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Hickel et al v. Southeast Conference et al (12/29/92), 846 P 2d 38
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
WALTER J. HICKEL, Governor of Alaska, )
STATE OF ALASKA, TUCKERMAN BABCOCK, )
ALLEN VEZEY, MARY LYNNE WOOD, JOHN C. )
INGRAM, ROBERT PICKRELL, ORIE WILLIAMS, ) Supreme Court
FISH AND GAME FUND, ) Nos. S-5093/5154
)
Petitioners, )
)
v. )
)
SOUTHEAST CONFERENCE, a non-profit )
Alaska corporation, PEGGY ANN )
McCONNOCHIE, FRED E. REEDER; )
MATANUSKA-SUSITNA BOROUGH, STEVE CYPRA, )
TED SMITH, AL JORGENSEN, HAROLD NEWCOMB,)
JOHN STEIN, DUNCAN FRAZIER, GARY )
THURLOW, ELSIE O'BRYAN, RONDA L. KELLEY;)
OLIVER LEAVITT, JACOB ADAMS, GEORGE )
AHMAOGAK, WILLIAM LEAVITT, BENJAMIN )
NAGEAK, RONALD BROWER, MAX AHGEAK, )
CHARLES D.N. BROWER, CHARLES "CHUCK" )
GREENE, ROSWELL SCHAEFFER, MARIE GREENE,)
REGINALD CLEVELAND, CHARLES CURTIS, )
WILLIE GOODWIN, JR.; MITCHELL A. )
DEMIENTIEFF, JERRY ISAAC, LEO MORGAN, )
NICK JACKSON, CLYDE PETER; ALASKA )
DEMOCRATIC PARTY, LIDIA L. SELKREGG, )
)
Respondents. )
)
)
SOUTHEAST CONFERENCE, a non-profit )
Alaska corporation, ) Supreme Court
File
) No. S-5156
Petitioners, )
) Superior Court No.
v. ) 1JU 91-01608 Civil
)
WALTER J. HICKEL, Governor of Alaska, ) O P I N I O N
STATE OF ALASKA, )
) [No. 3911 - ]
Respondents. ) [December 29, 1992]
)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Larry R. Weeks, Judge.
Appearances: Virginia Ragle and Stephen
C. Slotnick, Assistant Attorneys General,
Juneau, Mary A. Lundquist, Assistant Attorney
General, Anchorage, Charles Cole, Attorney
General, Juneau, for Petitioners Walter J.
Hickel, Governor of Alaska and State of
Alaska. Thomas M. Daniel, Perkins Coie,
Anchorage, for Petitioner Fish and Game Fund.
Myra M. Munson, Sonosky, Chambers, Sachse,
Miller & Munson, Juneau, Donald J. Simon,
Sonosky, Chambers, Sachse & Enderson,
Washington, D.C., for Respondents Southeast
Conference, et al. and Mat-Su Borough, et al.
David C. Crosby, Juneau, James Wickwire,
Seattle, Wickwire, Greene, Crosby & Seward,
for Respondents Leavitt, et al. Don
Clocksin, Wagstaff, Pope & Clocksin,
Anchorage, for Respondents Alaska Democratic
Party, et al. Michael J. Walleri, Tanana
Chiefs Conference, Inc., Fairbanks, for
Respondents Demientieff, et al. Robert P.
Blasco and Mary A. Nordale, Robertson,
Monagle & Eastaugh, Juneau, for Amicus Curiae
Fairbanks North Star Borough. Joel H.
Bolger, Jamin, Ebell, Bolger & Gentry,
Kodiak, for Amicus Curiae Kodiak Island
Borough; Kenneth P. Jacobus, Anchorage, for
Amicus Curiae Constance Zawacki and The
Republican Party of Alaska. Michael W.
Price, Groh, Eggers & Price, Anchorage, for
Amicus Curiae Municipality of Anchorage.
Bruce Boltar, Dillingham, Alaska, for Amicus
Curiae Bristol Bay Native Association.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
MOORE, Chief Justice, concurring, in
part, and dissenting, in part.
BURKE, Justice, concurring, in part, and
dissenting, in part.
At issue in this petition for review is the validity of the
1991 Proclamation of Reapportionment and Redistricting Plan
(plan) issued by Governor Walter J. Hickel.
I. FACTUAL AND PROCEDURAL BACKGROUND
Under the Alaska Constitution, the governor has the power
and duty to reapportion the state legislature every ten
years. Alaska Const. art. VI, 3; Wade v. Nolan, 414 P.2d
689, 700 (Alaska 1966). In December 1990, Governor Hickel
appointed a five member advisory reapportionment board
(Board), as is required by article VI, section 8 of the
Alaska Constitution. The Board was required to prepare and
submit to the Governor a plan for reapportionment and
redistricting following the reporting of the decennial
census.1
In January 1991, the Board held an organizational meeting,
elected Allen Vezey as chair and appointed Tuckerman Babcock
as director. In March it adopted the following policies to
guide the development of redistricting plans:
* The population base is the 1990
population reported by the United States
Census Bureau for the State of Alaska.
* The redistricting plan will be
composed of single-member districts.
* One person, one vote: equal
protection for all individuals will be
realized by equal population among districts,
with the least populated and most populated
districts separated by a variance of no more
than two percent.
* Federal Voting Rights Act: protect
and enhance minority political voting
strength by a non-retrogression policy and by
considering individual linguistic and ethnic
blocks.
* Alaska Constitution: compact,
contiguous and relatively integrated socio-
economic areas for House districts.
* Consider preservation of political
subdivision boundaries.
* Consider public testimony, which
will be incorporated into the record if
received within 75 days after receipt of the
United States Census PL94-171 data.
* Accept alternative plans submitted
up to 60 days after receipt of the United
States Census PL94-171 data for input into
the state's computer system, if received in a
form allowing direct input into the computer
or on United States Geological Survey maps or
United States Coast and Geodetic Survey maps.2
With the assistance of computer technology, which made
possible more detailed analysis of potential redistricting
than was previously available, the Board and its staff began
forming a reapportionment plan based on the adopted
policies. The Board received the decennial census report
from the United States Bureau of the Census in March 1991.
The Board held a number of public hearings and reviewed
alternative redistricting plans submitted by various
interest groups. In June 1991, the Board delivered its
report and proposed plan to the Governor.
On September 5, 1991, Governor Hickel issued his
Proclamation of Reapportionment and Redistricting and
Accompanying Statement. The final plan3 included several
relatively minor changes to the Board's proposed district
boundaries. The proclamation directed the Attorney General
to submit the plan to the United States Department of
Justice for preclearance in accordance with section 5 of the
Voting Rights Act of 1965, 42 U.S.C. 1973c (1988).4
Seven lawsuits were filed in superior court challenging the
Governor's plan.5 Two cases were dismissed with prejudice
pursuant to stipulations. Five cases were consolidated for
trial before Superior Court Judge Larry R. Weeks.6
After a sixteen day bench trial, Judge Weeks concluded that
the Governor's plan was invalid because it violated the
Alaska Constitution. Specifically, Judge Weeks concluded
that the plan was not in compliance with article VI, section
6 of the Alaska Constitution because two of the districts
were not "compact" and eight of the districts did not
comprise "as nearly as practicable a relatively socio-
economically integrated area." He determined that the Board
"needlessly nullified Alaska constitutional requirements"in
its attempt to reach its various policy goals, including the
creation of districts with no more than two percent
population deviation from the ideal district size. He also
concluded that the Board failed to give due consideration to
the possibility of excluding non-resident military personnel
from the population base, and that this failure was
arbitrary and unreasonable. Judge Weeks held that the Board
violated the Open Meetings Act, AS 44.62.310, but ruled that
voiding the plan on the basis of this violation was not in
the public interest. He also concluded that the Board
violated the Public Records Act, AS 09.25.110-140, and the
Procurement Code, AS 36.30.
