In the Matter of the 2021 Redistricting Cases, In the Matter of the 2021 Redistricting Cases, In the Matter of the 2021 Redistricting Cases, In the Matter of the 2021 Redistricting Cases, In the Matter of the 2021 Redistricting Cases (Alaska Redistricting Board / Girdwood / East Anchorage) ( 2023 )

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THE SUPREME COURT OF THE STATE OF ALASKA
IN THE MATTER OF THE 2021 )
REDISTRICTING CASES ) Supreme Court Nos. 18332/18419
(Matanuska-Susitna Borough, S-18328) ) (Consolidated)
(City of Valdez, S-18329) )
(Municipality of Skagway, S-18330) ) Superior Court No. 3AN-21-08869 CI
(Alaska Redistricting Board, S-18332) )
(Alaska Redistricting Board, S-18419) ) OPINION
)
) No. 7646 – April 21, 2023
Petitions for Review from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Thomas A.
Matthews, Judge.
Appearances: Matthew Singer, Lee C. Baxter, and Kayla
J. F. Tanner, Schwabe, Williamson & Wyatt, P.C.,
Anchorage, for Petitioner/Respondent Alaska Redistricting
Board. Robin O. Brena and Jon S. Wakeland, Brena, Bell &
Walker, P.C., Anchorage, for Petitioners/Respondents
Municipality of Skagway Borough and Brad Ryan. Robin O.
Brena, Jake W. Staser, Jon S. Wakeland, and Laura S. Gould,
Brena, Bell & Walker, P.C., Anchorage, for
Petitioners/Respondents City of Valdez and Mark Detter.
Stacey C. Stone, Holmes Weddle & Barcott, P.C.,
Anchorage, for Petitioners/Respondents Matanuska-Susitna
Borough and Michael Brown. Holly C. Wells, Mara E.
Michaletz, and Zoe A. Danner, Birch Horton Bittner &
Cherot, Anchorage, for Respondents Felisa Wilson, George
Martinez, and Yarrow Silvers. Eva R. Gardner, Michael S.
Schechter, and Benjamin J. Farkash, Ashburn & Mason, P.C.,
Anchorage, for Respondents Calista Corporation, William
Naneng, and Harley Sundown in No. S-18332 and for
Respondents Louis Theiss, Ken Waugh, and Jennifer
Wingard in No. S-18419. Nathaniel H. Amdur-Clark and
Whitney A. Leonard, Sonosky, Chambers, Sachse, Miller &
Monkman, LLP, Anchorage, for Intervenor Respondents
Doyon Limited; Tanana Chiefs Conference; Fairbanks Native
Association; Ahtna, Inc.; Sealaska Corporation; Donald
Charlie, Sr.; Rhonda Pitka; Cherise Beatus; and Gordon
Carlson in No. S-18332. Susan Orlansky and Richard
Curtner, American Civil Liberties Union of Alaska
Foundation, Anchorage, for Amici Curiae Alaska Black
Caucus; National Association for the Advancement of
Colored People Anchorage, Alaska Branch #1000; Enclaces;
The Korean American Community of Anchorage, Inc.;
Native Movement; and First Alaskans Institute in No. S­
18332.
Before: Winfree, Chief Justice, Borghesan and Henderson,
Justices, and Matthews and Eastaugh, Senior Justices.*
[Maassen and Carney, Justices, not participating.]
WINFREE, Chief Justice.
EASTAUGH, Senior Justice, concurring.
I. INTRODUCTION
Alaska’s legislative redistricting occurs every decade shortly after the
United States decennial census is released, governed primarily by the Alaska
Constitution. The most recent redistricting efforts began in earnest in August 2021,
shortly after the 2020 census information was received. On November 10 the Alaska
Redistricting Board adopted a final redistricting plan for 40 House of Representative
districts and 20 Senate districts (each composed of 2 House districts). Five separate
challenges to the final plan were filed in superior court. In mid-February 2022 the
superior court concluded that two House districts were unconstitutional on due-process­
*
Sitting by assignment made under article IV, section 16 of the Alaska
Constitution.
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related grounds and that one unrelated Senate district was unconstitutional on
gerrymander grounds. The superior court directed further redistricting efforts.
Four petitions for our review quickly were filed, and we granted review.
The primary competing claims were that the superior court erred (1) by concluding that
the two House districts and the Senate district were unconstitutional, and (2) by not
concluding that (a) the two House districts were unconstitutional for additional reasons
and (b) other House districts also were unconstitutional. In an expedited summary order
we reversed the superior court’s ruling regarding the two House districts, affirmed the
superior court’s ruling regarding the Senate district, and, with one limited exception,
affirmed the superior court’s ruling that the remaining disputed House districts satisfied
constitutional requirements. We remanded for further redistricting efforts consistent with
our order.
The Board adopted an amended final plan in mid-April 2022 and another
challenge was filed in superior court; in mid-May the superior court concluded that the
amended plan’s revision for the previously unconstitutional Senate district also was an
unconstitutional gerrymander. The superior court directed that an alternative amended
plan, previously considered by the Board but not adopted as the amended final plan, be
used as an interim plan for the November 2022 elections and that further redistricting
efforts be undertaken for a second amended final plan for the rest of the decade. A
petition for our review quickly was filed, challenging the superior court’s rulings on the
merits of the amended plan and contending that using the interim plan was erroneous.
We granted review and stayed the superior court’s order pending our ruling; in an
expedited summary order we affirmed the superior court’s conclusion that the relevant
Senate district pairings were an unconstitutional gerrymander, affirmed the superior
court’s order for the interim redistricting plan, and lifted the stay except for the stay of
further redistricting efforts pending our formal written decision.
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We now explain the reasoning behind our summary orders. For context we
start with Alaska’s constitutional framework for redistricting. We then detail the parties’
arguments in the first round of petitions for review and explain our first summary order.
We next detail the parties’ arguments in the final petition for review and explain our
second summary order, including the implementation of an interim redistricting plan for
the November 2022 election cycle. Finally, we lift the stay on further redistricting efforts
and explain what must be accomplished to successfully implement a final redistricting
plan for the remainder of the decade.
II. CONSTITUTIONAL BACKDROP
A. Article VI, Section 6: Substantive Standards; Gerrymandering
Concerns
Article VI, section 6 sets out House and Senate district requirements.1 A
House district shall “contain a population as near as practicable” to 1/40th of the State’s
total population.2 House districts must be contiguous and compact and must “contain[]
as nearly as practicable a relatively integrated socio-economic area.”3 We have
explained that a House district is contiguous if it is not split into separate parts.4 But, of
course: “Absolute contiguity of land masses is impossible in Alaska, considering her
numerous archipelagos. Accordingly, a contiguous district may contain some amount
1
Article VI, § 4 provides for 40 House districts and 20 Senate districts
composed of 2 House districts each. Cf. article VI, § 6 (stating that Senate district “shall
be composed as near as practicable of two contiguous [H]ouse districts” (emphasis
added)).
2
Alaska Const. art. VI, § 6.
3
Id.
4
See Hickel v. Se. Conf., 846 P.2d 38, 45 (Alaska 1992), as modified on
denial of reh’g (Mar. 12, 1993).
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of open sea.”5
Compactness and socioeconomic integration are important constraints on
technically contiguous House districts stretching to Alaska’s distant regions.6 A House
district is more compact when its perimeter is small relative to its area;7 although
irregular shapes are expected because of Alaska’s geography, oddly placed corridors and
appendages are suspect.8 Socioeconomic integration is a more nebulous concept. We
have explained that, in general, the constitutional convention delegates intended House
districts to group people living in neighboring areas and following “similar economic
pursuits.”9 Although the Constitution uses flexible language, such as “as nearly as
practicable” and “relatively,” to describe the socioeconomic integration requirement, we
have said that socioeconomic integration may be sacrificed “only to maximize the other
constitutional requirements of contiguity and compactness.”10 A House district contained
entirely within a borough by definition meets the socioeconomic integration
requirement.11 But socioeconomic integration otherwise generally requires “proof of
5
Id.6
Id. at 45-46.
7
Id. at 45.
8
Id. at 45-46.
9
Id. at 46-47.
10
Id. at 45 n.10.
11
In re 2001 Redistricting Cases (2001 Redistricting I), 44 P.3d 141, 146
(Alaska 2002) (referring to Anchorage, a consolidated city and borough, as “by
definition socio-economically integrated”); Hickel, 846 P.2d at 51 (“By statute, a
borough must have a population which ‘is interrelated and integrated as to its social,
cultural, and economic activities.’ ” (quoting AS 29.05.031)). Cf. id. at 51 n.20 (stating
(continued...)
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actual interaction and interconnectedness rather than mere homogeneity.”12
A “[S]enate district shall be composed as near as practicable of two
contiguous [H]ouse districts,”13 meaning that the two House districts comprising a Senate
district must share a border. Compactness and relative socioeconomic integration
requirements do not explicitly apply to Senate districts.14 But local government
boundaries may be given consideration when creating election districts,15 and, when
describing election district boundaries, “[d]rainage and other geographic features shall
be used.”16 These factors — contiguity, adherence to local boundaries, and reliance on
geographic features — reflect a desired measure of interconnectedness between the
11
(...continued)
that splitting “a borough which otherwise [could] support an election district will be an
indication of gerrymandering . . . for not preserving the government boundaries”).
12
Hickel, 846 P.2d at 46 (quoting Kenai Peninsula Borough v. State, 743 P.2d
1352, 1363 (Alaska 1987)).
13
Alaska Const. art. VI, § 6.
14
Cf. id. (expressly requiring consideration of compactness and
socioeconomic integration only for House districts); see also Kenai Peninsula, 743 P.2d
at 1365 & n.21 (explaining, under former article VI, § 6, that “provisions of article VI,
section 6 which set forth socio-economic integration, compactness and contiguity
requirements are inapplicable to redistricting and reapportionment of [S]enate districts”
but also noting that “[S]enate districts which meander and ignore political subdivision
boundaries and communities of interest will be suspect under the Alaska equal protection
clause”); Braun v. Denali Borough, 193 P.3d 719, 730 (Alaska 2008) (noting we have
declined to extend socioeconomic integration requirement to Senate districts (citing
Kenai Peninsula, 743 P.2d at 1365)).
15
Alaska Const. art. VI, § 6; cf. Hickel, 846 P.2d at 51 n.20 (stating that
splitting “a borough which otherwise [could] support an election district will be an
indication of gerrymandering for not preserving the government boundaries”).
16
Alaska Const. art. VI, § 6.
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House districts that are combined to form a Senate district.
Ample evidence illustrates the constitutional convention delegates’ intent
to protect against gerrymandering when they drafted article VI, section 6.17 As adopted,
section 6 contained guiding language for constructing House districts nearly identical to
its current text: “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 shall contain a population at least equal to the quotient obtained by dividing the
total civilian population by [40].”18 Delegate John Hellenthal, chair of the Committee
on Suffrage, Elections, and Apportionment, explained that the committee’s proposed
17
See generally Gordon S. Harrison, Comment, The Aftermath of In Re 2001
Redistricting Cases: The Need for a New Constitutional Scheme for Legislative
Redistricting in Alaska, 23 ALASKA L. REV. 51, 55-57 (2006) (discussing constitutional
convention proceedings in which delegates explained desire to prevent gerrymandering
and how proposed provisions would prevent such practices). Although the delegates
usually referred to “gerrymandering” in general, without specifying concerns about
partisan gerrymandering in particular, context clues discussed next plainly demonstrate
that partisan gerrymandering was at the front of their minds. Furthermore, the delegates
likely used “gerrymander” in accordance with its contemporaneous legal usage:
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 a
sinister 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 . . . .
Gerrymander, BLACK’S LAW DICTIONARY (4th ed. 1951).
18
Former Alaska Const. art. VI, § 6 (1956). In Egan v. Hammond we struck
down the language specifying that reapportionment be based on the “civilian
population,” excluding military personnel as a class, under the U.S. Constitution. 502
P.2d 856, 869 (Alaska 1972).
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contiguity, compactness, socioeconomic integration, and population quotient
requirements acted together to “prohibit[] gerrymandering which would . . . take place
were 40 districts arbitrarily set up by the [redistricting entity].”19 As we discuss below,
he expressed similar gerrymandering concerns when discussing who would apply these
standards.
In Hickel v. Southeast Conference we expressly noted that “[t]he
requirements of contiguity, compactness and socio-economic integration were
incorporated by the framers of the reapportionment provisions to prevent
gerrymandering.”20 We also pointed to both Carpenter v. Hammond and Black’s Law
Dictionary when defining gerrymandering broadly as “the dividing of an area into
political units ‘in an unnatural way with the purpose of bestowing advantages on some
and thus disadvantaging others.’ ”21
Gerrymandering often takes one of two forms, “packing” or “cracking.”22
19
3 Proceedings of the Alaska Constitutional Convention (PACC) 1846
(Jan. 11, 1956) (statement of Del. John S. Hellenthal); see Harrison, supra note 17 at 56
(providing Delegate Hellenthal’s title).
20
846 P.2d at 45; see also Kenai Peninsula Borough v. State, 743 P.2d 1352,
1367-68 (Alaska 1987) (discussing how gerrymandering that purposefully “exclude[s]
a certain group from political participation” may violate right to fair and effective
representation under equal protection analysis).
21
Hickel, 846 P.2d at 45 & n.11 (quoting Carpenter v. Hammond, 667 P.2d
1204, 1220 (Alaska 1983) (Matthews, J., concurring) and citing BLACK’S LAW
DICTIONARY (6th ed. 1990)). We understand the words “natural” and “unnatural” in the
definitions of gerrymandering (see text above and supra note 17) to be relative terms
denoting the extent to which districts comply with or depart from traditional redistricting
principles such as those set out in article VI, § 6 of the Constitution.
22
Royce Crocker, Congressional Redistricting: An Overview,
CONGRESSIONAL RESEARCH SERVICE 15 (Nov. 21, 2012).
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“Packing” occurs when groups of voters of similar expected voting behavior are
unnaturally concentrated in a single district; this may create a “wasted” excess of votes
that otherwise might have influenced candidate selection in one or more other districts.23
“Cracking” occurs when like-minded voters are unnaturally divided into two or more
districts; this often is done to reduce the split group’s ability to elect a candidate of its
choice.24 But if a group constitutes a supermajority, splitting it into two districts also
may enhance its power by enabling it to elect candidates in both districts. Another form
is incumbent gerrymandering: “a redistricting plan that favors incumbents, often without
regard for their partisan affiliation, and aims to maintain the status quo with respect to
the parties’ distribution of seats within a state and to protect incumbents.”25
B. Article VI, Sections 3 And 8: Redistricting Entity; Gerrymandering
Concerns
The Constitution originally placed redistricting powers with the governor,
who was to appoint an independent advisory board to assist in the redistricting process.26
The advisory board was to consist of five members.27 At least one member was to be
selected from each of four specified areas of the state, none could be a public employee
23
Id.
24
Id. at 5, 15.
25
Id. at 6.
26
Former Alaska Const. art. VI, §§ 3, 8 (1956); see Carpenter, 667 P.2d at
1206 & n.1 (discussing process for 1980 redistricting cycle; noting article VI, § 3
authorizing governor to conduct redistricting and article VI, § 8 directing governor to
appoint advisory redistricting board).
27
Former Alaska Const. art. VI, § 8.
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or official, and all were to be appointed “without regard to political affiliation.”28
Delegate Hellenthal explained that a governor’s reliance on the advisory board’s advice
and compliance with article VI, section 6 would limit gerrymandering.29 He also focused
on limiting gerrymandering when discussing nuances of proposed terminology for
article VI, section 8.30 He unsuccessfully advocated for the use of the word
“nonpartisan” in section 8’s description of advisory board members, explaining that “the
whole purpose of this article [was] to de-emphasize politics.”31 But he successfully
advocated for a prohibition against board members also simultaneously serving as public
officials or employees, reasoning that “a public official was too politically inclined” and
that public employees “likewise would be subject to political pressures.”32
When Delegate Hellenthall presented his committee’s proposal for
constitutional redistricting provisions, he said:
[T]he goal of all apportionment plans is simple[.] [T]he 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
28
Id.
29
3 PACC 1846 (Jan. 11, 1956) (statement of Del. John S. Hellenthal).
30
3 PACC 1846 (Jan. 11, 1956) (statement of Del. John S. Hellenthal).
31
3 PACC 1958-60 (Jan. 12, 1956) (statement of Del. John S. Hellenthal and
ensuing debate).
32
3 PACC 1955 (Jan. 12, 1956) (statement of Del. John S. Hellenthal); see
also 3 PACC 1956-57 (Jan. 12, 1956) (statement of Del. Steve McCutcheon) (expressing
concerns about special interest groups influencing redistricting and supporting
prohibition against public officials serving as Board members because “[i]t is one small
board that sits once every 10 years and certainly we should be able to find five or six
people out of the whole of Alaska [who] would qualify . . . and who will be objective in
their consideration”).
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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.[33]
Delegate Hellenthall clearly believed the end result was a “modern and progressive”
framework for true, just, and fair legislative representation for all Alaskans.34 But
litigation during the first three redistricting cycles after statehood35 led to 1999
constitutional amendments removing redistricting from the governor’s control and
33
3 PACC 1835 (Jan. 11, 1956) (statement of Del. John S. Hellenthal).
34
John S. Hellenthal, Alaska’s Heralded Constitution: The Forty-Ninth State
Sets an Example, 44 A.B.A. J. 1447, 1148-49 (1958) (describing one of several “modern
and progressive features” of Alaska Constitution as creating “truly representative
legislature” and “[a]utomatic reapportionment every ten years by the governor acting on
the advice of an independent board” (emphasis added)).
35
See generally Harrison, supra note 17, at 58-60 (describing redistricting
litigation in 1990, 1980, and 1970 redistricting cycles when governors controlled
process). As the Comment reflects, we resolved challenges in those redistricting cycles
by twice agreeing with challenges (one led by future Republican Governor Jay
Hammond and one by Republican Senator Cliff Groh) to Democrat Governor William
Egan’s redistricting efforts; agreeing with challenges to Republican Governor Jay
Hammond’s redistricting efforts; agreeing with challenges to Democrat Governor
William Sheffield’s redistricting efforts (in redistricting efforts begun by Republican
Governor Jay Hammond); and agreeing with challenges to Alaskan Independence Party
Governor Walter Hickel’s redistricting efforts. Id.; see also Hickel v. Se. Conf., 846 P.2d
38, 57 (Alaska 1992) (holding plan unconstitutional for several article VI, section 6
violations); Kenai Peninsula Borough v. State, 743 P.2d 1352, 1373 (Alaska 1987)
(holding Senate district unconstitutional due to discriminatory intent and
disproportionality though not remanding due to de minimis effect); Carpenter v.
Hammond, 667 P.2d 1204, 1215 (Alaska 1983) (holding plan unconstitutional due to
record “devoid of evidence of” socioeconomic integration within the House district at
issue); Groh v. Egan, 526 P.2d 863, 882 (Alaska 1974) (holding plan unconstitutional
due to unjustifiable population variances); Egan v. Hammond, 502 P.2d 856, 866-68
(Alaska 1972) (same).
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placing it in the hands of a constitutionally created Redistricting Board, while preserving
essentially the same redistricting standards.36 The existing board member qualifications
remained,37 but a new appointment process was put in place.38 Appointments now are
made in the following order: the governor appoints two members, the presiding officer
of the Senate appoints a member, the presiding officer of the House of Representatives
appoints a member, and the Chief Justice of the Alaska Supreme Court appoints the final
member.39 There must be at least one member from each of the four state judicial
districts.40 The members serve until all redistricting plan challenges have been resolved
and a final redistricting plan has been implemented.41 No member may be a legislative
candidate in the general election following the final redistricting plan’s implementation.42
Legislative history and information presented to those voting on the
amendments reflect considerable focus on limiting gerrymandering. Representative
36
Compare former Alaska Const. art. VI, §§ 6, 8 (instructing governor to
appoint each member of board, which serves in advisory role to governor, and to
redistrict according to contiguity, compactness, socioeconomic integration, and
population quotient requirements), with Alaska Const. art. VI, §§ 6, 8 (expanding board
member appointment authority to other government officials, removing limitation that
board serve in advisory capacity, and maintaining substantive redistricting requirements).
37
Alaska Const. art. VI, § 8(a) (providing appointments shall be made without
regard to political affiliation and members may not be public officials or employees
while serving on board); Alaska Const. art. VI § 8(b) (providing for geographic
representation).
38
Alaska Const. art. VI, § 8(b).
39
Id.
40
Id.
41
Id.
42
Alaska Const. art. VI, § 8(c).
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Brian Porter, a legislative sponsor of the constitutional amendment resolution,
repeatedly emphasized the intent to have a more objective and non-partisan redistricting
process.43 Representative Jeannette James supported the goal of eliminating
gerrymandering because “to make [redistricting] be an advantage for one party or the
other, no matter which it is,” did not serve the public.44 Representative Ethan Berkowitz
recognized the need to reduce historical gerrymandering,45 while Representative Con
Bunde also noted the judiciary’s check against gerrymandering.46 State senators
similarly indicated an intent to deter partisan politics during the redistricting process,47
43
Testimony of Brian Porter, Representative, Resolution Sponsor, Tape 98­
44, Side B, No. 128, Hearing on H.J.R. 44 Before Sen. Jud. Comm., 20th Leg., 2d Sess.
(Apr. 29, 1998); Testimony of Brian Porter, Representative, Resolution Sponsor, Tape
98-49, Side B at 1:14:58-15:17, 1:19:31-20:24, Hearing on H.J.R. 44 Before the H. Fin.
Comm., 20th Leg., 2d Sess. (Mar. 3, 1998).
44
Comment of Jeannette James, Representative, Tape 98-12, Side A, No.
1669, Hearing on H.J.R. 44 Before the H. Jud. Comm., 20th Leg., 2d Sess. (Feb. 6,
1998).
45
Statement of Ethan Berkowitz, Representative, Tape 98-15, Side A,
No. 2326, Hearing on H.J.R. 44 Before the H. Jud. Comm., 20th Leg., 2d Sess. (Feb. 11,
1998).
46
Statement of Con Bunde, Representative, Vice Chairman, Tape 98-15,
Side B, No. 241 at 53:25-54:05, Hearing on H.J.R. 44 Before the H. Jud. Comm., 20th
Leg., 2d Sess. (Feb. 11, 1998).
