Sunday’s post on the recent Supreme Court decision striking down the plan adopted by the Reapportionment Commission, and the resulting comments, drew this long and thoughtful response from Bart Dame, one of a handful of observers who carefully followed the commission’s work.
Dame is a progressive Democrat and longtime political activist with an interest in the election process. He has been monitoring the meetings of the Reapportionment Commission.
I expect his critical observations on the work of the Reapportionment Commission will spark lots of interest.
Aloha Ian,
Thanks for sponsoring this discussion.
I was a close observer and active participant in the PUBLIC portions of the reapportionment process and, while I appreciate your desire to hear about the “internal commission politics,” that is nigh impossible, as the commission’s deliberations were conducted almost entirely behind closed doors, in executive session.
Observers were forced to draw inferences from whatever comments or questions commissioners would offer in response to public testimony. On several occasions, I was able to draw from them hints of their thinking. But they rarely engaged each other’s ideas in open meetings.
Act 92, Hawaii’s Open Meetings Law, requires “the formation and conduct of public policy – the discussions, deliberations, decisions, and action of governmental agencies – shall be conducted as openly as possible.”
There are 8 permitted “exceptions” for discussions which are permitted to be conducted in closed session. But the law specifically says:“The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.”
One permitted exception from openness is “To consult with the board’s attorney….”
Rather than construing this exception “strictly”, the commission conducted almost all substantive discussions and deliberations with their attorney present and offering comments. This frustrated public scrutiny in (at least) two ways. First, it allowed them to deliberate out of public view, which hindered public understanding of their reasoning and knowledge of which “facts” they were considering. But there was a second destructive consequence. Because the conversations in which the attorney participated were “privileged,” all commission members were barred from sharing what was discussed, what legal interpretation they were following, and what other commissioners were thinking.
This seriously impaired the ability of the public to offer testimony specific to the deliberations of the commissioners. In the hearings, they sat sphinx-like, afraid to say anything off-script, except for the few moments when they wanted to respond to someone’s testimony. Most testimony, they received without comment. A review of the minutes or video will show I was able to draw them out to engage some of my ideas, but those instances were the exception. There were a number of important questions I tried to elicit a response from them on and they refused to comment. Their attorney encountered some of these same questions during the oral hearing before the Supreme Court. He had no answers either.
On June 28, immediately prior to taking the vote on Dylan Nonaka’s motion to use the entire Census count as the population base for reapportionment, they each explained the rationale for their imminent vote. But that did not constitute a public “deliberation.” All such deliberations had already occurred. They simply were reporting what they had concluded from those private deliberations. And no member of the public was able to respond to their opinions or “facts” until the public comment period in the next meeting, long after the vote had been taken.
It was clear from their remarks that they had considered “facts” and theories which had never been introduced into the record during open meetings.
They repeated this approach on September 19th, when they voted to amend the motion on the population base and to exclude some 16,000 obvious non-residents under the Plan A extraction. They took public testimony. They then had staff explain the 3 population adjustment proposals they were considering, Plans A, B, and C. In addition, they had staff introduce new “facts” about the ethnicity of the military population, as well as whether there were “any” registered voters living in military housing areas. No opportunity was provided for the public to dispute either the “facts” or the proper way to interpret the facts. (Frankly, both the ‘facts” and the interpretation being drawn from them were “bogus,” to use a technical term.)
They then went into executive session to deliberate over which plan to adopt. When they returned, each commissioner reported what position they had arrived at. They then voted for Plan A.
I do not intend to imply the commission was monolithic in their thinking. Different commissioners had different ideas. Indeed, that was part of the problem. Two commissioners, Nonaka and Elizabeth Moore, made it clear they would not budge regardless of evidence or arguments. Harold Masumoto was convinced the methodology for determining the permanent population was too “sloppy” to be used, but may have been persuadable, in my opinion, had the commission allowed for full discussion of both the methodology AND the appropriate standard of accuracy to be used.
The commission was divided going into the September 19th meeting. I believe 5 members were willing to exclude enough non-residents to shift a senate seat to the Big Island. Tony Takitani wanted to exclude all non-residents possible. 3 others went into the meeting supporting the Plan B adjustment, which would have subtracted some 73,000 non-residents, with almost all coming from Oahu. Another commissioner probably would have supported the deduction of the 47,000 known non-resident military “off the top” for the purpose of reapportionment. Because the commissioners were unable to agree upon a common approach for deducting more non-residents, they would have only had 4 votes for Plan B, which would have gridlocked them. So they were able to cobble together a majority only for the Plan A extraction. In my opinion, it was not a willful conspiracy to avoid shifting a senate seat to the Big Island.