Pursuant to Alaska Appellate Rule 402(a), Governor Hickel
and the State of Alaska (State) petitioned this court for
review, contending that Judge Weeks had erred: 1) in finding
that the plan violated the equal protection clause of the
Alaska Constitution; 2) in his interpretation of article VI,
section 6 of the Alaska Constitution and in his
determination that the plan violated this section; 3) in
concluding that the Open Meetings Act, AS 44.62.310, and the
Public Records Act, AS 09.25, applied to and were violated
by the Governor's Advisory Reapportionment Board; and 4) in
substituting his judgment for that of the Board with regard
to matters within the Board's discretion.
We granted the State's petition to review the decision, and
expedited the proceedings. On May 28, 1992, we concluded
that the Governor's plan violated the Alaska Constitution.
See Appendix B. We affirmed the superior court's findings
of fact and conclusions of law that House Districts 1, 2, 3,
6, 26, 28, 34 and 35 violate requirements of article VI,
section 6 of the Alaska Constitution. We also affirmed its
holdings that the Open Meetings Act and the Public Records
Act apply to the Board. However, we reversed its holding
that the Board's decision not to exclude non-resident
military from the population base was arbitrary and
unreasonable.
In a separate Order of Remand, later corrected, we directed
the superior court to remand the case to the Board for
formulation of a final plan. However, because of time
constraints, we also directed the court to formulate an
interim plan so that 1992 state elections might proceed in
conformity with the requirements of the United States
Constitution, the Alaska Constitution and the federal Voting
Rights Act. Further, we authorized the court to employ
experts or masters to assist in the formulation of an
interim plan. See Appendix C.
Thereafter the superior court appointed three masters.
After receiving instructions from the court7 and reviewing
alternative plans proposed by the parties, the masters
presented a recommended interim plan to the court on June
14. In Orders dated June 18 and 19,8 the superior court
accepted the Masters' recommendation, with several
modifications including a redrawing of the Fairbanks House
Districts. The parties cross-petitioned this court for
review of the court's orders. On June 25, after considering
oral and written arguments, we granted the petition and
affirmed the court's interim plan with modifications
required by our determination that the court had erred in
redrawing the Fairbanks House Districts.9
II. LEGISLATIVE REAPPORTIONMENT
Now the goal of all apportionment plans
is simple: the goal is adequate and true
representation by the people in their elected
legislature, true, just, and fair
representation. And in deciding and in
weighing this plan, never lose sight of that
goal, and keep it foremost in your mind; and
the details that we will present are merely
the details of achieving true representation,
which, of course, is the very cornerstone of
a democratic government.
3 Proceedings of the Constitutional Convention (PACC) 1835
(January 11, 1956).
Legislative reapportionment is subject to a variety of legal
requirements. The Federal Constitution, the Federal Voting
Rights Act, and the Alaska Constitution all contain commands
which guide the formation of a reapportionment plan. It is
the interaction of these diverse and often diverging
guidelines which makes reapportionment a difficult process.
Because these guidelines sometimes lead in different
directions, it is important to understand how they fit
together.
A. ARTICLE VI, SECTION 6 OF
THE ALASKA CONSTITUTION.
The mandate for redistricting the election districts of the
Alaska House of Representatives is found in article VI,
section 6 of the Alaska Constitution:
The governor may further redistrict
by changing the size and area of election
districts, subject to the limitations of this
article. Each new district so created shall
be formed of contiguous and compact territory
containing as nearly as practicable a
relatively integrated socio-economic area.
Each area shall contain a population at least
equal to the quotient obtained by dividing
the total civilian population by forty.
Consideration may be given to local
government boundaries. Drainage and other
geographic features shall be used in
describing boundaries wherever possible.
Contiguity, compactness and relative socio-economic
integration are constitutional requirements. See Kenai
Peninsula Borough v. State, 743 P.2d 1352, 1360-61 (Alaska
1987) ("The state must consistently enforce the
constitutional article VI, section 6 requirements of
contiguity, compactness, and relative integration of socio-
economic areas in its redistricting."). A district lacking
any one of these characteristics may not be constitutional
under the Alaska Constitution.10
The requirements of contiguity, compactness and socio-
economic integration were incorporated by the framers of the
reapportionment provisions to prevent gerrymandering. 3
PACC 1846 (January 11, 1956) ("[The requirements] prohibit[]
gerrymandering which would have to take place were 40
districts arbitrarily set up by the governor. . . . [T]he
Committee feels that gerrymandering is definitely prevented
by these restrictive limits."). Gerrymandering is the
dividing of an area into political units "in an unnatural
way with the purpose of bestowing advantages on some and
thus disadvantaging others."11 Carpenter v. Hammond, 667
P.2d 1204, 1220 (Alaska 1983) (Matthews, J., concurring).
The constitutional requirements help to ensure that the
election district boundaries fall along natural or logical
lines rather than political or other lines.
1. Contiguity.
Contiguous territory is territory which is bordering or
touching. As one commentator has noted, "[a] district may
be defined as contiguous if every part of the district is
reachable from every other part without crossing the
district boundary (i.e., the district is not divided into
two or more discrete pieces)." Grofman, Criteria for
Districting: A Social Science Perspective, 33 UCLA L. Rev.
77, 84 (1985). Absolute contiguity of land masses is
impossible in Alaska, considering her numerous archipelagos.
Accordingly, a contiguous district may contain some amount
of open sea. However, the potential to include open sea in
an election district is not without limits. If it were,
then any part of coastal Alaska could be considered
contiguous with any other part of the Pacific Rim. To avoid
this result, the constitution provides the additional
requirements of compactness and socio-economic integration.
2. Compactness.
"`Compact' in the sense used here means having a small
perimeter in relation to the area encompassed." Carpenter,
667 P.2d at 1218 (Matthews, J., concurring). Compact
districting should not yield "bizarre designs." Davenport
v. Apportionment Comm'n of New Jersey, 304 A.2d 736, 743
(N.J. Super. Ct. App. Div. 1973), quoted in Carpenter, 667
P.2d at 1218-19 (Matthews, J., concurring). We will look to
the relative compactness of proposed and possible districts
in determining whether a district is sufficiently compact.
Carpenter, 667 P.2d at 1218 (Matthews, J., concurring).
The compactness inquiry thus looks to the shape of a
district. Odd-shaped districts may well be the natural
result of Alaska's irregular geometry. However, "corridors"
of land that extend to include a populated area, but not the
less-populated land around it, may run afoul of the
compactness requirement. Likewise, appendages attached to
otherwise compact areas may violate the requirement of
compact districting.
3. Socio-economic Integration.
In addition to preventing gerrymandering, the requirement
that districts be composed of relatively integrated socio-
economic areas helps to ensure that a voter is not denied
his or her right to an equally powerful vote.
[W]e should not lose sight of the
fundamental principle involved in
reapportionment -- truly representative
government where the interests of the people
are reflected in their elected legislators.
