In Re 2011 Redistricting Cases

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In the Supreme Court of the State of Alaska Supreme Court No. S-14441 ) Order ) ) ) IN RE 2011 REDISTRICTING CASES. ) ) ) Order No. 77 - March 14,2012 Trial Court Case # 4FA-11-02209CI Before: Carpeneti, Chief Justice, Matthews, Senior Justice, Fabe, Winfree, and Stowers, Justices. IT IS ORDERED: 1. Both petitions for review ofthe superior court's orders regarding the Redistricting Board's Proclamation Plan of June 13,2011, are GRANTED.) 2. This case is REMANDED to the superior court with instructions to further remand to the Board to formulate a plan in accordance with this order. 3. At the outset, we commend the Board for its diligence and dedication throughout the redistricting process. The record demonstrates that the Board endeavored to weigh competing constitutional and statutory provisions, considered a great deal of input from Alaska's citizens, and sought to create a plan that would accommodate both the Alaska Constitution and the federal Voting Rights Act. The redistricting process in Alaska is difficult, and, in this case, the Board made conscientious efforts in discharging its duties. 2 One petition for review was filed by George Riley and Ron Dearborn (Riley), plaintiffs in the superior court. The Alaska Redistricting Board, the defendant in the superior court, filed a separate petition for review. The Redistricting Board is an independent entity created under article VI, section 8 of the Alaska Constitution. It consists offive members, two appointed by the 2 (continued...) 4. We also commend the superIor court, the Honorable Michael McConahy presiding, for its expedited processing of the challenges to the Board's Proclamation Plan. After extensive motion practice the court held a trial beginning on January 9, 2012 and concluding on January 17,2012. Following trial the court issued a 136-page Memorandum Decision and Order that is impressively thoughtful and thorough. 5. In Hickel v. Southeast Conference, we considered a Proclamation Plan that, like the Plan in this case, "accorded minority voting strength priority above other factors, including the requirements of article VI, section 6 of the Alaska Constitution.',3 We cautioned that while compliance with the Voting Rights Act takes precedence over compliance with the Alaska Constitution, "[t]he Voting Rights Act need not be elevated in stature so that the requirements of the Alaska Constitution are 2(... continued) Governor, one appointed by the presiding officer of the Senate, one appointed by the presiding officer ofthe House ofRepresentatives, and one appointed by the ChiefJustice of the Supreme Court. Under article VI, section 10 of the Alaska Constitution, the Board is required to adopt one or more proposed redistricting plans within 30 days after the official reporting ofthe decennial census. The Board is required to hold public hearings· on the proposed plan and no later than 90 days after the reporting ofthe decennial census the Board must adopt a final plan and issue a Proclamation of Redistricting. Under article VI, section 11 any qualified voter may apply to the superior court to correct any error in redistricting within 30 days following the adoption of the final redistricting plan. On appeal from the superior court this court is to review the cause "on the law and the facts." Under section 11, all dispositions by the superior court and this court should be expedited and shall have priority over all other matters. Section 11 also provides that "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 plan is declared invalid, the matter may be referred again to the Board." 3 846 P.2d 38, 51 n.22 (Alaska 1992). -2- ORD 77 unnecessarily compromised.,,4 We then described the process the Board must follow to ensure that our constitutional redistricting principles are adhered to as closely as possible. After receiving the decennial census data, "[t]he 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. ,,5 6. It is undisputed that the Board began redistricting in March and April of 2011 by focusing on complying with the Voting Rights Act, thereby ignoring the process we mandated in Hickel. This focus resulted in the creation of five effective Native house districts, one "influence" house district, and three effective Native senate districts. The superior court found that two of these house districts violated the Alaska Constitution and were not necessary to achieve Voting Rights Act compliance. In his petition, Riley alleges other constitutional defects, including one related to the Board's use ofexcess population from the Fairbanks North Star Borough to complete one ofthese Native districts. And the superior court expressed unease with the "influence" district created in the southeast and invited us to consider its validity sua sponte. 7. 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 4 Id. s Id. -3- ORD 77 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.,,6 8. 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. We have previously noted that the article VI, section 6 requirements were designed to prevent gerrymandering by ensuring "that the election district boundaries fall along natural or logical lines rather than political or other lines.'" A redistricting plan that substantially deviates from these constitutional requirements undermines trust in the process. 9. Cases decided by the United States Supreme Court subsequent to Hickel have made adherence to the Hickel process even more critical. In a series ofcases, the Supreme Court has established that under the Voting Rights Act, ajurisdiction cannot unnecessarily depart from traditional redistricting principles8 to draw districts using race as "the predominant, overriding factor."· Following the Hickel process will facilitate 6 Id. 7 Id. at 45. 8 Bush v. Vera, 517 U.S. 952, 959-60 (1996). 9 Miller v. Johnson, 515 U.S. 900, 920 (1995). -4- ORD 77 compliance with federal constitutional law by ensuring that traditional redistricting principles are not "subordinated to race. ,,10 10. 