47
Senator Drue Pearce suggested support for an earlier draft amendment
under which the Board would have been appointed entirely by supreme court justices,
keeping elected officials completely out of the process. Comment of Drue Pearce,
Senator, Tape 98-161, Side A, Hearing on H.J.R. 44 Before the Sen. Fin. Comm., 20th
Leg., 2d Sess. (May 8, 1998). Responding to critiques from a Department of Law
representative that Board appointments by the governor “provide[d] an important safety
valve” that would “protect the interest of the people,” Senator Sean Parnell insisted that
(continued...)
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and a formal legislative analysis referred to avoiding partisan political influence on
redistricting as the amendments’ reason and intent.48 To the extent we can determine the
voters’ intent when approving the 1999 amendments,49 both proponents and opponents
of the amendments believed their positions limited gerrymandering.50
C. Related Constitutional Provisions And Concerns
1. Equal protection
The United States and Alaska Constitutions guarantee equal protection
47
(...continued)
the pre-amendment system was the most partisan option and that the courts were the true
safety valve. Comment of Sean Parnell, Senator, Tape 161, Side A, Hearing on H.J.R.
44 Before the Sen. Fin. Comm., 20th Leg., 2d Sess. (May 8, 1998).
48
See H. Jud. Comm., Sectional Analysis of Proposed H.J.R. 44, 20th Leg.,
2d Sess. at 1 (Feb. 4, 1998) (explaining changes to board selection process as “intended
to remove reapportionment and redistricting as far as possible from the partisan political
arena”).
49
See Wielechowski v. State, 403 P.3d 1141, 1150 (Alaska 2017) (looking to
“any published arguments . . . to determine what meaning voters may have attached to
the [proposed constitutional amendment],” including ballot initiative language, news
articles, and sponsor statements (alterations in original) (quoting Alaskans for a Common
Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska 2007))).
50
The statement supporting the amendments, advocated by Representatives
Brian S. Porter and Eldon Mulder, criticized the former redistricting procedure and plans
for “being partisan and gerrymandered rather than creating redistricting plans based on
bipartisan fairness and objectivity.” State of Alaska Official Election Pamphlet 100
(Region III ed., Nov. 3, 1998). Amendment opponents represented by Deborah Bonito,
then-Chair of the Alaska Democratic Party, were concerned that the amendment would
“allow[] legislators to be directly involved in who determines the legislative lines they
are subject to” and reduce the role of the governor, “Alaska’s only elected official
without a direct interest in the shape of individual election districts.” Id. at 100-01.
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under the law.51 “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.”52 Fair
representation, although “not a fundamental right, . . . represent[s] a significant
constitutional interest.”53 We have explained that, unlike the “quantitative” one person,
one vote inquiry, the fair representation question is “qualitative” and “more nebulous.”54
But Alaska’s fair representation standard is stricter than the federal standard because
Alaska’s equal protection clause requires a more demanding review than its federal
analog.55
51
U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 1.
52
Hickel v. Se. Conf., 846 P.2d 38, 47 (Alaska 1992) (quoting Kenai
Peninsula Borough v. State, 743 P.2d 1352, 1366 (Alaska 1987)).
53
Kenai Peninsula, 743 P.2d at 1372.
54
Hickel, 846 P.2d at 47, 48-49.
55
Braun v. Denali Borough, 193 P.3d 719, 731 (Alaska 2008) (“In the context
of reapportionment cases, the Alaska Constitution’s equal protection standard is stricter
than its federal counterpart.”); Hickel, 846 P.2d at 49 (“The equal protection clause of
the Alaska Constitution imposes a more strict standard than its federal counterpart.”); see
also Ross v. State, Dep’t of Revenue, 292 P.3d 906, 910-11 (Alaska 2012) (explaining
that Alaska’s equal protection clause is “more demanding” than its federal counterpart);
Kenai Peninsula, 743 P.2d at 1371 (explaining that when “no fundamental right [is] at
stake, the equal protection clause of the Alaska Constitution imposes a stricter standard
than its federal counterpart”).
A redistricting plan satisfying Alaska’s more stringent requirements thus
likely survives federal scrutiny; a plan failing to meet Alaska’s requirements is invalid
regardless of federal law. Cf. Ross, 292 P.3d at 910-11 (explaining that, because of
“more demanding” standards, “if [a] rule does not violate Alaska’s Equal Protection
(continued...)
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In Kenai Peninsula Borough v. State we set out the controlling three-step
equal protection analysis in redistricting, requiring an inquiry into and a balancing of
competing voter and state interests.56 First, what is the nature of the individual’s
constitutional interest at stake and what weight should it be given?57 Second, what is the
purpose of the state action and, to counterbalance the weight given to the individual’s
interest, what level of importance must it have?58 Third, assuming the state action has
a proper purpose, how close must the relationship be between the state’s purpose and its
chosen means?59 Nonetheless, if the purpose is intended discrimination against a class
of voters, the purpose will be considered illegitimate without needing to ask about the
relationship between purpose and efficacy; an equal protection violation will be
established absent a demonstration that a greater proportionality of representation will
result from its action.60
55
(...continued)
Clause, it does not violate the federal Equal Protection Clause”).
56
743 P.2d at 1371; see also Braun, 193 P.3d at 731.
57
Kenai Peninsula, 743 P.2d at 1371 (stating that nature of interest is most
important variable and that primacy of interest fixes review level and burden state has
to justify action).
58
Id. (stating that, depending on review level, state purpose ranges from
legitimate objective (low end) to compelling state interest (high end)).
59
Id. (stating that, depending on review level, fit between state’s means and
ends ranges from substantial relationship (low end) to close fit (high end) and that
purpose must be implemented with least restrictive alternative).
60
Id. at 1372; Braun, 193 P.3d at 731 (summarizing Kenai Peninsula
holding). To the extent that Braun, id., and 2001 Redistricting 1, 44 P.2d 141, 144
(Alaska 2002), might suggest that intentional discrimination is a required element of an
equal protection claim in the redistricting context, we disavow that language.
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When determining whether a Board has discriminatory intent, courts should
look to the “totality of the circumstances,” including the Board’s process and the
substance of its decision.61 As we explained in Kenai Peninsula:
Wholesale exclusion of any geographic area from the
reapportionment process and the use of any secretive
procedures suggest an illegitimate purpose. District
boundaries which meander and selectively ignore political
subdivisions and communities of interest, and evidence of
regional partisanship are also suggestive. The presentation of
evidence that indicates, when considered with the totality of
the circumstances, that the Board acted intentionally to
discriminate against the voters of a geographic area will serve
to compel the Board to demonstrate that its acts aimed to
effectuate proportional representation.[62]
Districts drawn with an illegitimate purpose are unconstitutional even if the
negative effect on proportional representation is slight,63 but the harm’s extent becomes
more relevant when fashioning a remedy.64 For example, in Kenai Peninsula we granted
declaratory relief, as opposed to requiring the Board to redraw the challenged district,
because the disproportionate representation was de minimis.65
61
Kenai Peninsula, 743 P.2d at 1372.
62
Id.
63
Id.
64
Id. at 1373 (“[T]he degree of disproportionality will be considered in
determining the appropriate relief to be granted.”).
65
Id.
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2. Due process
The Alaska Constitution mandates that “[n]o person shall be deprived of
life, liberty, or property, without due process of law.”66 Due process has both a
procedural and a substantive component.67 Procedural due process “requires that
adequate and fair procedures be employed when state action threatens protected life,
liberty, or property interests.”68 “At a minimum, due process requires that the parties
receive notice and an opportunity to be heard.”69 “Substantive due process is a doctrine
that is meant to guard against unfair, irrational, or arbitrary state conduct that ‘shock[s]
the universal sense of justice.’ ”70 As the superior court pointed out, courts in other
jurisdictions have found due process violations if state action “seriously undermine[s]
the fundamental fairness of the electoral process.”71
We have not previously explored how the due process clause may apply to
redistricting challenges,72 but due process issues are raised tangentially in the matters
before us. We note these issues when relevant, but, as we will explain, we see no need
to delve into them at this time.
66
Alaska Const. art. I, § 7.
67
Doe v. State, Dep’t of Pub. Safety, 444 P.3d 116, 124-25 (Alaska 2019).
68
Id. at 124.
69
Haggblom v. City of Dillingham, 191 P.3d 991, 995 (Alaska 2008).
70
Doe, 444 P.3d at 125 (alteration in original) (quoting Church v. State, Dep’t
of Revenue, 973 P.2d 1125, 1130 (Alaska 1999)).
71
See, e.g., Duncan v. Poythress, 657 F.2d 691, 700 (5th Cir. 1981).
72
Cf. 2001 Redistricting I, 44 P.3d 141, 147 (Alaska 2002) (holding only that
challengers’ due process claims “ha[d] no merit”).
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3. The “Hickel Process” and the Voting Rights Act
The federal Voting Rights Act (VRA) — intended to protect the voting
power of racial minorities — applies to state redistricting.73 “Under section 5 of the
[VRA], 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.’ ”74 We have noted that a “state may constitutionally reapportion districts to
enhance the voting strength of minorities in order to facilitate compliance with the
[VRA].”75
In Hickel we issued a remand order directing the Board to follow an order
of priorities relating to redistricting affected by the VRA:
Priority must be given first to the Federal Constitution,
second to the federal [VRA], and third to the requirements of
article VI, section 6 of the Alaska Constitution. The
requirements of article VI, section 6 shall receive priority
inter se in the following order: (1) contiguousness and
compactness, (2) relative socioeconomic integration,
(3) consideration of local government boundaries, [and]
(4) use of drainage and other geographic features in
describing boundaries.[76]
But we cautioned that “[t]he [VRA] need not be elevated in stature so that
73
Hickel v. Se. Conf., 846 P.2d 38, 49 (Alaska 1992); 52 U.S.C. §§ 10301­
508.
74
Hickel, 846 P.2d at 49 (quoting Kenai Peninsula Borough v. State, 743 P.2d
1352, 1361 (Alaska 1987)).
75
Id. at 49-50 (quoting Kenai Peninsula, 743 P.2d at 1361).
76
Id. at 62.
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the requirements of the Alaska Constitution are unnecessarily compromised.”77 We later
clarified:
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 [VRA] and, to the extent it is
noncompliant, make revisions that deviate from the Alaska
Constitution when deviation is “the only means available to
satisfy [VRA] requirements.”[78]
We also noted United States Supreme Court decisions subsequent to Hickel
“establish[ing] that under the [VRA], a jurisdiction cannot unnecessarily depart from
traditional redistricting principles to draw districts using race as ‘the predominant,
overriding factor.’ ”79 We observed that “[f]ollowing the Hickel process will facilitate
compliance with federal constitutional law by ensuring that traditional redistricting
principles are not ‘subordinated to race.’ ”80
77
Id. at 51 n.22.
78
In re 2011 Redistricting Cases (2011 Redistricting I), 274 P.3d 466, 467-68
(Alaska 2012) (quoting Hickel, 846 P.2d at 51 n.22).
79
Id. at 468 (footnote omitted) (quoting Miller v. Johnson, 515 U.S. 900, 920
(1995)).
80
Id. (quoting Bush v. Vera, 517 U.S. 952, 959 (1996)).
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The Board’s compliance with the Hickel process is challenged in the
matters before us.
D. Article VI, Section 10: Redistricting Process
Article VI, section 10(b) requires a majority vote of the Board to approve
a redistricting plan.81 Section 10(a) outlines an expedited procedure the Board must
follow when crafting a redistricting plan:
Within thirty days after the official reporting of the decennial
census of the United States or thirty days after being duly
appointed, whichever occurs last, the board shall adopt one
or more proposed redistricting plans. The board shall hold
public hearings on the proposed plan, or, if no single
proposed plan is agreed on, on all plans proposed by the
board. No later than ninety days after the board has been
appointed and the official reporting of the decennial census
of the United States, the board shall adopt a final redistricting
plan and issue a proclamation of redistricting. The final plan
shall set out boundaries of house and senate districts and shall
be effective for the election of members of the legislature
until after the official reporting of the next decennial census
of the United States.
We have yet to construe several portions of section 10. We have not
previously decided whether a “proposed redistricting plan” includes both House and
Senate districts. We also have not previously decided whether the public hearings
requirement applies to all plans put forward by the Board or only those promulgated
within the initial 30 days.82 And we have not previously determined whether a plan
81
Alaska Const. art. VI, § 10(b).
82
We have characterized section 10’s public hearings requirement as:
Under article VI, section 10 of the Alaska Constitution, the
Alaska Redistricting Board . . . must adopt one or more
(continued...)
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drafted by a third party and offered for public comment counts for the 30-day deadline’s
purposes. These questions are before us now.
E. Article VI, Section 11: Plan Challenges
Article VI, section 11 gives “[a]ny qualified voter” the right to challenge
the Board’s final redistricting plan or compel the Board to perform its duties.83 Original
jurisdiction for such challenges lies with the superior court.84 Appellate jurisdiction rests
with this court, and we must review the case “on the law and the facts.”85 We review
redistricting plans “de novo upon the record developed in the superior court,”86 but, as
in other matters, we afford some deference to the superior court’s findings when it was
“in the best position to decide the issue,” such as for witness credibility.87
82
(...continued)
proposed redistricting plans within 30 days after receiving
official census data from the federal government. The Board
must then hold public hearings on the proposed plans and
adopt a final plan within 90 days of the census reporting.
In re 2011 Redistricting Cases (2011 Redistricting III), 294 P.3d 1032, 1033 (Alaska
2012). Although not based on any holding, this characterization implies that the public
hearings requirement applies only to plans proposed within the 30-day window.
83
Alaska Const. art. VI, § 11.
84
Id.
85
Id.
86
Groh v. Egan, 526 P.2d 863, 867 (Alaska 1974).
87
See In re Hospitalization of Lucy G., 448 P.3d 868, 877-78 (Alaska 2019)
(explaining that involuntary commitment and medication proceedings warrant clear error
review of factual findings but independent review of superior court’s decisions based on
those factual findings); Miller v. Fenton, 474 U.S. 104, 114-15 (1985) (discussing
situations, such as evaluating witness credibility, in which appellate court should defer
(continued...)
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Courts review Board redistricting plans as if they were “a regulation
adopted under a delegation of authority from the legislature to an administrative agency
to formulate policy and promulgate regulations[:] . . . first to ensure that the agency has
not exceeded the power delegated to it, and second to determine whether the regulation
is reasonable and not arbitrary.”88 Determining whether a regulation is reasonable
primarily concerns whether “the agency has taken a hard look at the salient problems and
has genuinely engaged in reasoned decision making.”89 “[W]e always have authority to
review the constitutionality of the action taken, but we . . . may not substitute [our]
judgment as to the sagacity of a regulation for that of the administrative agency.”90
Similarly we do not substitute our judgment as to the sagacity of a redistricting map
87
(...continued)
to trial court’s application of law to fact); HARRY T. EDWARDS & LINDA A. ELLIOTT,
FEDERAL STANDARDS OF REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY
ACTIONS 24 (3d ed. 2018) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844,
855 (1982)).
88
Groh, 526 P.2d at 866; see also 2011 Redistricting III, 294 P.3d at 1037.
In Groh we justified this deferential standard of review to the Board based on the
contemporary constitutional mandate that the executive branch was in charge of
reapportionment. See 526 P.2d at 866. We have not yet considered the deference due
a Board’s decisions in light of the 1999 constitutional amendments, instead citing earlier
cases for justification that the Board is treated the same as an administrative agency. See,
e.g., 2011 Redistricting III, 294 P.3d at 1037 & nn.16-19. Although the justification for
deferring to the Board’s decision no longer is the same, we still treat the Board as an
administrative agency and afford it a more deferential standard of review given that its
decision-making power is constitutionally vested, although it is unclear whether the
Board has any particular “expertise” beyond its initial training sessions for appointed
members.
89
2001 Redistricting I, 44 P.3d 141, 143 n.5 (Alaska 2002) (quoting Interior
Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 690 (Alaska 2001)).
90
Groh, 526 P.2d at 866-67.
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adopted by the Board.
III. 2021 REDISTRICTING PROCESS ROUND 1: BOARD’S FINAL PLAN;
SUPERIOR COURT’S DECISION; PETITIONS FOR REVIEW
A. Board Proceedings
The Board’s five members were appointed in July and August 2020.
Governor Mike Dunleavy appointed Budd Simpson (from Juneau, First Judicial District)
and Bethany Marcum (from Anchorage, Third Judicial District); Senate President Cathy
Giessel appointed John Binkley (from Fairbanks, Fourth Judicial District); House
Speaker Bryce Edgmon appointed Nicole Borromeo (from Anchorage, Third Judicial
District); and Chief Justice Joel Bolger appointed Melanie Bahnke (from Nome, Second
Judicial District). The members elected Binkley as Board Chair.
The Board first met in September 2020, and it met numerous times through
July 2021 for “organizational work, procurement, training and planning.” Among other
things, the Board selected an executive director, adopted policies, interviewed and
selected legal counsel, hired a VRA consultant, received training on the redistricting
software, and attended the National Conference of State Legislatures “Ready to
Redistrict” conference.
On August 12 the United States Census Bureau reported the 2020 census
results to Alaska. The Board then had until September 11 to “adopt one or more
proposed redistricting plans” for public hearings and until November 10 to adopt a final
plan.91 The Board held meetings and took public testimony August 23-24 and
September 7-9. On September 9 — within the required 30-day period — the Board
adopted two proposed redistricting plans with 40 House districts, but no Senate district
91
Alaska Const. art. VI, § 10(a) (requiring Board to adopt one or more
proposed redistricting plans within 30 days of receiving official census information; to
hold public hearings; and to adopt final plan within 90 days).
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pairings. On September 20 — after the initial 30-day period — the Board adopted
updated versions of the first two plans, as well as four third-party plans. The Board then
took the six adopted plans on a “road show” from September 27 to November 1, holding
public hearings throughout Alaska. These hearings included some testimony about
possible Senate district pairings.
The Board reconvened in Anchorage November 2-5. On November 5 the
Board voted 4-1 (with Member Marcum disagreeing) to approve the final House
redistricting map. On November 8 the Board began working on Senate district pairings,
and took two hours of public testimony. On November 9 the Board exited an executive
session and without meaningful discussion immediately adopted, by a 3-2 vote with
Board Members Bahnke and Borromeo disagreeing, a number of Senate pairings,
including pairing House Districts 21 and 22 to create Senate District K. On November
10 the Board adopted its final state-wide redistricting plan; Board Members Binkley,
Marcum, and Simpson signed in support and Board Members Bahnke and Borromeo
signed in opposition.
B. Superior Court Proceedings
Five separate challenges to the Board’s plan were filed in superior court and
consolidated into one case. The challengers included: (1) Matanuska-Susitna Borough
(Mat-Su Borough) and voter Michael Brown (collectively Mat-Su); (2) City of Valdez
and voter Mark Detter (collectively Valdez); (3) Municipality of Skagway Borough and
voter Brad Ryan (collectively Skagway); (4) East Anchorage voters Felisa Wilson,
George Martinez, and Yarrow Silvers (collectively East Anchorage); and (5) Calista
Corporation, William Naneng, and Harley Sundown (collectively Calista). The superior
court also heard from several intervenors: Doyon, Limited; Tanana Chiefs Conference;
Fairbanks Native Association; Ahtna, Inc.; Sealaska Corporation; Donald Charlie, Sr.;
Rhonda Pitka; Cherise Beatus; and Gordon Carlson. Participating jointly as amici curiae
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were Alaska Black Caucus; National Association for the Advancement of Colored
People Anchorage, Alaska Branch #1000; Enclaces; Korean American Community of
Anchorage, Inc.; Native Movement; and First Alaskans Institute. We refer to this group
as “amici curiae Alaska Black Caucus.”
The superior court conducted a 12-day bench trial starting January 21,
2022. Pretrial proceedings took place on a highly condensed schedule: The parties took
depositions of Board members and other witnesses and filed direct testimony by
depositions and affidavits in advance of trial. Cross-examination and redirect testimony
were permitted at the trial.
The superior court issued its decision on February 15, making the following
legal conclusions and remanding to the Board to remedy deficiencies in the final plan:
1. The Board violated the rights of the East Anchorage
Plaintiffs under the Equal Protection Clause of the
Alaska Constitution . . . by pairing House District 21­
South Muldoon with the geographically and
demographically distinct House District 22-Eagle
River Valley to create Senate District K.
2. The Board violated the rights of the East Anchorage
and Skagway Plaintiffs under the Due [Process]
Clause of the Alaska Constitution . . . by failing to take
a “hard look” at House District 3 and Senate District
K in light of the clear weight of public testimony.
3. The Board violated Article VI, Section 10 by failing to
hold meaningful public hearings on proposed Senate
Districts prior to adoption.
4. The Board violated Article VI, Section 10 by failing to
include Senate District pairings in any proposed plan
adopted before the 30-day constitutional deadline.
5. The Board violated Article VI, Section 10 by failing to
make a good-faith effort to accommodate public
testimony in regard to House District 3 and Senate
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District K.
6. The Board violated the Open Meetings Act . . . in its
improper use of executive session, but the violation
does not, on balance, require the Court to void all
actions taken by the Board in executive sessions.
7. In all other respects, the Board did not violate the
Plaintiffs’ rights under Article I, Sections 1 and 7, or
Article VI, Sections 6 and 10.
This matter should be remanded to the Board to address the
deficiencies in the Board plan consistent with this order.
C. Petitions For Review
The Board, Skagway, Mat-Su, and Valdez petitioned for our review of
portions of the superior court’s decision.92 We granted review, later issuing a summary
order resolving the petitions and noting that a full explanation would follow.93
1. The Board’s petition
The Board’s petition focuses on East Anchorage’s successful challenge to
Senate District K and on Skagway’s successful challenge to House Districts 3 and 4.
The Board contends that its mapping of House Districts 3 and 4 and Senate District K
did not violate article VI, section 10 and that the superior court’s textual interpretation
of section 10 and reasoning by analogy to federal administrative procedures law were
erroneous. The Board adds that Senate District K did not discriminate against distinct
communities of interest in East Anchorage and thus did not violate the right to fair
representation under Alaska’s equal protection law. The Board further argues that it did
92
See Alaska R. App. P. 216.5(h) (providing for immediate petition for
review to supreme court of superior court decision remanding to Board).
93
We attach as Appendix A copies of relevant election district maps the
Board published with its November 2021 redistricting proclamation. Our earlier
summary order resolving the petitions for review is attached as Appendix B.