Inherent in the concept of geographical
legislative districts is a recognition that
areas of a state differ economically,
socially and culturally and that a truly
representative government exists only when
those areas of the state which share
significant common interests are able to
elect legislators representing those
interests. Thus, the goal of reapportionment
should not only be to achieve numerical
equality but also to assure representation of
those areas of the state having common
interests.
Groh, 526 P.2d at 890 (Erwin, J., dissenting).
We have looked before to the Minutes of the Constitutional
Convention for guidance in defining "relatively integrated
socio-economic area." Kenai Peninsula Borough, 743 P.2d at
1360 n.11; Carpenter, 667 P.2d at 1215; Groh, 526 P.2d at
878. The delegates explained the "socio-economic principle"
as follows:
[W]here people live together and work
together and earn their living together,
where people do that, they should be
logically grouped that way.
3 PACC 1836 (January 11, 1956). Accordingly, the delegates
define an integrated socio-economic unit as:
an economic unit inhabited by people. In
other words, the stress is placed on the
canton idea, a group of people living within
a geographic unit, socio-economic, following
if possible, similar economic pursuits.
3 PACC 1873 (January 12, 1956).
In order to satisfy this constitutional requirement, the
Governor must provide "sufficient evidence of socio-economic
integration of the communities linked by the redistricting,
proof of actual interaction and interconnectedness rather
than mere homogeneity." Kenai Peninsula Borough, 743 P.2d
at 1363. In areas where a common region is divided into
several districts, significant socio-economic integration
between communities within a district outside the region and
the region in general "demonstrates the requisite
interconnectedness and interaction,"even though there may
be little actual interaction between the areas joined in a
district. Id. (declining to draw a fine distinction between
the interaction of North Kenai with Anchorage and North
Kenai with South Anchorage). "The sufficiency of the
contacts between the communities involved here can be
determined by way of comparison with districts which we have
previously upheld." Id. A district will be held invalid if
"[t]he record is simply devoid of significant social and
economic interaction" among the communities within an
election district. Carpenter, 667 P.2d at 1215.
In our previous reapportionment decisions we have identified
several specific characteristics of socio-economic
integration. In Kenai Peninsula Borough, we found that
service by the state ferry system, daily local air taxi
service, a common major economic activity, shared fishing
areas, a common interest in the management of state lands,
the predominately Native character of the populace, and
historical links evidenced socio-economic integration of
Hoonah and Metlakatla with several other southeastern island
communities.12 743 P.2d at 1361.
In the same case, we found it persuasive that North Kenai
and South Anchorage were geographically proximate, were
linked by daily airline flights, shared recreational and
commercial fishing areas, and were both strongly dependent
on Anchorage for transportation, entertainment, news and
professional services. Id. at 1362-63.
In Groh, we stated that "patterns of housing, income levels
and minority residences"in an urban area "may form a basis
for districting, [although] they lack the necessary
significance to justify"large population variances. 526
P.2d at 879. We identified transportation ties, namely
ferry and daily air service, geographical similarities and
historical economic links as more significant factors. Id.
(holding that a district in southeast Alaska comprising the
mainland communities of Juneau, Haines and Skagway was
sufficiently integrated, considering that the rest of
Southeast was island oriented).
The Alaska Constitution requires districts comprising
"relatively integrated"areas. Alaska Const. art. VI, 6.
Petitioners argue that the term "relatively"diminishes the
degree of socio-economic integration required within an
election district. We are urged to compare all proposed
districts with a hypothetical completely unintegrated area,
as if a district including both Quinhagak and Los Angeles
had been proposed. We decline to adopt petitioners'
interpretation of this provision.
"Relatively"means that we compare proposed districts to
other previously existing and proposed districts as well as
principal alternative districts to determine if socio-
economic links are sufficient. "Relatively"does not mean
"minimally," and it does not weaken the constitutional
requirement of integration.
B. EQUAL PROTECTION.
"In the context of voting rights in redistricting and
reapportionment litigation, there are two principles of
equal protection, namely that of `one person, one vote' --
the right to an equally weighted vote -- and of `fair and
effective representation' -- the right to group
effectiveness or an equally powerful vote." Kenai Peninsula
Borough, 743 P.2d at 1366. The former is quantitative, or
purely numerical, in nature; the latter is qualitative. Id.
at 1366-67.
The equal protection clause of the Alaska Constitution13 has
been interpreted along lines which resemble but do not
precisely parallel the interpretation given the federal
clause.14 While the first part, "one person, one vote,"has
mirrored the federal requirement, see, e.g., Groh, 526 P.2d
at 875, the second part, "fair and effective
representation,"has been interpreted more strictly than the
analogous federal provision.
1. One Person, One Vote.
"[A] State [must] make an honest and good faith effort to
construct districts, in both houses of its legislature, as
nearly of equal population as is practicable." Reynolds v.
Sims, 377 U.S. 533, 577 (1964), quoted in Kenai Peninsula
Borough, 743 P.2d at 1358. "Whatever the means of
accomplishment, the overriding objective must be substantial
equality of population among the various districts, so that
the vote of any citizen is approximately equal in weight to
that of any other citizen in the state." Reynolds, 377 U.S.
at 579.
We discussed the Supreme Court's equal population
requirement of "substantial equality"in Kenai Peninsula
Borough:
Under a "one person, one vote"
theory, "minor deviations from mathematical
equality among state legislative districts
are insufficient to make out a prima facie
case of invidious discrimination under the
Fourteenth Amendment so as to require
justification by the State.". . . [A]s a
general matter an apportionment plan
containing a maximum population deviation
under 10% falls within the category of minor
deviations. The state must provide
justification for any greater deviation.
743 P.2d at 1366 (quoting Gaffney v. Cummings, 412 U.S. 735, 745
(1973)) (citations omitted).15 Thus, we have recognized that
the effectuation of the article VI, section 6 requirements
will justify population deviations greater than 10 percent.
Id. at 1360. Accordingly, as a matter of federal
constitutional law the Governor may in good faith declare
election districts with a maximum population deviation
greater than 10 percent, if such deviations are a result of
the creation of contiguous, compact and relatively socio-
economically integrated areas.16
We have identified several other state policies which may
also justify a population deviation greater than 10 percent.
We noted that a state's desire to maintain political
boundaries is sufficient justification provided this
principle is consistently applied. Kenai Peninsula Borough,
743 P.2d at 1360. Similarly, we implied that adherence to
Native corporation boundaries might also provide
justification, as long as the boundaries were adhered to
consistently. Groh, 526 P.2d at 877-78 (holding that the
utilization of a portion of the Calista corporate boundary
as a district boundary was not an adequate justification
where the Calista region was otherwise fractionated by the
reapportionment plan).17
On the other hand, we have rejected several policies as
inadequate justifications for population deviation. We held
that the "mining potential in the [Nome] area and the need
for a `common port facility'"did not justify a 15 percent
overrepresentation where "the makeup of the population both
to the north and the east [did] not vary significantly from
that of the adjoining villages within the Nome [election
district] boundaries." Groh, 526 P.2d at 877.
2. Fair and Effective Representation.
In addition to the guarantee of substantial mathematical
equality, the Equal Protection Clause of the United States
Constitution provides for the more nebulous guarantee of
fair representation. Under this qualitative principle,
certain mathematically palatable apportionment schemes will
be overturned because they systematically circumscribe the
voting impact of specific population groups. This principle
recognizes the danger that racial and political groups will
be "fenced out of the political process and their voting
strength invidiously minimized." Gaffney v. Cummings, 412
U.S. 735, 754 (1973).
