In the Supreme Court of the State of Alaska
In Re 2011 Redistricting Cases )
) Supreme Court No. S-14721
) Order
) Petition for Rehearing
)
) Date of Order: 2/15/13
Trial Court Case # 4FA-ll-02209CI
Before: Fabe, Chief Justice, Winfree and Stowers, Justices, and Matthews
and Carpeneti, Senior Justices' [Maassen and Bolger, Justices, not
participating]
On consideration of the Petition for Rehearing filed by the Alaska Redistricting
BOUId on 1/7/13,
ITISORDERED: The petition for rehearing is GRANTED to the following extent:
On page 12 of the Opinion, "36 unchanged house districts" is modified to read
"22 unchanged house districts," and on page 13 "these 36 districts" is changed to
"these 22 districts."
In all other respects, the petition for rehearing is DENIED.
Entered by the direction of the court.
Clerk of the Appellate Courts
F abe, ChiefJustice, and Matthews, Senior Justice, dissent. They would grant the petition
for the reasons expressed in their dissent.
• Sitting by assignment under article IV, section 11 ofthe Alaska Constitution and
Alaska Administrative Rule 23(a).
Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
IN RE 2011 REDISTRICTING )
CASES ) Supreme Court No. S-14721
)
) Superior Court No. 4FA-11-02209 CI
)
) OPINION
)
) No. 6741 - December 28, 2012
)
Petition for Review from the Superior Court of the State of
Alaska, First and Fourth Judicial Districts, Juneau and
Fairbanks, Michael P. McConahy, Judge.
Appearances: Michael D. White and Nicole A. Corr, Patton
Boggs LLP, Anchorage, for Petitioner Alaska Redistricting
Board. Michael J. Walleri and Jason Gazewood, Gazewood
& Weiner PC, Fairbanks, for Petitioners Ronald Dearborn
and George Riley. Thomas F. Klinkner, Birch Horton Bittner
& Cherot, Anchorage, for Respondents Brenda Norheim,
Mark Jensen, and Nancy Strand. Scott A. Brandt-Erichsen,
Assistant Borough Attorney, Ketchikan, for Respondent
Ketchikan Gateway Borough. Joseph H. McKinnon,
Anchorage, for Amicus Alaska Democratic Party. Natalie A.
Landreth, Native American Rights Fund, Anchorage, for
Amici Alaska Federation of Natives; Bristol Bay Native
Corporation; First Alaskans Institute; McGrath, Takotna,
Nicolai, et al.; and Bering Straits Native Corporation. Joseph
N. Levesque, Levesque Law Group, LLC, Anchorage, for
Amicus Aleutians East Borough. Carol Brown, Association
of Village Council Presidents, Bethel, for Amicus
Association of Village Council Presidents. Jill S. Dolan,
Assistant Borough Attorney, and A. René Broker, Borough
Attorney, Fairbanks, for Amicus Fairbanks North Star
Borough. Marcia R. Davis, Calista Corporation, Anchorage,
for Amicus Calista Corporation. Thomas E. Schulz,
Ketchikan, for Amicus RIGHTS Coalition. Brooks W.
Chandler, Boyd Chandler & Falconer, Anchorage, for
Amicus Haines Borough. Jonathan Tillinghast, James
Sheehan, and E. Budd Simpson III, Simpson, Tillinghast,
Sorenson & Lorensen, Juneau, for Amici Sealaska
Corporation and Central Council of Tlingit & Haida Indian
Tribes of Alaska. Christopher Lundberg, Haglund Kelly
Horngren Jones & Wilder LLP, Portland, Oregon, for
Amicus Metlakatla Indian Community.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices, and Matthews, Senior Justice.*
CARPENETI, Chief Justice.
WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in
part.
MATTHEWS, Senior Justice, with whom FABE, Justice,
joins, dissenting.
I. INTRODUCTION
Earlier in the current redistricting cycle, we issued an order remanding to
the superior court with instructions to remand to the redistricting board to formulate a
new plan in compliance with our case law. We agreed with the superior court that, in
drafting its plan, the board failed to follow the process we mandated in order to ensure
that the redistricting plan would comply with the Alaska Constitution and thus may have
unnecessarily violated the Alaska Constitution. Upon remand, the board was instructed
to follow this process so that we could appropriately judge whether its violations of the
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
-2- 6741
Alaska Constitution were absolutely necessary for compliance with federal law. The
board then submitted a modified plan to the superior court that changed only four out of
forty house districts from the original plan; this amended plan was similarly rejected by
the superior court because, among other reasons, the board failed to follow the process
that we required in order to ensure compliance with the Alaska Constitution. The board
petitions for review of the superior court’s decision. We accept the petition for review
and, because the board failed to follow the process that we ordered upon remand, we
affirm the decision of the superior court and require the board to draft a new plan for the
2014 elections. We agree with the board that it is not required to make specific findings
about each individual district relating to the requirements of the Alaska Constitution nor
to submit a plan to the superior court at each stage of drafting.
II. FACTS AND PROCEEDINGS
Article VI, section 3 of the Alaska Constitution requires reapportionment
of the Alaska Legislature every ten years. Under article VI, section 10 of the Alaska
Constitution, the Alaska Redistricting Board (the Board) must adopt one or more
proposed redistricting plans within 30 days after receiving official census data from the
federal government. The Board must then hold public hearings on the proposed plans
and adopt a final plan within 90 days of the census reporting. Because Alaska is covered
by section 5 of the federal Voting Rights Act (VRA),1 the Board must also submit its
final plan to the U.S. Department of Justice (DOJ) for preclearance to ensure that any
1
Fannie Lou Hamer, Rosa Parks, & Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, §5, 120 Stat. 580
(2006) (codified at 42 U.S.C. § 1973c (2006)).
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voting changes do not diminish minorities’ ability to “elect their preferred candidates of
choice.”2
Following the 2010 census, the Board received the official census data on
March 13, 2011. On April 8, 2011, the Board hired Dr. Lisa Handley, a VRA expert.
Dr. Handley strongly recommended that the Board begin its redistricting process by
focusing on creating effective Native districts,3 given the difficulties posed by VRA
compliance in Alaska. On June 13, 2011, the Board formally adopted its final
Proclamation Plan. This plan received preclearance from the DOJ on October 11, 2011.
Three separate lawsuits were initially filed in superior court challenging the
Board’s final plan by four plaintiffs: the Fairbanks North Star Borough (FNSB), the City
of Petersburg, and George Riley and Ronald Dearborn, residents of Ester and the
Goldstream Valley (collectively Riley). These cases were later consolidated. The FNSB
then moved to dismiss its action, which the court granted with the proviso that the Riley
plaintiffs could pursue the FNSB claims. The City of Petersburg also dropped out of the
suit after the superior court granted summary judgment to the Board on the issue that
Petersburg had raised; Petersburg did not ask for reconsideration from the superior court
or file a petition for our review. Before trial, the superior court denied Riley’s claim
challenging the process used by the Board to formulate its proclamation plan, and on
February 3, 2012, the superior court issued its opinion denying Riley’s claims alleging
unconstitutional vote dilution. In its opinion, however, the superior court also concluded
2
42 U.S.C. § 1973c(d) (2006).
3
The superior court defined “effective Native districts” as “districts where
Natives have an ability to elect a candidate of their choice.” See also Corbett v. Sullivan,
202 F. Supp. 972, 984 (E.D. Mo. 2002) (defining “effective minority district” as one
where minority had “opportunity to elect candidates of their choice”).
-4- 6741
that Proclamation House Districts 1, 2, 37, and 38 unnecessarily deviated from the
requirements of the Alaska Constitution.
Both the Board and Riley filed petitions for review. Several entities also
filed amicus briefs, including the FNSB, the Aleutians East Borough, Calista
Corporation, and a coalition of several Alaska Native groups. On March 14, 2012, we
issued an order holding that the Board’s Proclamation Plan did not comply with the
process mandated in Hickel v. Southeast Conference4 (the Hickel process), and we
remanded the case accordingly.5
In our order, we gave the Board explicit instructions and specified a process
that
the Board must follow to ensure that our constitutional
redistricting principles are adhered to as closely as possible.