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not violate the Open Meetings Act; that, even if it did, a waiver of attorney-client
privilege is not an appropriate remedy for violations of the Act; and that the superior
court erred in its handling of the Board’s discovery requests and proposed witness
testimony.
2. Skagway’s petition
Skagway contends that, although the superior court correctly invalidated
House Districts 3 and 4 on due process grounds, the court also should have invalidated
the districts for violating article VI, section 6’s socioeconomic integration requirement.
Skagway also contends the superior court erred by concluding that the Board followed
the Hickel process and by not addressing Skagway’s equal protection argument.
3. Mat-Su’s and Valdez’s petitions
Mat-Su and Valdez primarily challenge the superior court’s determinations
that House Districts 29 and 36 satisfy Alaska’s constitutional requirements. They
contend that the superior court erred when it concluded the Board had followed the
Hickel process, the Board’s Open Meeting Act violations did not justify voiding any
action taken, and the Board gave salient issues a “hard look” when creating the House
district combining portions of the Mat-Su Borough and the Valdez area.
IV. RESOLUTION OF ROUND 1 PETITIONS FOR REVIEW
A. Common Issues
1. The superior court did not err when it concluded that the Board
sufficiently followed the Hickel Process.
Not long after receiving the 2020 census data in mid-August 2021 the
Board held a mapping work session, and the members learned that the mapping software
could display race data. Although Board members clearly were interested in how race
data changed based on district boundary lines, they made comments reflecting an
understanding that race data and VRA requirements should not be considered until later
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in the process. At this work session Member Bahnke drew what would become House
Districts 37, 38, 39, and 40, covering much of Alaska; as she drew the districts, she
nonetheless asked about certain race data.
On September 8 the Board orally affirmed that it would proceed without
the race data being visible on the districting software. On September 9 the Board
adopted two proposed redistricting plans, “Board Composite v.1” and “Board
Composite v.2.” Member Bahnke requested that the Board engage with its VRA expert
“as soon as practicable” after adopting the proposed plans, “at least to look at what [has
been] developed.” House Districts 37, 38, 39, and 40 — referred to as early as
November 2 as the “VRA Districts” by the Board — did not significantly change
between September 9 and the final redistricting plan adopted in November.
From September 17 to 20 the Board took public testimony, replaced
Composites v.1 and v.2 with Composites v.3 and v.4, and adopted four third-party plans
for consideration. It then embarked on its public hearing road show from September 27
to November 1. After the road show the Board received a VRA compliance report. The
report found that Districts 37, 38, 39, and 40 complied with the VRA. It also noted that
because three of these four districts “experienced population growth which outpaced
increases in the overall state population,” the Board was able “to draw compact,
contiguous districts which retain[ed] existing socio-economic integration while retaining
core constituencies.” The Board then adopted the final House districts map on
November 5.
At trial challengers contended that the Board “locked in” Districts 37, 38,
39, and 40 as “VRA Districts” at an early stage of the process, violating the Hickel
process. They argued that, having done so without entertaining modifications, the
Valdez area was paired with portions of the Mat-Su Borough because the Board no
longer had anywhere else to put the Valdez area.
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The superior court found:
The transcripts and videos of public Board meetings make it
abundantly clear that Board Members were actively
considering VRA-related issues since the beginning of the
process. And the fact that all four of the Board’s proposed
plans contained identical versions of Districts 37, 38, 39, and
40 also creates a strong inference that the Board never truly
considered available alternatives.
The superior court particularly noted that there were “very few changes to the so-called
VRA districts throughout the entire process”; that “the Board [was] made aware of past
VRA districts and requirements”; that “it was capable of viewing and had racial data
displayed during several public work sessions in August and September”; that Member
Bankhe made comments “throughout the redistricting process evidenc[ing] a strong
preoccupation with both VRA requirements and the percentage of Alaska Natives in
rural areas”; and that “by early September, the Board was requesting its VRA consultants
to analyze the proposed plans ‘as soon as practicable.’ ”
Despite these findings the superior court ultimately determined that the
Board sufficiently followed the Hickel process, and the court declined to grant relief on
the basis of any deviations. The court discussed how the Board clearly would have
violated the Hickel process if it meant “that the Board can never consider VRA
implications prior to adoption of the final house plan.” But the court ultimately
interpreted Hickel and our subsequent case law to mean that the Board may take “VRA
requirements into account during the final stretch of the redistricting process” and that
the Board sufficiently complied with the Hickel process.
Mat-Su, Skagway, and Valdez contend the superior court erred when it
determined that the Board sufficiently followed the Hickel process. The Board responds
that it completed “all of its proposed plans without analyzing or applying the VRA, or
even considering racial data . . . until the proposed plans were set.” Disputing the
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assertion that “VRA Districts” were locked in, the Board points to the superior court’s
observation that House Districts 37, 38, and 39 were modified up until the last day.
Whether the Board violated the Hickel process is much less obvious in the
matters now before us compared with Hickel or the 2011 redistricting cases. The Board
clearly was aware of race data at the start, but we agree with the superior court that this
seemed to be a part of learning “the basics of the redistricting process and how to use the
districting software.” Referring to these districts as “VRA districts” early in the process
also seems reasonable given their historic consideration under the VRA,94 and it would
not necessarily mean that these districts were drawn with the VRA in mind during the
redistricting process. We agree with the superior court that, given Hickel’s avoidance
of the constitutional language of “proposed” and “final” plans, the Board is not required
to save VRA considerations until the very end of the 90-day period for adopting a final
redistricting plan.95 Designing a proposed plan without specific attempts to meet VRA
requirements and then submitting it to VRA experts, regardless of where the Board is in
its timeline for adopting a final plan, satisfies the Hickel process.
We thus affirm the superior court’s conclusion that the Board sufficiently
complied with the Hickel process.
2. The superior court did not err by concluding that it was not in
the public’s best interest to vacate Board actions resulting from
Open Meetings Act violations.
Many times throughout its work the Board met in executive session under
94
See 2011 Redistricting III, 294 P.3d 1032, 1035-36 (Alaska 2012)
(identifying 2011 VRA regions that are similar to those identified in 2021).
95
See Hickel v. Se. Conf., 846 P.2d 38, 51 n.22 (Alaska 1992).
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the Open Meetings Act (OMA),96 and the Board’s executive sessions were a significant
issue at trial. The executive sessions were particularly problematic because they
hindered the superior court’s ability to review the Board’s actions.
Toward the end of the Board’s November 3 meeting, the members
discussed the Valdez area’s House district placement. The Board appears to have been
deciding between pairing the Valdez area with portions of the Mat-Su Borough or with
some Prince William Sound communities. Several members opined that an executive
session might be necessary to discuss legal issues about pairing the Valdez area with
portions of the Mat-Su Borough. The Board took a short break; immediately upon return
Member Simpson moved to enter into executive session “under AS 44.62.310(c),
subsections (3) and (4),” without further specification.97 The executive session lasted
96
The OMA, instructing governmental bodies to make meetings open to the
public, applies to “[a]ll meetings of a governmental body of a public entity of the state.”
AS 44.62.310(a). The OMA is meant to maintain open deliberations, prevent
governmental agencies from deciding “what is good for the people to know and what is
not good for them to know,” and protect “the people’s right to remain informed . . . so
that they may retain control over the instruments they have created.” AS 44.62.312.
Consideration of matters required by law to be kept confidential or matters “not subject
to public disclosure” need not be open to the public and can instead be “discussed at a
meeting in executive session.” AS 44.62.310(b), (c)(3), (c)(4). The OMA’s remedy for
executive sessions held contrary to the statutory terms is that, subject to a lawsuit, the
hidden action is voidable but can be cured by “conducting a substantial and public
reconsideration of the matters considered at the original meeting.” AS 44.62.310(f).
97
Cf. AS 44.62.310(b) (“The motion to convene in executive session must
clearly and with specificity describe the subject of the proposed executive session
without defeating the purpose of addressing the subject in private. Subjects may not be
considered at the executive session except those mentioned in the motion calling for the
executive session unless auxiliary to the main question.”). As the superior court noted,
vague motions to enter into executive session hinder the ability to determine “whether
a particular executive session was held in accordance with the law.” We are unable to
(continued...)
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through the end of the day’s meeting. That evening Member Borromeo sent text
messages to two individuals asking for case law supporting a pairing of the Valdez area
and portions of the Mat-Su Borough.
November 4 was a full-day mapping work session. The Board reviewed
a map pairing the Valdez area with portions of the Mat-Su Borough. Board members
discussed that the pairing was socioeconomically integrated and compact and that the
Board’s legal counsel had advised them there was historical precedent for the pairing.
There was no further discussion of pairing the Valdez area with Prince William Sound
communities. When Member Marcum suggested that the Board reconsider, Member
Borromeo explained that three Board members were not willing to place the Valdez area
in “the Interior” House district and that the Anchorage area apparently was not a viable
pairing option due to other constitutional concerns. The Board eventually agreed that
Member Marcum could propose pairing the Valdez area and the Anchorage area.
On November 5 the Board entered into executive session twice. After
Member Simpson mentioned “a Voting Rights issue” he moved to enter into executive
session “for the purpose of receiving legal advice . . . under AS 44.62.310, involving
matters which by law or ordinance are required to be confidential, and matters involving
consideration of government records that by law are not subject to public disclosure.”98
The Board returned from executive session and entered a mapping work session.
Member Marcum mentioned that, despite public testimony demonstrating Valdez area
97
(...continued)
discern how these allowances for executive session applied to the Board’s discussion
about pairing the Valdez area with portions of the Mat-Su Borough.
98
We are unable to discern how these allowances for executive session
applied to the Board’s discussion about pairing the Valdez area with portions of the Mat-
Su Borough.
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voters and Mat-Su Borough voters did not want to be paired together, after consulting
with legal counsel the pairing appeared to be the only available option. Following more
public testimony, Member Bahnke suggested that the Board enter into executive session
for legal advice on the “whole new map that [was] on the table for consideration.”
Member Borromeo moved to enter into executive session under AS 44.62.310(c)(3) and
(4), again without offering an explanation beyond the statutory language;99 the motion
passed. When the Board exited executive session it appeared to have narrowed its
choices to two maps, both pairing the Valdez area with portions of the Mat-Su Borough.
The Board ultimately voted and approved a final House district map with that pairing.
On November 8, when the Board began work on Senate district pairings,
it took two hours of public testimony before entering into executive session. This was
the only public testimony taken specifically for Senate district pairings, and residents
from both Anchorage and Eagle River tended to support pairing the North and South
Muldoon House districts together and the North and South Eagle River House districts
together. The Board entered into executive session to “speak with [its] legal counsel and
voting rights consultant” upon a motion by Member Borromeo citing “legal and other
. . . purposes relating to receiving legal counsel.”100
After the executive session ended, the Board conducted a work session for
over three hours. During the work session Member Bahnke “strongly” recommended
pairing the Eagle River House districts together, but Member Marcum stated there was
a “socioeconomic connection between [Joint Base Elmendorf - Richardson (JBER)] and
99
We are unable to discern how these allowances for executive session
applied to the Board’s discussion about pairing the Valdez area with portions of the Mat-
Su Borough.
100
We are unable to discern how this topic fit within the statutory allowances
for executive session.
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[North] Eagle River” and said their two House districts should be paired together. The
Board ended the day with an executive session, apparently seeking legal advice on the
Senate district pairings.101
When the Board reconvened on November 9 it continued in executive
session. The Board then resumed public session, and without any substantive discussion
on the record, Member Marcum moved that the Board combine the South Eagle River
House district with the South Muldoon House district to make up Senate District K.
Members Binkley, Marcum, and Simpson voted in favor, with Members Bahnke and
Borromeo opposed.
The propriety of the Board’s various executive sessions first came before
us in January 2022 after challengers asked the superior court to conduct a private review
of certain Board communications, contending that “the Board [had] improperly utilized
executive sessions to conduct what should have been public deliberations.” The superior
court found that the challengers had a reasonable basis to believe that in camera review102
may show that some of the documents might not be subject to the attorney-client
101
We are unable to discern how this topic fit within the statutory allowances
for executive session.
102
When a party asserts that a requested document or communication is
privileged, the superior court may privately review evidence “to determine the
applicability of the” asserted privilege only upon “ ‘a showing of a factual basis adequate
to support a good faith belief by a reasonable person,’ . . . that in camera review of the
materials may reveal evidence to establish” whether the asserted privilege applies. Cent.
Constr. Co. v. Home Indem. Co., 794 P.2d 595, 598-99 (Alaska 1990) (omission in
original) (quoting United States v. Zolin, 491 U.S. 554, 572 (1989)).
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privilege103 due to the interplay of the OMA, the Public Records Act104 and the
appearance of the Board utilizing executive sessions to obtain general redistricting legal
advice rather than specific litigation advice. Shortly before trial began, the superior court
ordered a private review of some documents the Board had claimed were privileged.
The Board filed an emergency petition for review, asking us to decide that
the order for in camera review would violate its privilege rights and that the OMA
neither applies to the Board nor provides for in camera review of otherwise privileged
documents as a remedy for violation. We denied the petition for review. Although the
superior court ultimately determined that most of the documents were privileged, it
ordered a few “be produced over the Board’s objection.” The superior court explained
in its February 15 decision that it would have ordered production of additional
documents regarding whether “discussions held during executive session” violated the
OMA but that the violations did not appear to be in bad faith and the current state of the
law made it unclear whether doing so was an available remedy.
In its February 15 decision the superior court additionally determined that
the Board likely violated the OMA when “at least three Board members reached a
‘consensus’ outside of the public view” regarding Senate District K.105 But because the
103
See Alaska R. Evid. 503 (establishing scope of lawyer-client privilege).
104
See AS 40.25.120 (affording right to every person “to inspect a public
record in the state” subject to specific exceptions).
105
The court found the Board also violated procedural requirements under the
OMA when the Board convened executive sessions “following a vague motion which
did not specify the meeting’s subject.” Although stating that these violations “harm[] the
public confidence in public entities generally and more importantly in the highly visible
and consequential redistricting process,” the superior court concluded that they did not,
on balance, “outweigh the harm that would be caused were [it] to void the Senate
(continued...)
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Board publicly voted to adopt Senate District K, the court concluded that it was not a
voidable action. The court noted that it had struggled to discern the extent to which the
Board conducted executive session for inappropriate reasons. The court also suggested
that an “appropriate remedy for violation of the OMA would include opening the door
to discussions held during executive session, regardless of the presence of an attorney”
in light of the “strong public policy in favor of open government.”
a. The Board’s OMA arguments
The Board challenges the superior court’s determination that the Board
engaged in “secret deliberations on senate pairings” and the superior court’s suggestion
that improperly entering into executive sessions might waive the attorney-client
privilege. Unlike the Board’s position in the superior court, the Board does not now
assert that it is exempt from the OMA.106 Because the superior court did not invalidate
105
(...continued)
pairings on that basis alone.”
106
The OMA’s plain language seems to support the superior court’s
conclusion that the OMA applies to the Board. Subject to certain exceptions not relevant
here, the OMA applies to “[a]ll meetings of a governmental body of a public entity of the
state,” and “governmental body” is defined broadly to mean: “[A]n assembly, council,
board, commission, committee, or other similar body of a public entity with the authority
to establish policies or make decisions for the public entity.” AS 44.62.310(a), (h)(1).
Prior to the 1999 constitutional amendments creating the independent redistricting board,
we held that the governor’s advisory board was subject to the OMA. See Hickel v. Se.
Conf., 846 P.2d 38, 57 (Alaska 1992). And in 2001 Redistricting I we reviewed the
Board’s alleged OMA violations without reconsidering whether it still applied in light
of the 1999 amendments changing Board appointment procedure. 44 P.3d 141, 147
(Alaska 2002). The OMA is unenforceable against the legislative and judicial branches
of government. See Abood v. League of Women Voters, 743 P.2d 333, 337-40 (Alaska
1987) (holding that whether OMA applied to legislature was nonjusticiable issue because
“[t]he Alaska Constitution expressly commits to the legislature authority to adopt its own
rules of procedure” and that whether to conduct business “in open or closed sessions is
(continued...)
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Senate District K due to OMA violations and because we view the alleged abuse of
executive session as more pertinent to the superior court’s blended due process and “hard
look” analysis we address later, we focus solely on the superior court’s suggested remedy
that OMA violations might act to waive the Board’s attorney-client privilege in some
situations. We address this issue because of the Board’s continuing work.
The Board contends that the only remedy for an OMA violation is voiding
the action wrongfully taken in executive session, not “abrogat[ing] the government’s
attorney-client privilege.” We agree with the Board that the only remedy for an action
taken during an OMA violation is voiding the action, “if the court finds that, considering
all of the circumstances, the public interest in compliance with [the OMA] outweighs the
harm that would be caused to the public interest and to the public entity by voiding the
action.”107 But we also recognize that the OMA reflects a body of law distinct from the
law of privilege108 and that matters discussed during an executive session are not
automatically privileged merely because an attorney for the governing body is present
106
(...continued)
a procedural question . . . traditionally . . . the subject of legislative rules”). But there is
no express constitutional reservation of authority to the Board to promulgate its own
procedural rules, and the Board thus is subject to Alaska Statutes that do not interfere
with its constitutionally granted powers. Compare Alaska Const. art. II, § 12, and art.
IV, §§ 8, 15, with art. VI, § 9 (expressly reserving rule-making powers to the legislature,
judiciary, and judicial council, but not to the Board).
107
AS 44.62.310(f).
108
Generally, “[c]ourts consistently ‘find no language in the [OMA] that
would support the assertion that the Legislature intended to create an absolute privilege
for all communications occurring while a public body is in a closed session.’ ” ANN
TAYLOR SCHWING, OPEN MEETING LAWS § 7.11 F. (3d ed. 2011) (quoting State ex rel.
Upper Republican Nat. Res. Dist. v. Honorable Dist. Judges, 728 N.W.2d 275, 279 (Neb.
2007)).
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for the discussions. There are limits on using the OMA’s executive session provisions
for legal advice pertaining to the business of a government agency.109 But we do not
need to explore those limits at this time.
b. Mat-Su’s OMA arguments
Mat-Su contends that the superior court failed to address a potential OMA
violation raised by Mat-Su at trial and that the court erred when it failed to void Board
actions after the Board violated the OMA. At trial Mat-Su raised the question whether
the Board violated the OMA by improperly entering into executive session on November
3 and deciding to place the Valdez area with portions of the Mat-Su Borough in House
District 29. Mat-Su asserted that the Board improperly discussed the placements
“outside the view of the public eye” and that, in combination with some other “very
egregious actions” by the Board, it warranted remanding the entire final plan for
reconsideration.
Mat-Su is correct that the superior court’s February 15 decision overlooked
Mat-Su’s challenge to the November 3 executive session, and we therefore give it our
independent review.110 Mat-Su argues that, procedurally, the Board’s motions to enter
109
See Cool Homes, Inc. v. Fairbanks North Star Borough, 860 P.2d 1248,
1262 (Alaska 1993) (“It is not enough that the public body be involved in litigation.
Rather, the rationale for the confidentiality of the specific communication at issue must
be one which the confidentiality doctrine seeks to protect: candid discussion of the facts
and litigation strategies.”). We recognize that our case law addressing the intersection
of statutory or constitutional public hearings requirements and privileged communication
has room for development. Cf. Detroit News, Inc. v. Indep. Citizens Redistricting
Comm’n, 976 N.W.2d 612, 628-29 (Mich. 2021) (holding privilege did not attach to
recording and materials stemming from improperly held closed-session meeting
discussing work within Redistricting Commission’s core business in light of
constitutional mandate for open meetings).
110
See Alaska Const. art. VI, § 11 (“On appeal from the superior court, the
(continued...)
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into executive sessions were not sufficiently specific. Mat-Su argues that substantively
the Board violated the OMA because: it started discussing placing the Valdez area with
Prince William Sound communities on November 3; it entered into an executive session
that lasted until the end of the day; Member Borromeo sent texts to two individuals
asking for case law permitting the Valdez area to be paired with portions of the Mat-Su
Borough;111 and when the Board returned to open session on November 4, a majority of
the members seemed to be in agreement that the Valdez area and portions of the Mat-Su
Borough could be paired together, but the Board had “never engage[d] in a mapping
session of the [Valdez area] with the Prince William Sound communities” despite
Member Marcum continuing to state that other combinations might be more compact,
contiguous, and socioeconomically integrated. Mat-Su contends that, taken together,
these facts demonstrate the Board improperly deliberated outside the public eye about
placing the Valdez area.
The Board responds by pointing to parts of the November 4 public
proceedings when members were discussing the Valdez area. The Board also asserts that
the public interest would not be served by voiding its final plan because of any
procedural mistakes it made when calling executive sessions.
We agree with Mat-Su that on November 3, 4, and 5 the Board entered into
executive sessions without clearly and specifically describing the subject of the proposed
110
(...continued)
cause shall be reviewed by the supreme court on the law and the facts.”).
111
Mat-Su argues, without citing authority, that these text messages during
executive session violated the OMA, but the statutory language has no prohibition
against such communications. We do not further address this issue.
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session as required by law.112 Instead of merely reciting the statutory language
explaining broad subject categories that may be considered in executive session, the
Board should have been more specific about the matters to be discussed, though not to
the extent of defeating “the purpose of addressing the subject in private.”113 The Board’s
actions appear suspect, defeat the public’s ability to witness deliberations, and cause
courts to struggle in reviewing the constitutionality of the Board’s actions. But despite
likely inappropriate uses of executive session, the Board’s public discussions about
where to place the Valdez area are sufficient for appellate review and allow us to
determine whether the Board gave the issue a hard look. Under the circumstances —
particularly given the compressed timeline for the Board’s work and redistricting’s
importance to all Alaskans — the superior court did not err by concluding that it would
not be in the public interest to void the Board’s entire final plan due to some OMA
violations.114
3. Making the traditional hard look analysis more restrictive by
blending it with other constitutional concerns was error.
A court’s review of a redistricting plan is similar to its review of “a
regulation adopted under a delegation of authority from the legislature to an
administrative agency to formulate policy and promulgate regulations[:] . . . . first to
112
See AS 44.62.310(b) (requiring that motion for executive session “must
clearly and with specificity describe the subject” to be discussed).
113
Id.
114
See AS 44.62.310(f) (“A court may hold that an action taken at a meeting
held in violation of this section is void only if the court finds that, considering all of the
circumstances, the public interest in compliance with this section outweighs the harm
that would be caused to the public interest and to the public entity by voiding the
action.”). However, if in future redistricting efforts the Board appears to abuse executive
sessions, injunctive relief under Alaska Civil Rule 65(a) or (b) may be warranted.