A plurality of the United States Supreme Court has indicated
that a mere lack of proportional representation will be
insufficient to support a finding of unconstitutional vote
dilution. Plaintiffs must prove both intentional
discrimination against a group and a discriminatory effect
on that group.18 Davis v. Bandemer, 478 U.S. 109, 127
(1986). In addition, the plurality opinion requires a
showing of a pattern of discrimination:
In this context, such a finding of
unconstitutionality must be supported by
evidence of continued frustration of the will
of a majority of the voters or effective
denial to a minority of voters of a fair
chance to influence the political process.
Id. at 133, quoted in Kenai Peninsula Borough, 743 P.2d at 1369.
Thus, under the qualitative principle of federal equal
protection, fair representation is denied where there is
"proof that the group has been consistently and
substantially excluded from the political process [and]
denied political effectiveness over a period of more than
one election." Kenai Peninsula Borough, 743 P.2d at 1369.
The equal protection clause of the Alaska Constitution
imposes a more strict standard than its federal counterpart.
Kenai Peninsula Borough, 743 P.2d at 1371; Isakson v.
Rickey, 550 P.2d 359, 362-63 (Alaska 1976) (requiring a more
flexible and demanding standard and noting that the court
"will no longer hypothesize facts which would sustain
otherwise questionable legislation as was the case under the
traditional rational basis standard"). In the context of
reapportionment, we have held that upon a showing that the
Board acted intentionally to discriminate against the voters
of a geographic area, the Board must demonstrate that its
plan will lead to greater proportionality of representation.
Kenai Peninsula Borough, 743 P.2d at 1372. Because of the
more strict standard, we do not require a showing of a
pattern of discrimination, and do not consider any effect of
disproportionality de minimis when determining the
legitimacy of the Board's purpose. Id.
C. VOTING RIGHTS ACT.
The Federal Voting Rights Act, 42 U.S.C. 1973 (1988), also
plays a significant role in the reapportionment of state
election districts. The purpose of this Act is to protect
the voting power of racial minorities: "Under section 5 of
the Act, a reapportionment plan is invalid if it `would lead
to a retrogression in the position of racial minorities with
respect to their effective exercise of the electoral
franchise.'" Kenai Peninsula Borough, 743 P.2d at 1361
(quoting Beer v. United States, 425 U.S. 130, 141 (1976));
42. U.S.C. 1973c (1988). We have noted that compliance
with section 5 is a legitimate goal of a Reapportionment
Board: "A state may constitutionally reapportion districts
to enhance the voting strength of minorities in order to
facilitate compliance with the Voting Rights Act." Kenai
Peninsula Borough, 743 P.2d at 1361.
Section 2 of the Act, as amended in 1986, creates a cause of
action to remedy the use of certain electoral laws or
practices which, when interacting with social and historical
conditions, create an inequality in the opportunities
enjoyed by voters to elect their preferred representatives.
Thornburg v. Gingles, 478 U.S. 30, 47 (1986). Plaintiffs
may have a redistricting plan or an election invalidated if
they can prove that 1) under the totality of the
circumstances, the redistricting results in unequal access
to the electoral process; and 2) racially polarized bloc
voting exists. "[T]he conjunction of an allegedly dilutive
electoral mechanism and the lack of proportional
representation alone does not establish a violation." Id.
at 46.
In each of our previous reapportionment decisions we have
noted the difficulty in drawing election districts in
Alaska. We have emphasized the need to preserve flexibility
in the redistricting process so that all constitutional
requirements may be satisfied as nearly as practicable.
At the outset we recognize the
difficulty of creating districts of equal
population while also conforming to the
Alaska constitutional mandate that the
districts "be formed of contiguous and
compact territory containing as nearly as
practicable a relatively integrated socio-
economic area." When Alaska's geographical,
climatical, ethnic, cultural and socio-
economic differences are contemplated the
task assumes Herculean proportions
commensurate with Alaska's enormous land
area. The problems are multiplied by
Alaska's sparse and widely scattered
population and the relative inaccessibility
of portions of the state. Surprisingly small
changes in district boundaries create large
percentage variances from the ideal
population.
. . . .
When confronted with conditions so
different from those of any other single
state in the continental United States, it is
readily apparent that it becomes well nigh
impossible to achieve the mathematical
precision of equal proportions which is
feasible in those other states.
Egan v. Hammond, 502 P.2d 856, 865-66 (Alaska 1972) (footnotes
omitted) (quoting Alaska Const. art VI, 6), quoted in
Groh, 526 P.2d at 875 and Kenai Peninsula Borough, 743 P.2d
at 1359.
Thus, although the Board and the Governor are free to pursue
their own policies and goals in recommending and declaring
redistricting and reapportionment, such policies may not be
pursued at the expense of the federal and Alaska
constitutional and statutory mandates.
III. REGIONAL APPLICATIONS
A. SOUTHEAST ALASKA.
Under the Governor's reapportionment plan, southeast Alaska
(Southeast) was divided into five election districts,
designated 1 through 5.19 Respondent Southeast Conference
contends that Districts 1, 2 and 3 violate article VI,
section 6 of the Alaska Constitution. The trial court
agreed, finding specifically that "The districts of
Southeast are not socio-economically integrated and they
easily could have been." We affirm this conclusion.
District 1 includes most of the Ketchikan Gateway Borough,
the City of Wrangell and the eastern half of Prince of Wales
Island. District 2 includes most of Sitka and the cities of
Haines and Petersburg. District 3 includes the downtown
portions of Sitka and Ketchikan, the City of Saxman, the
communities of Annette, Metlakatla, Hydaburg, Craig, Point
Baker, Port Armstrong, Pelican and Yakutat. As such, it
includes parts of Chichagof, Baranof, Admiralty, Kupreanof,
Prince of Wales and Revillagigedo Islands. District 3
stretches almost the entire length of Southeast from Annette
to Yakutat.
The districts created by the Governor's plan do not take
into account several local municipal boundaries. The plan
separates the downtowns of two major cities from the rest of
the cities (Sitka and Ketchikan). It also splits two
closely interrelated cities, Ketchikan and Saxman. Further,
the plan ignores natural geographic boundaries by splitting
all of the major islands of the Alexander Archipelago.
Article VI, section 6 does not require that districts be
drawn along municipal boundaries. Rather, the provision
states only that "[c]onsideration may be given to local
government boundaries." Alaska Const. art. VI, 6.
However, local boundaries are significant in determining
whether an area is relatively socio-economically integrated.
By statute, a borough must have a population which "is
interrelated and integrated as to its social, cultural, and
economic activities." AS 29.05.031.20
Divisions of Ketchikan and Sitka are not permissible unless
the resulting districts evidence a pattern of relative socio-
economic integration. The resulting District 3 is not
composed of relatively integrated socio-economic areas.
District 3 mixes the small, rural, Native communities with
the urban areas of Ketchikan and Sitka. These rural and
urban communities have different social concerns and
political needs. Logical and natural boundaries cannot be
ignored without raising the specter of gerrymandering.
The Ketchikan Gateway Borough has a population of 13,828,
only 71 people above the ideal district size. Saxman, part
of the Borough, is more socio-economically integrated with
the City of Ketchikan than it is with other Native
communities of the Southeast islands.21 Prince of Wales
Island is likewise more socio-economically integrated as a
whole than it is relative to the rest of District 3 in which
the western half of the island was placed.