After receiving the decennial census data, the Board must
first design a reapportionment plan based on the requirements
of the Alaska Constitution. That plan then must be tested
against the Voting Rights Act. A reapportionment plan may
minimize article VI, section 6 requirements when
minimization is the only means available to satisfy Voting
Rights Act requirements.[6]
After setting forth the correct process for the Board to follow in order to comply with the
Alaska Constitution, we concluded that it was “undisputed that the Board began
redistricting in March and April of 2011 by focusing on complying with the Voting
4
846 P.2d 38, 51 n.22 (Alaska 1992).
5
See In re 2011 Redistricting Cases, 274 P.3d 466 (Alaska 2012).
6
Id. at 467 (quoting Hickel, 846 P.2d at 51 n.22 (internal quotation marks
and formatting omitted)).
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Rights Act, thereby ignoring the process we mandated.”7 Thus, we found the Board
erred by reversing steps one and two of the Hickel process.
Additionally, we explained why failure to follow the Hickel process was
fatal to the Board’s plan: The failure prevented meaningful judicial review because we
could not discern whether the Board’s deviations from Alaska constitutional
requirements were actually necessary. We stated:
Because it did not follow the Hickel process, the Board
cannot meaningfully demonstrate that the Proclamation
Plan’s Alaska constitutional deficiencies were necessitated by
Voting Rights Act compliance, nor can we reliably decide
that question. The Hickel process provides the Board with
defined procedural steps that, when followed, ensure
redistricting satisfies federal law without doing unnecessary
violence to the Alaska Constitution. The Board must first
design a plan focusing on compliance with the article VI,
section 6 requirements of contiguity, compactness, and
relative socioeconomic integration; it may consider local
government boundaries and should use drainage and other
geographic features in describing boundaries wherever
possible. Once such a plan is drawn, the Board must
determine whether it complies with the Voting Rights Act
and, to the extent it is noncompliant, make revisions that
deviate from the Alaska Constitution when deviation is “the
only means available to satisfy Voting Rights Act
requirements.”[8]
The Board was left with clear instructions to fulfill its constitutional
mandate and we further elaborated on the importance of the Hickel process in
redistricting:
7
Id.
8
Id. at 467-68 (quoting Hickel, 846 P.2d at 51 n.22).
-6 6741
The Hickel process assures compliance with the Alaska
Constitution’s requirements concerning redistricting to the
greatest extent possible. The Hickel process also diminishes
the potential for partisan gerrymandering and promotes trust
in government. . . . A redistricting plan that substantially
deviates from these constitutional requirements undermines
trust in the process.[9]
Thus, we held the Board erred by using its own method and ignoring Hickel. For the
sake of absolute clarity, we also rearticulated the Board’s duties and our own role in the
admittedly difficult process of redistricting:
We recognize that the Board is faced with a difficult task in
attempting to harmonize the requirements of the Alaska
Constitution and the Voting Rights Act. . . . But these
difficulties do not limit the Board’s responsibility to create a
constitutionally compliant redistricting plan, nor do they
“absolve this court of its duty to independently measure each
district against constitutional standards.” . . . The Hickel
process is designed to “ensure that the requirements of article
VI, section 6 of the Alaska Constitution are not unnecessarily
compromised by the Voting Rights Act”; it may not be
disregarded for reasons of expediency when drafting a
permanent plan.[10]
In our order, we explicitly stated that reasons of difficulty or expediency
do not justify deviating from the requirements of the Alaska Constitution.
Consequently, the Board was ordered to follow the Hickel process upon remand.11 We
9
Id. at 468.
10
Id. (quoting In re 2001 Redistricting Cases, 44 P.3d 141, 147 (Alaska
2002); Hickel) (footnotes omitted).
11
Id.
-7- 6741
also acknowledged that time constraints may have complicated compliance with our
order, and we approved the use of an interim plan if necessary:
If the Board is unable to draft a plan that complies with this
order in time for the 2012 elections, it may petition this court
for an order that the 2012 elections be conducted using the
Proclamation Plan as an interim plan. But legislative districts
for subsequent elections will be defined by the plan ultimately
arrived at by the Board after following the Hickel process.[12]
Thus, we notified the Board that we would not approve any final plan unless it was
drafted according to the Hickel process.
The Board met from March 26 to March 31 to develop a new plan based
on our order. The Board worked from what it termed a “Hickel template” that kept the
unchallenged districts from its original Proclamation Plan because the Board claimed
those districts “were drawn with only the Alaska Constitution in mind” and thus they
complied with the Hickel process.13 The Board’s template omitted regions from the
original Proclamation Plan that had been challenged, including House Districts 1-5
(Fairbanks City and FNSB); 36 (Bristol Bay and Aleutians East Borough); 37 (Bethel
and Aleutians West Borough); 38 (Wade Hampton and Denali); and 39 (Bering Straits
12
Id. at 468-69 (emphasis added).
13
But in describing the process used to construct the Proclamation House Plan
— which served as the template for the Amended Proclamation Plan — the Board began
its explanation with the following language: “In order to maintain the requisite number
of Alaska Native districts, . . .”. Thus, it appears that at least three of these template
districts were drawn with or approved with VRA requirements in mind: House District
40, which was intended to be one of the five effective Native districts, and House
Districts 32 and 34, which were drawn under the assumption that a Native influence
district had to be maintained in Southeast Alaska. (See infra n.14 for a definition of
“Native influence district.”) The Board claims that while House District 40 is a Native
district, it was not “built on Voting Rights Act grounds” because it was unchanged from
the 2002 redistricting plan.
-8- 6741
and Interior Villages). After developing the template, the Board created four plans using
that template and reviewed each for compliance with the Alaska Constitution. The Board
adopted one of these plans, finding that each house district within was “contiguous,
relatively compact and . . . socio-economically integrated.” While the Board undertook
this process and discussed its chosen plan with its VRA expert, third-party organizations
submitted five alternative plans. The Board discussed each of these third-party plans and
rejected them; it then adopted an amended version of its chosen plan. Eventually, the
Board’s modified plan became the Amended Proclamation Plan, and the Board
unanimously adopted its written findings in support of this plan on April 5, 2012. This
plan was then submitted to the superior court for approval as a final redistricting plan.
On April 16, 2012, seven parties and amici filed objections to the Board’s
Amended Proclamation Plan; among other deficiencies, each objector argued the Board
ignored the Hickel process by maintaining the original Proclamation Plan’s unchallenged
districts when creating its template instead of beginning with a clean slate. In response
to this objection, the Board argued that it was “under no obligation to redraw every
House district, especially ones that already complied” with the Alaska Constitution. On
April 20, 2012, the superior court issued an order denying the Board’s request for
approval of the Amended Proclamation Plan; among other issues, the superior court
found that the Amended Proclamation Plan violated Hickel because the Board assumed
that its unchallenged districts were constitutional, and it failed to redraw Southeast
Alaska even though these districts were created to comply with the Board’s assumption
that it had to maintain a Native influence district.14 The superior court declared:
14
The superior court defined a “Native influence district” as a district “where
Natives are able to influence the election but cannot elect a candidate of their choice
(continued...)
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Instead of redrawing a new plan that focused on the Alaska
Constitution, there is no dispute that the Board used most of
the districts from the [original] Proclamation Plan, with the
exception of the districts in Fairbanks and districts that were
created to satisfy the Voting Rights Act. . . . The court finds
that the Board’s method did not comply with either the spirit
or the letter of the Alaska Supreme Court’s order and the
Hickel process.
The superior court also concluded that the Board first had to submit a plan to the court
that complied with the Alaska Constitution without regard for the VRA, and only after
the superior court evaluated and approved this Hickel plan would it then be remanded
to the Board to make modifications necessary for VRA compliance.
The Board asked us to review the superior court’s decision, but due to
pending election deadlines, it also asked us to approve an interim plan for the 2012
elections. Extensive litigation ensued regarding the Board’s interim plan, and we
ultimately issued two orders adopting the Board’s Amended Proclamation Plan as the
interim plan.
Our order approving this interim plan once again reiterated that the Board
would have to follow the Hickel process before we would approve a final plan:
The Board’s petition for review from the superior court’s
order of April 20, 2012, has been submitted to this court and
remains under advisement. One of the issues raised by the
petition for review is whether the Redistricting Board failed
to comply with the Hickel process as mandated by this court’s
order of March 14, 2012, with respect to the Southeast
14
(...continued)
without the help of crossover votes” from non-Natives. See also Bartlett v. Strickland,
556 U.S. 1, 13 (2009) (defining “influence district” as “one in which a minority group
can influence the outcome of an election even if its preferred candidate cannot be
elected”).