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insure that the agency has not exceeded the power delegated to it, and second to
determine whether the regulation is reasonable and not arbitrary.”115 The superior court
conducted a “first impression” analysis to determine “the legal standards by which the
concept of ‘unreasonableness’ should be measured” for the Board’s redistricting plan.
After reviewing Constitutional Convention minutes, legislative history from the 1999
amendments to article VI, and federal statutes and case law, the superior court
concluded:
[T]he spirit of [a]rticle VI, [s]ection 10 . . . compels the Board
to present the public with a number of equally constitutional
redistricting plans and then let the people have a say about
which plan they prefer. While the Board need not respond to
every single comment received, the Board must make a good-
faith effort to consider and incorporate the clear weight of
public comment, unless state or federal law requires
otherwise. . . . [T]he Board must give some deference to the
public’s judgment. If the Board adopts a final plan contrary
to the preponderance of public testimony, it must state on the
record legitimate reasons for its decision. (Footnote omitted.)
This appears to be the standard the superior court used for its blended “hard look” and
due process analysis.116
115
Groh v. Egan, 526 P.2d 863, 866 (Alaska 1974); see also 2011
Redistricting III, 294 P.3d 1032, 1037 (Alaska 2012).
116
The superior court adopted this blended approach based on our traditional
hard look requirement and constitutional procedural and substantive due process
requirements, as well as the public hearings requirement under article VI, section 10.
Although before us there were challenges to the court’s overall “hard look” test, they did
not detail the extent to which substantive due process concerns might apply. We
accordingly do not parse the applicability of substantive due process to the “hard look”
analysis. See Balough v. Fairbanks North Star Borough, 995 P.2d 245, 263 (Alaska
2000) (describing heavy burden on party asserting substantive due process violation “for
if any conceivable legitimate public policy for the [state action] is apparent on its face
(continued...)
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The superior court then concluded that the Board gave a hard look to House
District 29’s combination of the Valdez area with portions of the Mat-Su Borough,
noting that the Board had “carefully considered the available options[,] . . . acted
reasonably,” and “certainly did not ignore public testimony.” Regarding Senate District
K, however, the court concluded that “the Board obviously violated the ‘hard look’
standard by ignoring public comment on the senate pairings,” apparently “to
accommodate the wishes of a single Member.” The court similarly concluded that the
Board “failed to take a hard look at [House] Districts 3 and 4” because it did not “make
a good-faith attempt to incorporate the public testimony.” The Board, Mat-Su, and
Valdez challenge aspects of the superior court’s hard look analysis.
a. Our view of the superior court’s hard look analysis
Rather than requiring the Board to “make a good-faith effort to consider
and incorporate the clear weight of public comment” or “give some deference to the
public’s judgment,” the hard look analysis has more nuance. A redistricting plan is
reasonable if “the [Board] has taken a hard look at the salient problems and has
genuinely engaged in reasoned decision making.”117 If public comments introduce a
“salient problem,” such as a defect under article VI, section 6, it would be unreasonable
to ignore the problem when drawing district boundaries; absent some evidence
explaining the Board’s action and how it took the problem into account, a court could
conclude that the Board failed to take a hard look. But if public comments merely reflect
116
(...continued)
or is offered by those defending the [action], the opponents of the [action] must disprove
the factual basis for such a justification” (quoting Concerned Citizens of S. Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974))). If relevant
in future redistricting litigation, parties should more robustly address this concept.
117
2001 Redistricting I, 44 P.3d 141, 143 n.5 (Alaska 2002) (quoting Interior
Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 690 (Alaska 2001)).
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preferences for district boundaries without implicating substantive redistricting
requirements, drawing district boundaries based on demonstrated substantive
redistricting requirements and not the “weight of public comment” likely would not
violate the hard look requirement. We nonetheless note that a Board’s failure to follow
a clear majority preference between two otherwise equally constitutional legislative
districts under article VI, section 6 may be evidence supporting a gerrymandering claim.
b. The Board’s arguments
The Board contends that the superior court’s erroneous hard look analysis
caused the court to err when it invalidated House Districts 3 and 4 and Senate District K.
Because the court invalidated Senate District K on grounds beyond the hard look
analysis — specifically for unconstitutional political gerrymandering, a ruling which we
affirm below — we do not address the Board’s argument on this point. But the court
ruled that House Districts 3 and 4 were unconstitutional based solely on its “weight of
public testimony” approach to the hard look analysis. Because the court otherwise
agreed substantive redistricting requirements were satisfied and no salient problems were
raised that the Board failed to consider, we reverse the court’s invalidation of House
Districts 3 and 4 and its accompanying remand to the Board.
c. Mat-Su’s and Valdez’s arguments
Mat-Su contends that in light of the superior court’s approach to the hard
look requirement, “the court erred when it found that the Board took a ‘hard look’ at
testimony offered by Valdez and [Mat-Su]” regarding House District 29. Because Mat­
Su’s assertion relies entirely on the misguided standard for the hard look analysis without
pointing to any discrete salient problems (beyond the weight of public preference) that
the Board did not consider, we reject its argument and turn to Valdez’s arguments about
the Board’s creation of House Districts 29 and 36.
Valdez first argues that the Board did not engage in reasoned decision­
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making about forming District 29 because the Board “spent minimal time analyzing how
to accommodate the strong public testimony against pairing [the Valdez area] and
[portions of the Mat-Su Borough] together in a district.” Again, this argument alone is
insufficient to invalidate House District 29 without the public comments having raised
some salient problem that the Board failed to address.
Valdez also argues that it is evident the Board did not give House
District 29 a hard look because (1) “District 29 in the Final Plan is virtually unchanged
from Member Borromeo’s proposed plan, . . . which was developed prior to the Board’s
public hearing tour with minimal involvement of other Board members,” and (2) what
turned out to be the final plan “was adopted outside of the constitutionally mandated [30­
day] deadline for adopting proposed plans set forth in article VI, section 10” and was “an
entirely new 40[-]district plan with radically different districts than those” of the original
version it replaced. But a proposed election district’s evolution over the course of
redistricting, without more, lends little insight into whether the Board gave it a hard look,
and the superior court discussed this factor when rejecting the argument that the Board
violated the Hickel process. And Valdez presents no legal support for its argument that
adopting a final redistricting plan developed after the first 30 days of the redistricting
process is unconstitutional; such a position would make the constitutional public hearing
requirement virtually meaningless.
Valdez also appears to argue that the Board impermissibly “constrained the
range of redistricting options it considered based upon the mistaken legal premise that
the [Fairbanks North Star Borough (FNSB)] could not be included in more than one
district that included population from outside of FNSB.” Valdez asserts that “[t]he
[superior] court erred in holding that the Board properly viewed any redistricting
alternative that placed population from FNSB in more than one district [with population
from outside FNSB] as not viable.” The Board responds that Hickel instructs, when
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possible, to “include all of a borough’s excess population in one other district”118 and that
“2001 Redistricting [I] does not suggest otherwise.”119 We conclude, given that the
Board was able to keep FNSB’s excess population together in one House district while
abiding by other constitutional requirements, the Board did not act arbitrarily or
unreasonably by doing so without considering additional plans that would split FNSB’s
excess population between multiple House districts.
Valdez’s remaining hard look arguments about District 29 focus on the
Valdez area being more socioeconomically integrated with communities other than those
in the Mat-Su Borough and the Board making only passing mention of the other article
VI, section 6 requirements. But, as we note throughout this opinion, the Constitution
does not require the most possible socioeconomic integration, particularly if other
constitutional requirements may be compromised.120 The superior court described
Board-identified socioeconomic connections between the Valdez area and the Mat-Su
Borough, and we agree with the superior court that the described socioeconomic
integration level satisfied section 6’s “relatively integrated socio-economic area”
118
See 846 P.2d 38, 52 (Alaska 1992) (“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.”).
119
See 44 P.3d at 144 (instructing that Board may combine excess populations
from adjoining boroughs).
120
See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1362-63 (Alaska
1987) (discussing socioeconomic integration under sufficiency standard); see also
Hickel, 846 P.2d at 45 n.10 (explaining that socioeconomic integration requirement is
more flexible than contiguity and compactness requirements such that degree of
integration can be reduced if necessary “to maximize the other constitutional
requirements of contiguity and compactness”).
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requirement.121 The court’s February 15 decision discussed the Board’s impressive steps
when drawing the Valdez area House district boundaries, and we affirm the court’s
conclusion that — for the hard look analysis — the Board acted reasonably in making
ultimately unsuccessful efforts to keep the Valdez and Mat-Su Borough areas in separate
House districts.
Valdez relatedly argues that the Board improperly neglected constitutional
redistricting criteria while prioritizing individual Board member goals.122 Valdez first
asserts that certain Board members were too deferential to the “Doyon Coalition’s goal
of keeping Interior Doyon and Ahtna villages together in one District” at the expense of
putting the Valdez area with portions of the Mat-Su Borough. Valdez next asserts that
“the Board openly sought to maximize the percentage of Native voters in District 36,”
constituting gerrymandering and warranting remand of the final plan. Valdez also argues
that Member Binkley prioritized “protecting the borough boundaries of FNSB,”
impermissibly foreclosing “consideration of numerous viable redistricting options
including districting [the Valdez area] with Richardson Highway communities and the
FNSB.” Valdez finally argues that the Board improperly relied on “ANCSA
boundaries[123] to support the creation of District 36 and justify keeping Bering Straits
121
Alaska Const. art. VI, § 6; see Hickel, 846 P.2d at 46-47 (describing
comparable scenarios satisfying socioeconomic integration requirement).
122
Valdez raises similar arguments when challenging Districts 29 and 36 as
not complying with article VI, section 6 requirements. Valdez couches these arguments
under the Hickel requirement that the Board “is not permitted to diminish the degree of
socio-economic integration in order to achieve other policy goals,” see 846 P.2d at 45
n.10, but because Valdez seems also to challenge the Board’s hard look requirement, we
discuss it here.
123
“ANCSA boundaries” refers to the Alaska Native Claims Settlement Act
(continued...)
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communities separate from Doyon communities,” warranting remand because it created
“District 29, which is not socio-economically integrated, and District 36, which is neither
socio-economically integrated nor compact.”
The first three arguments quickly can be dispensed with for similar reasons.
We agree with the superior court that the “practice of assigning each [Board] Member
a region and ultimately deferring to those [m]embers’ judgment on their assigned
regions” is somewhat troubling. But it is not necessarily improper to consider a Board
member’s personal regional experiences if constitutional requirements are met, and the
line between excessive deference to and independent agreement with a Board member
is difficult to monitor. As discussed earlier, we also agree with the superior court that
the Board did not violate the Hickel process, and thus any alleged premature VRA
considerations likely did not interfere with the Board taking a hard look at the issues
Valdez raised. Despite Valdez seemingly indicating otherwise, the hard look analysis
does not require that the Board consider every possible permutation of statewide House
districts.124 The expedited nature of the redistricting process also means that when
changes are made toward the end of the process — an appropriate result almost
123
(...continued)
of 1971. See generally 43 U.S.C. §§ 1601-1629h. “Under that Act, the state was divided
into 12 regions, and separate corporations were established for each region. By the
division it was sought to establish homogeneous groupings of Native peoples having a
common heritage and sharing common interests.” Groh v. Egan, 526 P.2d 863, 877
(Alaska 1974) (footnote omitted).
124
See, e.g., Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 51 (1983) (“It is true that a rulemaking ‘cannot be found wanting
simply because the agency failed to include every alternative device and thought
conceivable by the mind of man . . . regardless of how uncommon or unknown that
alternative may have been . . . .’ ” (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res.
Def. Council, Inc., 435 U.S. 519, 551 (1978))).
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inevitably happening after public hearings — the Board cannot be expected to reconsider
every subsequently possible permutation in light of new boundaries. Finally, we note
the zero-sum nature of redistricting: accepting Valdez’s proposed House district in turn
would have affected House districts throughout interior Alaska; municipalities and voters
in the affected areas likely would have raised the same arguments Valdez raises,
suggesting that the Board was biased in favor of the Valdez area and that adopting
Valdez’s proposed House district “locked in” unfavorable House districts in Alaska’s
interior region.
Valdez’s fourth argument — that the Board improperly relied upon
ANCSA boundaries for House District 36 — challenges the superior court’s assertion
that “ANCSA regions are indicative of socio-economic integration and may be used to
guide redistricting decisions, and they may even justify some degree of population
deviation.” Valdez argues that because the “purpose of ANCSA was to form
‘homogeneous grouping’ of Alaska Natives in 1970,” ANCSA does not reflect the
present-day Alaskan populations nor “the article VI, section 6 constitutional standards
for contiguity, compactness, or socio-economic integration.” Valdez then points to
various statistics tending to show that “ANCSA boundaries do not provide evidence of
socio-economic integration among non-Native populations.” Finally, Valdez argues that,
to the extent ANCSA boundaries are relevant to drawing districts, the relevance is
limited only to justifying a population deviation greater than ten percent.
Valdez is correct that we previously have discussed using ANCSA
boundaries in redistricting only as a justification for “a population deviation greater than
10 percent.”125 But in the present case evidence about ANCSA boundaries was tied to
socioeconomic integration. For example, there was testimony that Doyon region villages
125
Hickel, 846 P.2d at 48; see also Kenai Peninsula, 743 P.2d at 1359 n.10.
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likely to have been moved from District 36 to accommodate the Valdez area were
“predominantly Alaska Native” and that the ANCSA boundary would be helpful to
assess socioeconomic integration among the villages. Another witness explained how
ANCSA boundaries can be significant for non-Native residents because they tend to
delineate service areas for non-profit healthcare providers. And an expert witness
analogously testified, when questioned about the boundary between Districts 36 and 39
coinciding with school district boundaries, that interactions between communities related
to school functions could be a further indicia of socioeconomic integration within
District 36. Finally, as discussed in more detail below, we agree with the 2001
redistricting superior court’s reasoning affording more flexibility for rural communities
when discussing socioeconomic integration.126
For the foregoing reasons, we affirm the superior court’s ruling that the
Board gave a constitutionally sufficient hard look at where to place the Valdez area.
B. Mat-Su’s And Valdez’s Substantive Constitutional Challenges
1. Aside from the “Cantwell Appendage,” Mat-Su’s and Valdez’s
article IV, section 6 arguments fail.
Mat-Su and Valdez contend the superior court erred by concluding that
House Districts 29 and 36 are constitutional under article VI, section 6.127 They assert
that the districts are not compact and are not socioeconomically integrated. Mat-Su
126
See In re 2001 Redistricting Cases, No. 3AN-01-8914 CI, 61 (Alaska
Super., Feb. 1, 2002) (explaining that rural communities are not necessarily
“interconnected by road systems” or “integrated as a result of repeated and systematic
face to face interaction” but may be “linked by common culture, values, and needs”).
127
House District 29 contains portions of the Mat-Su Borough, including parts
of Palmer and Wasilla, as well as the Valdez area. House District 36 is quite large; it
includes Holy Cross and Huslia in the western portion, stretches east to the Canadian
border, has Fairbanks’s Goldstream Valley, and has an appendage cutting into the Denali
Borough and the Mat-Su Borough to reach Cantwell. See Appendix A.
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additionally asserts that the Board did not create districts “as near as practicable” to the
population quotient because the Mat-Su districts as a whole are overpopulated compared
to other districts.128 We address each argument in turn.
a. Compactness
i. House District 29
Mat-Su takes issue with House District 29 extending to the Valdez area
without containing Richardson Highway communities on the road between the Valdez
area and the Mat-Su Borough. Mat-Su asserts that the “cutout of the road system makes
the shape of the district less compact and orphans [the Valdez area] from its
transportation link to the [Mat-Su Borough] and the communities in its immediate area
that it associates with regularly.”
We have instructed that “ ‘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.”129 House District 29 does not contain the Richardson
Highway communities along the road to the Valdez area, but it contains the “less­
populated land” around Valdez. Mat-Su cites no relevant authority for its proposition
that inability to travel by road between communities in a House district without leaving
the district renders it non-compact. Indeed, it would be unworkable in rural Alaska to
impose a requirement of being able to travel by road between any two points in a district
without crossing district borders.130 The superior court did not err by determining that
128
Alaska Const. art. VI, § 6 (requiring house districts to “contain a population
as near as practicable to the quotient obtained by dividing the population of the state by
forty”).
129
Hickel, 846 P.2d at 45-46.
130
See, e.g., In re 2001 Redistricting Cases (2001 Redistricting II), 47 P.3d
(continued...)
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“[House] District 29’s shape is the natural result of Alaska’s landscape and irregular
features” and that it is compact.
ii. House District 36
House District 36 is a large, horseshoe-shaped district composed of portions
of three different boroughs and encompassing 35% of Alaska’s land. An “appendage”
of House District 36 reaches between House Districts 29 and 30 to include Cantwell, but
not the surrounding land or communities.131 Cantwell otherwise likely would have been
placed with the rest of the Denali Borough in House District 30. As a Denali Borough
community, Cantwell would have been sufficiently socioeconomically integrated with
the rest of the Denali Borough within House District 30 as a matter of law.132
130
(...continued)
1089, 1092 (Alaska 2002) (“[N]either size nor lack of direct road access makes a district
unconstitutionally non-compact . . . .”). On the other hand, in areas dependent on road
transportation direct road access is a feature of communities of interest and
socioeconomic integration.
131
Valdez argues that House District 36 also contains an inappropriate
appendage “carv[ing] out Glennallen and neighboring population along the Glenn
Highway.” This argument fails; District 36 contains several communities along the
Richardson and Glenn Highways near Glennallen but does not appear to carve out a
bizarre appendage or corridor. See Hickel, 846 P.2d at 45-46 (“ ‘[C]orridors’ 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.”).
132
2001 Redistricting I, 44 P.3d 141, 146 (Alaska 2002) (referring to
Anchorage, a consolidated city and borough, as “by definition socio-economically
integrated”); Hickel, 846 P.2d at 51 (“By statute, a borough must have a population
which ‘is interrelated and integrated as to its social, cultural, and economic activities.’ ”
(quoting AS 29.05.031)); cf. id. at 51 n.20 (stating that splitting “a borough which
otherwise [could] support an election district will be an indication of gerrymandering for
not preserving the government boundaries”).
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The superior court acknowledged that the Cantwell appendage makes
House District 36 less compact; the court then examined whether House District 36 is
socioeconomically integrated and adopted the Board’s argument that including “Cantwell
[was] justified because Cantwell is socio-economically integrated with the Ahtna region
(the rest of which was placed with District 36).” This analysis runs afoul of our Hickel
guidance: “The requirements of article VI, section 6 shall receive priority inter se in the
following order: (1) contiguousness and compactness, (2) relative socioeconomic
integration, (3) consideration of local government boundaries, (4) use of drainage and
other geographic features in describing boundaries.”133 Both the Board and the superior
court appear to have prioritized more socioeconomic integration over compactness.
The Board recognized that adding Cantwell to House District 36 created
potential compactness problems. One Board member asked the Board’s attorney:
[W]e have noted the socioeconomic reasons for taking
Cantwell out. Obviously it is not a compact change, right, so
do you have any concerns about the compactness, or do you
believe that in this instance, for socioeconomic reasons that
we took Cantwell out of the [Denali] borough probably are
sufficient to overcome the . . . loss of compactness with that
removal?
The attorney agreed that adding Cantwell rendered House District 36 less compact,
advising that whether it made sense was “a coin toss” and that the Board was “balancing
constitutional concerns.”
When a more compact district would be sufficiently socioeconomically
integrated, the Board may not sacrifice compactness in favor of greater socioeconomic
133
Hickel, 846 P.2d at 62; cf. id. at 45 n.10 (providing socioeconomic
integration may be diminished only to maximize contiguity and compactness).
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integration.134 We therefore hold that the Cantwell appendage to House District 36 was
unconstitutionally drawn.
b. Socioeconomic integration
i. House District 29
Valdez and Mat-Su first argue that the superior court misapplied precedent
by assuming that if the Valdez area and the Mat-Su Borough independently were
socioeconomically integrated with Anchorage, then they also must be socioeconomically
integrated with each other. The court was “greatly influenced” by its interpretation of
Kenai Peninsula,135 relying heavily on a “regional integration” concept to determine that
the Valdez area and the Mat-Su Borough are socioeconomically integrated. The court
said its conclusion that House District 29 is socioeconomically integrated may have been
different had it not interpreted Kenai Peninsula to hold that “regional integration” is
sufficient to achieve socioeconomic integration. Valdez further contends the court
misconstrued precedent by assuming that the Mat-Su Borough and the Valdez area each
are socioeconomically integrated with Anchorage. Because the court’s interpretation of
Kenai Peninsula was erroneous, we do not need to reach whether the two areas each are
socioeconomically integrated with Anchorage.
In Kenai Peninsula we considered whether a House district containing
North Kenai and South Anchorage was socioeconomically integrated.136 We saw
minimal interaction; we said: “[T]o the extent that they interact at all, they do so as a
134
Id. at 62 (prioritizing article VI, section 6 requirements as follows:
“(1) contiguousness and compactness, (2) relative socioeconomic integration”).
135
743 P.2d 1352 (Alaska 1987).
136
Id. at 1361-62.
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consequence of the nexus between Kenai and Anchorage.”137 We framed the issue as
“whether interaction between the communities comprising [the challenged district] and
communities outside the district but within a common region sufficiently demonstrates
the requisite interconnectedness and interaction mandated by article VI, section 6.”138
We considered that North Kenai and South Anchorage are geographically close, that they
are connected by highways and daily airline flights, and that both are “linked to the hub
of Anchorage”; we also noted that the North Kenai and South Anchorage areas were
linked economically and socially.139 Determining that the challenge “[drew] too fine a
distinction between the interaction of North Kenai with Anchorage and that of North
Kenai with South Anchorage,” we held that “any distinctions between Anchorage and
South Anchorage [were] too insignificant to constitute a basis for invalidating the state’s
plan.”140
Analogizing North Kenai and South Anchorage to the Valdez area and the
Mat-Su Borough, the superior court concluded they were “relatively socio-economically
137
Id. at 1362.
138
Id. at 1363.
139
Id. at 1362-63.
140
Id. at 1363 & n.17. We since have cited Kenai Peninsula for the following:
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.
Hickel v. Se. Conf., 846 P.2d 38, 46 (Alaska 1992).