The Board cited the Voting Rights Act as its justification
in creating District 3. District 3 was meant to be a Native
influence district. The proposed configuration of District
3 raised the Native percentage of the district two
percentage points compared to the old "Islands District."
However, such an awkward reapportionment of the Southeast
Native population was not necessary for compliance with the
Voting Rights Act.22 An "Island"District can be configured
which satisfies the requirements of the Voting Rights Act
and which is more compact and better integrated socially.23
Thus, Districts 1, 2 and 3 all violate article VI, section 6
of the Alaska Constitution. These districts do not contain,
as nearly as practicable, relatively integrated socio-
economic areas, identified with due regard for local
governmental and geographic boundaries. Although these
boundaries need not necessarily be followed in creating
election districts, they must be considered by the Board in
so far as they indicate the true socio-economic integration
of several areas.
B. MATANUSKA-SUSITNA BOROUGH.
The Matanuska-Susitna (Mat-Su) Borough was divided among
five house districts, designated 6, 26, 27, 28 and 34.24
Only District 27 is wholly composed of land within the Mat-
Su Borough. District 6 groups Palmer with Prince William
Sound. District 26 groups the residential neighborhoods
between Palmer and Wasilla with Chugiak and the northern
communities of the Municipality of Anchorage. District 28,
stretching to the Canadian border, comprises interior Ahtna
areas and parts of the Gulkana and Copper River valleys. It
includes Glennallen, Tok and Delta Junction. It also
includes a narrow corridor which reaches into the Mat-Su
Borough, and encompasses the outskirts of Palmer and
Wasilla.25 District 34 combines Willow, Talkeetna and a
large portion of the rural northern part of the Mat-Su
Borough with a majority of the Denali Borough and a part of
the Fairbanks North Star Borough that includes the
communities of North Pole, Salcha and Eielson Air Force
Base.
As noted above, a borough is by definition socio-
economically integrated. It is axiomatic that a district
composed wholly of land belonging to a single borough is
adequately integrated. Thus, District 27 complies with that
requirement.
We recognize that it may be necessary to divide a borough so
that its excess population is allocated to a district
situated elsewhere. However, where possible, all of a
municipality's excess population should go to one other
district in order to maximize effective representation of
the excess group.26 This result is compelled not only by the
article VI, section 6 requirements, but also by the state
equal protection clause which guarantees the right to
proportional geographic representation. See Kenai Peninsula
Borough v. State, 743 P.2d 1352, 1369, 1372-73 (Alaska 1987)
(stating that a primary indication of intentional
discrimination against a geographic region was a lack of
adherence to established political subdivision boundaries).
In this case, the Mat-Su Borough population is allocated
between five districts. With the exception of District 27,
the resulting districts have serious shortcomings in their
resulting relative socio-economic integration.
District 6 merges Palmer with the Prince William Sound
communities. Palmer is the governmental center of the Mat-
Su Borough, an established agricultural area. In contrast,
the Prince William Sound communities are oriented toward
commercial fishing and maritime activities. Further, Palmer
is part of an organized borough whereas Prince William Sound
is not. The interests of Palmer residents may be adverse to
those of the residents of an unorganized borough on issues
such as property taxes and state funding of programs such as
education.
There is evidence of some socio-economic integration between
the Mat-Su Borough areas and the Anchorage areas of District
26. However, considerable testimony indicated that the Mat-
Su residents were more naturally linked to Palmer and
Wasilla than they were to Anchorage. Moreover, we find it
significant that Palmer, Wasilla and the area between them
were placed in three separate districts despite the fact
that these communities share most of their public
facilities.
District 28 also does not contain relatively socio-
economically integrated areas. It too combines a region of
Mat-Su with an unorganized borough. It also includes part
of the primarily rural Denali Borough. Moreover, District
28 fails for its lack of compactness. The corridor which
extends into the Mat-Su Borough was prompted by a desire to
attain mathematical equality among legislative districts.
However, we have previously noted that population deviations
up to 10 percent require no justification and that the Board
may use larger deviations in order to effectuate the
requirements of article VI, section 6. Kenai Peninsula
Borough v. State, 743 P.2d 1352, 1260 (Alaska 1987). The
Board's failure to create a compact district is not
justified by rigid adherence to mathematical equality.
District 34 also fails for its lack of relative socio-
economic integration. This district links two areas with
almost no socio-economic integration. The Mat-Su Borough
communities in this district are rural and thus share few
common interests with the suburban Fairbanks and military
areas of the Fairbanks North Star Borough.
We thus hold that the configuration dividing the Mat-Su
Borough among five districts is invalid. The Governor's
plan unfairly dilutes the proportional representation the
residents of the Mat-Su Borough are guaranteed. A
municipality should not be made to contribute so much of its
population to districts centered elsewhere that it is
deprived of representation which is justified by its
population. The plan also results in four districts which
are not relatively socio-economically integrated and one
district which is not sufficiently compact.
C. ELECTION DISTRICT 35.
Under the Board's plan, District 35 encompasses a vast
portion of interior and northern Alaska.27 Its boundaries
extend from Point Hope on the northwest coast to the border
of Alaska and Canada on the east, and from Barrow in the
north to Tyonek in the south. Thus constructed, District 35
also includes the area between the Brooks Range and the
Arctic Ocean, which is commonly referred to as the North
Slope, and traditionally inhabited by the Inupiaq Eskimo.
To the south, District 35 extends across the Brooks Range to
include much of the sparsely populated river drainages of
interior Alaska28 traditionally inhabited by the Athabaskan
Indians.
Judge Weeks described the joining of the North Slope Inupiaq
and the Interior Athabaskan areas into one district as
"probably the single worst combination that could be
selected if a board were trying to maximize socio-economic
integration in Alaska." The linkage of these geographically
divided and culturally distinct areas has been described as
a "worst case scenario."
The record indicates that the Board formed the boundaries of
District 35 with little consideration of the relative socio-
economic integration of the people who live there. Board
Chair Vezey testified that he placed little reliance on a
socio-economic study of the area. Mr. Vezey also noted that
there was no testimony from Inupiaq or Athabaskan witnesses
favoring linkage of the areas. Further, Board member
Pickrell recalled no discussion by the Board regarding
joining the Inupiaq and Athabaskan areas. The record
also demonstrates minimal past and present socio-economic
integration between the Inupiaq and Athabaskan cultures.
Brenda Itta-Lee, an Inupiaq community leader from Barrow,
and Georgianna Lincoln, a representative in the state
legislature and Athabaskan community leader from Rampart,
both testified regarding the physical separation of the two
cultures and the historical, linguistic and economic
differences between the cultures. Evidence introduced at
trial indicates that the average annual per capita resident
income on the North Slope exceeds $26,000 while in the Doyon
Athabaskan region the average is less than $6000. Social
scientists who testified at trial described the actual socio-
economic integration between the Inupiaq and Athabaskan as
insignificant.
Based on the record, we conclude that District 35 violates
article VI, section 6 of the Alaska Constitution because it
does not encompass, as nearly as practicable, a relatively
integrated socio-economic area.
D. THE ALEUTIAN ISLANDS.
The Board's plan divides the Aleutian Islands between two
districts.29 The eastern Aleutians are in District 39, and
the western Aleutians in District 37. On its face this
severance violates the contiguous territory requirement of
article VI, section six of the Alaska Constitution.30
Although the parties did not raise this issue, the
separation of the Aleutian Islands is so plainly erroneous
that we address the issue sua sponte. Thus, in exercise of
our authority under article IV, section two of the Alaska
Constitution, we hold that the separation of the Aleutian
Islands into two districts violates article VI, section six
of the Alaska Constitution.
