In re 2011 Redistricting Cases

WINFREE, Justice,

with whom STOWERS, Justice, joins, dissenting.

I respectfully disagree with the court's May 22, 2012 order directing use of the April 5, 2012 Amended Proclamation Plan as the redistricting plan for the 2012 election.1 It is now beyond doubt that the April 5 plan violates the Alaska Constitution, at least with respect to Southeast Alaska. The Board recently constructed five different "Hickel plan" options for Southeast Alaska that are more compact and contiguous than the Southeast districts under the April 5 plan, and the difference cannot be explained by socioeconomic integration. This demonstrates that despite its previous arguments to the contrary, the Board did not first design the April 5 plan based solely on the requirements of the Alaska Constitution.2

It appears the Board followed our May 10, 2012 remand directive to construct Southeast Alaska voting districts in compliance with the Alaska Constitution,3 and the reformulated districts under the May 15 plan for Southeast Alaska appear, at least facially, to comply with constitutional requirements. I recognize that interested parties have not had a full and fair opportunity to appear before the Board and propose alternate plans, or raise their socioeconomic-integration objections to the May 15 reformulated plan. But if the 2012 election options are either the April 5 Amended Proclamation Plan or the May 15 *307reformulated plan,4 the former violates the Alaska Constitution and the latter may not. I therefore conclude that the May 15 reformulated plan should be the 2012 interim plan.

The court instead chose the April 5 Amended Proclamation Plan because of a newfound concern about application of the federal Voting Rights Act (VRA) to Southeast Alaska. In our May 10 order, we instructed the Board that the reformulated Southeast Alaska districts "should not be altered based on the [VRA] because there is no VRA justification for deviating from Alaska constitutional requirements in Southeast Alaska." 5 Why did we do that? Because the record before us indicated that the United States Department of Justice (DOJ) no longer considers "influence districts" when measuring retrogression but limits its consideration to "effective districts." This evidence came from the Board itself.

Dr. Lisa Handley, the Board's VRA expert, testified before the superior court that DOJ had changed the benchmark against which redistricting plans are evaluated for retrogression. Dr. Handley explained that a minority district is now evaluated solely to determine whether the district "had an ability to elect or did not have an ability to elect." Dr. Handley defined .the term "ability to elect" as "[wJhether [a district] usually elected the minority-preferred candidate or whether it usually did not." Dr. Handley further testified that if a district did not have an ability to elect over the past ten years, "it's not a protected district and ... there is not an obligation on the part of the jurisdiction to create an effective minority district to represent that district." Dr. Handley then testified that the prior influence district in Southeast Alaska "did not consistently elect the [Native] candidate of choice" in past election cycles and therefore was not effective. She also testified to being informed by a DOJ analyst that, under this new standard, Alaska's benchmark is five effective Native house districts and three effective Native senate districts. The conclusion that follows from this testimony is that DOJ would not reject as retrogressive a plan that failed to include an influence district in Southeast Alaska, because the former influence district in that region did not function as an effective district.

As we noted in our March 14 order, a constitutional redistricting plan "satisfies federal law without doing unnecessary violence to the Alaska Constitution."6 If, as the Board's VRA expert testified, there is no VRA justification for manipulating the Southeast districts to achieve certain percentages of Native Alaskan voting age population, then the Hickel process demands that those districts be drawn solely with reference to the requirements of the Alaska Constitution. Our May 10 order therefore required the Board to redesign the Southeast Alaska districts without reference to the VRA.

Sealaska Corporation argued we erred by concluding "there is no VRA justification for deviating from Alaska constitutional requirements in Southeast Alaska."7 It contended that "regardless of the continued legal significance of Native influence districts, the [VRA] prohibits retrogression of minority voting rights." Sealaska argued that "replacing a Native influence district currently comprised of 36.6 percent Natives with a ramp district with only a 26.6 percent Native population" and "parceling the remaining Native Alaskan voters among urban districts where their influence will be heavily diluted[ ] is precisely the kind of retrogression that the [VRA] prohibits." But nothing in the record suggests this is the standard DOJ currently uses to evaluate whether a redistricting plan is retrogressive, and Sealaska submitted nothing to us but argument to support its position.

*308The court evidently was swayed by Sealas-ka's argument, concluding there is a risk DOJ may not preclear the May 15 reformulated plan and the 2012 election would be disrupted. But the court neither explained how that risk changed since our May 10 remand order nor identified any evidence supporting a reassessment of that risk. Nor did the court explain why Sealaska's arguments about Southeast Alaska carry more weight than other parties' VRA challenges to districts in other areas of the state under the April 5 Amended Proclamation Plan.

I recognize the always-present risk that DOJ will not preclear an Alaska redistricting plan. Indeed, there is some risk that DOJ will not preclear the April 5 Amended Proclamation Plan. But the court's sudden defer-enee to a speculative risk assessment about the May 15 reformulated plan flies in the face of our rule that the Alaska Constitution is the starting point for redistricting and deviations to accommodate the VRA must be as limited as possible:8 In my view the Alaska Constitution comes first, and the ree-ord before us strongly suggests that the May 15 reformulated plan for Southeast Alaska complies with the Alaska Constitution and that deviations to accommodate the VRA are unnecessary.

I would therefore implement the May 15 reformulated plan as the interim plan for the 2012 election. If the Board's VRA expert is incorrect and if DOJ denied preclearance because it required an influence district in Southeast Alaska to avoid retrogression, then the Board, this court, and the Division of Elections would have a lot of work to do in a short amount of time to ensure that the 2012 election goes forward. This seems a small price to pay to honor the Alaska Constitution.

. The order is attached as Appendix 1 after Justice Stowers's dissent.

. In re 2011 Redistricting Cases, 274 P.3d 466, 467 (Alaska 2012) (citing Hickel v. Se. Conference, 846 P.2d 38, 51 n. 22 (Alaska 1992)) ("The Board must first design a plan focusing on compliance with the article IV, section 6 requirements of contiguity, compactness, and relative socioeconomic integration....").

. The order is attached as Appendix 2 after Justice Stowers's dissent.

. It seems beyond doubt that because of population changes throughout Alaska, the existing dis-tricting violates the fundamental constitutional mandate for equal voting districts, and therefore should not be used as an interim plan for the 2012 election.

. Alaska Supreme Court Order, at 2 (May 10, 2012).

. In re 2011 Redistricting, 274 P.3d at 467.

. Alaska Supreme Court Order, at 2 (May 10, 2012).

. In re 2011 Redistricting, 274 P.3d at 467-68 (quoting Hickel, 846 P.2d at 51 n. 22) ('The Board must first design a plan focusing on compliance with the article VI, section 6 requirements of contiguity, compactness, and relative socioeconomic integration" and may only "make revisions that deviate from the Alaska Constitution when deviation is 'the only means available to satisfy Voting Rights Act requirements.'").