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Alaska districts. Our order of May 10, 2012 is premised on
the conclusion that the Board did not so comply.
We now address the Board’s petition for review from the superior court’s order rejecting
the Amended Proclamation Plan as a final redistricting plan.
III. STANDARD OF REVIEW
Under article VI, section 11 of the Alaska Constitution, the superior court
has original jurisdiction over lawsuits to “compel correction of any error in redistricting”
and, on appeal, “the cause shall be reviewed by the supreme court on the law and the
facts.”15 We review redistricting plans “in the same light as we would a regulation
adopted under a delegation of authority from the legislature to an administrative agency
to formulate policy and promulgate regulations.”16 We review the plan to ensure that
the Board did not exceed its delegated authority and to determine if the plan is
“reasonable and not arbitrary.”17 We may not substitute our judgment as to the sagacity
of a redistricting plan for that of the Board, as the wisdom of the plan is not a subject for
review.18 Our review is meant to ensure that the Board’s Proclamation Plan is not
unreasonable and is constitutional under article VI, section 6 of the Alaska
Constitution.19
15
As to “the weight to be given to the decision of the superior court,” we said
in Groh v. Egan, 526 P.2d 863, 867 (Alaska 1974), that we review redistricting plans “de
novo upon the record developed in the superior court.”
16
Kenai Peninsula Borough v. State, 743 P.2d 1352, 1357 (Alaska 1987)
(quoting Carpenter v. Hammond, 667 P.2d 1204, 1214 (Alaska 1983)).
17
Id. (quoting Carpenter, 667 P.2d at 1214).
18
Id. at 1357-58 (quoting Carpenter, 667 P.2d at 1214).
19
Id. at 1358 (quoting Carpenter, 667 P.2d at 1214).
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IV. DISCUSSION
A. The Board Did Not Comply With The Hickel Process When
Formulating Its Amended Proclamation Plan.
The Board claims that it has followed our instructions to use the Hickel
process upon remand and asks us to approve its Amended Proclamation Plan as the final
redistricting plan. But it is undisputed that the Board began formulating its original
proclamation plan by focusing exclusively on race and creating the correct number of
effective Native districts. Thus, upon remand, the Board was instructed to consider the
requirements of the Alaska Constitution first when constructing districts.20 However,
what the Board actually did upon remand was to create a Hickel template that maintained
the boundaries of unchallenged districts from the original Proclamation Plan, resulting
in 22 unchanged house districts. The Board asserts that these districts “were drawn with
only the Alaska Constitution in mind” and thus they complied with the Hickel process.21
The superior court interpreted our March 14, 2012 order as an instruction
to the Board to begin its drafting process anew. The superior court found that “[i]nstead
of redrawing a new plan that focused on the Alaska Constitution, there is no dispute that
the Board used most of the districts from the [original] Proclamation Plan” and that this
“method did not comply with either the spirit or the letter of the Alaska Supreme Court’s
order and the Hickel process.”
We agree with the superior court that Hickel and our order mandated that
the initial map drawn by the Board should not be affected by VRA considerations in any
way, and therefore, the Board’s Amended Proclamation Plan was noncompliant. We
20
In re 2011 Redistricting Cases, 274 P.3d 466, 467 (Alaska 2012).
21
At least three of these template districts were drawn or approved with VRA
requirements in mind. See supra note 13.
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have already held that the Board began drawing its original Proclamation Plan by
creating VRA-compliant districts, a process that necessarily affected the contours of the
entire map.22 By adopting districts affected by the Board’s initial VRA considerations,
the Board’s Hickel template limited its available options. As the amici usefully put it,
on remand the Board “painted itself into a corner” by leaving only a few blank areas on
the map. This structure limited the Board’s ability to consider a wide range of plans to
achieve maximum constitutional compliance; notably, each of the Board’s four Hickel
options was aimed at addressing the same population shortfall issue in a single rural
district.
Moreover, when the Board first created these 22 districts, it did so in order
to comply with the VRA; this is a clear violation of Hickel’s plain language. Although
these districts went unchallenged, that does not change the fact that they were drawn with
VRA considerations as the first priority. We do not know if these districts will meet the
Alaska Constitution’s requirements of compactness, contiguity, and socio-economic
integration, but they were not drawn with this purpose as the primary consideration.
Without a plan that does so, it is impossible to measure if deviations from Alaska
constitutional requirements were necessary. Consequently, there is nothing to show that
if the Board had considered the Alaska constitutional requirements first, as instructed,
these districts would have remained the same. The Board’s failure to follow the Hickel
process has therefore precluded meaningful judicial review.
B. The Board Does Not Need To Make Specific Findings About Each
Individual District Relating To The Requirements Of The Alaska
Constitution.
22
In re 2011 Redistricting Cases, 274 P.3d at 467.
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The Board challenged the superior court’s ruling that required the Board
to make specific findings regarding each individual house district. The superior court
seemed to derive its conclusion from the following passage of our March 14 order:
“[T]hese difficulties do not limit the Board’s responsibility to create a constitutionally
compliant redistricting plan, nor do they ‘absolve this court of its duty to independently
measure each district against constitutional standards.’ ”23 Based on this language, the
superior court reasoned that the Board was required to submit district-specific findings
so that we could measure the constitutionality of each district. The Board argues that this
ruling is the “epitome of form over substance, and creates a mandate obviously absent
from [our] order.” The Board also highlighted its express finding that all 40 house
districts in the Amended Proclamation Plan were constitutionally compliant.
There is no indication in the 2001 Redistricting order or in our March 14
order that our duty to measure each district for constitutional compliance creates a
corresponding requirement that the Board make individual findings regarding each
district’s constitutionality. In our March 14 order we “recommend[ed] that the Board
make findings, in furtherance of the Hickel process, that the initially designed plan
complies with the requirements of the Alaska Constitution . . . .”24 Our recommendation
did not extend to findings about each district. The Board is not required to specifically
find that each district in its Hickel plan complies with the Alaska Constitution.
C. The Board Need Not Submit A Plan To The Superior Court At Each
Stage Of Drafting.
23
Id. at 468 (quoting In re 2001 Redistricting Cases, 44 P.3d 141, 147
(Alaska 2002)).
24
Id. at 468 n.15.
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The Board also challenged the superior court’s ruling that it must submit
a Hickel plan to that court for approval before creating a final plan. The superior court
stated in its April 20, 2012 order that it must “receive a plan from the Board that
complies with the Alaska Constitution before considering any need to meet any VRA
requirements.” Once the superior court approved the plan, “the matter will be remanded
again to the Board” to develop a plan that deviates from the requirements of the Alaska
Constitution only when necessary for VRA compliance. The Board argues that this
ruling has no support in the detailed mandates of the Alaska Constitution and our prior
case law. It also contends that the superior court created “a completely new,
unprecedented level of court involvement in the redistricting process” without
establishing “just how and when this review is supposed to occur in future redistricting
cycles.”
Neither Hickel nor the March 14 order expressly or impliedly requires the
Board to submit its Hickel plan for superior court ratification before proceeding to weigh
VRA compliance. Article VI, sections 10 and 11 of the Alaska Constitution delineate
the process the Board must follow in developing a proclamation plan and the contours
of judicial review, and nowhere do these provisions suggest a two-stage review is
required. Therefore, we hold that the Board is not required to submit its initial
Hickel plan to the superior court for ratification.
D. All Other Claims Raised In This Petition for Review Are Moot.
The Board also challenged the superior court’s rulings that the
configuration of certain house districts that deviated from the requirements of the Alaska
Constitution were not necessary for compliance with the VRA. Since we find the Board
did not comply with the Hickel process in formulating its plan, we need not reach these
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claims as these districts may have a completely different configuration in the new plan
the Board will have to create, and therefore, these claims are moot.
V. CONCLUSION
Because the Board failed to follow the Hickel process when drafting its
Amended Proclamation Plan, we AFFIRM the superior court’s ruling invalidating that
plan and REMAND this case to the Board to draft a new plan based on strict adherence
to the Hickel process. We REVERSE the superior court’s rulings that the Board must
make specific findings on the constitutionality of each house district and that the Board
must submit the plan to the court for approval at each stage of drafting.
