During breaks, I’ve been trying to explain it to my wife. That’s the real test of whether I’m making sense to a normal person who hasn’t kept track of this. Ultimately, it seems that before jumping into the petition, I need to put up this overview of what's happened so far. Particularly look at the discussion of the Hickel Process because that is a big part of the back-and-forth between the Court and the Board.
[NOTE OF CAUTION: Most of this happened a while ago and while I have gone back to old posts to check my memory on some things, there may be some minor errors of fact, but I do think the basic narrative should get people ready to tackle the discussions to come on the Board's petition. Also, the full petition is at the end of the post.]
WHAT WAS THE BOARD'S TASK?
1. Divide the state into 40 House districts that each had as close as possible 17,755 people, based on the 2010 Census data. As soon as the Census data was released in March 2011, they began drawing.
WHAT RULES DID THEY HAVE TO FOLLOW TO DO THIS?
1. The US Constitution requires one person, one vote. Thus as mentioned above, each district had to have as close as possible 17, 755 people (the 2010 Census population for Alaska divided by forty districts). The deviation between the biggest and smallest district could not be over ten percent. (That means any range from -2% to +8% or -5% to +5%, etc. between the smallest and largest districts.) Generally though, the expectation is that the deviations should be smaller than 10%, particularly in the cities where it should be no more than 2% or so, because it’s easier to do this where the population density is greater.
2. The Federal Voting Rights Act was passed to insure that minority populations are not redistricted in a way that suppresses their representation. While it was passed with the South in mind, it also applies to Alaska Natives. Alaska is one of about 16 states which, because of past discriminatory redistricting, are required to get approval of their redistricting plans from the Department of Justice to be sure that minority voting power is not diminished by redistricting. Thus, the Board was required maintain the same number of districts in which Alaska Natives had the voting clout to elect the candidate of their choice. How you measure this is complicated and the labels and standards of the 2000 Census morphed somewhat during the process in 2011. But essentially, the Board was required to maintain the same number of “Native” districts or demonstrate that because of population changes this was not possible.
3. The Alaska Constitution requires that each House district be
- contiguous, and
- socio-economically integrated
- no political gerrymandering
Senate districts are made up of two House districts and need to be contiguous.
4. Precedence - If the Board is unable to meet all three sets of requirements in their final plan, the US Constitution trumps everything else. Then comes the federal Voting Rights Act. Last comes the state’s Constitutional requirements. So, if worst comes to worst, they might have to violate, to some degree, the Constitutional requirements to meet the other ones.
There are a few more factors, but these are the ones necessary to understand what is happening in Court right now.
WHAT DID THE BOARD DO?
The Board reviewed these requirements. They decided that since they had to get clearance from the Department of Justice (DoJ) before they could finalize their Plan, they decided to focus on getting the Native Districts set first and then to work the rest of the districts around those districts.
That’s what they did. There were some problems with contiguity (they separated the Aleutians into two different districts) and compactness (as in the existing districts one huge district, bigger than most US states was spread across the state, and socio-economic integration (a suburb of Fairbanks was paired with off-road Native coastal villages). There were charges of political gerrymandering in Fairbanks and Anchorage. When they finished getting all the districts in place the announced their completed Proclamation Plan.
BOARD ADOPTS PROCLAMATION PLAN. LAWSUITS FOLLOW.
All during the process there were a number of other groups watching over the process. Democrats, Republicans, various towns and cities, Native organizations were checking to see how their interests were being affected. And they were all making their own plans in attempts to show that the various criteria could all be met without violating the state constitution.
Soon after the Plan was adopted by the Board, there were several law suits filed against the case. These narrowed down to one from the Fairbanks suburbs of Ester and Goldstream and from the City of Petersburg, which later dropped out, but kept its eye on things.
WHAT DID THE COURT SAY?
The Hickel Process
The Court said a number of things, but of most importance to us now, is that they brought out the Hickel process from a 1994 challenge to a previous redistricting plan.
