used to find agreement.

In a letter sent to a Columbia law professor after the maps were finalized, Gorton described the process and said the one-on-one meetings and his good relationship with Ceis made the result possible. The one problem, Gorton wrote, came at the end when Huff and Foster broke down over how to create a majority-minority district in Yakima, and that dispute was “settled with shuttle diplomacy over the last few days.”

In an interview, Gorton said that meant, “the Ds were in one room and we were in another. Tim would come and talk to me just as we’d done before.”

Ceis said “there were staff conversations occurring during that time” but said he didn’t consider the act of staff carrying information between commissioners a violation of open meetings law and said no courts have found that it would be.

Earlier in the process, Huff wrote to Gorton to discuss Gorton’s proposal for cross-party, one-on-one meetings and Gorton’s suggestion that he and Ceis meet in Seattle, where both had offices.

“How do you see us exchanging the outcome of each negotiation session?” Huff asked. Ten years before, the previous commission had one-on-ones in Olympia “and thus were able to exchange agreements or otherwise with the other member of the team.”

Gorton said he envisioned that he and Huff would “constantly talk to each other” during the course of the one-on-one meetings.

Huff finally agreed, but said “we need to clue each other in on whatever subject (is being discussed) and that the two of us agree before agreeing to anything with Tim and/or Dean.”

In an interview, Gorton said he felt he had Huff’s support for any deals he made and that Huff had his support. So both, essentially, entered negotiations with two votes in their portfolio.

The only time there were discussions of a partisan nature held in public was when Huff and Foster couldn’t agree on districts in Yakima and Spokane. Ceis said in an interview that Foster decided to take the dispute public as a tactic to get Huff to back down.

Did the public get to watch how the other 47 districts came together?

“No, you didn’t,” said Ceis.

A completely open debate would have made the process unworkable, he said.

“If you wanted that discussion in public, we would never have gotten done,” Ceis said. “The nature of these types of communications don’t lend themselves to an audience.”

That may be true, but the law doesn’t provide an exemption for the redistricting commission.

Tim Ford, the open government ombudsman for the state Attorney General’s Office, noted that Wood v. Battle Ground covers more than emails.

“The broader principal behind the case is you can use any type of technology – email or one-on-one meetings – to pass information among people,” Ford said. “At some point you have a quorum and you had a meeting.”

The question raised, then, “is whether there was a meeting through a series of smaller meetings,” Ford said.

Since the commission dissolved June 30 and the new lines are in play for this election, is all this just an academic discussion? Maybe not.

The pending legal challenge to the plan by John Milem of Vancouver asserts that, among violations of redistricting law, the final plan resulted from illegal meetings. The remedy for such violations is the nullification of all actions taken while violating the meetings law.