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WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in part.
I agree that the Alaska Redistricting Board did not follow the instructions
set out in our March 14, 2012, order and therefore agree to affirm that point of Judge
McConahy’s remand order. It appears the Board considered our order to be form over
substance and reformulated its packaging rather than its plan.
I also agree that, at this juncture, it was error for the superior court to
require the Board to submit an initial plan, based solely on the Alaska Constitution, for
court approval before making any necessary adjustments to satisfy federal voting law
requirements. I therefore agree to reverse that point of Judge McConahy’s remand order.
But I note that the Board’s further failure to comply with the Hickel process1 might
justify such a requirement.
I disagree with the conclusion that the Board should not, at this juncture,
be required to make specific district-by-district findings regarding the three factors
constitutionally mandated for a redistricting plan: contiguity, compactness, and relative
socio-economic integration.2 Having twice failed to follow the Hickel process, the Board
should be required to make findings allowing appropriate judicial review of its
determinations. I therefore would affirm this point of Judge McConahy’s remand order.
But I make the following observations in this regard. First, conclusory “findings” on the
three factors underlying a constitutional redistricting plan are not particularly helpful,
especially with regard to comparative socio-economic integration.3 Second, whether a
1
Hickel v. Se. Conference, 846 P.2d 38, 51 n.22 (Alaska 1992).
2
Alaska Const. art. VI, § 6.
3
Id. (stating that the contiguous and compact districts must “contain as
nearly as practicable a relatively integrated socio-economic area”). See Hickel, 846 P.2d
at 46-47 (describing characteristics of socio-economic integration and emphasizing that
(continued...)
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redistricting plan ultimately complies with the Alaska Constitution is not a question of
fact; it is a question of law subject to independent review by the judiciary — I would
give no deference to a Board “finding” that its redistricting plan complies with the
Alaska Constitution when our role is to “review [a] redistricting plan[] ‘de novo upon the
record developed in the superior court’ ”4 to ensure that the plan “is not unreasonable and
is constitutional under the provisions of Article VI, section 6 of Alaska’s constitution.”5
3
(...continued)
“relatively” requires comparisons with previously existing and proposed districts as well
as principal alternative districts).
4
In re 2001 Redistricting Cases, 47 P.3d 1089 (Alaska 2002) (quoting Groh
v. Egan, 526 P.2d 863, 867 (Alaska 1974)).
5
Carpenter v. Hammond, 667 P.2d 1204, 1214 (Alaska 1983) (citing Acker
v. Love, 496 P.2d 75 (Colo. 1972)).
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MATTHEWS, Senior Justice, with whom FABE, Justice, joins, dissenting.
The main question under review is whether the Alaska Redistricting Board
complied with our order concerning the Hickel process when it used unchallenged
districts or whether the Board should have begun the redistricting process anew.
Today’s opinion concludes that a fresh start was required. I disagree and believe that the
Board’s approach was practical and reasonable.
A. Actions Taken By The Board On Remand
The underlying problem facing the Redistricting Board was the difficulty
of complying with both the federal Voting Rights Act and the redistricting criteria set out
in article VI, section 6 of the Alaska Constitution. The purpose of the Voting Rights Act
is to protect the voting power of racial minorities. A reapportionment plan is invalid
under section 5 of the Act if it leads to “retrogression” in the relative position of racial
minorities with respect to their effective exercise of the electoral franchise.1 The
redistricting criteria of article VI, section 6 of the Alaska Constitution require that each
house district “shall be formed of contiguous and compact territory” that contains “as
nearly as practicable a relatively integrated socio-economic area.”2 Because the federal
Act has priority, sometimes the Alaska redistricting criteria must be compromised in
order to avoid retrogression.
To ensure that the Redistricting Board does not unnecessarily deviate from
Alaska constitutional standards in order to comply with the Voting Rights Act we
directed the Board in Hickel v. Southeast Conference to follow the procedure that now
bears the name of that case. We stated in Hickel:
1
Hickel v. Se. Conference, 846 P.2d 38, 49 (Alaska 1992).
2
Alaska Const. art. IV, § 6.
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The board must first design a reapportionment plan based on
the requirements of the Alaska Constitution. That plan then
must be tested against the Voting Rights Act. A
reapportionment plan may minimize article VI, section 6
requirements when minimization is the only means available
to satisfy Voting Rights Act requirements.[3]
The Redistricting Board in the present case did not follow the Hickel
process in formulating the original Proclamation Plan.4 This failure was challenged by
Riley in his petition for review from the superior court’s initial decision on the merits.
In our order of March 14, 2012 we agreed with Riley that the Board had erred in failing
to comply with the Hickel process.
We explained:
The Hickel process provides the Board with defined
procedural steps that, when followed, ensure redistricting
satisfies federal law without doing unnecessary violence to
the Alaska Constitution. The Board must first design a plan
focusing on compliance with article VI, section 6
requirements of contiguity, compactness, and relative
socioeconomic integration; it may consider local government
boundaries and should use drainage and other geographic
features in describing boundaries wherever possible. Once
such a plan is drawn, the Board must determine whether it
complies with the Voting Rights Act and, to the extent it is
noncompliant, make revisions that deviate from the Alaska
Constitution when deviation is “the only means available to
satisfy Voting Rights Act requirements.”[5]
We remanded this case to the Board to comply with the Hickel process.
3
846 P.2d at 51 n.22.
4
A map of the original Proclamation Plan is attached as Appendix A.
5
In re 2011 Redistricting Cases, 274 P.3d 466, 467-68 (Alaska 2012)
(quoting Hickel, 846 P.2d at 51 n.22).
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On remand, the Board reconvened on March 26 and met continuously for
six days. After considering four options, the Board settled on a Hickel plan, that is, a
plan designed to comply with Alaska constitutional criteria.6 The Board then conducted
an analysis to determine whether the plan would be considered retrogressive under the
Voting Rights Act. The Board determined that its Hickel plan would be considered
retrogressive and would not be granted preclearance by the Department of Justice. The
Board then examined various options for changing the Hickel plan in order to comply
with the Voting Rights Act. After deliberating on many options and plans submitted by
numerous interest groups, the Board adopted the Amended Proclamation Plan on April
5, 2012.7
The Board described in a written report the process it used to adopt the
Hickel plan. The Board first asked its staff to design several Hickel plans for its
consideration. As a basis for drafting the various options, the staff was instructed to
create what the Board called the “Hickel template.” The template consisted of election
districts from the original Proclamation Plan that were designed to comply with Alaska
redistricting criteria independent of Voting Rights Act considerations.8
The Hickel template left space for four undrawn districts in rural Alaska.
These districts encompassed a very large area, more than half the state geographically,
and they became Districts 36, 37, 38, and 39 under the Board-adopted Hickel plan.
Because these four undrawn districts only had sufficient population for about 3.5 House
districts, substantial population needed to be added from an urban area of the state to at
6
A map of the Hickel plan is attached as Appendix B to this opinion.
7
A map of the Amended Proclamation Plan is attached as Appendix C to this
opinion.
8
A map of the Hickel template is attached as Appendix D to this opinion.
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least one of the rural districts. In order to decide what to adopt as its Hickel plan, the
Board considered four provisional plans created by its staff that took population
respectively from the urban areas of Fairbanks, the Matanuska-Susitna Borough,
Anchorage, and the Kenai Peninsula Borough. The three latter plans crossed the
template boundaries in various ways. After considerable deliberation, the Board settled
on the option that took population from suburban Fairbanks and adopted the Hickel
plan.9 One advantage of resolving the rural population shortfall by taking population
from the Fairbanks North Star Borough was that this area had excess population
equivalent to about one-half a district that had to be accommodated in some way.
Set forth here are the Board’s findings concerning adoption of the Hickel
plan:
1. As a starting point for complying with the
Hickel Process, Board staff was tasked with designing several
“Hickel Plans” for consideration by the Board.
2. In creating these plans, Board staff was
instructed to create a “Hickel Template” as the basis for
drafting the various options. The Hickel Template does not
change those election districts from the Proclamation Plan
that: (1) were constructed to comply [with] Alaska
constitutional redistricting requirements without reference to
the [Voting Rights Act]; and (2) were either not subject to, or
directly or indirectly, affected by any successful legal
challenge. Statewide and regional maps of the Hickel
Template were posted on the Board’s website and are part of
the Board record.
