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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re 2011 Redistricting Cases (12/28/2012) sp-6741

In Re 2011 Redistricting Cases (12/28/2012) sp-6741

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



IN RE 2011 REDISTRICTING                         ) 

CASES                                            )       Supreme Court No. S-14721 

                                                 ) 

                                                 )       Superior Court No. 4FA-11-02209 CI 

                                                 ) 

                                                 )       O P I N I O N 

                                                 ) 

                                                 )       No. 6741 - December 28, 2012 

                                                 ) 



                Petition for Review from the Superior Court of the State of 

                Alaska,     First  and   Fourth    Judicial   Districts,   Juneau     and 

                Fairbanks, Michael P. McConahy, Judge. 



                Appearances:   Michael D. White and Nicole A. Corr, Patton 

                Boggs LLP, Anchorage, for Petitioner Alaska Redistricting 

                Board.   Michael J. Walleri and Jason Gazewood, Gazewood 

                & Weiner PC, Fairbanks, for Petitioners Ronald Dearborn 

                and George Riley. Thomas F. Klinkner, Birch Horton Bittner 

                &   Cherot,   Anchorage,   for   Respondents   Brenda   Norheim, 

                Mark Jensen, and Nancy Strand.  Scott A. Brandt-Erichsen, 

                Assistant     Borough     Attorney,    Ketchikan,     for  Respondent 

                Ketchikan       Gateway      Borough.      Joseph      H.   McKinnon, 

                Anchorage, for Amicus Alaska Democratic Party. Natalie A. 

                Landreth,   Native   American        Rights   Fund,   Anchorage,   for 

                Amici   Alaska   Federation   of   Natives;   Bristol   Bay   Native 

                Corporation;   First   Alaskans       Institute;   McGrath,   Takotna, 

                Nicolai, et al.; and Bering Straits Native Corporation. Joseph 

                N.  Levesque, Levesque Law Group, LLC, Anchorage, for 

                Amicus Aleutians East Borough.  Carol Brown, Association 

                of     Village    Council      Presidents,     Bethel,    for    Amicus 

                Association   of   Village   Council   Presidents.      Jill   S.   Dolan, 

                Assistant Borough Attorney, and A. René Broker, Borough 


----------------------- Page 3-----------------------

                Attorney,     Fairbanks,    for   Amicus     Fairbanks     North   Star
 

                Borough.     Marcia R. Davis, Calista Corporation, Anchorage,
 

                for   Amicus      Calista   Corporation.      Thomas       E.  Schulz,
 

                Ketchikan,      for  Amicus    RIGHTS       Coalition.   Brooks      W.
 

                Chandler,      Boyd    Chandler     &   Falconer,    Anchorage,      for
 

                Amicus      Haines    Borough.      Jonathan     Tillinghast,    James
 

                Sheehan,   and   E.   Budd   Simpson   III,   Simpson,   Tillinghast,
 

                Sorenson       &    Lorensen,     Juneau,     for   Amici     Sealaska
 

                Corporation and Central Council of Tlingit & Haida Indian
 

                Tribes   of   Alaska.   Christopher   Lundberg,   Haglund   Kelly
 

                Horngren      Jones    &   Wilder    LLP,   Portland,    Oregon,     for
 

                Amicus Metlakatla Indian Community. 
 



                Before:      Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and
 

                Stowers, Justices, and Matthews, Senior Justice.*
 



                CARPENETI, Chief Justice.
 

                WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in
 

                part.
 

                MATTHEWS,   Senior   Justice,   with   whom   FABE,   Justice,
 

                joins, dissenting.
 



I.      INTRODUCTION 



                Earlier in the current redistricting cycle, we issued an order remanding to 



the superior court with instructions to remand to the redistricting board to formulate a 



new plan in compliance with our case law.            We agreed with the superior court that, in 



drafting its plan, the board failed to follow the process we mandated in order to ensure 



that the redistricting plan would comply with the Alaska Constitution and thus may have 



unnecessarily violated the Alaska Constitution.  Upon remand, the board was instructed 



to follow this process so that we could appropriately judge whether its violations of the 



        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 



Constitution and Alaska Administrative Rule 23(a). 



                                                  -2-                                             6741 


----------------------- Page 4-----------------------

Alaska Constitution were absolutely necessary for compliance with federal law.  The 



board then submitted a modified plan to the superior court that changed only four out of 



forty house districts from the original plan; this amended plan was similarly rejected by 



the superior court because, among other reasons, the board failed to follow the process 



that we required in order to ensure compliance with the Alaska Constitution.  The board 



petitions for review of the superior court's decision.  We accept  the petition for review 



and, because the board failed to follow the process that we ordered upon remand, we 



affirm the decision of the superior court and require the board to draft a new plan for the 



2014 elections.  We agree with the board that it is not required to make specific findings 



about each individual district relating to the requirements of the Alaska Constitution nor 



to submit a plan to the superior court at each stage of drafting. 



