Saturday, March 17, 2012

A Guided Tour Through the Alaska Supreme Court's Redistricting Ruling - Or Hickel Lives On

Remember, you get what you pay for.  This guide, me, is not an attorney.  But I did attend most of the Redistricting Board meetings in Anchorage and I listened in on the Fairbanks court case by phone.  So I'll try to walk you  through the case, offering my understanding and/or speculation of each section.    When I'm quoting the decision directly, I indent and use Trebuchet font.

I posted a quick, first look at the decision on Thursday.  This post will walk through each of the 14 sections of the decision.  For those needing a little background on this, I've posted earlier:

Overview of the Court's decision.  You can see the original here. 

1.  Both petitions for review (one from the Alaska Redistricting Board and one from the plaintiffs who challenged the plan the board made) of the Superior Court decision were 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."
The Board is given the plan  back and told to redo it following the guidelines of the court.

3.  The Board is commended for its hard work.

4.  The Superior Court judge is commended for handling the case quickly.

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 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  [footnotes 3, 4, and 5 didn't copy right]
Basically, (5) references a 1994 case in which the redistricting board then did what the current board did now - focused on the Voting Rights Act (VRA) requirements rather than the Alaska Constitutional requirements.  The court decided that even though ultimately the VRA takes precedence over the Alaska Constitution, the board should have first created a plan that met the Constitutional requirements and then made whatever adjustments necessary to satisfy the VRA.

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 of excess population from the Fairbanks North Star Borough to complete one of these 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.
Key points from 6:
  • The Board ignored the process required in the 1994 Hickel decision
  • They focused on meeting the VRA requirements of non-retrogression by creating the same number of Native districts as in the 2001 plan. [See Alaska Redistricting For The Masses Part 1 for background on the VRA and the concept of Native Districts.]
  • The superior court ruled that two Native effective house districts (37 and 38) didn't need to violate the Constitution to meet the VRA requirements, but they do.
  • The plaintiff (Riley) said that the Board took the left over population from the Fairbanks North Star Borough (FNSB) to make district 38. [Every district needs to be very close to 17,755 people so they are all equal and the one person one vote principle is upheld.  The FNSB had enough people for five districts with 8,700 left over.   5500 were added to district 38 and the remainder to district 6 so they would each be as close to 17,755 as possible. They did this on the grounds that it was necessary to configure district 38 this way to meet the VRA, but the superior court said this was not the case. And the plaintiffs argued the excess population should have stayed in one district. More on that later)
  • The superior court asked the supreme court to review, sua sponte, the Native district in Southeast Alaska.   From the Legal Dictionary:
    sua sponte (sooh-uh-spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case. These include an order transferring a case to another judge due to a conflict of interest or the judge's determination that his/her court does not have jurisdiction over the case.

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 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

Key points of 7:
  • The Board didn't follow the process set out in the Hickel decision.  Therefore
    • The Board can't show that they had to violate the constitution to meet the VRA
    • Nor can the court decide without being able to compare the final plan (with constitutional problems) with a plan that met the constitutional requirements..
  • The Board has to make a plan that [This is the crux of what the board must now do.]
    • complies with the Constitutional requirements of compactness, contiguity, and socio-economic integration and then
    • determine if it complies with VRA, and if not
    • make deviations from the constitutional requirements only when they are necessary to meet VRA requirements
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.

(8) explains why the Hickel process is important and echoes an argument made by plaintiff's attorney about gerrymandering.  He argued that by requiring compactness, contiguity, and socio-economic integration, the constitution by-passes the need to prove intent to draw the maps for political advantage.  

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 of cases, the Supreme Court has established that under the Voting Rights Act, a jurisdiction cannot unnecessarily depart from traditional redistricting principles8 to draw districts using race as "the predominant, overriding factor."· Following the Hickel process will facilitate  compliance with federal constitutional law by ensuring that traditional redistricting principles are not "subordinated to race.,,10

Again echoing the plaintiff's attorney who argued the Hickel decision (an Alaskan decision) has subsequently been used as a standard in the US Supreme Court making for an even stronger argument for compliance with the standard.

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.
In (10) the Court seems to be saying:  Yes, we know this is really hard to do, but you have to follow the path laid out by previous Supreme Court decisions.  Besides, you've got better computer programs these days.  
My comment:  I watched them work the computers.  The computer programs give all the numbers, but a person still has to draw the lines.  You can't just give the computer instructions and let it do the drawing itself.  It certainly is easier than before, but it's still laborious.  And I suspect that better tools have raised the bar of what they are expected to perform in a given time period.

11.    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 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.
 By now this should be self explanatory.  It repeats, more succinctly, what was said above in (7).

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.

(12) says that
  • since the Board is coming up with a new plan, the problems raised about the first plan may no longer exist, so
  • we'll hold off on deciding them now.  And
  • If the Board can't do this in time for the 2012 elections (the filing deadline is June 1, 2012, leaving 2.5 months to draw the plan and get it approved), let us know and we can let the original plan stand for this election only.   
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 of Anchorage voters making up only 51 percent of an ideal senate district to bring a similar voter dilution claim, indicating that seat underrepresentation .. . tends toward disproportionality.,,17    The superior court's legal ruling was therefore error [sic], and, based on this incorrect premise, the superior court did not proceed to evaluate the merits of Riley's voter dilution claim. Depending on how the districts are redrawn on remand, this issue may or may not recur. But if it does, and a similar challenge is raised, the superior court will need to make findings on the elements of a voter dilution claim, including whether a politically salient class of voters existed and whether the Board intentionally discriminated against that class.18

I don't want to get too mired down in the details of this one.  Basically, as I understand this, the court is saying that the superior court erred in its ruling on Riley's argument that the City of Fairbanks' size (89% of one Senate seat - two house seats combined, thus 35,510 people) entitles them to a single Senate seat.  (The Board's plan split the two City of Fairbanks house districts into two separate Senate seats and created a situation where the two Democratic Senators from Fairbanks were competing in the same district.)  So, the court is saying that if the same situation should arise (I think that means if the City of Fairbanks is split into two different Senate districts) in the new plan, this will be an issue.  In the trial, the Board's attorney argued that this idea of a city not being split had never come up.  The precedent was for a borough, but not a city.  The plaintiff's attorney countered that the City of Fairbanks had always had just one Senate seat and it had never come up because the other two larger cities - Anchorage and Juneau - are in merged boroughs.  That is the city and the borough are the same.  But Fairbanks has both and the City of Fairbanks is in the Fairbanks North Star Borough.

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-population of the 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 ...."
 The Board's attorney had asked for some instructions should the court not allow districts 37 and 38 to stand.  There were several arguments against the two districts.
  • That 38 - by joining the urban population of Fairbanks with the rural population of the Northwest coastal villages -  was not socio-economically integrated as required by the constitution.
  • That these Native districts had a higher Native Voting Age Population (VAP) than needed to meet the requirements of the VRA.  Packing is a way to gerrymander, by putting all of a political party in one district (and thus getting them out of a nearby district.)
I understand 14 to be saying that the Court accepts the Board's argument that because so many Native people live in these rural areas, it is hard to find enough non-Native people to reduce the Native VAP in some of these districts.  So while the Court isn't saying they will accept any level of VAP, they are saying they understand the argument for the high Native VAP in these districts and the difficulty of finding excess non-Native population to lower it. 

By the way, the Redistricting Board has posted that they will be meeting March 26 - 31 in Anchorage to work on this.

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