3. Under the Hickel Template, there were four
undrawn election districts in rural Alaska that needed to be
created. Based on the census data, Board staff determined
9
See Appendix C.
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that to create four “ideal” election districts, requires a
population of 71,020 (17,755 x 4).
a. To draw these districts at deviations of -5.0%
requires a population of 67,468.
b. The undrawn areas had a population of 62,240
or enough population for approximately 3.5 House
Districts.
c. Thus, in order to comply with the equal
population requirements of art. VI, sec. 6, substantial
population needed to be added from some urban area
of the state to at least one rural district. The
requirement of adding urban population to a rural
district is, as noted by both the trial court and the
Supreme Court, not a matter of “if” but only a matter
of “where” and has nothing to do with the
requirements of the [Voting Rights Act].
4. In order to resolve the rural population shortfall,
staff was instructed to attempt to design Hickel Plans that
took population out of the four urban areas of the state:
Fairbanks, the Mat-Su Borough, Anchorage, and Kenai.
5. On March 26, 2012, the Board reviewed,
considered and discussed on the record three Hickel Plans
created by Board staff referred to as “Hickel 001,” “Hickel
002” and “Hickel 003.” These plans solved the rural
population shortfall by taking population out of Fairbanks,
Mat-Su, and Anchorage, respectively. Another plan, “Hickel
004”, which took urban population from Kenai, was
presented to the Board on March 27, 2012. Copies of all four
Hickel Plans were posted on the Board’s website and are part
of the Board record.
6. After discussion, the Board instructed its
counsel to review the proposed Hickel Plans for compliance
with the Alaska Constitution.
7. On March 27, 2012, counsel for the Board
provided the Board with a written memorandum setting forth
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his analysis of the four proposed Hickel Plans. A copy of this
memorandum was posted on the Board’s website and is part
of the Board record. Board counsel also explained his
analysis on the record and answered questions from Board
members.
a. Board counsel’s analysis determined that the
Hickel 001 plan complied with the requirements of art.
VI, sec. 6 of the Alaska Constitution.
b. Board counsel’s analysis determined that each
of the other three Hickel Plans did not comply with the
requirements of art. VI, sec. 6 of the Alaska
Constitution for the reasons set forth in Board
counsel’s memorandum and as explained on the
record.
8. After discussion and deliberation, the Board
unanimously adopted by a 5-0 vote the “Hickel 001” plan as
its “Hickel Plan” for purposes of the Hickel Process.
9. The Board’s Hickel Plan complies with the
requirements of the Alaska Constitution. All forty (40) of the
House districts are contiguous, relatively compact and, as
nearly as practicable, socio-economically integrated. The
Plan has an overall deviation of 8.93% which is within the
equal population requirements of art. VI, sec. 6 of the Alaska
Constitution. Each of the Senate districts is composed of two
contiguous House districts.
The Board next turned to the question of whether the Hickel plan it adopted
complied with the Voting Rights Act. Dr. Lisa Handley, the Board’s expert consultant,
studied the Hickel plan and came to the conclusion that it was retrogressive and would
not be approved by the Department of Justice. Dr. Handley explained that the original
Proclamation Plan10 had five “effective” (or “ability to elect”) Alaska Native state House
10
Which the Department of Justice had already approved and therefore would
(continued...)
-24- 6741
districts: Districts 36, 37, 38, 39, and 40. All of these districts were majority Native
population districts, but two of them, 37 and 38, had only approximately 46% Alaska
Native voting age population (NVAP).11 Dr. Handley also explained that the original
Proclamation Plan contained three effective Senate districts: two majority Alaska Native
Senate districts, Districts T and S, and Senate District R with a 43.75% NVAP.12 But,
because the Hickel plan contained one fewer effective House district and one fewer
effective Senate district, changes had to be made in order to comply with the Voting
Rights Act and obtain preclearance from the Department of Justice.
How the Hickel plan should be changed to comply with the Voting Rights
Act was much discussed by the Redistricting Board. The Board eventually decided that
three of the districts in the Hickel plan, 37, 38, and 39, would have to be altered in order
to create a fifth effective House district. Because Districts 38 and 39 had NVAPs of over
80%, and District 37 had an NVAP of only approximately 33%,13 the reconfiguration
would have to place many Alaska Native voters from Districts 38 and 39 into District 37,
which in turn would be altered to place some non-Native voters into Districts 38 and 39.
The Board’s report states the problem as follows:
In order to create a fifth effective House district, HD-37 in
the Hickel plan must be substantially reconfigured and the
two districts with over 80% Alaska Native Voting Age
Population (“NVAP”) — HD-39 with 84.22% NVAP and
HD-38 with 82.65% NVAP — must be unpacked and the
10
(...continued)
serve as the benchmark for measuring retrogression.
11
This percentage was enough to make the districts effective.
12
This percentage was sufficient to make Senate District R effective.
13
Which would not be effective.
-25- 6741
NVAP spread out in order to allow for the creation of a fifth
effective House district.
Looking at the maps of the Hickel plan and the Amended Proclamation
Plan, one can see that the “unpacking” process primarily entailed three steps. First, the
Board combined the heavily NVAP Norton Sound and middle Yukon River areas with
a region of rural eastern Alaska where Alaska Natives are not a majority to form
District 39 in the Amended Proclamation Plan.14 Second, the Yukon River Delta (the
Wade Hampton census district) with its heavy NVAP (which was the southern part of
District 39 under the Hickel plan) was extended east to encompass the primarily non-
Native Denali Borough and the suburban Fairbanks areas of Ester and the Goldstream
Valley to create House District 38 in the Amended Proclamation Plan.15 Third, the
remainder of District 38 in the Hickel plan was distributed to Districts 36 and 37 in the
Amended Proclamation Plan.16
The creation of a third effective Senate district also required changes to
what were Districts 36 and 38 in the Hickel plan. The Board adopted the so-called
Bethel-to-Chain Plan (referring to the Aleutian Chain) which placed the City of Bethel
in the same district with the Aleutians by creating a long coastal district, District 37, in
the Amended Proclamation Plan.17 The balance of the Bethel census area was packed
into a district that includes areas of Southwest Alaska from Tyonek on Cook Inlet to
King Salmon on the Alaska Peninsula. This newly configured district, District 36, had
an NVAP of 81.01%. This high NVAP allowed District 36 to be paired with District 35,
14
See Appendices B and C.
15
Id.
16
Id.
17
Id.
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the Kodiak and Central Coast district that had an NVAP of 17.55%, to create Senate
District R with an NVAP of 47.76%.18 According to Dr. Handley, the NVAP of Senate
District R was then sufficient to create an effective Senate district.
After clearing the proposed changes with Dr. Handley, the Board adopted
the Amended Proclamation Plan.19 The Board found that the Amended Proclamation
Plan departed from the Alaska constitutional requirements of article VI, section 6 “to the
least degree reasonably necessary to ensure compliance with the [Voting Rights Act].”
After making additional findings concerning the configuration of election districts in
southeast Alaska, which I will discuss separately, the Board adopted the Amended
Proclamation Plan by a unanimous 5-0 vote.
18
Id.
19
The Amended Proclamation Plan also altered House Districts 1 and 2 in the
Fairbanks area in an effort to rectify the compactness problem found by the superior
court. It also reconfigured to some extent all five of the House districts within the
Fairbanks North Star Borough because of the ripple effect of the changes to Districts 1
and 2. Further, in order to resolve another point raised by Riley, the Amended
Proclamation Plan distributed the excess population that remained after adding 5,757
Fairbanks North Star Borough residents to District 38 into districts wholly within the
Fairbanks North Star Borough. The Amended Proclamation Plan also mooted another
issue raised by Riley by pairing the two Fairbanks House districts together to form
Senate District B rather than pairing each of them with a district outside the City of
Fairbanks as had been done in the original Proclamation Plan.