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integrated . . . because both communities are socio-economically integrated with
Anchorage.” But this conclusion takes Kenai Peninsula too far. Even if both the Valdez
area and the Mat-Su Borough were socioeconomically integrated with Anchorage, it does
not necessarily follow that they are socioeconomically integrated with each other. North
Kenai was socioeconomically integrated with South Anchorage primarily because
evidence supported a conclusion that North Kenai was socioeconomically integrated with
Anchorage as a whole.141 South Anchorage and Anchorage were not merely
socioeconomically integrated, they were indistinguishable for the constitutional
analysis.142 The same cannot be said of the Mat-Su Borough or the Valdez area; each
community is entirely separate from, rather than a neighborhood or region within,
Anchorage.
Mat-Su and Valdez next contend that the superior court erred when it
determined House District 29 was socioeconomically integrated partly because it was
drawn similarly in the 2002 and 2013 redistricting proclamations. We previously have
noted that the requirement for House districts to be “relatively” integrated “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.”143
With this principle in mind, the superior court compared House District 29 in the 2021
Proclamation with House District 9 from the 2010 redistricting cycle and House District
12 from the 2000 redistricting cycle. The court noted substantial similarities between the
earlier House districts, including that they both paired portions of the Mat-Su Borough
with the Valdez area. The court reasoned that prior redistricting pairings were evidence
141
See Kenai Peninsula, 743 P.2d at 1362-63.
142
See id. at 1363 & n.17.
143
Hickel, 846 P.2d at 47.
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that the Mat-Su Borough and the Valdez area are “relatively integrated.”144
Mat-Su and Valdez disagree. Valdez contends that the crucial difference
from the historic districts is House District 29 does not contain the Richardson Highway
communities that rendered the prior districts socioeconomically integrated. But, as we
discuss below, in addition to considering the historical districts, the superior court
generally found evidence of sufficient interactions between the Valdez area and the Mat-
Su Borough to render House District 29 socioeconomically integrated. The Valdez
area’s greater socioeconomic integration with certain Richardson Highway communities
does not preclude a finding that the Valdez area is also socioeconomically integrated
with the Mat-Su Borough.
The superior court’s factual inquiry into interactions between the Valdez
area and the Mat-Su Borough found “evidence of at least minimal socio-economic links”:
These include geographic proximity and connection via the
road system, shared interests in the outdoor recreation
industry, and common hunting and fishing areas in the region
around Lake Louise, Klutina Lake, and Eureka. They also
have at least some shared ties to the oil industry. The nearest
hospital to Valdez, at least by road, is located in the Mat-Su
Borough. Similarly, the nearest car dealerships[] and large
box stores are located in the Mat-Su. Valdez and Mat-Su also
share an interest in maintenance and development of the state
highway system . . . .
The communities in District 29 are served by school
144
Using prior redistricting maps to support or oppose current redistricting
options has limitations. Redistricting occurs every decade, and in the intervening years
community population and socioeconomic integration may wax and wane. As we
discuss below in connection with the second round of the 2021 redistricting cycle
litigation, the nature of legal challenges, if any, raised and resolved in prior redistricting
cycles also are important. For example, a prior House or Senate district that never was
challenged is not dispositive evidence of constitutional compliance.
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districts that are a part of home rule or first-class
municipalities or boroughs, meaning their funding is obtained
in part from a local tax base, and these home rule
communities also have a shared interest in debt
reimbursement from the legislature. Similarly, Valdez school
sports teams compete against sports teams in the Mat-Su
Borough. (Footnotes omitted.)
Mat-Su and Valdez do not challenge these findings, instead asserting that these
interactions are insufficient to satisfy article VI, section 6’s socioeconomic integration
requirement because the Board failed to engage in reasoned decision-making and did not
maximize socioeconomic integration. But, as the superior court correctly pointed out,
we have not required that the Board maximize socioeconomic integration in every House
district nor have we held that there is a right to be paired with other most closely
integrated communities.145 The interactions the court identified align with the types of
interactions previously identified as evidencing socioeconomic integration. In particular,
the shared recreation and fishing sites, transportation networks, economic links, interests
in the state highway system’s development, and competition between sports teams all are
considerations similar to those previously recognized as supporting finding
socioeconomic integration.146 Although the court placed too much emphasis on both
communities’ connections with Anchorage, we affirm the court’s determination that
House District 29 is sufficiently socioeconomically integrated to satisfy article VI,
section 6.
145
Mat-Su concedes this point in its petition: “[T]here is nothing in case law
that provides for a right to be placed together with other socioeconomic areas, even areas
in which a location may be more socioeconomically integrated, so long as the other area
the location is placed with is also socioeconomically integrated.” (Emphasis in original.)
146
See Kenai Peninsula, 743 P.2d at 1362-63; see also Hickel, 846 P.2d at 46­
47.
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ii. House District 36
Valdez’s sole contention is that there is insufficient evidence of interaction
and interconnectedness between communities within this extremely large House district.
This argument failed before the superior court and fails with us as well.
During the 2001 redistricting cycle a superior court facing a similar
argument commented on the practicalities of socioeconomic integration in rural Alaska:
Often the communities within such large districts are
geographically isolated and small in population. They are not
interconnected by road systems or by other convenient means
of transportation. Such communities are not integrated as a
result of repeated and systematic face to face interaction.
Rather they are linked by common culture, values, and needs.
The constitutional requirement of socio-economic integration
does not depend on repeated and systematic interaction
among each and every community within a district. Rather,
the requirement in Article VI, Section 6 of the Alaska
Constitution may, by its very terms, be satisfied if the “area”
comprising the district is relatively socio-economically
integrated without regard to whether each community within
the “area” directly and repeatedly interacts with every other
community in the area.[147]
This understanding of socioeconomic integration in rural House districts provides needed
flexibility for pairing rural communities that cannot have the extensive
interconnectedness and interaction of urban communities. For example, isolated rural
communities off the road system may be interconnected through their use of and
dependence on the same rivers for travel and fishing and the same migratory animals for
147
In re 2001 Redistricting Cases, No. 3AN-01-8914 CI, 61 (Alaska Super.,
Feb. 1, 2002).
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subsistence. Although we have noted that mere homogeneity generally is insufficient,148
socioeconomic integration in this rural Alaska context can be supported by evidence of
interdependence and related “common culture, values, and needs” rather than requiring
interactions between all communities.149
The superior court noted that House “District 36 generally (though not
perfectly) encompasses the Doyon and Ahtna ANCSA regions.” The court cited trial
evidence that the region’s people share socioeconomic similarities, as “they engage in
subsistence, access similar types of healthcare, face similar challenges with regard to
access to utilities, and have similar concerns with regard to the quality of rural schools.”
There also was trial testimony that Doyon and Ahtna have primarily Athabascan
shareholders sharing “common language and culture.”
We affirm the superior court’s determination that House District 36 is
sufficiently socioeconomically integrated to satisfy article VI, section 6.
c. “As near as practicable” to the population quotient
Mat-Su contends that the Board violated article VI, section 6’s requirement
that each House district “contain a population as near as practicable to the quotient
obtained by dividing the population of the state by forty.”150 Mat-Su argues that House
Districts 25-30, containing the Mat-Su Borough, are unconstitutionally overpopulated.
It is true that House Districts 25-30 each are overpopulated and that House Districts 25­
29 each are overpopulated by about 2.5%.
148
Hickel, 846 P.2d at 46.
149
In re 2001 Redistricting Cases, No. 3AN-01-8914 CI, at 61 (Alaska Super.,
Feb. 1, 2002); see also Kenai Peninsula, 743 P.2d at 1363 (discussing socioeconomic
integration requirements in context of what is “reasonable and not arbitrary”).
150
Alaska Const. art. VI, § 6.
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Before the 1999 constitutional amendments, maximum deviations below
ten percent were insufficient, without more, to make out a prima facie case that a plan
or part thereof was unconstitutional.151 The section as amended now requires “equality
of population ‘as near as practicable’ ”;152 we have noted that modern technology “will
often make it practicable to achieve deviations substantially below the ten percent federal
threshold, particularly in urban areas.”153 But Mat-Su seems to misunderstand our 2001
Redistricting I analysis.
We concluded in that case that the Board had failed to draw Anchorage
House districts containing as near as practicable the population quotient when the
districts had maximum population deviations of 9.5%.154 The Board had made a
mistaken assumption that deviations within 10% automatically satisfied the constitutional
requirement and accordingly had failed to attempt to further minimize the population
deviations.155 We explained that, because the Board had made no effort to further reduce
population deviations, “the burden shifted to the [B]oard to demonstrate that further
minimizing the deviations would have been impracticable in light of competing
151
2001 Redistricting I, 44 P.3d 141, 145 (Alaska 2002); see White v.
Regester, 412 U.S. 755, 764 (1973) (instructing that districts differing from one another
by more than 9.9% likely “would not be tolerable without justification ‘based on
legitimate considerations incident to the effectuation of a rational state policy’ ” (quoting
Reynolds v. Sims, 377 U.S. 533, 579 (1964))).
152
2001 Redistricting I, 44 P.3d at 145-46.
153
Id. at 146.
154
Id. at 145-46.
155
Id. at 146.
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requirements imposed under either federal or state law.”156
Mat-Su interprets that decision as requiring the Board to “justify any failure
to reduce population deviance across districts” and asserts that the Board failed to meet
this burden. But that is not what 2001 Redistricting I requires, and Mat-Su points to
nothing in the record indicating the Board failed to make efforts to reduce population
deviations in the Mat-Su Borough. We agree with the superior court that the Board was
not required to further justify the noted de minimis deviations.
2. Mat-Su’s equal protection challenge fails.
a. One person, one vote
Mat-Su argues that the House districts’ over-populations also violate the
constitutional “one person, one vote” requirement. Equal protection requires the State
to “make an honest and good faith effort to construct districts, in both houses of its
legislature, as nearly of equal population as is practicable.”157 “[T]he 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.”158 We have noted that “minor deviations from mathematical equality . . . are
insufficient to make out a prima facie case of invidious discrimination.”159 As Mat-Su
correctly recognizes, article VI, section 6’s population equality and one person, one vote
requirements are “by and large synonymous.” For the same reason we affirmed the
156
Id.
157
Hickel v. Se. Conf., 846 P.2d 38, 47 (Alaska 1992) (quoting Reynolds v.
Sims, 377 U.S. 533, 577 (1964)).
158
Id. (quoting Reynolds, 377 U.S. at 579).
159
Id. at 47-48 (quoting Kenai Peninsula Borough v. State, 743 P.2d 1352,
1366 (Alaska 1987)).
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superior court’s decision on Mat-Su’s challenge to article VI, section 6’s population
quotient requirement, we affirm the court’s decision that House Districts 25-30 satisfy
the “one person, one vote” requirement under an equal protection analysis.
b. Fair and effective representation
Mat-Su also argues that the Mat-Su Borough and its citizens are denied fair
and effective representation in violation of equal protection. Mat-Su argues that the
Board prioritized the Fairbanks and Anchorage areas over the Mat-Su Borough,
evidencing discriminatory intent against the Mat-Su Borough.160
The superior court found that the small over-populations in the Mat-Su
Borough House districts resulted from bringing 4,000 Valdez area residents into House
District 29. But, as we already have discussed, the evidence indicates the Board
considered the available options and ultimately determined constitutional considerations
were best served by placing the Valdez area with the Mat-Su Borough. We see no
evidence that the Board’s decision was predicated on an illegitimate intent to favor the
Fairbanks or Anchorage areas or that there are partisan overtones to the decision. As the
Board persuasively points out, the Mat-Su Borough’s population equaled 5.84 House
districts, the Board proposed a plan with 6 House districts in the area, and the Board’s
final plan created 6 House districts over which Mat-Su Borough voters have control.
We are not persuaded that the Board acted with discriminatory intent such
that the Mat-Su Borough and its voters were denied fair and effective representation in
violation of equal protection.
160
See supra pp. 14-17 (discussing equal protection analysis for fair
representation claims). Mat-Su Borough does not engage in the traditional three-step
analysis, focusing only on alleged discriminatory intent.
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C. Skagway’s Substantive Constitutional Challenges
Skagway contends that the superior court should have determined House
Districts 3 and 4 violate article VI, section 6’s socioeconomic integration requirement
and that it should have considered Skagway’s equal protection claim. House Districts 3
and 4 include the Juneau, Skagway, and Haines Boroughs, as well as other southeast
Alaska communities.161 Skagway contended, and the superior court agreed, that a clear
majority of people testifying about Skagway’s placement preferred districting Skagway
with downtown Juneau. The Board conceded in its petition to us that a “Board member
noted that the weight of public testimony tipped in favor of keeping Skagway and
downtown Juneau districted together,” although that member ultimately did not vote for
that option.
At trial Skagway argued that its separation from downtown Juneau, with
which it has strong socioeconomic ties, violated article VI, section 6’s socioeconomic
integration requirement; that the Board violated Skagway’s equal protection rights; and
that the Board violated article VI, section 10’s public hearings requirement and thus
Skagway’s due process rights. The superior court rejected Skagway’s section 6
socioeconomic integration challenge, and, believing that it encompassed the fair
representation argument as well, rejected it without a separate analysis. The court
instead invalidated House Districts 3 and 4 under its blended “hard look” and due
process analysis because the Board failed “to make a good-faith attempt to incorporate
the public testimony of Alaska citizens,” who favored keeping Skagway with downtown
161
The 2010 redistricting cycle had placed Skagway in a House district with
downtown Juneau. In this cycle, the Board unanimously voted to place Skagway, fellow
port towns Haines and Gustavus, and part of Juneau’s Mendenhall neighborhood in
House District 3; Mendenhall was split between House Districts 3 and 4. See
Appendix A.
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Juneau. Because we reverse the superior court’s “hard look” invalidation of House
Districts 3 and 4, we address Skagway’s arguments.
1. Socioeconomic integration
Skagway argues that it is more socioeconomically integrated with
downtown Juneau than any other part of the Juneau Borough, including the Mendenhall
neighborhood. Skagway mistakenly asserts that socioeconomic integration must be
maximized, but, as we have discussed earlier, article VI, section 6 calls for House
districts “containing as nearly as practicable a relatively integrated socio-economic area”;
this flexible language means that some degree of integration can be sacrificed to achieve
greater contiguity and compactness.162 The Board correctly notes that House Districts
3 and 4 are more compact than the 2010 redistricting cycle’s districts, and Skagway does
not meaningfully contest this point. And in line with our Groh v. Egan holding, trial
evidence supports a conclusion that House District 3 is sufficiently socioeconomically
integrated because the Skagway, Haines, and Juneau Boroughs share “close
transportation ties,” “Juneau serv[es] as an economic hub for Haines and Skagway,” and
the three communities historically “have always been closely linked.”163 Skagway notes
that Groh was decided before Juneau’s Mendenhall neighborhood was fully developed.
But as we stated in Hickel: “In areas where a common region is divided into several
districts, significant socio-economic integration between communities within a district
162
Hickel, 846 P.2d at 45 n.10. Skagway refers to Hickel’s Appendix E, the
superior court’s explanation of its changes to the special masters’ interim redistricting
plan. Id. at 63-96. In Hickel the superior court said it made changes “to establish
contiguity, to maximize socio-economic integration, to avoid pitting incumbent
minorities one against another, and to equalize population.” Id. at 73. As the Board
points out, that superior court merely was explaining changes, not announcing a new rule
of law.
163
526 P.2d 863, 879 (Alaska 1974).
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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.”164 Juneau fits within this description.
Skagway also asserts that the Board’s map failed to keep the Mendenhall
neighborhood intact, contending that the Board erred by ignoring neighborhood
boundaries absent overriding constitutional considerations.165 But Skagway tethers this
contention only to the Constitution’s socioeconomic integration requirement. We fail
to see how merely dividing the Mendenhall neighborhood into two different House
district renders either district vulnerable to a challenge that it is not socioeconomically
integrated.
We affirm the superior court’s holding that Districts 3 and 4 did not violate
article VI, section 6’s socioeconomic integration requirement.
2. Fair representation and geographic discrimination
Skagway contends that placing its voters with the Mendenhall
neighborhood dilutes Skagway’s votes, implicating equal protection. It faults the
superior court for failing to address this issue even though Skagway briefed it at trial.
But Skagway’s trial brief minimally addressed the fair and effective representation issue.
After setting out a short rule statement, Skagway asserted, without pointing to any
evidence or making any substantive argument, that the Board “ignore[d] political
subdivision boundaries and communities of interest” when it “combin[ed] Skagway with
164
846 P.2d at 46 (quoting Kenai Peninsula, 743 P.2d at 1363). We note that
this statement should not be expanded to mean that outside communities integrated with
one part of a borough are always integrated with all parts of that borough.
165
See 2001 Redistricting II, 47 P.3d 1089, 1091 (Alaska 2002) (quoting
approvingly superior court’s statement that maintaining neighborhood boundaries is an
“admirable goal” but “not constitutionally required” and concluding districts that split
Eagle River were not unconstitutional merely because they split neighborhoods).
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dissimilar communities.” And contrary to Skagway’s argument to us, the superior court
did address Skagway’s equal protection claim, saying that it was the same as Skagway’s
socioeconomic integration claim and thus did “not merit being addressed twice.”
Skagway’s petition for review does little to bolster its contention. Skagway
asserts that its 4,000 voters will be drowned out by Mendenhall’s 14,000 voters.
Skagway also emphasizes advisory votes taken in 2000 and 2004 when Skagway and
downtown Juneau voters supported increasing access to Juneau by expanding the ferry
system, but Mendenhall voters seemed more supportive of a proposed road. But, like
Mat-Su, Skagway fails to engage in the traditional three-step equal protection analysis
for fair representation claims. Aside from noting that Member Simpson apparently
favored the road, Skagway points to no evidence of discriminatory intent, such as
secretive procedures, ignoring political subdivisions and communities of interest, or
regional partisanship affecting House Districts 3 and 4.
Alaska’s equal protection clause would be far too restrictive if a
community’s fair representation claim could be based on nothing more than a
disagreement with other communities in its House district about a single public policy
issue. Nor does Skagway’s relatively small population compared to Mendenhall’s create
an equal protection claim. The ideal population for a House district is roughly 18,000
voters; Skagway’s 4,000 voters will be overwhelmed by non-Skagway voters in any
district, such as, for example, inclusion with downtown Juneau. We see no equal
protection violation regarding Skagway and House Districts 3 and 4.166
166
During the Constitutional Convention the redistricting goal was expressed
as achieving “adequate and true representation by the people in their elected legislature,
true, just, and fair representation.” See 3 PACC 1835 (Jan. 11, 1956) (statement of Del.
John S. Hellenthal). In the second round of 2021 redistricting litigation, discussed later
in this decision, evidence included an email from Member Simpson clearly expressing
(continued...)
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D. The Board’s East Anchorage Ruling Challenges
The superior court considered East Anchorage’s challenges to the South
Muldoon (House District 21) and Eagle River (House District 22) Senate District K
pairing based on article VI, sections 6 and 10 and Alaska’s equal protection and due
process clauses. The court held that the Senate district did not violate section 6 but that
it violated section 10, due process rights, and the equal protection clause. The Board
challenges nearly every aspect of the court’s findings and conclusions on this matter,
ranging from pure questions of law to fact-intensive inquiries. The Board also raises two
general evidentiary issues which we discuss here because they effectively are relevant
only to our East Anchorage discussion.
1. The Board’s evidentiary issues
a. The superior court did not abuse its discretion when it
denied the Board’s requests to compel discovery.167
Many individual plaintiffs objected to the Board’s discovery requests. The
relevant requests sought production of all communications: (1) “[y]ou have sent to or
166
(...continued)
an approach to redistricting that involved ensuring more safe Republican seats and
keeping Democrats at bay. A portion of the email — expressing Member Simpson’s
approval that our March order reversing the superior court’s remand of House Districts
3 and 4 will leave “Skagway . . . stuck with that arrangement for the next 10 years, at
least” — may suggest some kind of geographic or political bias played a role. But we
see nothing in Skagway’s petition for review suggesting that political advantage played
a role in House Districts 3 and 4, and this email was not part of that record. Without
more information — perhaps unavailable due to the Board’s improper use of executive
sessions — we do not further pursue the issue.
167
“We generally review a trial court’s discovery rulings for abuse of
discretion.” Marron v. Stromstad, 123 P.3d 992, 998 (Alaska 2005). Whether the
superior court “weighed the appropriate factors in issuing a discovery order” is a matter
we review de novo. Id.-68- 7646
received from anyone . . . that relate in any way to the 2021 redistricting process”;
(2) “[y]ou have sent or received that relate in any way to [y]our participation in this
lawsuit”; and (3) “between or among the [p]laintiffs that relate in any way to the 2021
redistricting process or the subject-matter of their lawsuit.” Without first attempting to
confer with the plaintiffs the Board sought to compel discovery; the superior court
characterized the Board’s argument as “the communications [were] relevant to show bias
and motive for impeachment purposes.”
The superior court denied the Board’s request to compel discovery, ruling
that the Board’s production requests would elicit information only tangentially relevant
to the proceedings and that the benefit of the information did not outweigh the burdens
of production. The court recognized that “Alaska provides for liberal civil discovery”168
and that “ ‘evidence of bias is relevant and probative’[169] in most instances.” But the
court relied on limiting factors from Alaska Civil Rule 26(b)(2)(A)170 and an additional
instruction under Alaska Civil Rule 90.8(d) that “[t]he record in the superior court
proceeding consists of the record from the [Board] . . . as supplemented by such
168
State v. Doe, 378 P.3d 704, 706 (Alaska 2016).
169
Ray v. Draeger, 353 P.3d 806, 811 (Alaska 2015).
170
The relevant Rule 26(b)(2)(A) factors counseling denial of the Board’s
request were:
The discovery sought . . . [was] obtainable from some other
source that [was] more convenient, less burdensome, or less
expensive; . . . [and] the burden or expense of the proposed
discovery outweigh[ed] its likely benefit, taking into account
the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the
litigation, and the importance of the proposed discovery in
resolving the issues.
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additional evidence as the court, in its discretion, may permit.” The court reasoned that
the requests were overly broad and burdensome; that the information was obtainable (or
already available) through other avenues, such as deposition or cross-examination; and
that the requests had limited relevance due to the scope of the proceedings. The court
also noted that the Board had not filed a certification of good faith attempts to confer as
required by Rule 37(a)(2)(B) and that the Board justified this omission based only on the
expedited nature of the proceedings without citing authority.
