The Aftermath of in Re 2001 Redistricting Cases: the Need for a New Constitutional Scheme for Legislative Redistricting in Alaska

• Publication year: 2006

§ 23 Alaska L. Rev. 51. THE AFTERMATH OF IN RE 2001 REDISTRICTING CASES: THE NEED FOR A NEW CONSTITUTIONAL SCHEME FOR LEGISLATIVE REDISTRICTING IN ALASKA

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 51

THE AFTERMATH OF IN RE 2001 REDISTRICTING CASES: THE NEED FOR A NEW CONSTITUTIONAL SCHEME FOR LEGISLATIVE REDISTRICTING IN ALASKA

GORDON S. HARRISON ^[*]

I. INTRODUCTION

II. BACKGROUND

A. The Problem of Partisan Gerrymanders

B. Original Alaska Constitutional Provisions for Redistricting

C. History of Alaska Redistricting Prior to 2000

D. 1998 Constitutional Amendment

E. Redistricting After the 2000 Census by the Alaska Redistricting Board

III. A NEW APPROACH TO LEGISLATIVE REDISTRICTING

A. The 1998 Amendment Facilitates Partisan Redistricting

B. Redistricting Should be a Legislative Responsibility, with a Requirement for Supermajority Vote

C. Rebuttal of Objections to Legislative Districting

IV. CONCLUSION

FOOTNOTES

In this Comment, the former executive director of the Alaska Redistricting Board argues that the proper forum for redistricting in Alaska is the state legislature, with procedural safeguards to ensure the minority party a voice. This Comment describes the history of redistricting and the process by which the 2000 districts were formulated. This Comment analyzes the process and critiques its shortfalls; it concludes that a change in redistricting policy is needed to avoid litigation and provide for more equitable redistricting to occur.

I. INTRODUCTION

Redistricting of the Alaska State Legislature after the 2000 census proceeded under the terms of a 1998 state constitutional [*pg 52] amendment that placed full authority for the task in the hands of an independent, five-member public body -- the Alaska Redistricting Board. A three-member majority of the Board adopted a redistricting plan prepared by a group closely associated with the Democratic Party. Litigation ensued. Though the Alaska Superior Court and the Alaska Supreme Court found several constitutional defects in the plan and remanded it to the Board for further work, neither court faulted the procedures by which the plan was adopted. On remand, the Board unanimously adopted a revision of the plan that was negotiated between a board member, plaintiffs in the suits, and key legislators. The courts found that this revision satisfied their objections to the first plan.

New legislative districts were in place for the 2002 elections, but from a public policy perspective, Alaska's experiment with an independent redistricting commission cannot be considered a success. The Alaska Redistricting Board perpetuates the objectionable feature of the system it replaced: redistricting by a single party. If one-party redistricting is to be avoided, another approach must be found. This Comment proposes that the task be returned to the legislature, the body commonly empowered in other states to redraw legislative district lines. However, if the objective is (as it should be) a bipartisan plan, both major parties must be assured a role. Bipartisan participation in the process can be achieved by requiring a supermajority vote to adopt a redistricting bill. To assure effective participation by the minority legislative faction, there must be a constitutional guarantee of equal access to staff and other resources necessary to prepare redistricting proposals. Finally, there must be a deadline for the legislature to pass a redistricting bill similar to the deadline that was imposed on the Board by the recent constitutional amendment.

II. BACKGROUND

A. The Problem of Partisan Gerrymanders

The call to abandon the 1998 constitutional amendment that created the Alaska Redistricting Board is premised on the notion that one political party should not have full authority for redistricting. A party that draws election district boundaries does so with the principal objective of enhancing its own electoral prospects. Manipulating election district boundaries for partisan advantage [*pg 53] has a name -- gerrymandering -- and it is a tradition in American politics. ^[1]