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B. Subsequent Proceedings In The Superior Court
The City of Petersburg and the Riley plaintiffs immediately challenged the
Amended Proclamation Plan in the superior court.20 The City of Petersburg argued that
the Board did not comply with the Hickel process with respect to House Districts 34 and
32 in southeastern Alaska because House District 34 in the original Proclamation Plan
was designed to create a Native “influence” district and this design adversely affected
the compactness of neighboring District 32 in which Petersburg is located. Since these
districts were the same under both the original and amended Proclamation Plans and
were not based solely on the requirements of the Alaska Constitution, Petersburg argued
that the Redistricting Board had failed to comply with our order on remand requiring
adherence to the Hickel process. As I discuss below, I think Petersburg’s point is correct
and this case should be remanded for the limited purpose of reconfiguring House
Districts 32 and 34, as well as the other two districts in southeast Alaska, 31 and 33, if
required because of a ripple effect.21
Riley raised a number of objections including an argument that the Board
did not follow the Hickel process because it started with a plan that left 36 of the initial
districts intact. Riley wrote:
The process used by the Board was a process designed to
limit and guide the Board by fixing 90% of the plan using
20
A number of the amici curiae did as well, sometimes on grounds separate
from those raised by the parties. Such grounds need not be considered since “[i]t is well
settled that courts will not consider issues raised by amici curiae which are not raised by
the parties.” State, Dep’t of Transp. & Pub. Facilities v. Fairbanks N. Star Borough,
936 P.2d 1259, 1262 n.4 (Alaska 1997) (quoting Hootch v. Alaska State-Operated Sch.
Sys., 536 P.2d 793, 809 n.62 (Alaska 1975)).
21
A detailed map of these districts as they were configured under the
Amended Proclamation Plan is attached as Appendix E. The configuration of these four
districts was unchanged from the original Proclamation Plan.
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districts from the previously invalidated plan, creating
“Hickel” options that were clearly intended to be
unconstitutional, and staff offering only one constitutional
plan. The process was a guided staff dominated process that
claimed to be a “Hickel” process, but lacked any substantive
element of such a process.
The Board defended its decision to use most of the already-drawn districts
on the grounds that they had been designed to comply with the Alaska constitutional
criteria without consideration of Voting Rights Acts requirements. In addition, the Board
argued that since the districts in the Hickel template had never been challenged, no new
challenge would be timely since the 30-day deadline prescribed by article VI, section 11
of the Alaska Constitution had expired.22
22
Article VI, section 11 provides in relevant part:
Any qualified voter may apply to the superior court to
compel the Redistricting Board, by mandamus or otherwise,
to perform its duties under this article or to correct any error
in redistricting. Application to compel the board to perform
must be filed not later than thirty days following the
expiration of the ninety-day period specified in this article.
Application to compel correction of any error in redistricting
must be filed within thirty days following the adoption of the
final redistricting plan and proclamation by the board.
The Board also made the following argument:
The Hickel template left Anchorage, Southeast, and the North
Slope (Districts 12-27, 31-35, and 40) unchanged. The
Board did not leave thirty-six districts unchanged as alleged
by the objecting parties. This is evident by the fact that the
Board changed all five of the Fairbanks districts, and made
adjustments to districts in both the Kenai Peninsula Borough
and the Mat-Su Borough.
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The superior court ruled that the parties’ objections that the Hickel process
was not followed were well taken:
Instead of redrawing a new plan that focused on the
Alaska Constitution, there is no dispute that the Board used
most of the districts from the Proclamation Plan, with the
exception of the districts in Fairbanks and districts that were
created to satisfy the Voting Rights Act.4 . . . The court finds
that the Board’s method did not comply with either the spirit
or the letter of the Alaska Supreme Court’s order and the
Hickel process.
_______________________________________________
4
The Board also made adjustments to the districts
in Kenai and Mat-Su due to population shift.
The Board has petitioned for review of this decision.
C. The Board Complied With Our Order Concerning The Hickel Process,
Except For Southeast Alaska.23
Today’s majority opinion affirms the superior court to the extent that the
court concluded that the Board failed to follow the Hickel process by using the
unchallenged districts from the Proclamation Plan. The majority opinion’s rationale is
that the shape of the unchallenged districts was necessarily affected by the Board’s initial
decision to draft the original Proclamation Plan by addressing Voting Rights Act
considerations first and therefore the “Hickel template limited its available options.”24
The majority states that by adopting the Hickel template “the Board ‘painted itself into
a corner’ by leaving only a few blank areas on the map. This structure limited the
Board’s ability to consider a wide range of plans to achieve maximum constitutional
23
The southeast districts are discussed in subsection D of this dissenting
opinion.
24
Slip Op. at 12.
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compliance; notably, each of the Board’s four Hickel options was aimed at addressing
the same population shortfall issue in a single rural district.”25 This rationale leads the
majority to conclude that the Board did not comply with the Hickel process when it
maintained the original Proclamation Plan’s unchallenged districts, and that the Board
should have begun with a clean slate.
To explain why I reach a different conclusion, I begin with the language of
our order of March 14, 2012. In paragraph 11 of the order we directed the Board on
remand to “follow the Hickel process.”26 In paragraph 5 of the order we described the
Hickel process as mandating that the Board first “design a reapportionment plan based
on the requirements of the Alaska Constitution.”27 Thus, to belabor the obvious, what
we required the Board to do was “design a reapportionment plan based on the
requirements of the Alaska Constitution.” If the Hickel plan complied with the
requirements of the Alaska Constitution, the Board did what we asked it to do. Today’s
opinion declines to answer whether the Board’s Hickel plan meets Alaska constitutional
criteria.28 I agree that this is a question that remains to be resolved.29
25
Id.
26
In re 2011 Redistricting Cases, 274 P.3d 466, 468 (Alaska 2012).
27
The full quote is: “After receiving the decennial census data, ‘[t]he Board
must first design a reapportionment plan based on the requirements of the Alaska
Constitution.’ ”
28
Slip Op. at 13 (“We do not know if these districts will meet the Alaska
Constitution’s requirements of compactness, contiguity and socio-economic
integration . . . .”).
29
The Board in its petition asks us to assume jurisdiction of this and other
remaining questions in the interest of judicial economy and expediting the final decision
in this case. I think it would be reasonable to grant this request and invite additional
(continued...)
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The premise of the majority’s opinion is that the Board unduly limited its
ability to craft a Hickel plan by starting with the Hickel template. Today’s opinion refers
to the Board’s actions as “leaving only a few blank areas on the map.”30 But reference
to the Hickel template, Appendix D, immediately calls into question the characterization
of the undistricted space as “a few blank areas.” The template left blank a huge
contiguous area that constitutes more than half the land mass of the State of Alaska.
Within this Texas-sized area the Board obviously had numerous redistricting options.
Further, the Board was not constrained by the Hickel template. The Board
considered three alternatives to its Hickel plan, each of which ignored the template
boundaries in different ways. For example, in what the Board called the “Hickel 003
Plan” the Board considered taking the needed urban population from the western portion
29
(...continued)
briefing on the issue of the Hickel plan’s compliance with Alaska constitutional
requirements as well as all other outstanding issues.
The standard of review that should be employed in review of the Hickel
plan would also have to be addressed. Under article VI, section 11 any challenges to
districts contained in a final plan must be brought within 30 days after adoption of the
plan by the Board. Districts that are unchallenged within that period are immune from
challenge within the next decennial cycle. Arguably, and most deferentially, since any
unchallenged district is good enough for voting purposes, it should be considered good
enough for purposes of the Hickel process. At the other end of the spectrum, the least
deferential standard would review all districts for Hickel process compliance de novo —
the same standard that would be used if timely challenges had been made under article
VI, section 11. But the first standard may be seen as too restrictive for the Hickel process
to have much significance, and the de novo standard ignores the purpose and effect of
the 30-day constitutional limit. The best standard might be one which asks whether the
unchallenged districts in a Hickel process plan can reasonably be viewed as complying
with constitutional redistricting requirements. Such a standard would allow the Hickel
process to remain useful, while protecting districts that should be constitutionally
unchallengeable from being disturbed except in clear cases.
30
Slip Op. at 13.
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of the Municipality of Anchorage and including it in a district with rural villages that
stretched from Cook Inlet to Bethel in western Alaska. The other two options likewise
were not constrained by the template boundaries. The so-called Hickel 002 Plan added
population from the Matanuska-Susitna Borough — including Talkeetna and Willow —
to a large interior district. Hickel 004 added population from the northern portion of the
Kenai Peninsula (the Nikiski area) to a district that ran from the western shore of Cook
Inlet to the mouth of the Kuskokwim River.31
Thus, the Hickel template, the structure chosen by the Board, did not limit
the Board’s ability to consider alternative plans. We can say this with confidence
because the Board in fact considered alternative plans that were not constrained by the
template.