II.     FACTS AND PROCEEDINGS 



                Article VI, section 3 of the Alaska Constitution requires reapportionment 



of the Alaska Legislature every ten years.         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.  Because Alaska is covered 

by section 5 of the federal Voting Rights Act (VRA),1 the Board must also submit its 



final plan to the U.S. Department of Justice (DOJ) for preclearance to ensure that any 



        1       Fannie Lou Hamer, Rosa Parks, & Coretta Scott King Voting Rights Act 



Reauthorization and Amendments Act of 2006, Pub. L. No. 109-246, §5, 120 Stat. 580 

(2006) (codified at 42 U.S.C. § 1973c (2006)). 



                                                 -3-                                            6741 


----------------------- Page 5-----------------------

voting changes do not diminish minorities' ability to "elect their preferred candidates of 

choice."2 



                Following the 2010 census, the Board received the official census data on 



March 13, 2011.      On April 8, 2011, the Board hired Dr. Lisa Handley, a VRA expert. 



Dr. Handley strongly recommended that the Board begin its redistricting process by 

focusing on creating effective Native districts,3 given the difficulties posed by VRA 



compliance      in  Alaska.    On    June   13,  2011,   the  Board    formally    adopted    its  final 



Proclamation Plan.  This plan received preclearance from the DOJ on October 11, 2011. 



                Three separate lawsuits were initially filed in superior court challenging the 



Board's final plan by four plaintiffs: the Fairbanks North Star Borough (FNSB), the City 



of   Petersburg,   and   George   Riley   and   Ronald   Dearborn,   residents   of   Ester   and   the 



Goldstream Valley (collectively Riley). These cases were later consolidated. The FNSB 



then moved to dismiss its action, which the court granted with the proviso that the Riley 



plaintiffs could pursue the FNSB claims.  The City of Petersburg also dropped out of the 



suit after the superior court granted summary judgment to the Board on the issue that 



Petersburg had raised; Petersburg did not ask for reconsideration from the superior court 



or file a petition for our review.      Before trial, the superior court denied Riley's claim 



challenging the process used by the Board to formulate its proclamation plan, and on 



February 3, 2012, the superior court issued its opinion denying Riley's claims alleging 



unconstitutional vote dilution. In its opinion, however, the superior court also concluded 



        2       42 U.S.C. § 1973c(d) (2006). 



        3       The superior court defined "effective Native districts" as "districts where 



Natives have an ability to elect a candidate of their choice."  See also Corbett v. Sullivan, 

202 F. Supp. 972, 984 (E.D. Mo. 2002) (defining "effective minority district" as one 

where minority had "opportunity to elect candidates of their choice"). 



                                                  -4-                                            6741
 


----------------------- Page 6-----------------------

that Proclamation   House Districts 1, 2, 37, and   38   unnecessarily   deviated   from   the 



requirements of the Alaska Constitution. 



               Both the Board and Riley filed petitions for review.         Several entities also 



filed   amicus    briefs,  including    the  FNSB,     the  Aleutians    East   Borough,    Calista 



Corporation, and a coalition of several Alaska Native groups.            On March 14, 2012, we 



issued an order holding that the Board's Proclamation Plan did not comply with the 

process   mandated   in  Hickel   v.   Southeast   Conference4    (the  Hickel   process),   and   we 



remanded the case accordingly.5 



               In our order, we gave the Board explicit instructions and specified a process 



that 



               the   Board    must   follow   to  ensure  that  our  constitutional 

               redistricting principles are adhered to as closely as possible. 

               After receiving the decennial census data, the Board must 

               first design a reapportionment plan based on the requirements 

               of the Alaska Constitution.       That plan then must be tested 

               against the Voting Rights Act.   A reapportionment plan may 

               minimize       article   VI,   section    6   requirements      when 

               minimization is the only means available to satisfy Voting 

               Rights Act requirements.[6] 



After setting forth the correct process for the Board to follow in order to comply with the 



Alaska    Constitution,   we    concluded    that   it   was  "undisputed  that   the  Board  began 



redistricting in March and April of 2011 by focusing on complying with the Voting 



        4      846 P.2d 38, 51 n.22 (Alaska 1992). 



        5      See In re 2011 Redistricting Cases, 274 P.3d 466 (Alaska 2012). 



        6      Id . at 467 (quoting Hickel , 846 P.2d at 51 n.22 (internal quotation marks 



and formatting omitted)). 