IV. POPULATION BASE
The Board used the 1990 census as its population base.
However, the Board did not subtract from the census data
military personnel who were stationed in Alaska at the time
the census was taken, but who did not consider themselves
Alaska residents. The Governor did not vary the population
base from the Board's recommendation.
Previously we held that the exclusion of non-resident
military personnel (NRMP) from the population base is
constitutionally permissible. However, we have never
decided whether exclusion was constitutionally required. We
have not addressed this issue before because NRMP have been
excluded from the population base in every previous district
reapportionment, with the exception of the interim plan we
devised for the 1972 elections following Egan v. Hammond,
502 P.2d 856, 870 (Alaska 1972).
The state argues that the inclusion of NRMP was a policy
choice it was allowed to make, and that we should defer to
that choice. The state argues further that inclusion of
NRMP is permissible because it is impossible to accurately
estimate the number of military personnel who are not
residents. It notes that this question is different with
this reapportionment because the United States Army and Air
Force no longer make personnel data available to the state.
The state maintains that in light of this, it acted within
its discretion by including all military personnel in the
population base.31
The respondents argue that exclusion is constitutionally
required since inclusion would violate the reapportionment
provisions and the equal protection clause of the Alaska
Constitution. They argue that the effect of the inclusion
is the dilution of the voting power of residents of areas of
Alaska without large military populations.
In Egan, we implemented an interim plan without a NRMP
exclusion because "it was not possible to compile
sufficiently accurate data to provide a reasonable basis for
excluding any number of military from the population base."
502 P.2d at 870. However, we also recognized "the need for
a permanent plan which achieves a level of accuracy of [the
military population's] voting participation which is closer
than either including or excluding all military as a class."32
502 P.2d at 870. "[T]he challenge is to arrive at the best
approximation of the population to be counted without losing
sight of the fact that the right of equal representation is
also an individual and personal right." Egan, 502 P.2d at
869.
We therefore hold that exclusion is not constitutionally
required if it is not possible to accurately identify those
military personnel who are non-residents.33 However, it is
necessary to consider alternative plans for obtaining a
sufficiently accurate plan for estimating the number of
NRMP. Id. (noting that it was "incumbent upon [this court]
to discuss alternative plans which may be available to
handle the problem"). See also Groh v. Egan, 526 P.2d 863,
868 (Alaska 1974) (finding that the Board's careful
examination of alternatives supported the conclusion that
the state's choice of population base was rational).
The key determination is whether the Board's efforts in
"discussing the alternatives"were sufficient to support its
conclusion that compiling accurate data was impossible. The
trial court found that a "hard look"was required. The hard
look requirement is consistent with our previous
acknowledgment that the state has a compelling interest in
attempting to exclude NRMP. Carpenter, 667 P.2d at 1213
(identifying the "compelling state interest" as "the
prevention of the dilution of its residents' voting
strength"). See also Reynolds v. Sims, 377 U.S. 533, 555
(1964) ("[T]he right of suffrage can be denied by a
debasement or dilution of the weight of a citizen's vote
just as effectively as by wholly prohibiting the free
exercise of the franchise.").
Judge Weeks identified six "legitimate reasons" for
including the NRMP. He also found that although the extent
of non-residency among the military was determinable, it was
unclear whether it was possible to make a reliable
determination of the enumeration districts in which non-
resident, off-base military personnel lived. Despite these
findings, he concluded that the Board did not take a "hard
look" at this issue. The inclusion of all military
personnel in the population base was thus not justifiable.
Judge Weeks apparently believed that the reasons stated by
the Board for including NRMP were post hoc justifications.
Also he found it significant that the Board's legal advisor
advised strongly to exclude NRMP.
At its March 4, 1991 meeting, the Board adopted the policy
that the population base for the reapportionment would be
the 1990 census data. The Board decided that it would not
adjust the census data to account for NRMP.
In its Report and Proposed Plan, the Board discussed several
methods for determining the appropriate adjustment to be
made. The Board discussed the method used by the 1973 Board
whereby the number of Alaska residents on a military base
was determined by multiplying the number of registered
voters on the base by the statewide person-
counted/registered-voter ratio. The number of "residents"
obtained was then divided by the number of adults living on
the base to derive a percentage of residents. When the same
method was applied to the 1990 data, all the military bases
showed a greater than one hundred percent resident
percentage.
The Board explained that other available survey methods were
not adequate. It indicated that it had received expert
advice that the survey method used in the Department of
Labor study made that study inadequate to serve as a basis
for making an adjustment. The Board also stated that it had
solicited surveys from two political pollsters in Alaska and
had been rejected.34 The Board explained that "a poll taken
a significant period of time after the Census enumeration
`would be a sampling of a different set of people with
possibly changed attitudes.'"(quoting Egan, 502 P.2d at
887). Finally, the Board eliminated Permanent Fund Dividend
applications, Military Leave and Earning statements, and
registered voter data bases as reliable sources of
information about residency.35
The Board attempted to discover what other alternatives
existed. As noted, the Board received expert opinion that
an accurate survey was methodologically impossible. Even
when the Board was told that a statewide survey was
possible, it was told that identifying the NRMP in each
district would be impossible.36 The Board discussed the
expert opinion at its March 4 meeting and agreed with the
proposal of director Babcock that, at least as an initial
guideline, the survey could not be performed. Additionally
the Board determined that the inclusion of NRMP would not
result in a rural/urban bias. The Board thus concluded
that its original guideline of using the census data as its
population base was proper.
Based on what we have previously required of reapportionment
boards, we conclude that the Board's "look" was "hard"
enough. It is not necessary to attempt a survey or
statistical analysis when a thorough examination reveals
that such a survey is not possible. Groh, 526 P.2d at 868-
69. Rather, we need only be assured that the Governor's
authority was "exercised in a rational as opposed to an
arbitrary manner." Id. at 868. Although we have found a
"thorough and exemplary exploration"to be persuasive in
proving that the Board's decision was rational, we have not
required it. Groh, 526 P.2d at 868. The Board's
consideration of alternatives and expert advice was
sufficient examination.
V. PROCEDURAL DEFECTS (OPEN MEETINGS
AND PUBLIC RECORD ACTS)
Judge Weeks concluded that the Board violated the Open
Meetings Act37 and the Public Records Act38 as it formulated
its reapportionment plan. However, he also determined that
"[b]ecause of the other decisions in this case, the public
interest is better served by not voiding the plan on the
basis of Open Meetings Act violations." He did not grant
relief on the basis of the Open Meetings Act or the Public
Records Act.
We agree with Judge Weeks that these Acts generally apply to
the activities of the Reapportionment Board. However, since
he did not grant relief on the basis of either Act, we
decline to determine the extent of their application to
specific activities. Similarly, we decline to determine
whether an independent constitutional basis exists for
ensuring public access to the Board's meetings.
Accordingly, we affirm only the trial court's determination
that the Open Meetings Act and Public Records Act apply
generally to the activities of the Reapportionment Board.