In addition, there are practical reasons that support the Board’s decision to
use unchallenged districts when it constructed its Hickel plan rather than to start from
scratch.
First, beginning the Hickel process with unchallenged districts was
desirable because the Amended Proclamation Plan, so based, could be in place in time
for the 2012 elections and could be used for all of the subsequent elections in the
31
The majority opinion states that “notably, each of the Board’s four Hickel
options was aimed at addressing the same population shortfall issue in a single rural
district.” Slip Op. at 13. This should not be read as implying that the population
shortfall would be added to the same rural district, for that was not the case. One may
question why the majority finds it to be “notable” that in each of the Hickel options an
urban area contributed to only one rural district. Of course the Board might also have
considered options that scattered the population shortfall from one or several urban areas
among several rural areas, but to suggest that the Board had a duty to do so would be,
it seems to me, an unwarranted invasion of the Board’s prerogatives. Further, if the
Board had scattered smaller urban population blocks among several rural districts
substantial claims of voter dilution would be presented.
-33- 6741
decennial cycle. This would have been an impossibility if the Board had started with
newly drawn districts because new districts would have created new controversies with
new parties, just as every new redistricting has done. By contrast, new challenges to the
districts built into the Hickel template were already barred by the 30-day period of
limitations expressed in article VI, section 11 of the Alaska Constitution.
Second, the unchallenged districts had already been reviewed through the
public hearing process required by article VI, section 10 of the Alaska Constitution.
Starting anew would have negated the value of these hearings, and might have required
new hearings.
Underlying these reasons is the fact that it is highly desirable that election
districts not change, or change as little as possible, from one election to the next during
every ten-year census cycle. Redistricting inevitably generates significant political
disruption and voter confusion, and gives rise to charges of partisan and ad hominem
gerrymandering. It results in the truncation of four-year senate terms to two-year terms
when there are substantial changes in a Senate district. Further, redistricting may place
two incumbents in one district, thus resulting in the inevitable defeat of one of them. In
addition, redistricting may cause incumbents to lose the core of their constituency.
In recognition of the undesirable effects of unnecessary redistricting, the
Alaska Constitution contains provisions designed to ensure that one redistricting plan
will be effective for the whole of a census cycle. The tight deadlines in article VI,
section 1032 are designed to achieve this goal. They require the adoption of a preliminary
32
Article VI, section 10 provides:
(a) Within thirty days after the official reporting of
the decennial census of the United States or thirty days after
being duly appointed, whichever occurs last, the board shall
(continued...)
-34- 6741
plan within 30 days after the Board has been appointed or the census has been reported,
whichever is later, and a final plan within 90 days thereafter. The plan is to be effective
for the next ten years. It “shall be effective . . . until after the official reporting of the
next decennial census of the United States.”33 Similarly, the strict deadlines of article VI,
section 1134 likewise are designed to produce a final plan that will serve for the entire
32
(...continued)
adopt one or more proposed redistricting plans. The board
shall hold public hearings on the proposed plan, or, if no
single proposed plan is agreed on, on all plans proposed by
the board. No later than ninety days after the board has been
appointed and the official reporting of the decennial census
of the United States, the board shall adopt a final redistricting
plan and issue a proclamation of redistricting. The final plan
shall set out boundaries of house and senate districts and shall
be effective for the election of members of the legislature
until after the official reporting of the next decennial census
of the United States.
(b) Adoption of a final redistricting plan shall
require the affirmative votes of three members of the
Redistricting Board.
33
Id.
34
Article VI, section 11 provides:
Any qualified voter may apply to the superior court to
compel the Redistricting Board, by mandamus or otherwise,
to perform its duties under this article or to correct any error
in redistricting. Application to compel the board to perform
must be filed not later than thirty days following the
expiration of the ninety-day period specified in this article.
Application to compel correction of any error in redistricting
must be filed within thirty days following the adoption of the
final redistricting plan and proclamation by the board.
(continued...)
-35- 6741
census cycle. Thus, under section 11, suits challenging a plan must be filed no later than
30 days following the adoption of the plan. Further, all decisions by the superior court
and the supreme court concerning such challenges “shall be expedited and shall have
priority over all other matters pending before the respective court.”35
For the above reasons, I think that the majority opinion is mistaken in
concluding that the Board unduly limited its range of choices by adopting the Hickel
template.36 The Board considered options outside the template.37 Further, the Board’s
34
(...continued)
Original jurisdiction in these matters is vested in the superior
court. On appeal from the superior court, the cause shall be
reviewed by the supreme court on the law and the facts.
Notwithstanding Section 15 of Article IV, all dispositions by
the superior court and the supreme court under this section
shall be expedited and shall have priority over all other
matters pending before the respective court. Upon a final
judicial decision that a plan is invalid, the matter shall be
returned to the board for correction and development of a
new plan. If that new plan is declared invalid, the matter may
be referred again to the board.
35
Id.
36
The majority’s opinion identifies only three of the template districts that it
claims were drawn or approved with Voting Rights Act requirements in mind, House
Districts 32 and 34 in southeast Alaska, and House District 40 encompassing the North
Slope Borough and the Northwest Arctic Borough. Slip Op. at 8 n.13. As explained in
part D of this dissenting opinion, I agree that District 34 was given a non-compact shape
in order to comply with what were thought to be Voting Rights Act requirements. This
decision in turn affected the shape of District 32 and probably District 33. But I do not
think that the shape of District 40 was affected by Voting Rights Act considerations.
That district in terms of contiguity, compactness, relative socioeconomic integration, and
adherence to local government boundaries and major drainage features is about as ideal
as any Alaska rural district could be. In stating that House District 40 was drawn or
(continued...)
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36
(...continued)
approved with Voting Rights Act requirements in mind, the majority opinion cites the
preclearance submission of August 9, 2011 made by the Board to the Department of
Justice concerning the original Proclamation Plan. But the submission itself indicates
only that the Board was aware that District 40 would comply with the Voting Rights Act,
not that the shape of District 40 was influenced by Voting Rights Act considerations.
Here is all the Board said concerning House District 40 in the submission — I add
emphasis where mention is made of District 40:
The Proclamation House Plan includes five districts where
Alaska Natives constitute a majority of the total population:
District 36 with 78.26%; 37 with 56.18%; 38 with 53.38%;
39 with 72.50%; and 40 with 71.15%. While only three of
these districts retain their majority Alaska Native status when
voting age population statistics are considered — District 36
with 71.45% VAP, 39 with 67.09% VAP, and 40 with
62.22% VAP — the other two districts, 37 and 38, likely
remain “effective”. Both have Alaska Native VAP over
4.46% higher than the 41.8% statewide target effectiveness
standard. Moreover, District 37 is only 26.65% white VAP.
As discussed further below, the non-Alaska Native
population added to District 38 was specifically chosen in
order to enhance the effectiveness of that District for Alaska
Natives to elect their preferred candidate.
In order to maintain the requisite number of Alaska Native
districts and still meet the one person, one vote standard, the
configuration of the Benchmark House Plan had to be
substantially changed. [See Appendix C to Dr. Handley’s
report, found in Volume 1, Folder 6, for a map that compares
the Benchmark and Proclamation districts.] District 40 in the
Proclamation House Plan remains essentially intact. The
Alaska Native VAP percentage declines only slightly from
63.60% to 62.22%. In order to construct a plan that avoided
retrogression, however, it was necessary for the Board to
unpack two of the other Benchmark House districts with
substantial Alaska Native Populations, Districts 38 and
(continued...)
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decision to use as many unchallenged districts as possible in its Hickel plan was
reasonable and practical because that was the only course of action that could have
resulted in a plan that could be employed for every election in this census cycle.
D. With Respect To Districts 32 And 34 In Southeast Alaska The Board Did Not
Comply With Our Order Concerning The Hickel Process.
I agree with the majority opinion that, as to House Districts 32 and 34 in
southeast Alaska, the Board did not comply with the Hickel process.38 As the majority
opinion states, these districts were drawn under the assumption that a Native “influence”
district had to be maintained in southeast Alaska in order to comply with the Voting
Rights Act.