                                                -5-                                            6741
 


----------------------- Page 7-----------------------

Rights Act, thereby ignoring the process we mandated."7                    Thus, we found the Board 



erred by reversing steps one and two of the Hickel process. 



                 Additionally, we explained why failure to follow the Hickel process was 



fatal to the Board's plan:  The failure prevented meaningful judicial review because we 



could     not   discern     whether     the   Board's     deviations     from    Alaska     constitutional 



requirements were actually necessary.            We stated: 



                 Because   it   did   not   follow   the  Hickel    process,   the   Board 

                 cannot     meaningfully      demonstrate       that  the   Proclamation 

                 Plan's Alaska constitutional deficiencies were necessitated by 

                 Voting Rights Act compliance, nor can we reliably decide 

                 that question. The Hickel process provides the Board with 

                 defined     procedural      steps   that,   when     followed,     ensure 

                 redistricting satisfies federal law without doing unnecessary 

                 violence   to   the   Alaska   Constitution.   The   Board   must   first 

                 design   a   plan focusing on compliance with the article VI, 

                 section    6   requirements      of  contiguity,    compactness,       and 

                 relative   socioeconomic   integration;   it   may   consider   local 

                 government boundaries and should use drainage and other 

                 geographic       features   in   describing     boundaries      wherever 

                 possible.    Once     such   a   plan   is  drawn,    the   Board    must 

                 determine whether it complies with the Voting Rights Act 

                 and,   to   the   extent   it   is   noncompliant,   make   revisions   that 

                 deviate from the Alaska Constitution when deviation is "the 

                 only     means     available     to   satisfy    Voting     Rights     Act 

                 requirements."[8] 



                 The   Board   was   left   with   clear   instructions   to   fulfill   its   constitutional 



mandate      and   we    further   elaborated     on  the   importance      of  the Hickel    process      in 



redistricting: 



        7        Id . 



        8        Id. at 467-68 (quoting Hickel , 846 P.2d at 51 n.22). 



                                                    -6-                                                6741 


----------------------- Page 8-----------------------

                 The  Hickel      process    assures    compliance      with   the   Alaska 

                 Constitution's requirements concerning redistricting to the 

                 greatest extent possible.  The Hickel process also diminishes 

                 the potential for partisan gerrymandering and promotes trust 

                 in   government. . . .     A redistricting plan that substantially 

                 deviates from these constitutional requirements undermines 

                 trust in the process.[9] 



Thus, we held the Board erred by using its own method and ignoring Hickel .                         For the 



sake of absolute clarity, we also rearticulated the Board's duties and our own role in the 



admittedly difficult process of redistricting: 



                 We recognize that the Board is faced with a difficult task in 

                 attempting      to  harmonize      the  requirements      of  the   Alaska 

                 Constitution   and   the   Voting   Rights   Act.   .   .   .   But   these 

                 difficulties do not limit the Board's responsibility to create a 

                 constitutionally      compliant   redistricting      plan,   nor   do  they 

                 "absolve this court of its duty to independently measure each 

                 district   against   constitutional   standards."   .   .   .  The  Hickel 

                 process is designed to "ensure that the requirements of article 

                 VI, section 6 of the Alaska Constitution are not unnecessarily 

                 compromised         by  the  Voting     Rights   Act";   it  may    not   be 

                 disregarded      for   reasons    of  expediency       when    drafting    a 

                 permanent plan.[10] 



                 In our order, we explicitly stated that reasons of difficulty or expediency 



do    not    justify   deviating     from    the   requirements       of   the   Alaska    Constitution. 



Consequently, the Board was ordered to follow the Hickel process upon remand.11                          We 



        9        Id. at 468. 



        10       Id .   (quoting In   re   2001   Redistricting   Cases ,   44   P.3d   141,   147   (Alaska 



2002); Hickel) (footnotes omitted). 



        11       Id . 



                                                     -7-                                                6741
 


----------------------- Page 9-----------------------

also acknowledged that time constraints may have complicated compliance with our 



order, and we approved the use of an interim plan if necessary: 



                If the Board is unable to draft a plan that complies with this 

                order in time for the 2012 elections, it may petition this court 

                for an order that the 2012 elections be conducted using the 

                Proclamation Plan as an interim plan. But legislative districts 

               for subsequent elections will be defined by the plan ultimately 

                arrived at by the Board after following the Hickel process.[12] 



Thus, we notified the Board that we would not approve any final plan unless it was 



drafted according to the Hickel process. 