Partisan gerrymandering is tolerated by some who consider it an inevitable fact of political life, ^[2] a non-problem, ^[3] a non-serious problem, ^[4] or a problem that, however regrettable, is so complex there is no feasible way for judges to police it. ^[5] Toleration of partisan gerrymandering is unfortunate because gerrymandering is election fraud, ^[6] no less pernicious than stuffing the ballot box or intimi-[*pg 54] dating or bribing voters. ^[7] The gerrymandered district is designed to squander the votes of the opposition party by "packing" large majorities of opposition voters into a few districts or by "cracking" districts controlled by opposition voters into numerous districts that can be won by a small margin of voters of the dominant party. ^[8] The practice dilutes the votes of the disadvantaged party members, making it harder for that party to translate its voting strength into legislative seats. ^[9] A gerrymandered political system is unresponsive to changes in the will of the electorate. ^[10] Partisan gerrymandering, in short, is an affront to constitutional democracy. ^[11] It is hostile to the notion of "fair and effective representation for all [*pg 55] citizens," ^[12] and the public policy of the state of Alaska should seek to prevent it.

B. Original Alaska Constitutional Provisions for Redistricting

The delegates drafting the new Alaska Constitution in Fairbanks during the winter of 1955-1956 almost certainly sought to prevent gerrymandering in Alaska. ^[13] They adopted a novel mechanism designed both to thwart partisan redistricting and to ensure timely redistricting -- avoidance of the task was a major political problem of the day, as many legislatures around the country had a history of dilatory behavior perpetuating unequal legislative districts. ^[14] Possibly to counter the inclination of legislatures to procrastinate about redistricting, the delegates gave the governor responsibility for the task. ^[15] It seems likely that the delegates created [*pg 56] a Redistricting Board ^[16] to advise the governor so as to counter the universal inclination of politicians to gerrymander. The Board was to prepare in public a plan for the governor, who could make changes to the plan only if he provided an explanation of why the changes were needed. ^[17] As a safeguard for the whole system, the delegates authorized citizens to compel the governor to correct any lapses in the procedure or "errors" in the redistricting plan. ^[18]

It is clear that the delegates intended the advisory board to be politically impartial and intended redistricting plans to be politically unbiased because of the limitations set on its composition. For instance, the governor appointed the five-person Board, but members had to come from around the state. ^[19] Members could not be public officials; moreover, they were to be appointed "without regard for political affiliation." ^[20] Discussion on the floor of the convention about the reapportionment article was unambiguous in demonstrating the delegates' intent to provide a politically neutral process. Delegate John Hellenthal, chairman of the Committee on Suffrage, Elections, and Apportionment, declared that "the whole purpose of this article is to de-emphasize politics." ^[21] He explained that public officials were barred from serving on the Board because these people would be "too politically inclined" and "apt to live in too much of a political atmosphere." ^[22] He characterized the advisory body as "this objective, studious board." ^[23] Delegate Steve McCutcheon spoke against an amendment to allow public officials to serve on the Board, saying the Board "is only one small board that sits once every ten years and certainly we should be able to find five or six people out of the whole of Alaska that would qualify for this thing and who will be objective in their consideration." ^[24]

The draft article used the term "nonpartisan" to describe the citizen advisory board, but it was subsequently dropped by the Committee on Style and Drafting in favor of the requirement that appointments be made "without regard to political affiliation." ^[25] Members of the Apportionment Committee objected to the [*pg 57] change, complaining that the new language failed to express the full intent of "nonpartisan"; instead, they insisted on adding a new sentence: "Deliberations and decisions of the board shall be free from political considerations." ^[26] The term "political" was later changed to "partisan," but on reflection the delegates decided to strike the entire sentence from the final document on the grounds that such an admonition was unlikely to be effective. ^[27]

In an ebullient article describing the new constitution, Convention Chair and later-Governor William Egan wrote: "Members of the legislature will have nothing to do with reapportionment. Because of this provision so-called 'gerrymandering' will be impossible." ^[28] Delegate Hellenthal also published an article about the new constitution. ^[29] Among several "modern and progressive" features dealing with the legislature, he included "[a]utomatic reapportionment every ten years by the governor acting on the advice of an independent board." ^[30] Others were equally enthusiastic about the innovative redistricting provisions of Alaska's new constitution. The National...