On remand from our order of March 14, 2012, the Board took the position
that it did not have to revisit the configuration of the districts in southeast Alaska. This
36
(...continued)
39. . . .
By suggesting that District 40 did not comply with the Hickel process merely because
the Board was aware when it approved the district that it would meet Voting Rights Act
requirements — even though the boundaries of the district were not shaped in order to
meet Voting Rights Act requirements — the majority opinion seems to be policing
abstract thought rather than conduct. In my view this is unjustified. Moreover, it is
worth considering whether on remand the Board will be precluded from replicating
House District 40 in its current and nearly ideal form, and instead must select a different,
and likely inferior, shape in order to purge the impermissible taint found by today’s
opinion.
37
Perhaps what the majority is concluding is that considering only three
Hickel plan options outside the template was not enough. But surely such decisions are
properly left to the discretion of the Board. We said nothing about the number of plans
the Board should consider in our order of remand, only that the Board should design a
plan based on the requirements of the Alaska Constitution.
38
See Slip Op. at 8 n.13. A map of these districts appears at Appendix E to
this dissenting opinion.
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was based on a ruling made by the superior court in response to the City of Petersburg’s
motion for summary judgment in which the superior court held that District 32 is
“compact enough” to satisfy the requirements of the Alaska Constitution. But as the
superior court later pointed out, in its order of April 20, 2012, this conclusion was only
reached in light of the court’s assumption that the Voting Rights Act required a Native
influence district in southeast Alaska. The superior court stated:
While the court previously did rule that House District 32 in
Southeast was “compact enough,” this was in light of the
Board’s argument that departure from strict adherence to the
compactness requirement is justified by its need to draw a
redistricting plan that avoids retrogression and complies with
the Voting Rights Act. The court’s 12 December 2011 order
took into account the Board’s arguments that it needed to
have an influence district in Southeast Alaska (House District
34), and that it needed to avoid pairing an Alaska Native
Legislator (Representative Bill Thomas). In order to comply
with the Hickel process, the Board must first redraw
Southeast Alaska without any deviations based on the Voting
Rights [Act], specifically without an influence district and
without any deviations based on avoiding the pairing of
minority incumbents.
In our order of May 10, 2012, we ordered that the Amended Proclamation
Plan be adopted as an interim plan to govern the 2012 elections except for the districts
in southeast Alaska. As to the southeast Alaska districts, we recognized that the Board
had not followed our order of March 14, 2012 concerning the Hickel process and
concluded that there was no Voting Rights Act justification for deviating from Alaska
constitutional criteria. We therefore required the Board to reformulate the southeast
districts within five days. Our May 10 order stated in relevant part:
We first remand to the Board for reformulation of the districts
in Southeast Alaska. These districts are presently House
Districts 31-34 and Senate Districts P and Q in the Amended
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Proclamation Plan. On remand, the Board must “design a
plan focusing on compliance with the article VI, section 6
requirements of contiguity, compactness, and relative
socioeconomic integration; it may consider local government
boundaries and should use drainage and other geographic
features wherever possible.”[39] The reformulated plan should
not be altered based on the Voting Rights Act (VRA) because
there is no VRA justification for deviating from Alaska
constitutional requirements in Southeast Alaska.[40]
The Redistricting Board dutifully complied with our order of May 10. It
worked over a weekend and approved a new plan for southeast Alaska that it submitted
to this court on May 15, 2012.41
After inviting and considering comments on the Board’s new configuration
of southeast Alaska, we decided to accept the Amended Proclamation Plan of April 5,
2012 with respect to southeast Alaska for the 2012 elections rather than the reformulated
plan submitted on May 15. Our order explained the reasons for this decision:
The court has accepted the Southeast districts as configured
in the plan of April 5, 2012 rather than the reconfigurations
submitted by the Redistricting Board to the court on May 15,
2012 because of the numerous objections to the reconfigured
districts that this court has received. While the reconfigured
districts may comply with the redistricting criteria of article
VI, section 6 of the Alaska Constitution, there is a risk that
the United States Department of Justice would decline to pre
clear them under the Voting Rights Act. Notice of the failure
of the Department of Justice to pre-clear the new districts
would come so late in the 2012 election cycle that a great
disruption to the election process would result. In order to
39
Quoting In re 2011 Redistricting Cases, 274 P.3d 466, 467 (Alaska 2012).
40
Alaska Supreme Court Order (May 10, 2012).
41
This plan is attached as Appendix F.
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avoid this possibility, the court will not require the use of the
May 15, 2012 reconfigured districts for the 2012 elections.[42]
We also stated:
The Board’s petition for review from the superior court’s
order of April 20, 2012, has been submitted to this court and
remains under advisement. One of the issues raised by the
petition for review is whether the Redistricting Board failed
to comply with the Hickel process as mandated by this court’s
order of March 14, 2012, with respect to the Southeast
Alaska districts. Our order of May 10, 2012, is premised on
the conclusion that the Board did not so comply. When we
issue an order and opinion on the Board’s petition for review,
the order will contain a discussion of and directions
concerning the reconfiguration of the Southeast Districts, and
will seek to ensure that districts that comply with the Alaska
Constitution can receive timely review by the Department of
Justice for use in subsequent elections.[43]
It seems clear that District 34 in the Amended Proclamation Plan was not
reasonably compact and that the Board drew its boundaries so that it would be a Native
“influence” district under the Voting Rights Act. Further, the configuration of District
34 also affected the shape of District 32 and possibly District 33.44 The Redistricting
42
Alaska Supreme Court Order (May 22, 2012). Justices Winfree and
Stowers dissented from the order of May 22, 2012 and would have required that the 2012
elections be conducted under the reconfigured districts that were submitted by the Board
on May 15, 2012.
43
Id.
44
Whether failing to maintain an “influence” district would be retrogression
under the Voting Rights Act was a disputed issue in the superior court. During an early
presentation to the Board, Dr. Handley had referred to “a continuum of types of protected
districts” including “effective districts,” which always elected the minority-preferred
candidate and “influence districts,” which usually did. In its motion for summary
(continued...)
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Board was mistaken in relying on the superior court’s “compact enough” language from
the court’s order of December 12, 2011 and therefore did not comply with the Hickel
process.
While this conclusion likely will result in three of the four districts in
southeast Alaska being redrawn and this will potentially result in some of the undesirable
effects that result from multiple redistricting in a single census cycle, the effects are
limited to, at most, four districts. Further, the Board has already reformulated the
southeast districts, so compliance by the Board need not entail much additional effort by
that agency.45
E. Conclusion
Today’s opinion sends the redistricting process mandated as a result of the
2010 census back to ground zero. Much new litigation, by new parties as well as those
44
(...continued)
judgment the City of Petersburg argued that “it was not necessary to establish an
influence district in Southeast Alaska.” The trial court initially found for the Board, but
at trial Dr. Handley testified that the Department of Justice no longer recognized
influence districts as such and that districts were either effective or they were not. She
also testified that she understood that the Department of Justice believed that there are
only five effective districts in Alaska. She thus suggested that the Voting Rights Act
does not require maintenance of an influence district in southeast Alaska. In our order
of May 10, 2012 we accepted this position. On the other hand, our order of May 22,
2012 indicates concern that the Department of Justice might not agree or at least might
not do so readily. Underlying this uncertainty is the fact that it is difficult to determine
just what is forbidden by section 5 of the Voting Rights Act. This increases the
importance of Department of Justice approval, at least for jurisdictions wishing to avoid
a test case.
45
I am not by this comment suggesting that the Board must necessarily
reformulate the southeast districts as it did in the May 15 plan. I realize that
reformulation was necessarily put together on a rushed basis, without formalized
methods for public input, and that there undoubtedly are other reconfigurations that
would also meet our state’s constitutional redistricting criteria.
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already before us, will result. All the disruptions of redistricting that are necessarily
endured every ten years will be repeated in the next two.
The cause of this drastic remedy, according to the majority opinion, is the
Board’s use of unchallenged districts in devising a Hickel plan. But the Board did not
consider that its hands were tied by the unchallenged districts, and there were practical
reasons why the Board would choose to build on rather than toss out the unchallenged
work that it had already done. Rather than force a return to the point of beginning, I
think we should take the next logical step in this litigation and determine whether the
Board’s Hickel plan was based on the requirements of the Alaska Constitution.
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