                The Board met from March 26 to March 31 to develop a new plan based 



on our order.   The Board worked from what it termed a "Hickel template" that kept the 



unchallenged districts from its original Proclamation Plan because the Board claimed 



those districts "were drawn with only the Alaska Constitution in mind" and thus they 



complied with the Hickel process.13          The Board's template omitted regions from the 



original   Proclamation   Plan   that   had   been   challenged,   including   House   Districts   1-5 



(Fairbanks City and FNSB); 36 (Bristol Bay and Aleutians East Borough); 37 (Bethel 



and Aleutians West Borough); 38 (Wade Hampton and Denali); and 39 (Bering Straits 



        12      Id . at 468-69 (emphasis added). 



        13      But in describing the process used to construct the Proclamation House Plan 



- which served as the template for the Amended Proclamation Plan - the Board began 

its explanation with the following language: "In order to maintain the requisite number 

of Alaska Native districts, . . .".      Thus, it appears that at least three of these template 

districts were drawn with or approved with VRA requirements in mind: House District 

40,   which   was   intended   to   be   one   of   the   five   effective   Native   districts,   and   House 

Districts 32 and 34, which were drawn under the assumption that a Native influence 

district had   to   be maintained in Southeast Alaska. (See infra n.14 for a definition of 

"Native influence district.") The Board claims that while House District 40 is a Native 

district, it was not "built on Voting Rights Act grounds" because it was unchanged from 

the 2002 redistricting plan. 



                                                  -8-                                             6741
 


----------------------- Page 10-----------------------

and Interior Villages). After developing the template, the Board created four plans using 



that template and reviewed each for compliance with the Alaska Constitution. The Board 



adopted one of these plans, finding that each house district within was "contiguous, 



relatively compact and . . . socio-economically integrated."  While the Board undertook 



this process and discussed its chosen plan with its VRA expert, third-party organizations 



submitted five alternative plans. The Board discussed each of these third-party plans and 



rejected them; it then adopted an amended version of its chosen plan.                  Eventually, the 



Board's     modified     plan   became     the  Amended      Proclamation      Plan,   and   the   Board 



unanimously adopted its written findings in support of this plan on April 5, 2012.  This 



plan was then submitted to the superior court for approval as a final redistricting plan. 



                On April 16, 2012, seven parties and amici filed objections to the Board's 



Amended Proclamation Plan; among other deficiencies, each objector argued the Board 



ignored the Hickel process by maintaining the original Proclamation Plan's unchallenged 



districts when creating its template instead of beginning with a clean slate.  In response 



to this objection, the Board argued that it was "under no obligation to redraw every 



House district, especially ones that already complied" with the Alaska Constitution.  On 



April   20,   2012,   the   superior   court   issued   an   order   denying   the   Board's   request   for 



approval of the Amended Proclamation Plan; among other issues, the superior court 



found that the Amended Proclamation Plan violated Hickel because the Board assumed 



that   its   unchallenged   districts   were   constitutional,   and   it   failed   to   redraw   Southeast 



Alaska even though these districts were created to comply with the Board's assumption 



that it had to maintain a Native influence district.14         The superior court declared: 



        14      The superior court defined a "Native influence district" as a district "where 



Natives are able to influence the election but cannot elect a candidate of their choice 

                                                                                         (continued...) 



                                                   -9-                                              6741 


----------------------- Page 11-----------------------

                Instead of redrawing a new plan that focused on the Alaska 

                Constitution, there is no dispute that the Board used most of 

                the districts from the [original] Proclamation Plan, with the 

                exception of the districts in Fairbanks and districts that were 

                created to satisfy the Voting Rights Act. . . . The court finds 

                that the Board's method did not comply with either the spirit 

                or the letter of the Alaska   Supreme Court's order and the 

                Hickel process. 



The superior court also concluded that the Board first had to submit a plan to the court 



that complied with the Alaska Constitution without regard for the VRA, and only after 



the superior court evaluated and approved this Hickel plan would it then be remanded 



to the Board to make modifications necessary for VRA compliance. 



                The Board asked   us   to   review the superior court's decision, but due to 



pending election deadlines, it also asked us to approve an interim plan for the 2012 



elections.    Extensive   litigation   ensued   regarding   the   Board's   interim   plan,   and   we 



ultimately issued two orders adopting the Board's Amended Proclamation Plan as the 



interim plan. 



                Our order approving this interim plan once again reiterated that the Board 



would have to follow the Hickel process before we would approve a final plan: 



                The   Board's   petition   for   review   from   the   superior   court's 

                order of April 20, 2012, has been submitted to this court and 

                remains under advisement.          One of the issues raised by the 

                petition for review is whether the Redistricting Board failed 

                to comply with the Hickel process as mandated by this court's 

                order    of  March     14,  2012,    with   respect   to  the  Southeast 



        14      (...continued) 



without the help of crossover votes" from non-Natives.  See also Bartlett v. Strickland, 

556 U.S. 1, 13 (2009) (defining "influence district" as "one in which a minority group 

can   influence   the   outcome   of   an   election   even   if   its   preferred   candidate   cannot   be 

elected"). 