Unfortunately, the “off the top” or “Two Step” approach had never been seriously considered by the commission. It was first suggested to them in my testimony of June 28. It was again presented at the Maui hearing by the Maui Advisory Council, but that hearing was only attended by two commissioners. I proposed the idea again at the public hearing in Kailua, at the hearing in the Capitol auditorium, and at the final “road show” public hearing at Kalani High School. It was only after the Kalani hearing that a commissioner finally heard the idea, telling me I had introduced “something new.” He consulted another commissioner who had also failed to hear the idea on the previous occasions and thought the idea merited more consideration. But that consideration never came.
Immediately prior to the vote to adopt Plan A, Judge Marks felt a need to respond to the “Two Step” approach, which had been advocated by Rep Herkes and myself earlier in that meeting. She said it was unconstitutional, but her explanation caused Rep. Herkes to object that she was misrepresenting what he had said. She allowed Herkes to give his own explanation. I then jumped in to fine tune what Herkes has said. Regardless, the Judge said she did not believe it would be constitutional to use the “Two Step approach. (Once it got to the Hawaii Supreme Court, they ruled it was unconstitutional for the Commission to NOT use the Two Step approach. I wonder if the judge might be willing to transfer her law license to me?)
In order to divine the deliberations of the commissioners, I had to employ methods damn closed to espionage, relying upon “leaks’ and slips (intentional or not) in confidentiality. As someone who knows his way around the Capitol and has longstanding Democratic Party connections, I have better access than that available to your typical citizen.
A normal legislative body can be lobbied. The representatives have set offices, with public phone numbers and email addresses. And they are willing to share their thinking. So the public can, admittedly with some effort, interact with them and, hopefully, influence them. On the other hand, a jury will be shielded from public input, except that which is offered under oath and subject to cross examination. Only evidence introduced in open court can be considered in making their determination. And the jury members are instructed to not deliberate outside of the jury room.
The way the commission operated adopted the weaknesses of the two other models, while not the benefiting from their strengths. They clearly considered “evidence” as well as legal interpretations, which had never been introduced in open session. While their votes were done in public, their deliberations were not.
In the course of the commission’s work, several people tried to get them to open up their process to standards of transparency. Particularly heroic on this were Nikki Love of Common Cause, Jean Aoki of the League of Women Voters, Barbara Polk of the Americans for Democratic Action and Larry Geller of the Disappeared News blog. While they were able to get the commission to agree to posting agendas and meeting noticed in advance of the meetings, they were not able to get them to honor the Act 92 requirements for open deliberations.
I believe the commission’s inappropriate secrecy prevented effective public input and contributed to their failure to consider alternative ideas in a timely and thorough way. Bad process led to bad, and expensive, decisions. And wasted a lot of time. Transparency in the conduct of public business is not only an end in itself. It is a means for making better decisions.
Sorry for my lengthy post.
Just a few quick responses to points raised by others here.
First to Hugh Clark, for whom I have a lot of respect. I was not at the Hilo hearing, but I did watch the video of Stan Roehrig’s interaction with the Commission. I have to disagree with his characterization of Judge Marks’ behavior. Stan Roehrig can be a bit “contentious” at times. He quickly threatened to sue the commissioners and go after them individually, not a good way to make an introduction. His central argument, one he repeated at the Supreme Court oral hearing, was that the plan resulted in an unpermitted population deviation in excess of 17% between an Oahu senate district and those proposed for Hawaii County. That argument was off-point, unnecessary and plainly wrong, unless it was Stan’s intention to force the Court to re-introduce “canoe districts,” as that would be the only means of avoiding deviations of that order. The weakness of his argument did not undermine Stan’s adamant insistence his position was the only one any sane person could subscribe to. In short, he was much more abrasive than was appropriate. Let me be clear. I appreciate Stan’s willingness to step into the breach and defend Hawaii County interests in this. I strongly agree with him the Oahu-centric commission was ignoring the damage they were willing to impose on Big Island voters out of a single-minded concern they might accidentally extract a small number of Oahu-based service members. In my view, Judge Marks was in a very uncomfortable, perhaps even untenable position, trying to forge a consensus from a very divided commission, some members of which, in my opinion, were beyond reasoning with.