The Board suggests that the superior court unfairly discussed the Board’s
political leanings without allowing “the Board to discover and present evidence of the
political affiliation and biases of the plaintiffs to the redistricting matters.” These
arguments notwithstanding, the Board fails to request any specific relief from us related
to the court’s alleged discovery error; the Board certainly does not suggest that the
court’s decision on the merits of the Board’s redistricting efforts should be reversed due
to the alleged error. Although evidence of party or witness bias typically is relevant and
probative, the Board fails to persuade us that the superior court acted unreasonably by
not compelling the disputed production. We find it particularly notable that the Board
has not explained how further knowledge of any plan challenger’s political motivations
would have meaningfully benefitted the Board’s trial position that its final redistricting
plan satisfied the Alaska Constitution’s requirements and did not involve partisan
gerrymandering. The court did not abuse its discretion by denying the Board’s request
to compel production.
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b. The superior court did not abuse its discretion when it
adopted streamlined proceedings regarding witness
testimony at trial.171
Because this was an expedited case with a short time for trial, the superior
court relied on Board members’ depositions submitted by the plaintiffs and allowed the
parties to pre-file direct testimony rather than giving live direct testimony. Although the
court had allowed for live re-direct examination of witnesses who were cross-examined
by other parties, East Anchorage did not cross-examine Board members. The court
denied the Board’s subsequent request to engage in re-direct examination of its members.
The court indicated that the Board could instead submit supplemental Board member
affidavits. The Board did not do so. But the Board now complains about the court not
allowing live re-direct examination of the Board members, contending that the court’s
“heavy reliance” on depositions in its analysis of the Board’s “secretive process”
involving the Senate district pairings prejudiced the Board by denying it “the opportunity
to explain its decisions.”172
The Board cites case law supporting the general proposition that a civil
171
“We exercise our independent judgment when interpreting Alaska’s civil
rules, but [we] review a superior court’s procedural decisions for abuse of discretion.”
Werba v. Ass’n of Vill. Council Presidents, 480 P.3d 1200, 1204 (Alaska 2021)
(alteration in original) (quoting Rockstad v. Erikson, 113 P.3d 1215, 1219-20 (Alaska
2005)).
172
We find it difficult to give serious consideration to the Board’s contention
that it has been denied the opportunity to explain its Senate District K pairing decision.
Had the Board conducted redistricting business in open sessions, the public could have
had a real-time understanding of the Board members’ positions and reasoning. And
Board members surely could have explained their decisions when they gave sworn
depositions, pre-filed affidavit testimony, or were given the chance to file later
supplemental affidavit testimony.
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litigant has the right to confront adverse witnesses.173 But we struggle to comprehend
how the right to confront witnesses against the Board gives rise to a right to confront the
Board members’ own pre-filed depositions and affidavits. The depositions and affidavits
gave the Board members a full and unfettered opportunity to justify and explain their
decision and actions regarding Senate District K. And the Board chose not to submit
supplemental affidavits despite being given the opportunity to do so. We see no error
on this point.
The Board also contends that Alaska Civil Rule 46(b) dictates the order of
evidence presented at trial and argues that the superior court should have allowed the
Board “to put on its case.” But that Rule instructs that the order of evidence is left to the
court’s “sound discretion.”174 The court did not abuse its discretion in the way it
permitted witness testimony, especially in light of the abridged timeline for the
proceedings, and any possible error would have been rendered harmless had the Board
accepted the court’s invitation to file supplemental affidavits. Indeed, we commend the
superior court’s tremendous efforts expediting the trial and its final decision in this
challenging litigation.
2. The Board’s article VI, section 10 arguments
We now review the superior court’s application of article VI, section 10’s
public hearings requirement.175
173
See Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326, 1332 & n.14 (Alaska
1989) (holding “right to confront and cross-examine witnesses is one right, founded
upon due process and fundamental fairness, which civil defendants do enjoy”).
174
Alaska R. Civ. P. 46(b).
175
We do not reach the superior court’s blended “hard look” and due process
analysis regarding Senate District K because we affirm its remand to the Board on
(continued...)
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a. Superior court’s article VI, section 10 ruling
The superior court concluded that the Board’s Senate district pairings
violated article VI, section 10 in two ways. The first violation related to article VI,
section 10’s requirement that the Board adopt one or more “proposed redistricting plans”
within the first 30 days of its tenure; the court interpreted this as meaning that the Board
must adopt a draft of both the House districts and Senate district pairings within the first
30 days. The court concluded that the Board violated section 10 by not adopting a
Senate plan within the first 30 days. The court also expressed skepticism that “third­
party plans” with Senate district pairings were adequate because they were not
“proposed” by the Board.
The second violation was based on section 10’s public hearings
requirement; the superior court considered this issue intertwined with procedural due
process. The court found: “[T]here was no opportunity for the public to comment on
the Senate pairings that were actually proposed by the members of the Board.” The court
noted that the Board had taken third-party maps with Senate district pairings on its
statewide public hearings road show but that the Board did not “hold public hearings on
Senate pairings it actually proposed on the final [H]ouse map.” The court also found that
the Board did not “make good-faith attempts to incorporate public testimony into the
Board’s final plan,” observing that “the vast majority of both East Anchorage and Eagle
River residents were strongly against splitting either region and combining one with the
other.” The court concluded that by failing “to take an appropriate ‘hard look’ at the
Senate pairings,” the Board had violated East Anchorage Plaintiffs’s constitutional rights
under article VI, section 10.
175
(...continued)
unconstitutional political gerrymander grounds.
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b. Article VI, section 10’s 30-day deadline and the meaning
of “proposed redistricting plan”
The Board does not meaningfully contest the superior court’s interpretation
of “proposed redistricting plan” to include a House district map with Senate district
pairings, pointing only to evidence suggesting that past Boards waited until late in the
process to make Senate pairings. The Board asserts that adopting third-party Senate
plans for its public road show nine days late, even if unconstitutional, was “harmless”
and did not prevent the public from offering meaningful feedback on the Senate district
plans. East Anchorage acknowledges that third-party maps included Senate district
pairings, arguing generally that the Board “failed to hold any hearings regarding any
specified [S]enate pairings proposal, and actively shut down discussion and testimony
at its public meetings before November 8.” East Anchorage cites citizens’ testimony
from October 4 and 30 requesting that the Board release Senate pairings for comment.
We agree with the superior court’s thorough analysis of the question, and
we hold that article VI, section 10 calls for one or more “proposed redistricting plans”
— including both House and Senate districts — within the first 30 days. It is difficult
to see how section 10’s drafters could have envisioned a timeline allowing the Board to
promulgate only a House district map within the first 30 days and then wait until the very
end of the 90-day redistricting period to propose Senate districts: Senate district pairings
then conceivably could escape scrutiny at public hearings. But we disagree with the
superior court that the Senate district maps drawn by third parties, adopted by the Board
and taken on the road show, are categorically inadequate for section 10 purposes. Third-
party participation and input should be welcome, and section 10 states that the Board
need only “adopt” a proposed redistricting plan, not that it need propose the adopted
plan. The Board “adopted” third-party plans with Senate district pairings to take on its
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road show, albeit over a week late.176
We therefore agree with the Board that its failure to adopt a Senate district
plan within 30 days was harmless error. Despite the roughly one-week delay in initially
adopting a proposed plan that included Senate districts, the public had an opportunity to
comment on potential Senate district pairings throughout the Board’s public road show
and toward the end of the 90-day period when the Board was focused on making the
Senate pairings. Had the Board actually refused to adopt and present any Senate district
plans until later in the process, we might draw a different conclusion.
c. Article VI, section 10’s public hearings requirement and
procedural due process
i. Hearings
The superior court concluded that article VI, section 10 requires “public
hearings . . . on all plans proposed by the Board.” (Alteration in original.) That
provision states:
Within thirty days after the official reporting of the decennial
census of the United States or thirty days after being duly
appointed, whichever occurs last, the board shall adopt one
or more proposed redistricting plans. The board shall hold
public hearings on the proposed plan, or, if no single
proposed plan is agreed on, on all plans proposed by the
board.[177]
176
Adopting proposed plans for public comment is designed to focus public
attention and testimony on the Board’s proposals. That purpose is not well-served by
indiscriminately adopting third-party plans with no suggestion of tentative Board
approval, and even less so by Senate districts proposed in the third-party plans based on
House districts substantially different from those the Board tentatively endorsed. In this
case the Board may not have complied with the spirit of article VI, § 10, but the Board’s
actions were minimally compliant with its literal requirements.
177
Alaska Constitution, art. VI, § 10 (emphasis added).
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The superior court’s interpretation appears to be taken out of context. The
most natural reading is that public hearings are required on one or more plans adopted
within the 30-day window. We have interpreted, but not previously held, that section 10
requires hearings only on plans proposed or adopted within the first 30 days:
Under article VI, section 10 of the Alaska Constitution, the
Alaska Redistricting Board (the Board) must adopt one or
more proposed redistricting plans within 30 days after
receiving official census data from the federal government.
The Board must then hold public hearings on the proposed
plans and adopt a final plan within 90 days of the census
reporting.[178]
The emphasized text can be read to mean that, if the Board cannot agree on
one plan within 30 days, all plans, regardless of when they are proposed, are subject to
the public hearings requirement. This highly semantic reading seems unnatural; we
instead hold that section 10 requires hearings on plans adopted within the first 30 days.
ii. Procedural due process
Procedural due process under article I, section 7 — prohibiting the
deprivation of life, liberty, or property without due process of law — requires, at a
minimum, appropriate “notice and an opportunity to be heard” given the context.179 The
superior court did not tether its limited procedural due process analysis to a specific right
to which procedural due process might apply, and the parties did not grapple with this
threshold issue in their petitions for review. And we found no arguments in the parties’
petitions for review about how procedural due process requirements actually play a role
in this context. Much like the superior court’s substantive due process analogy in its
178
2011 Redistricting III, 294 P.3d 1032, 1033 (Alaska 2012) (emphasis
added).
179
Haggblom v. City of Dillingham, 191 P.3d 991, 995 (Alaska 2008).
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“hard look” analysis, there is less here than meets the eye.180
To the extent the superior court considered that East Anchorage’s due
process rights were violated, we note the following. At least one proposed third-party
redistricting map presented on the road show districted part of the Eagle River area with
part of the Muldoon area. Given the volume of comments throughout the 90-day process
about the Muldoon and Eagle River areas and their possible pairing, it would be difficult
to conclude that there was no notice or meaningful opportunity to comment. Amici
curiae Alaska Black Caucus’s own compilation of public comments amply demonstrates
this. And the Board’s proposed plan was not a surprise; the Board did exactly what East
Anchorage feared and testified against. East Anchorage thus had a chance to adequately
comment on the Board’s plans.
3. The Board’s equal protection arguments181
The superior court considered whether the Board created the two Eagle
River area Senate Districts, K and L, with an illegitimate purpose. The court analyzed
“whether there were secret procedures in the contemplation and adoption of these senate
districts, whether there is evidence of partisanship, and whether the adopted senate
boundaries selectively ignore political subdivisions and communities of interest.”182
The superior court found “evidence of secretive procedures . . . in the
Board’s consideration and deliberation” of the Senate districts’ pairings. The court
pointed to “overwhelming public testimony against splitting and combining Eagle River”
180
See supra note 116 and related text.
181
See supra pp. 14-17 (discussing analytical framework for equal protection
claim).
182
See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1372 (Alaska 1987)
(establishing neutral factors test).
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with the East Anchorage South Muldoon community that seemed to have been ignored
by the three Board members who voted in favor of the Senate district pairings. Noting
that immediately following an executive session one Board member moved to accept the
Senate district pairings, the court reasoned that this “evidences not only secretive
procedures, but suggests that certain Board members came to some kind of consensus
either during executive session, or altogether outside of the meeting processes.” The
court discussed statements by the two Board members who did not support the Senate
pairings, including statements that the Board had engaged in “naked gerrymandering”
and that the Board members favoring the Senate district pairings “recognized that it was
not possible to ‘get to North Muldoon,’ so instead South Muldoon was paired.”
The superior court also found evidence of regional partisanship. The court
noted the expert witness testimony about the Eagle River and South Muldoon House
districts’ political leanings, that the adopted Senate pairings would minimize South
Muldoon’s voting strength, and that there would be no competition in its Senate seat
election. The court also pointed to the statement of one Board member, who favored
these pairings, that splitting Eagle River gave it “more representation” and that Eagle
River would control two Senate seats rather than one.
Finally, the superior court found that the Eagle River and Muldoon areas
are separate “communities of interest.” It based this determination on “ample public
comment” and trial testimony, including that of an expert witness. The court found that
“evidence in the record makes clear that any interaction [between Eagle River and
Muldoon] includes only Eagle River residents driving into or through Muldoon, with
Muldoon residents having no regular travel to or interaction with Eagle River.” The
court thus concluded “that the Board intentionally discriminated against residents of East
Anchorage in favor of Eagle River[] and [that] this intentional discrimination had an
illegitimate purpose.”
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The superior court then considered whether the pairings nonetheless led to
more proportional representation. It found that “[p]airing Eagle River Valley with South
Muldoon creates an average deviation of -1.68%, whereas pairing both Eagle River
districts creates an average deviation of -1.18%.” The court concluded that the
challenged Senate pairings did not lead to more proportional representation.183
Finding an equal protection violation, the superior court then turned to the
remedy. It found that the effect of disproportionality in Senate District K was de
minimis. But distinguishing this case from Kenai Peninsula, the court noted that
although “ultimately illegitimate, [the Kenai Peninsula Board] lacked the secretive
processes and discrimination against the communities of interest and political areas
apparent in this case.” The court found that a mere declaration of unconstitutionality
under a declaratory judgment was not appropriate and remanded the Senate district
pairings to the Board, citing Kenai Peninsula’s dissent.184
a. “Politically salient class” versus “communities of interest”
An equal protection claim requires an assertion that two groups are being
treated differently; the Board contests the notion that the Muldoon and Eagle River areas
are, for equal protection purposes, different communities. This is a somewhat confusing
issue because we have used two different terms to describe groups of people who may
be able to bring fair representation claims: “politically salient class” and “communities
183
As the Board points out, the superior court’s characterization of “under”
and “over” representation was incorrect. We also note that the court’s approach to the
“proportionality of representation” defense reflects a misunderstanding of the defense.
We address these issues below.
184
See Kenai Peninsula, 743 P.2d at 1374-75 (Compton, J., dissenting)
(explaining that merely offering declaratory relief in face of unconstitutional district does
not suffice nor does it deter future boards).
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of interest.”185
The Board advocates using “politically salient class,” stating that we
“clarified” it as the proper term after the 1999 constitutional amendments.186 We first
used that term in the redistricting context in 2001 Redistricting I when characterizing
Kenai Peninsula as discussing politically salient classes.187 In Braun v. Denali Borough
we repeated the characterization,188 and in 2011 Redistricting I we cited the term’s use
in 2001 Redistricting I.189 But the Kenai Peninsula reference in 2001 Redistricting I does
not contain the phrase “politically salient class” — the phrase does not appear in the
opinion.190 We appear to have borrowed the term from a concurring opinion in the
United States Supreme Court’s Karcher v. Daggett decision.191 Contrary to the Board’s
185
Compare Kenai Peninsula, 743 P.2d at 1365 n.21, 1372 (“[S]enate districts
which meander and ignore political subdivision boundaries and communities of interest
will be suspect under the Alaska equal protection clause.”), with Braun v. Denali
Borough, 193 P.3d 719, 730 (Alaska 2008) (describing Kenai Peninsula holding “that
the [B]oard cannot intentionally discriminate against a borough or any other politically
salient class of voters by invidiously minimizing that class’s right to an equally effective
vote” (quoting 2001 Redistricting I, 44 P.3d 141, 144 (Alaska 2002))).
186
The Board presumably focuses on “politically salient class” because in
2001 Redistricting I we used the term in a footnote discussing “racial or political
groups.” 44 P.3d at 144 n.8.
187
Id. at 144 (citing Kenai Peninsula, 743 P.2d at 1370-73).
188
193 P.3d at 730 (quoting discussion from 2001 Redistricting I, 44 P.3d at
144).
189
2011 Redistricting I, 274 P.3d 466, 469 (Alaska 2012).
190
See generally Kenai Peninsula, 743 P.2d at 1352.
191
See 462 U.S. 725, 754 (1983) (Stevens, J., concurring); 2001
Redistricting I, 44 P.3d at 144 n.8.
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assertion, we see nothing about our use of the term “politically salient class” suggesting
we intended to “clarify,” or even discuss, that the term was a change from the term
“communities of interest.”
The Board calls Kenai Peninsula’s mention of “communities of interest”
“vague dicta.” We disagree that the phrase qualifies as dicta; we used it when explaining
the various factors we would consider to evaluate the equal protection claim before us.192
And the Board engages with the same factors throughout its briefing. More aptly
qualifying as “vague dicta” was our cursory use of the phrase “politically salient class”
— which seems not to be a widely used redistricting term of art — when briefly
describing Kenai Peninsula’s equal protection test in an inapposite context.
At trial the Board argued that East Anchorage “do[es] not state what race
or ethnic group is being disenfranchised by the pairings” and that East Anchorage had
not shown its voters to be “politically cohesive” or likely to vote in the same way. But
the contexts in which we have used the term “politically salient class” do not support the
Board’s implication that the term relates only to race or political affiliation. We used the
term in 2001 Redistricting I to correct the Board’s misunderstanding that Kenai
Peninsula “entitle[s] political subdivisions to control a particular number of seats based
upon their populations.”193 That was not our holding in Kenai Peninsula; we “simply
held that the board cannot intentionally discriminate against a borough or any other
‘politically salient class’ of voters by invidiously minimizing that class’s right to an
equally effective vote.”194 Nor did the Kenai Peninsula holding referred to by 2001
192
Kenai Peninsula, 743 P.2d at 1372.
193
2001 Redistricting I, 44 P.3d at 144.
194
Id. We drew the phrase from Justice Stevens’s Karcher concurrence,
(continued...)
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Redistricting I turn on racial discrimination or political party discrimination; the House
district in dispute was deemed unconstitutional because of geographic discrimination.195
2001 Redistricting I used the term in the context of a voter dilution claim.196 Braun v.
Denali Borough, a case about a borough reapportionment plan, referenced 2001
Redistricting I for a similar proposition: equal protection did not guarantee Healy voters
majority control of the Denali Borough Assembly merely because Healy had a majority
of the population.197 No redistricting decision has discussed “politically salient class” in
the context of a challenge based on race or political affiliation. As East Anchorage
points out, “community of interest” and “politically salient class” are simply phrases
courts use “to name and refer to identifiable groups which are alleged to have been
treated differently from other groups for purposes of conducting an equal protection
analysis.”
To allow for meaningful judicial review in redistricting cases, we formally
adopt Professor Nicholas O. Stephanopoulos’s “community of interest” definition, which
in large part is consistent with our case law: A community of interest “is (1) a
geographically defined group of people who (2) share similar social, cultural, and
economic interests and (3) believe they are part of the same coherent entity. The first
194
(...continued)
defining a “politically salient class” as “one whose geographical distribution is
sufficiently ascertainable that it could have been taken into account in drawing district
boundaries.” 462 U.S. at 754 (Stevens, J., concurring). Justice Stevens’s definition
contains no mention of race or political party. Id.195
Kenai Peninsula, 743 P.2d at 1370-73. Indeed, we dismissed an equal
protection claim in Kenai Peninsula based on political party discrimination. Id. at 1369­
70.
196
44 P.3d at 144.
197
193 P.3d 719, 729-30 (Alaska 2008).
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element, geographic demarcation, is necessary because of the American commitment to
geographic districting.”198
b. Whether socioeconomic integration and “communities of
interest” are synonymous
The Board argues that taking “communities of interest” into account already
is required by article VI, section 6’s mandate that House districts be socioeconomically
integrated. The Board cites two examples of “[l]egal commenta[ry]” supporting this
view. The first is a chart from the Brennan Center for Justice, simply compiling
definitions of “community of interest” from numerous states using the term, and listing
article VI, section 6 as the source of Alaska’s “community of interest” inquiry.199 This
informative resource is hardly “legal commentary”; it is a two-page chart expressing no
198
Nicholas O. Stephanopoulos, Redistricting and the Territorial Community,
160 U. PA. L. REV. 1379, 1430 (2012). Professor Stephanopolous used the term
“territorial community” rather than “community of interest” because the latter “does not
have to be spatially bounded” and “can be deemed to arise on the basis of any common
concern, making the term notably imprecise and malleable.” Id. at 1431-32. We address
this concern by simply defining community of interest using his territorial community
definition. Professor Stephanopolous suggests that election district boundaries should
correspond with territorial communities to the extent possible and that courts should
intervene when such communities unnecessarily are fused or split and the redistricting
authority offers no reasonable explanation for the community disruption. Id. at 1385.
Our case law similarly imposes a justification duty when a plausible equal protection
violation claim is made. See Kenai Peninsula, 743 P.2d at 1371 (“Depending upon the
primacy of the interest involved, the State will have a greater or lesser burden in
justifying its” questioned action). See generally Pub. Emps. Ret. Sys. v. Gallant, 153
P.3d 346, 349 (Alaska 2007) (“We most often review [an act treating two groups
differently] ‘by asking whether a legitimate reason for disparate treatment exists, and,
given a legitimate reason, whether the enactment . . . bears a fair and substantial
relationship to that reason.’ ”).
199
Communities of Interest, BRENNAN CENTER FOR JUSTICE (Nov. 2010),
https://bit.ly/BrennanCOI (last visited Feb. 18, 2023).
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view and engaging in no analysis.200 The Board’s second source is a 1997 Virginia Law
Review article citing article VI, section 6 as support, within a broader discussion of
communities of interest, that “[t]he [C]onstitution[] of Alaska . . . require[s] consideration
of communities of interest in apportionment.”201 The Board contends that article VI,
section 6’s socioeconomic integration requirement is the only place in Alaska
redistricting law accounting for communities of interest. But neither the Board’s sources
nor our decisions support its conclusion.