VI. CONCLUSION
We AFFIRM the superior court's conclusion that the plan's
formulation of Districts 1, 2 and 3 violates article VI,
section 6 of the Alaska Constitution, because the districts
are not "socio-economically integrated and they easily could
have been." We also AFFIRM its conclusion that the
configuration which divides the Mat-Su Borough among five
districts (designated 6, 26, 27, 28 and 34) is invalid,
since it unfairly dilutes the proportional representation
guaranteed to the Mat-Su Borough's residents. Further, we
AFFIRM its conclusion that District 35, which joins the
North Slope Inupiaq and the Interior Athabaskan areas,
violates article VI, section 6 of the Alaska Constitution
because it does not encompass a relatively integrated socio-
economic area.
We conclude independently that the separation of the
Aleutian Islands into two districts violates the contiguous
territory requirement of article VI, section 6 of the Alaska
Constitution.
We AFFIRM the superior court's conclusion that the Open
Meetings Act and Public Records Act apply to the Board. We
decline to address its conclusion that the public interest
would not be served by voiding the plan on the basis of Open
Meetings Act violations.
We REVERSE the superior court's conclusion that the Board
failed to make a reliable determination regarding the
inclusion or exclusion of non-resident military personnel.
The Board's consideration of various alternatives and expert
advice was a sufficient "hard look"at this issue.
The case has been remanded to the superior court with
directions to remand the 1991 Proclamation of
Reapportionment and Redistricting Plan to the Board for
reformulation consistent with
our Order of June 8, 1992, and this opinion.
MOORE, Chief Justice, concurring, in part, and
dissenting, in part.
To the extent indicated in the attachment to today's
opinion marked "APPENDIX C,"I continue to dissent. Otherwise, I
concur in the action that we have taken in this case, and in the
opinion of the court.
BURKE, Justice, concurring, in part, and dissenting, in
part.
To the extent indicated in the attachments to today's
opinion marked "APPENDIX B"and "APPENDIX C," I continue to
dissent. Otherwise, I concur in the action that we have taken in
this case, and in the opinion of the court.
INDEX TO APPENDICES
APPENDIX A: Governor Hickel's 1991 Reapportionment Plan
(Final Plan)
APPENDIX B: Order, May 28, 1992, Alaska Supreme Court
APPENDIX C: Corrected Order of Remand, June 8, 1992, Alaska
Supreme Court
APPENDIX D: Order, June 11, 1992, Alaska Supreme Court
APPENDIX E: Memorandum and Order, June 18, 1992,
Superior Court Judge Larry Weeks
APPENDIX F: Memorandum and Order, June 19, 1992,
Superior Court Judge Larry Weeks
APPENDIX G: Order, June 25, 1992, Alaska Supreme Court
APPENDIX H: 1992 Interim Reapportionment Plan, June 25, 1992
_______________________________
1. Article VI, section 10 of the Alaska Constitution
provides as follows:
Within ninety days following the
official reporting of each decennial census,
the board shall submit to the governor a plan
for reapportionment and redistricting as
provided in this article. Within ninety days
after receipt of the plan, the governor shall
issue a proclamation of reapportionment and
redistricting. An accompanying statement
shall explain any change from the plan of the
board. The reapportionment and redistricting
shall be effective for the election of
members of the legislature until after the
official reporting of the next decennial
census.
2. The Board later modified its policy regarding equal
population among districts. It adopted a motion which
directed the staff to:
use up to a 10 percent variance in
preparing the final three statewide
alternative scenarios, for the purposes of
compliance with the federal Voting Rights
Act. Any other variance from the Board's two
percent guideline must be justified by the
need to comply with the Alaska Constitutional
requirement that each district contain as
nearly as possible a relatively integrated
socio-economic area, or by limitations in the
technology or data bases used by staff in
preparing the statewide alternatives.
3. The final plan which was reviewed in this case is
attached as Appendix A. It contains detail maps of the
Southeast and Matanuska-Susitna Borough Districts, as well
as a statewide map.
4. In April 1992 the U.S. Department of Justice notified
the State that it would not object to the Governor's plan.
5. Article VI, section 11 of the Alaska Constitution
provides:
Enforcement. Any qualified voter
may apply to the superior court to compel the
governor, by mandamus or otherwise, to
perform his reapportionment duties or to
correct any error in redistricting or
reapportionment. . . . Original jurisdiction
in these matters is hereby vested in the
superior court. On appeal, the cause shall
be reviewed by the supreme court upon the law
and the facts.
6. The five cases which were consolidated included:
Alaska Democratic Party v. Hickel, Case No. 3AN-91-8539
Civil; Matanuska-Susitna Borough v. Hickel, Case No. 3AN-91-
8520 Civil; Demientieff v. Hickel, Case No. 4FA-91-1730
Civil; Leavitt v. Hickel, Case No. 2BA-91-81 Civil; and
Southeast Conference v. Hickel, Case No. 1JU-91-1608 Civil.
All parties participated fully in the trial before Judge
Weeks.
7. On June 11, 1992, we disapproved of Judge Weeks'
instruction that wherever possible native influence
districts must include a native population of at least 35%.
See Appendix D.
8. These are attached as Appendices E and F, respectively.
9. Our order of June 25, 1992 is attached as Appendix G.
The map which depicts the interim plan of apportionment
approved by this court on June 25, 1992, is attached as
Appendix H.
10. The requirement of relative socio-economic integration
is given some flexibility by the constitution since
districts need be integrated only "as nearly as
practicable." Alaska Const. art. VI, 6. However, the
flexibility that this clause provides should be used only to
maximize the other constitutional requirements of contiguity
and compactness. The governor is not permitted to diminish
the degree of socio-economic integration in order to achieve
other policy goals.
11. Black's Law Dictionary defines gerrymandering as:
A name given to the process of dividing
a state or other territory into the
authorized civil or political divisions, but
with such a geographical arrangement as to
accomplish an ulterior or unlawful purpose,
as, for instance, to secure a majority for a
given political party in districts where the
result would be otherwise if they were
divided according to obvious natural lines.
Black's Law Dictionary (6th ed. 1990).
We have previously stated: "Gerrymandering is `the
deliberate and arbitrary distortion of district boundaries
and populations for partisan or personal political purposes.
The term `gerrymandering,' however, is also used loosely to
describe the common practice of the party in power to choose
the redistricting plan that gives it an advantage at the
polls.'" Kenai Peninsula Borough, 743 P.2d at 1367 n.28
(quoting Davis v. Bandemer, 478 U.S. 109, 164 (1986))
(citations omitted).
The word "gerrymandering"has an unusual etymology. The
word derives from "the fancied resemblance to a salamander
(made famous by caricature) of the irregularly shaped
outline of an election district in northeastern
[Massachusetts] that had been formed for partisan purposes
in 1812 during [Elbridge] Gerry's governorship." Webster's
Third New International Dictionary (3d ed. 1969).
12. We did not decide whether these characteristics were
specifically necessary to pass muster under article VI,
section 6 of the Alaska Constitution. Instead we merely
found that a rational state policy existed in effectuating
the constitutional mandate of relative socio-economic
intervention. Kenai Peninsula Borough, 743 P.2d at 1361.
13. The Alaska Equal Protection clause provides that "all
persons are equal and entitled to equal rights,
opportunities, and protection under the law . . . ." Alaska
Const. art. I, 1.
14. The Federal Equal Protection clause provides that "No
state shall . . . deny to any person within its jurisdiction
the equal protection of the laws." U.S. Const. Amend. XIV,
1.
15. We also articulated this theory in Groh:
We conclude that in the absence of a
showing that the manner of reapportioning a
state was improperly motivated or had an
impermissible effect, deviations of up to ten
percent require no showing of justification.