CWD’s comments…. First off, her claim Oahu comprises “more than three-quarters of the state’s population” is not true. If we include the non-resident military, dependents and students, Oahu has about exactly 70% of the state population. If we use the state constitutional standard of “permanent residents,” Oahu has about exactly 2/3 rds of the state population. Had the 9 member commission’s composition reflected this, there would have been 3 neighbor island members on the commission.
The rest of her disagreement is with the language of the state constitution. The commission was NOT free to ignore the constitution. Nor was the state Supreme Court. She apparently believes the state constitution is in conflict with the federal constitution.
Some commissioners made remarks indicating they may agree. But the commission spent no time laying out the basis for such an argument. They only insinuated. The only “evidence” they introduced was a last minute presentation on the ethnicity of military personnel. Among the insinuations made was that whites were present in the military in higher percentages than in the civilian population, implying the exclusion might trigger a civil rights claim based upon discrimination against haoles. They also mentioned African Americans and Hispanics, but it was the haole variation I found fascinating. I DO find it ironic that the two commissioners most vocal about hypothetical civil rights violations are Republicans. I can only assume they are using their Republican connections to rein in the efforts of Republican legislators nationwide to pass voter ID laws which will have the likely impact of suppressing voter participation from African Americans, Latinos, Native Americans, the elderly and the poor. Perhaps they can pass a resolution to their national leadership at their upcoming state convention? I won’t hold my breath.
CWD’s sense of the REAL reason to the opposition to the adopted plan is also way off the mark. It may be a factor in Senator Solomon’s opposition. But it did not figure into my thinking nor that of any of the many non-Big Island people I spoke to during the many months I was engaged in fighting this plan. She should go to the Big Island and tell Hawaii County residents they only care about Malama and Lorraine Inouye’s political careers and not their own rights to fair representation. Her “realism” would get her laughed off the island. Prominent Big Isle Republicans Richard Henderson and Elroy Osorio were involved in helping organize opposition to the plan to deny them a fourth senator. Tell them they were motivated by a concern over either Senator Solomon or Senator Lorraine Inouye.
I am hoping the commission will now invite input from the public on how to adjust the population count fairly, in keeping with the instructions from the Court. I am a bit discouraged by Judge Marks’ comments about the need for more guidance. Had the commission been willing to entertain such a discussion months ago, when some of us tried to start such a discussion, we would be further along. I do not deny locating the residences and estimating the numbers of non-resident military and dependents for the Step Two stage, redistricting, will be complicated. There is no way they can “extract” all non-residents at that stage. Nor, as I testified, would it be fair to assume all people living in military housing areas are non-residents. We know a small percentage, about 2%, of service members ARE Hawaii residents. In previous reapportion calculations, it was assumed military dependents “Follow the residency” of the active duty member. Judge Marks told a reporter some spouses are nurses and teachers. Apparently nurses must be Hawaii residents to work off-base. Teacher do NOT need to be Hawaii residents, though it does give them marginal priority in getting appointments, transfers, etc, within the DOE– ALL OTHER FACTORS BEING EQUAL (education level, seniority, credentials, etc.)
Fine, so how many military spouses does Judge Marks think might be residents because they are teachers or are employed as nurses in non-military hospitals or doctor offices. Let me suggest the number is “de minimus,” meaning too small to be significant.
Instead of engaging in these sort of necessary adjustments to the non-resident status of military housing areas, the majority of the commissioners adopted the attitude the small degree of uncertainty introduced means they have to err on the side of assuming ALL military personnel might be permanent residents.
The Court ruling, as I read it, does not discount the difficulty. They do say the difficulty should not cause the commissioners to throw their hands in the air and refuse to make a good faith best effort to come up with estimates which they are confident represent a relatively close approximation of the number of qualified permanents residents. They should strive to not extract too many. But they should strive EQUALLY to not leave too many in.
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The State’s exclusion of so-called “non-residents” is plainly unconstitutional under Federal law. If anybody has the wherewithal to sue, it will be overturned and the SCOTUS will order Hawaii to count every human being. A lawsuit should have been filed 10 years ago–but nobody stepped up to do it.