                                                   -10-                                              6741
 


----------------------- Page 12-----------------------

                Alaska districts.    Our order of May 10, 2012 is premised on 

                the conclusion that the Board did not so comply. 



We now address the Board's petition for review from the superior court's order rejecting 



the Amended Proclamation Plan as a final redistricting plan. 



III.    STANDARD OF REVIEW 



                Under article VI, section 11 of the Alaska Constitution, the superior court 



has original jurisdiction over lawsuits to "compel correction of any error in redistricting" 



and, on appeal, "the cause shall be reviewed by the supreme court on the law and the 



facts."15   We review redistricting plans "in the same light as we would a regulation 



adopted under a delegation of authority from the legislature to an administrative agency 



to formulate policy and promulgate regulations."16             We review the plan to ensure that 



the   Board    did  not  exceed    its  delegated   authority    and  to  determine    if  the  plan  is 



"reasonable and not arbitrary."17       We may not substitute our judgment as to the sagacity 



of a redistricting plan for that of the Board, as the wisdom of the plan is not a subject for 



review.18    Our   review   is   meant   to   ensure   that   the   Board's   Proclamation   Plan   is   not 



unreasonable       and   is  constitutional    under    article   VI,   section   6   of  the   Alaska 



Constitution.19 



        15      As to "the weight to be given to the decision of the superior court," we said 



in Groh v. Egan, 526 P.2d 863, 867 (Alaska 1974), that we review redistricting plans "de 

novo upon the record developed in the superior court." 



        16      Kenai Peninsula Borough v. State , 743 P.2d 1352, 1357 (Alaska 1987) 



(quoting Carpenter v. Hammond, 667 P.2d 1204, 1214 (Alaska 1983)). 



        17      Id . (quoting Carpenter, 667 P.2d at 1214). 



        18      Id . at 1357-58 (quoting Carpenter, 667 P.2d at 1214). 



        19      Id . at 1358 (quoting Carpenter, 667 P.2d at 1214). 



                                                 -11-                                             6741
 


----------------------- Page 13-----------------------

IV.	   DISCUSSION 



       A.	    The    Board    Did   Not   Comply     With   The  Hickel    Process   When 

              Formulating Its Amended Proclamation Plan. 



              The Board claims that it has followed our instructions to use the Hickel 



process upon remand and asks us to approve its Amended Proclamation Plan as the final 



redistricting plan.  But it is undisputed that the Board began formulating its original 



proclamation plan by focusing exclusively on race and creating the correct number of 



effective Native districts.  Thus, upon remand, the Board was instructed to consider the 



requirements of the Alaska Constitution first  when constructing districts.20    However, 



what the Board actually did upon remand was to create a Hickel template that maintained 



the boundaries of unchallenged districts from the original Proclamation Plan, resulting 



in 22 unchanged house districts.   The Board asserts that these districts "were drawn with 



only the Alaska Constitution in mind" and thus they complied with the Hickel process.21 



              The superior court interpreted our March 14, 2012 order as an instruction 



to the Board to begin its drafting process anew.   The superior court found that "[i]nstead 



of redrawing a new plan that focused on the Alaska Constitution, there is no dispute that 



the Board used most of the districts from the [original] Proclamation Plan" and that this 



"method did not comply with either the spirit or the letter of the Alaska Supreme Court's 



order and the Hickel process." 



              We agree with the superior court that Hickel and our order mandated that 



the initial map drawn by the Board should not be affected by VRA considerations in any 



way, and therefore, the Board's Amended Proclamation Plan was noncompliant.  We 



       20     In re 2011 Redistricting Cases , 274 P.3d 466, 467 (Alaska 2012). 



       21     At least three of these template districts were drawn or approved with VRA 



requirements in mind.    See supra note 13. 



                                           -12-                                        6741 


----------------------- Page 14-----------------------

have   already   held   that   the   Board   began   drawing   its   original   Proclamation   Plan   by 



creating VRA-compliant districts, a process that necessarily affected the contours of the 

entire map.22  By adopting districts affected by the Board's initial VRA considerations, 



the Board's Hickel template limited its available options.              As the amici usefully put it, 



on remand the Board "painted itself into a corner" by leaving only a few blank areas on 



the map.  This structure limited the Board's ability to consider a wide range of plans to 



achieve maximum constitutional compliance; notably, each of the Board's four Hickel 



options was aimed at addressing the same population shortfall issue in a single rural 



district. 