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. We have previously characterized the redistricting process in Alaska as "a task of 'Herculean proportions,' ,,11 and we do not diminish the considerable efforts made by the Board in this case. 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."12 Moreover, advances in computer software appear to have streamlined the redistricting process and reduced the burden felt by the Board in past cycles. 13 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"14; it may not be disregarded for reasons of expediency when drafting a permanent plan. II. On remand, the Board must follow the Hickel process. If deviation from the Alaska Constitution is the only means available to satisfy the Voting Rights 10 Bush, 517 U.S. at 959 (internal citation and quotation marks omitted). In re 2001 Redistricting Cases, 44 P.3d 141, 147 (Alaska 2002) (quoting Egan v. Hammond, 502 P.2d 856,865-66 (Alaska 1972)). 11 12 Id. See Holt v. 2011 Legislative Reapportionment Comm 'n, _ A.3d _ , 2012 WL 375298 (Feb. 3, 2012) (Pa. 2012) ("[T]he development of computer technology appears to have substantially allayed the initial, extraordinary difficulties in achieving acceptable levels ofpopulation deviation without doing unnecessary violence to other constitutional commands."). 13 14 Hickel v. Se. Conference, 846 P.2d 38,5 1 n.22 (Alaska 1992). -5- ORD 77 Act's requirements, the Board must endeavor to adopt a redistricting plan that includes the least deviation reasonably necessary to satisfy the Act, thereby preserving the mandates of the Alaska Constitution to the greatest extent possible. IS 12. Because the new plan eventually formulated by the Board may moot the claims raised in this case, we decline to decide them at this time with the exceptions set out in the following paragraphs. 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. 16 But legislative districts for subsequent elections will be defined by the plan ultimately arrived at by the Board after following the Hickel process. 13. We address one legal question raised by Riley: whether the superior court erred in ruling that "the anti-dilution rule cannot be violated if the City [of Fairbanks] cannot support a senate district based on its population." It is undisputed that the population of the City of Fairbanks makes up 89 percent of an ideal senate district. That fact does not preclude Riley's voter dilution claim. Indeed, in Kenai Peninsula Borough v. State, we allowed a group ofAnchorage voters making up only 51 percent of an ideal senate district to bring a similar voter dilution claim, indicating that ".51 senate In order to expedite further judicial review we recommend that the Board make findings, in furtherance of the Hickel process, that the initially designed plan complies with the requirements ofthe Alaska Constitution, that it either does or does not comply with the Voting Rights Act and, if the latter, that the new Proclamation Plan ultimately adopted by the Board deviates from the requirements of the Alaska Constitution to the least degree reasonably necessary to ensure compliance with the Voting Rights Act. 1. In such case we would expect the Board to have modified the Proclamation Plan with respect to House Districts 1 and 2 as ordered by the superior court because those modifications are not contested. 16 -6- ORD77 seat underrepresentation .. . tends toward disproportionality.,,17 The superior court's legal ruling was therefore error, and, based on this incorrect premise, the superior court did not proceed to evaluate the merits ofRiley' s voter dilution claim. Depending on how the districts are redrawn on remand, this issue mayor may not recur. But if it does, and a similar challenge is raised, the superior court will need to make fmdings on the elements ofa voter dilution claim, including whether a politically salient class ofvoters existed and whether the Board intentionally discriminated against that class. 18 14. We also address one legal question raised by the Board: whether the superior court erred in ruling that House Districts 37 and 38 did not comply with the Alaska Constitution based on the rationale that "all five of the [Native] effective House Districts have more Native VAP [voting age population] than necessary." Given the under-populationofthe five Native effective house districts, this particular rationale does not justifY concluding that Districts 37 and 38 were not necessary under the Voting Rights Act because, as the superior court elsewhere concluded, "[i]t was not a matter of whether excess population needed to be added to rural Native districts but only a matter of where to access this excess urban population ...." Entered by direction of the court. Clerk of the Appellate Courts 17 743 P.2d 1352, 1373 (Alaska 1987). 18 See In re 2001 Redistricting Cases, 44 P.3d 141, 144 (Alaska 2002). -7- ORD 77 cc: Supreme Court Justices Judge McConahy Regional Appeals Clerk Trial Court Clerk Publishers Distribution by email on March 14,2012, by mail on March 15,2012: Michael D. White Patton Boggs LLP 601 West 5th Avenue, Suite 700 Anchorage AK 9950 I Jason Gazewood Gazewood & Weiner PC 1008 16th Avenue, Suite 200 Fairbanks AK 9970 I Michael J. Walleri Gazewood & Weiner PC 1008 16th Avenue, Suite 200 Fairbanks AK 9970 I Thomas F. Klinkner Birch Horton Bittner & Cherat 1127 West 7th Avenue Anchorage AK 9950 I Jill Dolan Fairbanks North Star Borough P.O. Box 71267 Fairbanks AK 99707 Scott A. Brandt-Erichsen Ketchikan Gateway Borough 1900 1st Avenue, Suite 215 Ketchikan AK 9990 I Joseph N. Levesque Walker & Levesque LLC 731 N Street Anchorage AK 9950 I Natalie A. Landreth Native American Rights Fund 80 I B Street, Suite 40 I Anchorage AK 9950 I -8- ORD 77 Nicole Corr Patton Boggs LLP 601 West 5th Avenue, Suite 700 Anchorage AK 99501 Carol Brown Association ofVilJage Council Presidents P.O. Box 219, lOlA Main Street Bethel AK 99550 Marcia R. Davis Calista Corporation 30 I Calista Court Anchorage AK 99518 -9- ORD77

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