It is far from “clear” the exclusion of non-residents violates the federal constitution. Some of the commissioners raised this possibility, but never outline the elements of their argument. I would invite “Censored” to lay out his arguments. If his reasoning indicates it would be a slam dunk, he may be able to attract an attorney eager to carry on the campaign for him.
I am not an attorney by any means, but the Hawaii Supreme Court ruling supported virtually every point I had made in my various testimonies before the Commission so I think I have demonstrated some grasp of the constitutional issues involved.
The US Supreme Court as never ordered a state to “count every human being” for reapportionment. If that is the basis for “Censored” claim, there is no need to continue. Their attorney can save their time and money. To the contrary, the SCOTUS has long held states have a right to decide upon their own population base for state-level reapportionment, though certain forms of discrimination are not permitted.
For example, if the policy were to exclude all military personnel, it would be unconstitutional. Alaska’s constitution had such a clause, restricting apportionment to a count of the civilian population. Here is the US Supreme Court, commenting on Hawaii’s reapportionment plan in a landmark ruling, Burns v. Richardson (1966):
“The difference between exclusion of all military and military-related personnel, and exclusion of those not meeting a State’s residence requirements is a difference between an arbitrary and a constitutionally permissible classification.”
I wish to call attention to the fact that ruling was not a general ruling based upon a set of dissimilar circumstances in another state, but from a review of a Hawaii reapportionment plan. To show the similarity, here is some of the Court’s reasoning:
“Both the tourists and the military tend to be highly concentrated on Oahu and, indeed, are largely confined to particular regions of that island. Total population figures may thus constitute a substantially distorted reflection of the distribution of state citizenry. If so, a finding that registered voters distribution does not approximate total population distribution is insufficient to establish constitutional deficiency. It is enough if it appears that the distribution of registered voters approximates distribution of state citizens or another permissible population base.”
In 2001, the Reapportionment Commission had originally voted to count all military dependents. This angered a lot of residents, particularly on the neighbor islands, who felt they were being cheated. The commission then re-voted 5-4 to exclude military dependents, with the chair, Wayne Minami, switching his vote. Here are some comments from a Star-Bulletin story at the time:
“Minami’s swing vote was welcomed by the panel’s four Republicans, who have lobbied since this summer to get the Democratic majority to agree to a map that truly reflected the state’s population shift toward the neighbor islands and away from Oahu. ”
“Hawaii Republican Party Chairwoman Linda Lingle, who watched yesterday’s proceedings, said she believes Maui and Hawaii each will gain a House seat from Oahu.”
“Lingle praised Minami for his leadership and for taking the new map out for another round of public hearings — surprising openness by a state reapportionment panel.”
“‘I think you’re going to come up with a plan that is really in the public interest, and is fair,’ Lingle said. “
From other comments Censored has made, I can see he is a Lingle supporter. Perhaps he should direct his anger towards Ms. Lingle and ask her why she celebrated such blatant discrimination in 2001?
When I was a student, I would still vote, via absentee ballot, for races in my permanent residence, not my temporary, school residence. However, some other students established residence and voted at the precincts for their school addresses.
Aren’t all the non-residents that by their choice? I.e., they could choose to establish residence here, pay state income taxes, register their vehicles, etc, as well as vote here. Instead, many choose to not establish residence, in which case, couldn’t they could still vote via absentee ballot wherever their residence is established?
Which leads to the question of how the reapportionment committee addresses the local absentees, e.g., National Guardsman deployed overseas, students in college on the mainland, etc., when the census is taken.
great/thoughtful comments.
why isn’t the commission just repeating what was done in 2000, 1990, or 1980?
has the structure of the census data changed? have the laws changed?
if the census doesn’t have the data to do a 1o0% accurate count of non-residents, and some subjectiveness is needed to complete the task, then why not plan A over plans B or C? doesn’t someone have to make a call at some point?
Censored should be, for certain.
I continue to believe most have not read the Hawaii State Constitution and those few who have may not have done so with much comprehension, including many state attorney general deputies and deputy county corporation counsel folks.
The degree of understanding of the four county charters is even worse.
Yet, every two years a bunch of men and women wearing their Sunday finest swear to uphold each of these documents. Strange isn’t it?.