The state, however, has the burden of showing
that deviations in excess of ten percent are
"based on legitimate considerations incident
to the effectuation of a rational state
policy."
526 P.2d at 877 (quoting White v. Regester, 412 U.S. 755, 764
(1973)) (footnote omitted).
16. In Mahan v. Howell, the United States Supreme Court
approved a deviation of 16.4 percent based on the
preservation of political subdivision boundaries. 410 U.S.
315 (1973). That deviation has been seen by many as the
outer limit which the Supreme Court will allow. See Travis
v. King, 552 F. Supp. 554, 562 (D. Haw. 1982).
17. We recognized in Groh that it was reasonable to avoid
combining two areas populated by residents who had a history
of conflict. We rejected the suggestion that this factor
alone justified the underpopulation of the district
comprised of one of these areas. We noted that no
explanation had been offered "why other areas could not have
been added to the district so as to create less of a
variance." 526 P.2d at 878. Upon objection to the
redistricting plan, however, we found sufficient
justification for the Board's overrepresentation of District
16 (Bristol Bay):
It is now apparent that the only
alternative to the Board's original
districting of that area is to disregard an
impassible mountain range, the natural
barrier formed by Cook Inlet, the lack of
direct transportation or communication links,
the corporate boundaries of the Kenai
Peninsula Borough, the cohesiveness of
interests of residents of that Borough and
the disparate interests of the population of
the Bristol Bay area. We now find that
legitimate considerations incident to the
implementation of rational state policy
justify the overrepresentation of House
District No. 16 (Bristol Bay) as originally
designated and override mathematical
requirements.
Id. at 879. Given the lack of reasonable alternatives to the
initial plan, as well as the Board's good faith effort in
adding to the district, we reversed our initial order
invalidating the plan.
18. In the context of discrimination against a political
group, the intent requirement is probably minimal. As
Justice White noted in Bandemer, "As long as redistricting
is done by a legislature, it should not be very difficult to
prove that the likely political consequences of the
reapportionment were intended." 478 U.S. at 129. See
Laurence H. Tribe, American Constitutional Law 13-9, at
1082 n.9 (2d ed. 1988).
The Supreme Court has also required a showing of
discriminatory intent in the context of discrimination
against a racial group. Mobile v. Bolden, 446 U.S. 55, 62,
66 (1980). However, Congress responded to the Bolden
decision by amending section 2 of the Voting Rights Act so
as to do away with the intent requirement. Voting Rights
Act Amendments of 1982, Pub. L. No. 97-205, 3, 96 Stat.
134. See L. Tribe, supra, 13-8, 1078-80.
19. See page 2 of Appendix A.
20. Although a reapportionment plan may split boroughs in
forming election districts, the division of a borough which
otherwise has enough population to support an election
district will be an indication of gerrymandering. There
must be some legitimate justification for not preserving the
government boundaries in such a case.
21. The city of Saxman urged the governor not to split
Saxman from the rest of the Borough. The Ketchikan Indian
Corporation, the Sealaska Corporation and the Grand Camp of
the Alaska Native Brotherhood all objected to the Governor's
planned splitting of the Borough.
22. Our conclusion underscores the error in the Board's
methodology in reconciling the requirements of the Voting
Rights Act with the requirements of the Alaska Constitution.
The Board was advised to expect that any challenges to the
reapportionment plan would come under the newly amended
section 2 of the Voting Rights Act. Consequently, the Board
accorded minority voting strength priority above other
factors, including the requirements of article VI, section 6
of the Alaska Constitution. This methodology resulted in
proposed district 3, a district which does not comply with
the requirements of the Alaska Constitution. However,
proposed district 3 is not required by the Voting Rights
Act, either.
Article IV of the United States Constitution provides that
"This Constitution, and the laws of the United States which
shall be made in pursuance thereof . . . shall be the
supreme law of the land . . . ." This mandates that
provisions of state law, including state constitutional law,
are void if they conflict with federal law. To the extent
that the requirements of article VI, section 6 of the Alaska
Constitution are inconsistent with the Voting Rights Act,
those requirements must give way. However, to the extent
that those requirements are not inconsistent, they must be
given effect. The Voting Rights Act need not be elevated in
stature so that the requirements of the Alaska Constitution
are unnecessarily compromised.
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.
In our order of June 8, 1992, we directed that the superior
court, in drafting an interim plan, give priority to the
Voting Rights Act over the requirements of article VI,
section 6 of the Alaska Constitution. In that context,
expediency mandated that an interim plan be formulated in
time for the 1992 elections, and that compliance with the
Voting Rights Act be ensured. In drafting a permanent plan,
however, the Board's design will not be compelled by
expediency. The Board shall ensure that the requirements of
article VI, section 6 of the Alaska Constitution are not
unnecessarily compromised by the Voting Rights Act.
23. The Island District approved by this court as part of
the 1992 interim plan excludes the urban areas of Ketchikan
and Sitka and respects all local government boundaries in
Southeastern Alaska. While it is not compact, non-
compactness appears to be necessary in order to comply with
the Voting Rights Act and it is, in any case, more compact
than the proposed configuration of District 3. See Appendix
H.
24. See page 3 of Appendix A.
25. Because of this corridor, District 28 became known as
and is referred to in briefing as the "Oosik District."
26. Dividing the municipality's excess population among a
number of districts would tend to dilute the effectiveness
of the votes of those in the excess population group. Their
collective votes in a single district would speak with a
stronger voice than if distributed among several districts.
27. See page 1 of Appendix A.
28. The district includes the Koyukuk River valley, much of
the area drained by the Yukon River from a point upstream
from Russian Mission to the Canadian border, and much of the
Kuskokwim River drainage upstream from a point near Stony
River.
29. See page 1 of Appendix A.
30. In our order of remand, we noted that the Aleutians must
be joined together in one district unless their separation
is mandated by federal law. Since federal law does not
mandate their separation, the contiguous territory
requirement of the Alaska Constitution controls.
31. The Board was advised that it would be extremely
difficult to accurately identify the NRMP because the U.S.
census allowed certain military personnel to allocate
themselves to other states. Further, they were told that
the United States Army and Air Force would no longer release
residency information because of the Privacy Act and Civil
Rights Act. The Board was also advised that it might face
Department of Justice preclearance problems if the NRMP were
included.
32. This need was recognized in light of the threat of
"unbalanced representation"resulting from the inclusion of
NRMP. Egan, 502 P.2d at 870. Thus the constitutional
concern is one of equal protection. The reapportionment
provisions favor the use of census data. "Alaska's
constitution requires that the requisite population total be
arrived at by use of the census data. It does not mandate a
population base composed exclusively of registered voters,
citizens who have previously voted in Alaska, or only those
people living in Alaska with the intention of making Alaska
their home." Id. at 861.
33. However, the estimation of the percentage of NRMP need
not be any more precise than the approximation of other
portions of the population base. See Egan, 502 P.2d at
869.
34. The evidence of these solicitations are personal phone
conversations between Babcock and the solicited pollsters.
There is no indication as to the reason the pollsters
declined to conduct the survey.
35. These were the only alternatives considered at the March
4, 1991 meeting at which the initial "guidelines" were
adopted. At this meeting the Board was presented with and
accepted the argument that the census was the only feasible
population base.
36. The Board also claims that the effect of inclusion was
minimal due to the very low NRMP population. However, the
Board did not produce any significant data supporting this
assertion.
37. AS 44.62.310-.312.
38. AS 09.25.110-.140.
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