A court asking whether a House district is socioeconomically integrated
may look to its communities of interest because the analyses might overlap to a
significant degree. But that does not mean Senate district pairings of two
socioeconomically integrated House districts can never implicate concerns about fair
representation for communities of interest. In Kenai Peninsula we stated that district
boundaries “which meander and ignore political subdivision boundaries and
communities of interest will be suspect under the Alaska equal protection clause.”202 A
community of interest, for example, could stretch across two boroughs or be contained
entirely within a borough. This reasoning finds support in a special master’s report we
commissioned in Egan v. Hammond:203 The special master suggested that “Anchorage
subdivisions [could] coincide with rough communities of interest” despite Anchorage’s
200
See id.201
Stephen J. Malone, Recognizing Communities of Interest in a Legislative
Apportionment Plan, 83 VA. L. REV. 461, 466 (1997).
202
743 P.2d at 1365 n.21; see also Hickel v. Se. Conf., 846 P.2d 38, 48 (Alaska
1992) (stating that “a state’s desire to maintain political boundaries is sufficient
justification for population deviation if consistently applied” (citing Kenai Peninsula,
743 P.2d at 1360)).
203
502 P.2d 856 (Alaska 1972).
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lack of “clearly delineated ethnic ghettoes.”204
The Board misframes the issue, setting out the seemingly absurd conclusion
that, under the superior court’s findings of fact and conclusions of law, “in 2002, it was
constitutional to place portions of Eagle River and Muldoon in a single [H]ouse district
because they are socioeconomically integrated, but in 2021, those areas of Anchorage
cannot be in the same [S]enate district because they are different ‘communities of
interest.’ ” (Emphasis in original.) But in this case the challenge is about splitting up a
community of interest to increase those residents’ voting power over two Senate districts
rather than one, not about putting separate communities of interest from one borough —
which by law are socioeconomically integrated — together in the same legislative
districts. It would not be contradictory to find that the Muldoon and Eagle River areas
are, as a matter of law, socioeconomically integrated but nonetheless separate
communities of interest.
The Board advances no argument whether the Muldoon and Eagle River
areas are separate communities of interest beyond pointing out that they are
socioeconomically integrated because they are in the same borough. The superior
court’s finding that the Muldoon and Eagle River areas constitute separate communities
of interest was well-supported by the affidavit of East Anchorage’s expert witness,
Dr. Chase Hensel, a local anthropologist. Dr. Hensel noted the “one-way flow” of Eagle
204
Id. at 894. We recognize that “ghetto” has more recently developed a
colloquially pejorative connotation. See, e.g., Camila Domonoske, Segregated From Its
History, How ‘Ghetto’ Lost Its Meaning, NPR (Apr. 27, 2014), https://www.npr.org/
sections/codeswitch/2014/04/27/306829915/segregated-from-its-history­
how-ghetto-lost-its-meaning; Hugo Quintana, “The Ghetto”, THE MICH. DAILY (Oct. 14,
2021), https://www.michigandaily.com/michigan-in-color/the-ghetto/ (discussing historic
and slang usage of “ghetto”). For historical accuracy and in light of the term’s ongoing
legal significance, see, e.g., Tommie Shelby, Justice, Work and the Ghetto Poor, 6 L. &
ETHICS HUM. RTS. 70 (2012), we quote the term as used in 1972.
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River commuter traffic to East Anchorage; amici curiae Alaska Black Caucus noted that
Member Marcum’s assertion about the two communities sharing close ties was limited
to her observation that some Eagle River residents commute to Anchorage via Muldoon
Road. Dr. Hensel pointed out that the two communities’ events and professional groups
do not include one another. He noted different transportation service providers, local
newspapers, histories and socioeconomic statuses, voting patterns, and racial and ethnic
makeups. He also noted that Eagle River people described their community as
“separate,” “independent,” “unique,” and “stand alone.”
Dr. Hensel’s data also persuasively demonstrated racial and socioeconomic
disparity between the two areas. In the Bartlett High School catchment area, primarily
covering North and South Muldoon, students are 18% White and 70% economically
disadvantaged. By contrast, in the Eagle River High School catchment area students are
68% White and 24% economically disadvantaged. Muldoon has 9% and northeast
Anchorage has 14% of residents living below the poverty line, compared to just 3% in
Eagle River and 2% in Chugiak. And 75% of North Muldoon students qualified for free
and reduced lunch, compared to just 16% of Eagle River Valley’s students.
North and South Muldoon are roughly 38% and 52% White respectively,
while Eagle River Valley and North Eagle River are 76% and 75% White, respectively.
Amici curiae Alaska Black Caucus provides similar statistics, pointing out that
combining the two Muldoon House districts would create a majority-minority district,
as would combining the Mountain View/Joint Base Elmendorf-Richardson (JBER)
districts.
Given the definition of “community of interest” we have adopted, these
observations support the superior court’s findings that the Muldoon and Eagle River
areas constitute separate communities of interest and that the Board’s Senate district
pairings split up the Eagle River community of interest to give it more political influence,
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evidencing discriminatory intent.205 And even if we disagreed with the strong evidence
that the Muldoon and Eagle River areas constitute separate communities of interest, it
would be unwise to hold, categorically, that separate communities of interest cannot exist
within a single borough. As Alaska’s largest city, Anchorage likely will continue
growing more populous and diverse. The historical, economic, or traditional significance
of neighborhoods may change with time, and courts should remain open to hearing
evidence that certain Anchorage neighborhoods are sufficiently different from one
another that they constitute separate communities of interest. Categorically holding that
no subregion of Anchorage can be a community of interest would expose Alaskans to
gerrymandering.
c. Discriminatory intent
i. Secretive procedures
The Board challenges the superior court’s “speculative” finding that the
Board engaged in “secretive procedures,” a Kenai Peninsula fair representation test
factor for discriminatory intent.206 But the superior court did not err by finding that the
Board engaged in secretive procedures.
The Board began its Anchorage Senate district pairings on November 8.
Member Bahnke first discussed her recommended Anchorage pairings, strongly
expressing her feeling that the Eagle River and Muldoon areas each should be kept intact
based on her review of public comments supporting the idea. Member Borromeo agreed,
stating: “I don’t know why you would ever consider splitting Eagle River unless you
were trying to expand Eagle River’s reach in the Senate.”
205
See Kenai Peninsula, 743 P.2d at 1372 (“District boundaries which
meander and selectively ignore political subdivisions and communities of interest, and
evidence of regional partisanship are also suggestive [of discriminatory intent].”).
206
Id. (setting out multifactor totality of circumstances test).
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Member Marcum then presented four versions of Anchorage-area pairings,
noting that her four maps paired JBER with one of the Eagle River districts based on her
personal experience that Eagle River is a “bedroom community” for JBER. Extensive
discussions took place about why Member Marcum believed JBER and a portion of
Eagle River should be paired and about pairing South Muldoon with part of Eagle River.
When asked why putting the two Eagle River House districts together was not the most
logical choice, Member Marcum stated: “Eagle River has its own two separate House
districts. This actually gives Eagle River the opportunity to have more representation
. . . .” Member Marcum obviously meant that if the Eagle River area were placed in two
distinct Senate districts, Eagle River voters could control the election of two senators
rather than one.
The Board did not appear to come to an agreement on the record about any
map before voting. The superior court noted:
In the midst of discussion, where several [S]enate pairings
that split Eagle River and split the Muldoon area were offered
by Member Marcum, Chairman Binkley states[:] “So I get a
sense that there’s a majority of, not consensus for the plan
that [Member Marcum] has brought forward. If that’s the
case, I think we should move on to the last one that we got,
which is Fairbanks.”
Member Borromeo responded: “Mr. Chairman, before we do that, . . . is it your
understanding that [Member Marcum is] only presenting one? Because there’s so many
. . . . I don’t know what all of the different combinations were.” The superior court
noted that — and after review, we agree — it is unclear, and it was unclear to fellow
Board members, which map a majority of the Board had agreed upon. The court thus
inferred:
[There was] some sort of coalition or at least a tacit
understanding between Members Marcum, Simpson, and
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Binkley. All three appeared to agree on all four of Member
Marcum’s maps with little public discussion. Most surprising
was that at that time, it is unclear in the transcript, and was
apparently also unclear to Member Borromeo, which of
Member Marcum’s maps the Board had apparently reached
a majority on when the deliberative discussion was ended. It
seems that what the three Board Members had reached a
majority [on] was the only element of the map that was
consistent between them: that Eagle River was split and
North Eagle River was paired with JBER. That confusion is
highlighted in the Chairman’s choice to move on from
Anchorage Senate pairings in the midst of deliberations to
talk about Fairbanks to the surprise of Members Borromeo
and Bahnke. There was no further public deliberation
regarding Anchorage Senate pairings after this point, yet
three Board members, the only three Board Members who
signed the final proclamation in support, seemed to at some
point understand which set map of [S]enate pairings to offer
for adoption among the four.[207]
After discussing Fairbanks-area Senate district pairings, the Board entered
into executive session to receive “legal advice with regard to the . . . proposed Senate
pairings in Anchorage.”208 Upon exiting executive session, Member Marcum
immediately moved to accept the Anchorage Senate pairings without further public
discussion. The superior court observed:
This evidences not only secretive procedures, but suggests
that certain Board members came to some kind of consensus
either during executive session, or altogether outside of the
meeting processes. While the Court stops short of a finding
that this happened, the Court does see ample evidence of
secretive process[es] at play.
207
The superior court’s internal citations to the record have been omitted.
208
We are unable to discern the specific OMA allowance relied upon for the
executive session.
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The Board emphasizes that on November 8 it extensively discussed
possible Senate district pairings on record, including the multiple potential Anchorage
Senate district pairings presented by Members Bahnke and Marcum mentioned above.
The Board also points to trial testimony from Members Binkley and Simpson that Board
members did not agree on the maps during executive session or between public meetings
and that the Board entered into executive session on November 8 to receive legal advice
about some potential Senate pairings. The Board asserts that this testimony was
uncontested at trial.
Yet, as amici curiae Alaska Black Caucus notes: “The Board never
discussed the relative merits of Bahnke’s plan as compared to Marcum’s. No other
Board member spoke on record in favor of Marcum’s proposal, . . . yet Binkley
somehow knew that a majority favored Marcum’s plan over Bahnke’s.” East Anchorage
points to other evidence of secretive procedures. It notes Member Borromeo’s
statements on the record that in executive session the Board likely had been advised
against the Senate District K pairing and that Member Binkley, despite voting for
splitting Muldoon, made no statement on the record supporting the pairings or explaining
why he thought they “were more lawful or correct than those proposed by Member
Bahnke.” East Anchorage also notes that Members Marcum and Simpson, the two
members most vocally supporting the Eagle River-Muldoon pairing, “had access to
incumbent information” provided by a Republican strategist, Randy Ruedrich.
Bearing in mind that the results of secretive procedures are, by their nature,
difficult to prove, and, paradoxically, that habitually using executive session to conduct
the Board’s business is indicative of secretive procedures, we agree with the superior
court that this factor tends to weigh in favor of finding discriminatory intent.
ii. Partisanship
The superior court found evidence of regional partisanship, another Kenai
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Peninsula equal protection discriminatory intent factor.209 The court framed the issue as
favoring Eagle River and disfavoring Muldoon as geographic regions rather than as
discriminating against a particular political party. The court stated that although South
Muldoon historically was a Republican-leaning swing district, the Senate pairings would
“usurp[] [its] voting strength in the event it chooses to elect a Democratic senator.” As
amici curiae Alaska Black Caucus put it:
An East Anchorage [S]enate district formed from the two
Muldoon [H]ouse districts would be a swing district, with no
guarantee that the next senator would be a Democrat rather
than a Republican. But this pairing would guarantee that the
votes of East Anchorage would matter: voters could elect a
senator who resides in the community, who understands its
concerns, and who does not need to compromise those
concerns . . . to protect the interest of voters in the other half
of a district with very different needs.
The Senate District K pairing’s political undertones are impossible to
ignore. We first must address the Board’s contention that we have “never recognized the
viability of a partisan gerrymandering claim” and its reliance on Rucho v. Common
Cause — holding that political gerrymandering claims are non-justiciable in federal
courts — to urge us to follow the Supreme Court’s lead.210 Contrary to the Board’s
contention, we have recognized partisan gerrymandering claims. Kenai Peninsula
adjudicated a partisan gerrymandering claim that ultimately was dismissed, but not on
justiciability grounds.211 Considering the Constitutional Convention minutes, the 1999
amendments’ legislative history, and our case law, we expressly recognize that partisan
209
743 P.2d at 1372 (setting out multifactor totality of circumstances test).
210
139 S. Ct. 2484, 2506-07 (2019).
211
See 743 P.2d at 1369-70.
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gerrymandering is unconstitutional under the Alaska Constitution.
There is ample evidence of regional and political partisanship in this case.
East Anchorage points out that the Board’s 3-2 majority in favor of splitting the Muldoon
and Eagle River areas was comprised only of the Republican-appointed Board members.
Member Simpson said at trial that, despite article VI, section 8’s instruction that Board
members be chosen “without regard to political affiliation,” he was chosen because he
was “a Republican from Southeast.”212 As the superior court acknowledged, Muldoon
leans Republican but is a “highly competitive” district, whereas Eagle River is “firmly
Republican.” East Anchorage notes that Randy Ruedrich, a Republican strategist and
212
As noted earlier, Member Simpson’s post-remand email, not available in
the record for this part of our review, shows that he viewed the redistricting process
through a partisan lens. See supra note 166. The email stated:
The Supremes also upheld the Superior Court’s ruling that
we had politically gerrymandered one Senate district in
Anchorage . . . . To me this implies that what the court
perceived as a political gerrymander must be replaced with a
different political gerrymander more to their liking. The
district in question paired two [H]ouse districts that were both
majority non-minority, one of which was reliably
[R]epublican and the other was [R]epublican 2/3 of the time.
Not clear to me why this is bad but the D[emocrat]s will push
to dilute both of them to make it easier to elect their
candidates.
These comments reveal more about the member’s views of the propriety of political
gerrymandering than about our role in resolving constitutional challenges to a
redistricting plan. We decide the redistricting cases brought to us, including the
challenges to the current Board’s redistricting plans; we do not seek out the redistricting
cases we hear. Our past redistricting decisions reflect that the political affiliations of
those creating a redistricting plan had no bearing on our decisions. See, e.g., supra
note 17 (discussing redistricting challenges and our decisions when governors controlled
redistricting).
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former chair of the Alaska Republican Party, emailed Members Marcum and Simpson
“political incumbent information for each of the Board’s adopted [H]ouse districts.”
Ruedrich also appears to be the only person to have testified in favor of pairing Eagle
River and Muldoon during the November 8 public comments meeting. There also is
Member Marcum’s statement that Eagle River would get “more representation” if it were
split into two Senate districts, meaning increased Senate representation for Eagle River
by controlling two firmly Republican Senate districts rather than one.
Finally, notwithstanding our deferential hard look standard, the Board’s
justification for pairing a Muldoon House district and an Eagle River House district in
the face of overwhelming public opposition from both communities is difficult to
understand unless some form of regional or political partisanship were involved. And
amici curiae Alaska Black Caucus persuasively illustrates how past pairings involving
East Anchorage and Eagle River areas resulted in Alaska’s first Black female senator —
a Democrat — losing her seat, despite having been re-elected multiple times before the
pairing. Considering the rushed manner in which the Board adopted the Senate District
K pairing, the nearly unanimous public opposition, and the contrasting political effects
of the pairing on Muldoon’s and Eagle River’s voting power, we agree with the superior
court that the record supports the inference that partisanship was at play.
d. Proportionality of representation
Kenai Peninsula instructs that a Senate district drawn with a discriminatory
purpose might be justifiable if the Board can show that it led to greater “proportionality
of representation.”213 Equating the concept of proportionality with the degree of
deviation from the ideal district population, the superior court invalidated the South
Muldoon and Eagle River Senate pairings because it concluded that the Board’s plan led
213
743 P.2d at 1372.
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to more population deviation than the challengers’ plan.
The Board correctly points out that, when a House district is
underpopulated relative to the “ideal” House district population, residents of that district
are overrepresented because their voting power is higher relative to residents of districts
with higher populations. The Board points out that the superior court got this backward;
the court repeatedly referred to House districts with lower populations as
underrepresented when it should have called them overrepresented. But this misses the
point.
We agree with the superior court that the closer to zero a district’s deviation
from the ideal population is, the greater the “proportionality of representation” is in that
context. But in the fair representation context proportional representation is the extent
to which members of a particular group are represented in public office.214 For example,
in a hypothetical pairing created specifically to discriminate against Black citizens, the
fact that the House districts exactly equaled the ideal district population, rather than
deviating from the ideal by a percent or two, would neither be a defense nor serve the
interests of justice. Kenai Peninsula’s discussion of “proportionality of representation”
makes more sense in this context; that proportional representation inquiry concerned
over- or under-representation in the State legislature based on Anchorage’s share of
Alaska’s population, not its degree of deviation from the ideal district population.215 We
already have unequivocally stated in Braun and 2011 Redistricting I that Alaskans do not
214
See Thornburg v. Gingles, 478 U.S. 30, 74-77 (1986) (discussing
proportional representation of Black population in state legislature); Proportional
representation, BLACK’S LAW DICTIONARY (11th ed. 2019) (“An electoral system that
allocates legislative seats to each political group in proportion to its actual voting
strength in the electorate.”).
215
743 P.2d at 1372-73.
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have an absolute right to proportional representation based on population.216 And such
an inquiry would not make sense in this case. Muldoon and Eagle River area citizens are
not scattered across the state, comparable to the Black population in Thornburg v.
Gingles,217 but are by definition located in fixed places.
e. Conclusion
Under the totality of the circumstances, the superior court correctly
concluded that Senate District K is unconstitutional due to geographic and partisan
gerrymandering. And the appropriate remedy was to remand to the Board to correct the
constitutional deficiency.
V. CONCLUSION OF CHALLENGES TO 2021 PROCLAMATION
We AFFIRM the superior court’s determination that House Districts 3
and 4 comply with article VI, section 6 of the Alaska Constitution and should not
otherwise be vacated due to procedural aspects of the Board’s work. We REVERSE the
superior court’s remand to the Board for further proceedings on those districts under the
superior court’s hard look analysis relating to public comments on these House districts.
We AFFIRM the superior court’s determination that House Districts 29, 30,
and 36 do not violate article VI, section 6 of the Alaska Constitution and should not
otherwise be vacated due to procedural aspects of the Board’s work, with one exception:
We conclude that the so-called “Cantwell Appendage” violates article VI, section 6
because it renders House District 36 non-compact without adequate justification. We
therefore REVERSE the superior court’s determination to this limited extent.
216
Braun v. Denali Borough, 193 P.3d 719, 730 (Alaska 2008); 2001
Redistricting I, 44 P.3d 141, 144 (Alaska 2002); accord Voting Rights Act 52 U.S.C.
§ 10301(b) (“[N]othing in this section establishes a right to have members of a protected
class elected in numbers equal to their proportion in the population.”).
217
See generally 478 U.S. at 74-77.
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We AFFIRM the superior court’s determination that the Board’s Senate
District K pairing of House Districts 21 and 22 constituted an unconstitutional political
gerrymander violating equal protection under the Alaska Constitution.
VI. 2021 REDISTRICTING PROCESS AFTER REMAND, ROUND 2: BOARD
PROCEDURES AND AMENDED PLAN; CHALLENGE AND SUPERIOR
COURT’S DECISION; BOARD’S PETITION FOR REVIEW
The superior court remanded the redistricting plan back to the Board with
instructions consistent with our summary order. The superior court ordered, among
other things, that the Board correct the constitutional error that both we and the superior
court identified with respect to Senate District K.
A. Board Proceedings On Remand
The Board met and heard public testimony almost every day April 2-9. The
Board did not enter into any executive sessions, though the superior court later noted that
there were indications Board Members Binkley, Marcum, and Simpson — the three
members in favor of the initial Senate District K — may have been privately
communicating and formed a coalition with the goal of preserving a JBER/North Eagle
River Senate district.
By April 6 the Board was deciding between Options 2 and 3B for Senate
district pairings. Option 2 and Option 3B both resulted in four Senate districts different
from the original November 2021 plan. Both options paired North and South Muldoon
into Senate District K. But where Option 2 would have combined North and South Eagle
River into an Eklutna/Eagle River/Chugiak Senate district, Option 3B kept North Eagle
River with JBER (Senate District L) and placed South Eagle River with South
Anchorage/Girdwood/Whittier (Senate District E). The final amended plan was adopted
on April 13 with Members Binkley, Marcum, and Simpson voting in favor of Option 3B
and Members Bahnke and Borromeo opposed.
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B. Superior Court Proceedings
Louis Theiss, Ken Waugh, and Jennifer Wingard (collectively Girdwood)
appeared in the superior court later in April to challenge Senate District E as violating
their equal protection rights and article VI, section 6 because it was non-compact, was
“falsely contiguous,” and ignored geographic features. Girdwood also contended that
again creating two separate Eagle River Senate districts, Districts K and L, constituted
unlawful political gerrymandering.218
Due to the proceeding’s expedited nature — potential legislative candidates
had an impending June 1 filing deadline219 — there was no formal discovery and the
superior court held only one day of oral argument, largely working from the parties’
briefing. The court “accepted all materials submitted by the parties, regardless of timing”
and reviewed them under a more relaxed standard of evidence, considering “their
relevance to the issues presented” and affording them weight “under the totality of the
circumstances.” The superior court issued its decision on May 16. We again commend
the superior court on its expedited work resolving the challenges to the Board’s plan.
1. Girdwood’s article VI, section 6 challenge
Girdwood argued that pairing South Eagle River with South
Anchorage/Girdwood/Whittier in Senate District E violated article VI, section 6’s
“contiguity requirement and disregard[ed] local government boundaries without
explanation.” Girdwood acknowledged that Senate District E was technically contiguous
218
Attached as Appendix C are copies of relevant election district maps the
Board published with its April 2022 amended proclamation. These maps show the
contested Senate districts.
219
AS 15.25.040(a).
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— the districts physically touched at the border220 — but that this was “false contiguity”
because “several hundred miles of uninhabited state park, including the Chugach
Mountains, divide the actual population centers” of the Senate district. An expert
witness for Girdwood, Dr. Chase Hensel, testified about this contiguity requirement, but
the superior court discounted the testimony as amounting to an improper legal
conclusion. The superior court held that “Senate District E does not violate [a]rticle VI,
[section] 6” because the two House districts composing the Senate district share a border,
fulfilling the contiguity requirement.