The US census, by protocol and design, purposely excludes absent military & students from its count in their hometowns.
Military and students are residents where they live, for all practical purposes, and deserve representation. Whether they vote or not is immaterial to the question, youth and inmates and infants and the disabled, and many others by choice, also do not vote but are still counted for proportionate representation.
If we do not apportion representation to our resident military & students, they are not counted anywhere else and so are ‘taxed without representation.’
Interesting how our ‘progressives’ are so eager to disenfranchise blacks, Latinos and others who wear the nation’s uniform. One man-one vote, for these ‘progressives,’ means nothing, instead they prefer xenophobic agitation to deprive these tax paying, school attending, gas & liquor & cigarette and auto registration & family courts & civil/criminal court using RESIDENTS of their proportionate representation.
Ah, the irony of the marxist dialectic–the more ‘democratic’ they pronounce themselves to be, the less they wish to count all the residents in the ‘demes’ (neighborhoods) so as to prefer some demes over others. As in Animal Farm, all animals are equal, but some are more equal than others. Remember, the military are NOT COUNTED by the census in their home towns!
This whole anti-outsider, local-preference attitude stinks. Clothe it in the nomenclature of ‘progressive activism’ if you like, it still stinks.
HD, you either did not read the material or choose to ignore its contents.
First, this is not locals vs. non-locals, it’s local-Oahuans vs. local-Neighbor Islanders.
Second, the Republicans — including Linda Lingle — supported the exclusion of non-resident military, etc. And, last time I checked, the Republicans are anything but “progressive.”
I still remain concerned about the federal constitutional implications of the exclusion but I have not had the time to research the issue and, as pointed out above, no one else appears to have explored the issue in detail, either.
HD,
I can see you are in the grip of an intense passion, so I’ll tread lightly. I find it odd you attribute the decision to exclude non-resident military to “progressives.” I am aware Glenn Beck has specialized in portraying the progressives as some sort of secret, sinister plot, akin to the Illuminatti, the Masons or perhaps the “Elders of Zion” in our sinister influence from behind the curtain.
Each county had a reapportionment advisory council, two Democrats and two Republicans. Gene Ward and Sam Slom selected the Republicans. Every Republican on each neighbor island advisory council opposed the inclusion of non-resident military. I guess they were “crypto-progressives”? The Hawaii Supreme Court has five justices. Two Republicans, James Duffy and the Chief Justice, Mark Recktenwald and three Democrats. The court voted unanimously the inclusion of non-residents violated the state constitution.
The two citizen activists who kick-started the resistance to the plan, were former Republican state senator, Fred Rohlfing and Madge Schaefer, a Republican former mayor of Thousand Oaks in California. Fred was appointed by the notorious progressive, Sam Slom. Madge was appointed by the covert progressive, Gene Ward.
Just a very minor point of clarification, here, Bart. Duffy may have been appointed by a Republican but he is not one himself. He was really the only option on the list given Lingle at the time. Although he is very religious (attends Mass daily), he is no conservative, as demonstrated in part by his longtime professional association with law partner and Democrat operative Wally Fujiyama.
I don’t thinks it’s necessarily a matter of not being represented or being disenfranchised. Students and military personnel and their families living away from their hometown can still vote in their hometown elections via absentee ballots and thus be represented, albeit in their hometown.
I’m not sure how this figures into things, but military personnel and dependents who are overseas don’t count toward census numbers anywhere in the USA.
I find it interesting that, for reapportionment purposes, we are trying to exclude non-residents, but I’m not aware of any attempts or requirements to take into account absentees.
Maybe you miss the point, too, which is why you are wondering about the constitutional issues.
‘One man, one vote’ is an equal apportionment of representation issue, it doesn’t mean everyone is a voter. Remember the ignoble compromise treating slaves as 2/3 of a person for apportionment in the early Republic?
Here our, whatever, Republicans, progressives, anti-Oahu crowd, are seeking to treat our volunteer military, and our in-residence students, as ‘non-residents.’ What, they’re not living here? We know they’re purposely not counted elsewhere. How can this exclusion from proportionate representation be constitutional?
Your ‘gotcha’ on which political partisans were among those for this exclusion is beside the point. It’s just plain wrong to have, say 50,000 people, including 20,000 in-residence soldiers, airmen, sailors and dependents, and 30,000 other citizens, represented by one legislator while, elsewhere, say, 30,000 citizens in another area have one legislator.