                 Moreover, when the Board first created these 22 districts, it did so in order 



to comply with the VRA; this is a clear violation of Hickel 's plain language.  Although 



these districts went unchallenged, that does not change the fact that they were drawn with 



VRA considerations as the first priority.   We do not know if these districts will meet the 



Alaska   Constitution's   requirements   of   compactness,   contiguity,   and   socio-economic 



integration, but they were not drawn with this purpose as the primary consideration. 



Without   a   plan   that   does   so,   it   is   impossible   to   measure   if   deviations   from   Alaska 



constitutional requirements were necessary. Consequently, there is nothing to show that 



if the Board had considered the Alaska constitutional requirements first, as instructed, 



these districts would have remained the same. The Board's failure to follow the Hickel 



process has therefore precluded meaningful judicial review. 



        B.	      The Board Does Not Need   To   Make   Specific Findings About Each 

                 Individual   District   Relating   To   The   Requirements   Of   The   Alaska 

                 Constitution. 



        22      In re 2011 Redistricting Cases , 274 P.3d at 467. 



                                                   -13-                                               6741 


----------------------- Page 15-----------------------

                 The Board challenged the superior court's ruling that required the Board 



to make specific findings regarding each individual house district.                 The superior court 



seemed to derive its   conclusion from the following passage of our March 14 order: 



"[T]hese difficulties do not limit the Board's responsibility to create a constitutionally 



compliant redistricting plan, nor do they 'absolve this court of its duty to independently 



measure each district against constitutional standards.' "23             Based on this language, the 



superior court reasoned that the Board was required to submit district-specific findings 



so that we could measure the constitutionality of each district. The Board argues that this 



ruling is the "epitome of form over substance, and creates a mandate obviously absent 



from [our] order."       The Board also highlighted its express   finding that all 40 house 



districts in the Amended Proclamation Plan were constitutionally compliant. 



                 There is no indication in the 2001 Redistricting order or in our March 14 



order   that   our   duty   to   measure   each   district   for   constitutional   compliance   creates   a 



corresponding   requirement   that   the   Board   make   individual   findings   regarding   each 



district's constitutionality.     In our March 14 order we "recommend[ed] that the Board 



make   findings,   in   furtherance   of   the  Hickel   process,   that   the   initially   designed   plan 



complies with the requirements of the Alaska Constitution . . . ."24             Our recommendation 



did not extend to findings about each district.  The Board is not required to specifically 



find that each district in its Hickel plan complies with the Alaska Constitution. 



        C.	      The Board Need Not Submit A Plan To The Superior Court At Each 

                 Stage Of Drafting. 



        23      Id .   at   468   (quoting In   re   2001   Redistricting   Cases ,   44   P.3d   141,   147 



(Alaska 2002)). 



        24      Id . at 468 n.15. 



                                                   -14-                                               6741 


----------------------- Page 16-----------------------

                 The Board also challenged the superior court's ruling that it must submit 



a Hickel plan to that court for approval before creating a final plan.              The superior court 



stated   in   its   April   20,   2012   order   that   it   must   "receive   a   plan   from   the   Board   that 



complies with the Alaska Constitution before considering any need to meet any VRA 



requirements."  Once the superior court approved the plan, "the matter will be remanded 



again to the Board" to develop a plan that deviates from the requirements of the Alaska 



Constitution only when necessary for VRA compliance.                     The Board   argues that this 



ruling has no support in the detailed mandates of the Alaska Constitution and our prior 



case    law.     It  also  contends     that  the   superior   court    created   "a   completely     new, 



unprecedented        level   of  court    involvement      in  the   redistricting    process"     without 



establishing "just how and when this review is supposed to occur in future redistricting 



cycles." 



                 Neither Hickel nor the March 14 order expressly or impliedly requires the 



Board to submit its Hickel plan for superior court ratification before proceeding to weigh 



VRA compliance.          Article VI, sections 10 and 11 of the Alaska Constitution delineate 



the process the Board must follow in developing a proclamation plan and the contours 



of   judicial   review,   and   nowhere   do   these   provisions   suggest   a   two-stage   review   is 



required.     Therefore,   we      hold   that   the  Board   is  not   required   to  submit   its  initial 



Hickel plan to the superior court for ratification. 



        D.       All Other Claims Raised In This Petition for Review Are Moot. 



                 The     Board     also   challenged      the   superior    court's    rulings    that  the 



configuration of certain house districts that deviated from the requirements of the Alaska 



Constitution were not necessary for compliance with the VRA.   Since we find the Board 



did not comply with the Hickel process in formulating its plan, we need not reach these 



                                                   -15-                                               6741
 


----------------------- Page 17-----------------------

claims as these districts may have a completely different configuration in the new plan 



the Board will have to create, and therefore, these claims  are moot. 