Then, the Court ruled that the Board needed to first create a plan that divided the state into 40 districts that complied with the state Constitution. Then, and only then, could the Board take into consideration the Voting Rights Act. The current Court’s justification requiring the Board to follow the Hickel process now was:
- Unless the board creates a map that meets the consitutional requirements first, the Supreme Court, reviewing a plan that deviates from the costitution to meet the Voting Rights Act, won’t be able to see if the deviations were the least possible deviations.
- The Hickel process makes it harder to hide gerrymandering.
The Court also four districts as unconstitutional - the split Aleutians and two Fairbanks districts.
The Court sent the plan back to the Board and told the Board to redo the plan using the Hickel process. That is, first create a plan that meets the state constitution. Then, if necessary, make the least possible deviations from that plan to meet Voting Rights Act requirements.
BOARD REDRAWS THE MAPS - THE HICKEL TEMPLATE HICKEL PLANS
For the Board, the application of the Hickel process seemed to have come out of the blue. The attorney had gone into great detail at the start about what they were required to do, but never mentioned this section from a 1992 Supreme Court Decision. I would note that two 2010 Redistricting Board members - Peggyann McConnochie and Marie Greene - are listed as respondents in that case, Hickel v. Southeast Conference.
Time was getting tight. It was the end of March and candidates, who had to file for the August primary by June, needed to know what districts they were in. The Board had to come up with a new plan, get it cleared by the Department of Justice and then approved by the Alaska Supreme Court.
|Hickel Template from March 26, 2012 Post|
The Board decided:
a. since only a few districts had been identified by the Supreme Court as not being Constitutionally valid
b. they would leave the rest as they were and change the ones that were challenged.
They then came up with what they called the Hickel Template. It had most of the districts from the rejected plan and then a blank space for the ones that had been challenged. Most of the state - the North Slope district 40, Anchorage, Southeast, Kenai, and Matsu - were left intact. The blank space included the Fairbanks area and radiated east and west and north mostly.
One of the issues was where to get population to make some of the Native districts big enough. They decided that since Fairbanks had excess population, that would be the best place, which is what they did in the original plan. So to prove that this made the most sense, they came up with four plans working from the Hickel Template. Each plan tried to get the excess population from a different population center.
They quickly rejected as not meeting Constitutional requirements all but the Fairbanks plan. They also rejected plans submitted by some of the outside groups that had been watching the process.
[As I sat there at those meetings it really seemed to me that the Board never really accepted the Hickel process as a legitimate standard for them to meet, but that they had to go through the process. A video of attorney White after one of the meetings seems to capture that. It felt staged. “OK, for the record, why we are rejecting this plan?”
Then someone would list the Constitutional problems with the plan for the record.
In a March 26 post I wrote:
Board Chair Torgerson at one point actually said:They seemed to reject out of hand any slight deviation with the non-favored plans, but they accepted without flinching equal or greater deviations on their own favored plan.]
"Just asking the same question ten times to get it on the record."
COURT ADOPTS AMENDED PLAN AS INTERIM PLAN
They then sent their revised plan to the Supreme Court for approval. They also sent off an expedited request to the Department of Justice which approved the plan. The Court accepted the Amended Proclamation Plan as an interim plan because it was most likely to be approved by the DoJ and the elections were coming soon. But said the Board would have to use the Hickel process to come up with a final plan.
This Amended Proclamation Plan was the basis for the districts in the 2012 election.
BOARD PETITIONS TO USE AMENDED PLAN AS FINAL, COURT SAYS NO
Sometime later the Board petitioned the Court to use the Amended Proclamation Plan as the Final Plan.
In late December 2012 the Court rejected the Amended Proclamation Plan on the grounds that the Board did not go through the Hickel Process and ordered the Board to start over for the 2014 election. There were two dissenters.
The Board has just (January 7, 2013) petitioned the Court to reconsider that decision.
COMING SOON TO A BLOG NEAR YOU
I will write about the Board’s petition in the next few days. This post is intended to give readers enough background to understand the discussion of the petition.
THE COMPLETE BOARD PETITION