These residents pay local sales, cigarette, gasoline, vehicle weight and other taxes, they are subject to local courts & police, they deserve to be proportionately represented. Whether they vote here is irrelevant. And whether they ‘intend’ to be permanent residents here is also moot for their civil right to representation. The military is spending billions on 50-year contract upgrades and management of housing for resident military–they do reside here, in substantial numbers. and on a long-term basis. Exclusion from representation is just wrong. Likely, the State Constitution is out of conformity with the United States’ constitution in this regard, if that is the determining factor in this local issue now. That is why Judge Marks has the concerns she does.
I’m glad that you’re raising questions and arguing the issue.
But, no, exclusion of nonresidents is not “just plain wrong.”
In your calculus, perhaps.
But clearly there are several ways of analyzing this issue.
Since there is considerable disagreement, even here, it obviously isn’t “just plain wrong.”
These interpretations are different. Assumptions are different. Lots of room for debate.
What is the correct way to under-represent the military population?
What assumptions leave them deliberately uncounted here, uncounted at home, and can happily allow this when all other states but Kansas do count them?
Our sophisticated aversion to the ‘just plain wrong’ locution needs a bit of defense.
Based on the SCOTUS info Ian has posted, it appears that the census is not the be-all and end-all for determining representative boundaries.
In any district in which there are a significant number of absentee ballot requests from out of the district, IMO the appropriate reapportionment body should be trying to account for this.
This is the corollary half of the non-resident discussion that seems to go unaddressed here.
The US Census explicitly instructs its field reps to leave absent military and students out of the count, they are considered resident elsewhere. If they vote absentee in their home area, they may have that right, but they are not counted, and thus not proportionately represented, in their home districts.
If this reversal of the Commission’s plan stands, they will not be represented where they reside, either. They will be taxed and policed and generally ruled over by legislators here, but without proportionate representation.
After skimming this material, the notion of simply not having districts makes a lot of sense. Districts may have made sense in the days of canoes and letters but those days of more primitive communication and transportation technologies are [apparently, I?ll concede they may return] more in the past than the future. Thought should be given to abandoning primitive democratic forms. The worst present in the U.S. [and perhaps world ] are the electoral college and the U.S. Senate. Second place to the College of Cardinals.
It would be useful if somebody with knowledge of past reapportionment processes could explain why this reapportionment seems to be causing so much pilikia when past reapportionments seem to have been done without nearly this amount of friction.
Is that simply because we forget what happened ten years ago, or was there something past commissions did that this commission did not do?
If this was covered in a recent press article, please excuse the newby question but provide a citation/url.
Lopaka,
Here is a link to news articles from the 2001 reapportionment: http://archive.fairvote.org/redistricting/reports/remanual/hinews.htm
I am not sure it was less contentious than today. It may just be easier to hear the different opinions today, due to the blogs and online commentary. In earlier times, you would have had to read the League of Women Voters’ newsletter to follow the debate.
The original 2001 plan was to count military dependents, which would have denied Maui a House seat the residents believed they deserved. They also intended to continue using canoe districts.
But when they held public hearings around the state, they ran into a lot of opposition to both ideas. I believe the public turnout was greater in 2001 than it was this year. Because of the opposition, the commission re-considered and had to do major revisions of the plan.
This year, the commission decided fairly early on to ignore the state constitution and include non-resident military, dependents and out-of-state students. That decision stunned a number of us.
Maui residents who had opposed the 2001 plan, egged on opposition from the neighbor islands. The Big Island was actually very slow to get roused into action. Fred Rohlfing called his old buddy, retired Republican senator Richard Henderson, who prodded Representative Herkes to start fighting back. Herkes requested an advisory from the Attorney General’s office, which confirmed the view held by pseudo-lawyers like me that the commission was violating the state constitution. That opinion put wind in the sales of the opposition. Even Big Island folks started to move.
I read the Final Report of the 1991 Reapportionment Commission. In their minutes, some commissioners were grumbling about the way the were being attacked in the press. If there had been blogs at the time, it would have undoubtedly been worse.
It is nice to read Bart’s witty, informed answers.
So what will the lines look like once the dust has settled?