2. Girdwood’s equal protection challenge
Girdwood next argued that the “Board acted with illegitimate purpose when
it adopted Option 3B,” violating equal protection. Girdwood pointed to the superior
court’s prior findings that the Board had engaged in “secret procedures” and contended
that the Board’s splitting Eagle River voters into two Senate districts was evidence of
partisanship gerrymandering; Girdwood argued that the Board continued to have an
illegitimate purpose when it again split Eagle River voters into two Senate districts for
the amended plan. Girdwood argued that the Board’s majority coalition chose to split
up communities of interest in contravention of what the majority of public commenters
requested and without justification for more proportional representation.
The bulk of the superior court’s decision considered whether the new
Senate district pairings violated equal protection by intentionally discriminating in favor
of or against a community of interest. The court again relied on the Kenai Peninsula
“neutral factors test” to find that, under the totality of the circumstances, the Board was
220
See Alaska Const. art. VI, § 6 (“Each [S]enate district shall be composed
as near as practicable of two contiguous [H]ouse districts.”); Hickel v. Se. Conf., 846
P.2d 38, 45 (Alaska 1992) (explaining territories are contiguous when they are
“bordering or touching” each other).
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intentionally discriminating when it engaged in unconstitutional partisan gerrymandering
to ensure “two solidly Republican senate seats” in Senate Districts L and E. The court
found that the Board ignored the Eagle River and South Anchorage communities of
interest when constructing Senate District E because a majority of the Board “insisted
continuously” that Senate District L — combining North Eagle River and JBER —
“remain intact.”
The superior court initially was unsure “how much weight” to afford its
March 2021 finding, that the Board had engaged in intentional discrimination when it
split Eagle River voters into separate Senate districts, when considering the
constitutionality of the Board’s amended plan. After reviewing federal case law
addressing how to apply prior discriminatory intent in equal protection cases the court
concluded that it would look at “the Board’s prior discriminatory intent as part of the
‘totality of the circumstances’ in addressing the Girdwood challenge” but that it would
not be dispositive; the burden would remain on Girdwood to prove discriminatory
intent.221
The superior court then discussed circumstances it found relevant for the
Girdwood challenge. Given that the South Anchorage/Girdwood House district is
221
The superior court commented that in light of the Board’s prior partisan
gerrymandering, the court would be in favor of shifting “the burden to the Board to
demonstrate that its Amended Proclamation . . . w[as] made in good faith and without
partisan considerations.” But the court recognized that there is a presumption of
constitutionality and that the Board’s actions generally are reviewed under a deferential
arbitrary and capricious standard. See Treacy v. Mun. of Anchorage, 91 P.3d 252, 260
(Alaska 2004) (“A duly enacted law or rule . . . is presumed to be constitutional.”);
Kodiak Island Borough v. Mahoney, 71 P.3d 896, 899-900 (Alaska 2003) (reasoning that
rules or laws created by bodies with rulemaking or lawmaking powers conferred directly
by Constitution are entitled to presumption of constitutionality); Kenai Peninsula, 743
P.2d at 1357-58. The court utilized the deferential arbitrary and capricious standard of
review for the Board’s amended plan.
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Republican-leaning already, the court first noted that South Anchorage’s pairing with a
strong Republican district would not “necessarily result in any significant discriminatory
effect.” Second, the court found that the Board’s prior act of pairing South Eagle River
with South Muldoon to “give[] Eagle River more [Senate] representation” “weigh[ed]
heavily in Girdwood’s favor.” Third, the court concluded that the Board’s main rationale
for ignoring “public testimony, geography, and even the boundaries of Eagle River to
justify adopting Option 3B” — “ ‘to preserve the military community’s voting strength’
as a ‘community of interest’ ” — was not supported by the record (when the court had
never found that JBER was a community of interest) and constituted “substantive
departures . . . weighing heavily in Girdwood’s favor.” Fourth, the court found that
“contemporaneous statements of the decision-makers” were inconclusive regarding
discriminatory intent. “Ultimately, the factor that tip[ped] the balance in Girdwood’s
favor [was the superior court’s] prior finding on intent.”
The superior court discussed the Board’s primary justification for selecting
Option 3B: “[P]airing JBER with downtown Anchorage would result in JBER’s
preference for candidates being usurped by downtown Anchorage’s preference for
opposing candidates.” But because the court was not given evidence supporting that
JBER was a community of interest and the Board failed to engage with comments
pointing out that the large, demographically diverse “portion of Downtown” paired with
JBER in House District 23 would not be served by the Senate District L pairing, the
court found that the Board had “not put forth any legitimate, nondiscriminatory purpose
for its actions” and thus “violated equal protection rights of the residents of Girdwood
and House District 9.” The court also found that “the majority of the Board acted in
concert with at least a tacit understanding that Eagle River would again be [split and]
paired in such a way as to provide it with two solidly Republican senate seats — an
unconstitutional partisan gerrymander.” Thus, under the totality of the circumstances,
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the court concluded “that the Board intentionally discriminated against residents of
District 10, including Girdwood[,] in order to favor Eagle River, and this intentional
discrimination had an illegitimate purpose” violating equal protection.
The superior court remanded the proceedings to the Board to draft a
constitutional plan and also ordered “the Board to adopt Option 2 on an interim basis for
the 2022 general election.”
C. The Board’s Petition For Review
The Board petitioned for our review of the superior court’s May 2022
order, challenging both the basis for remand and the court’s imposed interim plan. We
granted review, later issuing a summary order resolving the petitions and noting that a
full explanation would follow.222
VII. RESOLUTION OF ROUND 2 PETITION FOR REVIEW
A. The Superior Court Did Not Improperly Consider The Weight Of The
Public’s Testimony.
The Board argues that the superior court “recycled [its] weight-of-public­
testimony standard” which had been effectively struck down by our March 25, 2022
order. The Board is correct that we struck down the court’s earlier hard look analysis
and that the court continued to express concern about the weight of the public testimony
regarding the amended plan. But the Board fails to recognize that the court expressly
acknowledged our earlier order and noted the weight of the public testimony only in light
of our pending full opinion. The court appears to have landed on the appropriate hard
look analysis we discussed above: Public comment should be considered when it raises
a salient issue that the Board should address if it is engaging in reasoned decision­
222
Our summary order resolving the petition for review is attached as
Appendix D.
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making.223
The Board does not argue that the superior court’s discussion of public
testimony impacted any particular step in its decision to remand the amended plan — the
Board appears to understand the immense value of public testimony in the decision-
making process, extensively quoting public comments in its petition for review — and
asks us only to “remind lower courts that public testimony cannot change the . . .
requirements of the Alaska Constitution.” We do not further address this issue.
B. The Superior Court Correctly Concluded That The Senate District
Pairings Continued To Violate Equal Protection.
1. The superior court did not adopt a new burden of proof from
federal case law.
The Board contends that the superior court adopted a new burden of proof.
The Board seems to suggest that the court adopted a federal standard placing the burden
on the Board to prove it did not violate equal protection, despite federal case law
instructing courts to impose a “presumption of legislative good faith” in these
circumstances.224 But the court affirmatively asserted that it did “not chang[e] the
standard or the burden of proof.” Rather, the court highlighted that perhaps a new
223
See 2001 Redistricting I, 44 P.3d 141, 144 n.5 (Alaska 2002) (determining
whether regulation is reasonable primarily concerns whether “the [Board] has taken a
hard look at the salient problems and has genuinely engaged in reasoned decision
making” (quoting Interior Alaska Airboat Ass’n v. State, Bd. of Game, 18 P.3d 686, 690
(Alaska 2001))).
224
See Abbott v. Perez, 138 S. Ct. 2305, 2311 (2018) (“The allocation of the
burden of proof and the presumption of legislative good faith are not changed by a
finding of past discrimination, which is but ‘one evidentiary source’ relevant to the
question of intent.” (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 267 (1977))). We note that the Board quotes a different portion of Abbott in which
it is less obvious that past discrimination is one factor relevant to the analysis of present
discriminatory intent.
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approach was warranted given our previous rejection of gerrymandering in this
redistricting cycle, and the court left the matter for us to decide whether the burden of
proof should be adjusted in comparable future scenarios. The Board’s argument, as we
said in our earlier order, is specious.225
The Board also challenges the superior court’s subsequent review of federal
case law when determining that it should include its earlier finding that the Board
engaged in unconstitutional political gerrymandering in conducting its Kenai Peninsula
neutral factors test.226 We see no error in the court’s analysis and agree that prior acts of
discrimination by the same Board in the same redistricting cycle are relevant under the
Kenai Peninsula neutral factors test.227
2. The superior court did not improperly distinguish our holding
in 2001 Redistricting I.
The Board argues that, because two decades ago we upheld a House district
combining the Eagle River Valley with South Anchorage, the superior court erred when
it allegedly “ignored this dispositive holding and never distinguished it.”228 The Board
does not suggest that it made this argument to the superior court, does not point to
225
See infra Appendix 2.
226
See 743 P.2d at 1372.
227
See id.; Alaska R. Civ. P. 90.8(d) (explaining that record before superior
court in redistricting challenges “consists of the record from the Redistricting Board”);
cf. Abbott, 138 S. Ct. at 2313, 2317, 2324-25 (holding 2013 election map that looked
similar to unconstitutional 2011 map necessitated new finding of discriminatory intent
because different legislature created new map).
228
See 2001 Redistricting II, 47 P.3d 1089, 1091(Alaska 2002) (holding House
district that did not follow “natural and local government boundaries” was not
automatically unconstitutional on grounds of socioeconomic integration or other
article VI, section 6 concerns).
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anywhere in the order following remand where the court wrestled with this concern, and
does not point to any case law suggesting that approvals of prior redistricting plans have
a preclusive effect on subsequent plans.
The Board appears to be making a stare decisis argument, which intuitively
would be irrelevant in the redistricting context because each new redistricting cycle
naturally entails new circumstances in light of new census data.229 Otherwise, every ten
years the Board presumptively would be able to adopt the proclamation from the last
redistricting cycle and the burden would be on voters to argue why any deviations would
be justified.230 It also is important to consider whether a particular constitutional
requirement was at issue and litigated in the previous redistricting cycle; the Board does
not assert that partisan gerrymandering was a disputed issue we resolved. We reject the
Board’s argument.
3. The superior court did not err in its discussion of communities
of interest.
The superior court critically reviewed the Board’s assertion that military
residents of JBER necessarily constitute a community of interest. The Board argues that
the court’s critique was erroneous because the court never defined community of interest;
229
Cf. Thomas v. Anchorage Equal Rts. Comm’n, 102 P.3d 937, 943 (Alaska
2004) (“The stare decisis doctrine rests on a solid bedrock of practicality: ‘ “no judicial
system could do society’s work if it eyed each issue afresh in every case that raised
it.” ’ ” (quoting Pratt & Whitney Canada, Inc. v. United Techs., 852 P.2d 1173, 1175
(Alaska 1993))).
230
See id. (“In recognizing the importance of this doctrine, we have
consistently held that a party raising a claim controlled by an existing decision bears a
heavy threshold burden of showing compelling reasons for reconsidering the prior
ruling: ‘We will overrule a prior decision only when clearly convinced that the rule was
originally erroneous or is no longer sound because of changed conditions, and that more
good than harm would result from a departure from precedent.’ ” (quoting State, Com.
Fisheries Entry Comm’n v. Carlson, 65 P.3d 851, 859 (Alaska 2003))).
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“obvious[ly] . . . military personnel share the same employer, the same noble mission,
the same workplace, and the same shopping and medical facilities”; and “ ‘communities
of interest’ is a synonym for areas that are socio-economically integrated,” such that
“Eagle River and South Anchorage are not separate communities of interest that cannot
be combined with other areas of Anchorage and cannot be split.” The Board’s argument
somewhat misrepresents the court’s discussion. The court did not find that JBER was
not a community of interest; rather the court pointed out that JBER previously had not
been identified as a community of interest and found that the Board failed to present any
evidence supporting its assertion. And the crux of the issue before us is not whether
separate communities of interest can be combined, but whether a community of interest
can be split to its own advantage (and to the disadvantage of separate communities of
interest) by allowing it to control multiple Senate districts.
We note again, as we did when resolving the Board’s earlier petition for
review, that the Board’s assertion that communities of interest are equivalent to
socioeconomically integrated communities is incorrect. A community of interest almost
always will be socioeconomically integrated within itself and externally with other
nearby communities of interest, but a larger socioeconomically integrated community is
not automatically an all-encompassing community of interest.231 The Board cited no
evidence, aside from its own speculation, that JBER is a community of interest; in any
case, there was no showing that the House district encompassing the populated portion
of the military base as a whole would tend to share political preferences more closely
with an Eagle River House district than with the downtown Anchorage House district.
We thus reject the Board’s argument that concerns about JBER justify splitting Eagle
River.
231
See Stephanopoulos, supra note 198, at 1430.
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4. The superior court’s discussion of local government boundaries
was not erroneous.
The superior court acknowledged that the disputed House districts were
within the Municipality of Anchorage and therefore were socioeconomically integrated
as a matter of law, but criticized the Board for not considering “local [government]
boundaries, including school zones, community councils and even the Downtown
Improvement District” when drawing the new senate map. The Board asserts that “high
school attendance boundaries within the Anchorage School District are not ‘local
government boundaries’ because all students within the Anchorage School District are
governed by the same political entity: the Anchorage School District School Board.”232
The Board also asserts that “community council boundaries within the Municipality of
Anchorage are of no constitutional import.” (Emphasis in original.) In 2001
Redistricting II we recognized that “respect for neighborhood boundaries is an admirable
goal”; we then held that “it is not constitutionally required and must give way to other
legal requirements.”233 Although districting along “neighborhood boundaries” is not
“constitutionally required,”234 it is an unconvincing stretch for the Board to argue that
232
The Board makes a frivolous argument that “[n]othing in the state
[C]onstitution or case law suggests that the Board must consider where non-voting minor
children go to school when the Board adopts legislative districts for adult voters.” The
court was, of course, not considering school zones because children going to the same
school might have similar voting interests, but rather because those students tend to have
concerned parents and guardians who could be unified by issues surrounding the fact that
their children attend the same schools. It does not seem unreasonable that “local
government boundaries” might include school zones. Alaska Const. art. VI, § 6.
233
47 P.3d at 1091.
234
Id.
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they are of “no constitutional import.”235 (Emphasis omitted.) And the Board identifies
no “legal requirements” that convinced it to forgo considering community boundaries.
Girdwood responds that public comments demonstrate the Board’s
justification for pairing JBER with North Eagle River — recognizing JBER as a military
community of interest better paired with Eagle River’s military community — was
pretextual. Girdwood also points to numerous local governing entities’ comments
tending to oppose the Eagle River area split. For example, the Anchorage Downtown
Community Council (DCC) adopted a resolution requesting that House District 23
(containing JBER) be paired with now-House District 19 (part of downtown Anchorage).
DCC suggested that splitting up the “downtown core” by pairing JBER’s district with
Eagle River continued to promulgate the “unconstitutional problem” from the plan
previously struck down. Girdwood argues that the Board disregarded, and perhaps did
not even read, these comments given members’ statements indicating they did not grasp
that JBER was placed in a House district with portions of downtown Anchorage. These
public comments and local government resolutions rise to the level of “salient issues”
that the Board should have addressed if it were taking a hard look at Senate
redistricting.236
235
See Alaska Const. art. VI, § 6 (“Each [S]enate district shall be composed
as near as practicable of two contiguous [H]ouse districts. Consideration may be given
to local government boundaries.”).
236
See supra note 223 and accompanying text.
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5. The superior court did not err when it applied the Kenai
Peninsula neutral factors test and concluded that Senate
Districts E and L constituted an unconstitutional political
gerrymander.
The superior court relied on Kenai Peninsula’s neutral factors test to
conclude that, under the totality of the circumstances, the Board intentionally
discriminated when it unconstitutionally engaged in partisan gerrymandering to ensure
“two solidly Republican [S]enate seats” in Senate Districts E and L. The Board contends
that the court “disregarded the neutral factors test because [the test] did not allow [the
court] to reach the desired result.”
Rather than engaging with the entire Kenai Peninsula neutral factors test,
the Board primarily emphasizes its more open procedures on remand and its stated
rationale for pairing JBER with Eagle River. The Board points out that the court credited
the Board for holding transparent meetings with ample public testimony. And, although
continuing to oppose the court’s emphasis on the weight of the public testimony, the
Board nevertheless emphasizes public testimony favoring pairing JBER with Eagle
River. The Board says it was concerned, at least in part, about minimizing the voices of
the JBER area military members and veterans by pairing it with downtown Anchorage.
The Board also notes that Members Bahnke and Borromeo acknowledged some
similarities between Eagle River and JBER, despite voting against the pairing.
Girdwood responds that the superior court properly considered “the Board’s
disregard for the public testimony in context, and concluded that it was further evidence
of illegitimate intent.” (Emphasis in original.) Girdwood points to examples of Board
members seeming not to have taken public comments seriously and even being confused
after several days of public testimony about where “Chugiak and the Chugach mountains
. . . were geographically located relative to Eagle River.” Girdwood asserts that this
evidence supports the court’s findings that “the majority board members approached the
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process with a predetermined outcome in mind,” that the “totality of the circumstances
indicate[d] a goal-oriented approach[,] [and that] they paid attention to the details only
as much as they needed to say the right words on the public record when explaining their
choice.” We agree.
After the superior court found that the Board intentionally discriminated
against certain voters, the burden switched to “the Board to demonstrate that its acts
aimed to effectuate proportional representation.”237 The Board appears to suggest that
its actions were justified because Girdwood’s voting power increased by 0.17% when
paired with District 10 as opposed to being paired with District 13 (if Option 2 had been
adopted). Aside from this being a de minimis increase in voting power for Girdwood
and not being directly relevant to the proportionality of representation issue as we
discussed earlier, the Board omits any discussion of discriminating in Eagle River’s favor
with the aim of “effectuat[ing] proportional representation” in some other way.238 Absent
such justification, we agree with the superior court that continuing to divide the Eagle
River area solely “to provide it with two solidly Republican [S]enate seats” constituted
“an unconstitutional partisan gerrymander” violating our equal protection doctrine.
C. The Superior Court Did Not Err When It Ordered As An Interim Plan
The Only Other Alternative Considered By The Board.
The Board had adopted two potential redistricting plans for public
presentation and comment and for adoption as the final amended plan, Options 2 and 3B.
The Board adopted Option 3B as its final amended plan. After deciding Option 3B was
unconstitutional, the superior court ordered that the Board implement Option 2 as the
upcoming 2022 elections interim plan, enabling legislative candidates to file for office
237
Kenai Peninsula Borough v. State, 743 P.2d 1352, 1372 (Alaska 1987).
238
See id.-109- 7646
by the June 1 deadline. Because we agree with the superior court that the Board’s final
amended plan — Option 3B — is unconstitutional, the issue of an interim plan remains.
The Board seemingly argues that the superior court had no authority to
order the Board to adopt Option 2 as the interim proclamation plan. But the Board must
have believed Option 2 fulfilled constitutional requirements, or it would not have
adopted the plan for public presentation and consideration. At no point during its public
discussion of the two options did a Board member assert that Option 2 was
unconstitutional. We issued our May order about a week before June 1, and the Board
had made no known effort to prepare or present to us another interim plan.239 We
therefore affirm the superior court’s order that the Board adopt the Option 2
proclamation plan as the interim plan for the 2022 elections.
VIII. CONCLUSION OF ROUND 2 CHALLENGES TO AMENDED
PROCLAMATION
We AFFIRM the superior court’s determination that the Board again
engaged in unconstitutional partisan gerrymandering to increase one group’s Senate
district voting power at the expense of others. Under the specific circumstances of these
proceedings, we AFFIRM the superior court’s order that the Board adopt the Option 2
proclamation plan as an interim plan for the 2022 elections.
IX. FINAL REMEDY
After the second remand, the Board adopted the Option 2 proclamation plan
as the 2022 elections interim plan.240 The question of a final redistricting plan for the
239
Cf. 2011 Redistricting I, 274 P.3d 466, 468-69 (Alaska 2012) (inviting
Board to submit proposed interim plan for our approval in light of upcoming election
deadlines when remanding final plan to Board for further proceedings).
240
Attached as Appendix E are copies of relevant election district maps the
Board published with its May 2022 interim redistricting plan proclamation.
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decade remains. Having concluded that the Board engaged in unconstitutional
gerrymandering in its initial final redistricting plan and that the Board then did so again
in its amended final redistricting plan, our remanding for yet another redistricting plan
may be questioned. Indeed, by clear implication article VI, section 11 authorizes courts
to mandate a redistricting plan when, after a remand, the Board develops a new plan that
is declared invalid.241 But we will remand out of respect for the Board’s constitutional
role in redistricting.
Given that the Board adopted the current interim redistricting plan for its
final plan deliberations — confirming the Board’s belief that the interim plan is
constitutional — and given that Alaska’s voters have not had a chance to raise challenges
to that plan in the superior court:
We REMAND for the superior court to order that the Board shall have 90
days to show cause why the interim redistricting plan should not be the Board’s final
redistricting plan for the 2020 redistricting cycle:
A. Upon a showing by the Board of good cause for a remand, the
superior court shall REMAND to the Board for another round of
redistricting efforts; or
B. Absent a showing by the Board of good cause for a remand,
the superior court shall direct the Board to approve the interim redistricting
plan as its final redistricting plan, allowing any legal challenges to that plan
to be filed in superior court in the normal course.
241
See Alaska Const. art. VI, § 11 (“Upon a final judicial decision that a plan
is invalid, the matter shall be returned to the [B]oard for correction and development of
a new plan. If that new plan is declared invalid, the matter may be referred again to the
[B]oard.” (Emphasis added.)).
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EASTAUGH, Senior Justice, concurring.
I agree in full with the court’s resolution of these disputes. But I write
separately because I have doubts about whether Hickel v. Southeast Conference1
correctly described the priorities and order for applying the contiguity, compactness, and
socio-economic integration criteria.2 If I were reading the constitution in a vacuum, I
would not necessarily conclude that the delegates agreed or that the Alaska
Constitution’s text requires that the first two criteria should have priority over the third.
But there was no challenge to Hickel’s description of those priorities in this case, nor any
contention its description should not be given stare decisis effect. Moreover, my doubts
do not affect the outcome of any of the issues before us, even as to the “Cantwell
Appendage,” because the asserted increase in socio-economic integration in House
District 36 does not outweigh the diminution in that district’s compactness.
1
846 P.2d 38, 62 (Alaska 1992).
2
See id. at 44-47, 62 (describing priorities and order for applying contiguity,
compactness, and socio-economic integration criteria). The court’s opinion today at
page 53 quotes the Hickel passage that I find problematic.
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