Redistricting Board seeks court clarification - Unclear if districts will be redrawn by 2014 election.

Richard Mauer
Anchorage Daily News
April 24, 2013

The Alaska Redistricting Board has gone once again to the Alaska Supreme Court, this time asking the justices to clarify whether an earlier ruling requires it to redraw all of Alaska's legislative districts from scratch.

But while the board waits to hear if the court responds, it is doing little else. An attorney representing opponents of the previous redistricting plan has accused the board of wasting so much time that the 2014 election may have to be held under the same interim districts that yielded one-party rule in Juneau in the 2012 election.

"They should get started sooner rather than later," said Fairbanks attorney Jason Gazewood, representing two Fairbanks-area voters who successfully challenged the board's 2012 districts in their area and fear a new plan will once again have constitutional flaws.

"We'd like a decision in this process so you can get some reasoned judicial response to it. Otherwise, we're going to wind up in the same situation we were in before," Gazewood said.

Board chairman John Torgerson, a Republican appointed by Gov. Sean Parnell, said there was adequate time for the board to accomplish its work. But he said the board "was still looking" to hire an expert in computer-mapping software, as it announced it would do at its last meeting March 14. And he said there were still no plans to hire an executive director to fill a position that has been vacant since Oct. 12.

Torgerson, a former state senator from Kasilof, said the board was waiting out a decision by the U.S. Supreme Court in a case brought by Shelby County, Ala., challenging a section of the U.S. Voting Rights Act. The case could affect Alaska because like Shelby County, the entire state of Alaska must get authorization from the U.S. Justice Department before making any changes to its voting system, including redistricting.

Shelby County, near Birmingham, Ala., had a history of discrimination against African-American voters. In Alaska, Justice Department oversight is a result of a history of disenfranchisement of Native voters. The Parnell administration is also challenging the Voting Rights Act, but its case won't be heard until after Shelby County is decided.

Like most big cases, the court will probably rule on Shelby in the closing weeks of its current term, which ends June 30.

But the Alaska Supreme Court has said that the Redistricting Board must first apply Alaska's Constitution in creating districts, and then only apply the Voting Rights Act when it conflicts with the results. The state Supreme Court calls the procedure the "Hickel Plan" after a ruling it made during Gov. Wally Hickel's second term.

So couldn't the board get to work on creating proper state constitutional districts, and then wait to see if the Voting Rights Act was a still a factor? No, said Torgerson, because they were all wrapped up together.

On March 19, the board asked the Alaska Supreme Court for clarification of its Dec. 28 ruling that the Redistricting Board's 2012 districts were improper because it failed to follow the "Hickel Plan," applying the Voting Rights Act before the state constitution. The Alaska Supreme Court affirmed that ruling Feb. 15 after the redistricting board petitioned for a rehearing.

In its latest filing, the board said it couldn't determine whether the Supreme Court had ruled that all 40 legislative districts needed to be redrawn, or only those, primarily in rural areas, affected by the Voting Rights Act. It also asked whether it could keep any of the 2012 districts intact.

But in its request for clarification, the board quoted language from the original decision that seemed to indicate where the Supreme Court stood: the court ordered the board "to draft a new plan for the 2014 election" and agreed with a lower court finding that the board must "begin its drafting process anew."

Gazeway, in an opposing brief filed with the Supreme Court March 26, declared that the board "has asked for clarification on two questions that do no require any clarification."

"Justice (Walter) Carpeneti's decision was written in plain and understandable English and the remand was crystal clear," Gazeway wrote. The board would have to draft a new redistricting plan, he said.

Gazeway said the board appeared to be hoping to leave intact 16 Anchorage districts, including the decision putting former Democratic Sen. Bettye Davis into the Republican stronghold of Eagle River, making her defeat last year by then-Rep. Anna Fairclough all but certain.

Gazeway brought new issues to the court: citing a transcript of the board's Feb. 12 meeting, he said the board had decided it wouldn't hold hearings on a new plan, and that it expected to complete a new plan by Jan. 14. Both decisions meant that the new plan would fail to give the public adequate opportunity to question the new boundaries, either to the board itself or in the courts.

He suggested the Supreme Court consider the appointment of masters to resolve redistricting rather than the board.

The 2012 election, conducted under the interim districts because the Supreme Court said there was no time to produce a final plan. The election resulted in a major shift in power in the Alaska Senate, with four Democrats and two moderate Republicans sent packing by voters. The result was a one-vote victory in the Senate of oil-tax cuts proposed by Parnell.

The House was already strongly Republican.

Democrats said they were gerrymandered out of the Senate, but Republicans countered Democrats only had power because of their own gerrymandering in the 2002 redistricting.

The Redistricting Board is nominally nonpartisan under the Alaska Constitution, but the method of appointing its five members all but assures a partisan outcome: two are chosen by the governor and one each by the Senate President, House Speaker and Chief Justice. The current board is divided 4-1 in favor of Republicans.