V.     CONCLUSION 



              Because the Board failed to follow the Hickel process when drafting its 



Amended Proclamation Plan, we AFFIRM the superior court's ruling invalidating that 



plan and REMAND this case to the Board to draft a new plan based on strict adherence 



to the Hickel process. We REVERSE the superior court's rulings that the Board must 



make specific findings on the constitutionality of each house district and that the Board 



must submit the plan to the court for approval at each stage of drafting. 



                                          -16-                                      6741
 


----------------------- Page 18-----------------------

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting in part. 



                 I agree that the Alaska Redistricting Board did not follow the instructions 



set out in our March 14, 2012, order and therefore agree to affirm that point of Judge 



McConahy's remand order.             It appears the Board considered our order to be form over 



substance and reformulated its packaging rather than its plan. 



                 I also agree that, at this juncture, it was error for   the   superior court to 



require the Board to submit an initial plan, based solely on the Alaska Constitution, for 



court approval before making any necessary adjustments to satisfy federal voting law 



requirements. I therefore agree to reverse that point of Judge McConahy's remand order. 

But I note that the Board's further failure to comply with the Hickel  process1 might 



justify such a requirement. 



                 I disagree with the conclusion that the Board should not, at this juncture, 



be   required   to   make   specific   district-by-district   findings   regarding   the   three   factors 



constitutionally mandated for a redistricting plan:  contiguity, compactness, and relative 

socio-economic integration.2        Having twice failed to follow the Hickel process, the Board 



should     be   required    to  make    findings    allowing    appropriate     judicial  review    of  its 



determinations. I therefore would affirm this point of Judge McConahy's remand order. 



But I make the following observations in this regard.  First, conclusory "findings" on the 



three factors underlying a constitutional redistricting plan are not particularly helpful, 

especially with regard to comparative socio-economic integration.3                  Second, whether a 



        1       Hickel v. Se. Conference , 846 P.2d 38, 51 n.22 (Alaska 1992). 



        2        Alaska Const. art. VI, § 6. 



        3       Id .   (stating   that   the   contiguous   and   compact   districts   must   "contain   as 



nearly as practicable a relatively integrated socio-economic area"). See Hickel, 846 P.2d 

at 46-47 (describing characteristics of socio-economic integration and emphasizing that 

                                                                                          (continued...) 



                                                   -17-                                              6741
 


----------------------- Page 19-----------------------

redistricting plan ultimately complies with the Alaska Constitution is not a question of 



fact; it is a question of law subject to independent review by the judiciary - I would 



give   no   deference   to   a   Board   "finding"   that   its   redistricting   plan   complies   with   the 



Alaska Constitution when our role is to "review [a] redistricting plan[] 'de novo upon the 

record developed in the superior court' "4 to ensure that the plan "is not unreasonable and 



is constitutional under the provisions of Article VI, section 6 of Alaska's constitution."5 



        3        (...continued) 



"relatively" requires comparisons with previously existing and proposed districts as well 

as principal alternative districts). 



        4       In re 2001 Redistricting Cases , 47 P.3d 1089 (Alaska 2002) (quoting Groh 



v. Egan , 526 P.2d 863, 867 (Alaska 1974)). 



        5        Carpenter v. Hammond, 667 P.2d 1204, 1214 (Alaska 1983) (citing Acker 



v. Love , 496 P.2d 75 (Colo. 1972)). 



                                                   -18-                                               6741
 


----------------------- Page 20-----------------------

MATTHEWS, Senior Justice, with whom FABE, Justice, joins, dissenting. 



                The main question under review is whether the Alaska Redistricting Board 



complied   with   our   order   concerning   the Hickel   process   when   it   used   unchallenged 



districts   or  whether    the  Board    should    have   begun    the  redistricting   process    anew. 



Today's opinion concludes that a fresh start was required.  I disagree and believe that the 



Board's approach was practical and reasonable. 



A.      Actions Taken By The Board On Remand 



                The underlying problem facing the Redistricting Board was the difficulty 



of complying with both the federal Voting Rights Act and the redistricting criteria set out 



in article VI, section 6 of the Alaska Constitution.   The purpose of the Voting Rights Act 



is to protect the voting power of racial minorities.           A reapportionment plan is invalid 



under section 5 of the Act if it leads to "retrogression" in the relative position of racial 

minorities   with   respect   to   their   effective   exercise   of   the   electoral   franchise.1 The 



redistricting criteria of article VI, section 6 of the Alaska Constitution require that each 



house district "shall be formed of contiguous and compact territory" that contains "as 

nearly as practicable a relatively integrated socio-economic area."2             Because the federal 



Act has priority, sometimes the Alaska redistricting criteria must be compromised in 



order to avoid retrogression. 



                To ensure that the Redistricting Board does not unnecessarily deviate from 



Alaska   constitutional   standards   in   order   to   comply   with   the   Voting   Rights   Act   we 



directed the Board in Hickel v. Southeast Conference to follow the procedure that now 



bears the name of that case.       We stated in Hickel : 



        1       Hickel v. Se. Conference , 846 P.2d 38, 49 (Alaska 1992). 



        2       Alaska Const. art. IV, § 6. 



                                                  -19-                                              6741 


----------------------- Page 21-----------------------

                The board must first design a reapportionment plan based on 

                the requirements of the Alaska Constitution.  That plan then 

                must      be   tested   against    the    Voting    Rights     Act.     A 

                reapportionment   plan   may   minimize   article   VI,   section   6 

                requirements when minimization is the only means available 

                to satisfy Voting Rights Act requirements.[3] 



                The   Redistricting   Board   in   the   present   case   did   not   follow   the  Hickel 

process in formulating the original Proclamation Plan.4              This failure was challenged by 



Riley in his petition for review from the superior court's initial decision on the merits. 



In our order of March 14, 2012 we agreed with Riley that the Board had erred in failing 



to comply with the Hickel process. 



                We explained: 



                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    article   VI,    section    6 

                requirements        of   contiguity,    compactness,       and    relative 

                socioeconomic integration; it may consider local government 

                boundaries   and   should   use   drainage   and   other   geographic 

                features in describing boundaries wherever possible.               Once 

                such a plan is drawn, the Board must determine whether it 

                complies with the Voting Rights Act and, to the extent it is 

                noncompliant, make revisions that deviate from the Alaska 

                Constitution when deviation is "the only means available to 

                satisfy Voting Rights Act requirements."[5] 



We remanded this case to the Board to comply with the Hickel process. 



        3        846 P.2d at 51 n.22. 



        4       A map of the original Proclamation Plan is attached as Appendix A. 



        5       In   re   2011   Redistricting   Cases ,   274   P.3d   466,   467-68   (Alaska   2012) 



(quoting Hickel , 846 P.2d at 51 n.22). 



                                                   -20-                                              6741
 


----------------------- Page 22-----------------------

                On remand, the Board reconvened on March 26 and met continuously for 



six days.   After considering four options, the Board settled on a Hickel plan, that is, a 

plan designed to comply with Alaska constitutional criteria.6          The Board then conducted 



an analysis to determine whether the plan would be considered retrogressive under the 



Voting Rights Act.       The Board determined that its Hickel plan would be considered 



retrogressive and would not be granted preclearance by the Department of Justice.  The 



Board then examined various options for changing the Hickel plan in order to comply 



with the Voting Rights Act.  After deliberating on many options and plans submitted by 



numerous interest groups, the Board adopted the Amended Proclamation Plan on April 

5, 2012.7 



                The Board described in a written report the process it used to adopt the 



Hickel   plan.   The   Board   first   asked   its   staff   to   design   several  Hickel   plans   for   its 



consideration.      As a basis for drafting the various options, the staff was instructed to 



create what the Board called the "Hickel template."            The template consisted of election 



districts from the original Proclamation Plan that were designed to comply with Alaska 

redistricting criteria independent of Voting Rights Act considerations.8 



                The Hickel template left space for four undrawn districts in rural Alaska. 



These districts encompassed a very large area, more than half the state geographically, 



and they became Districts 36, 37, 38, and 39 under the Board-adopted Hickel plan. 



Because these four undrawn districts only had sufficient population for about 3.5 House 



districts, substantial population needed to be added from an urban area of the state to at 



        6       A map of the Hickel plan is attached as Appendix B to this opinion. 



        7       A map of the Amended Proclamation Plan is attached as Appendix C to this 



opinion. 



        8       A map of the Hickel template is attached as Appendix D to this opinion. 



                                                 -21-                                            6741
 


----------------------- Page 23-----------------------

least one of the rural districts.       In order to decide what to adopt as its Hickel plan, the 



Board     considered     four  provisional   plans     created   by   its  staff  that   took  population 



respectively     from    the  urban    areas  of   Fairbanks,    the  Matanuska-Susitna        Borough, 



Anchorage,   and   the   Kenai   Peninsula   Borough.          The   three   latter   plans   crossed   the 



template boundaries in various ways.  After considerable deliberation, the Board settled 



on the option that took population from suburban Fairbanks and adopted the Hickel 

plan.9   One advantage of resolving the rural population shortfall by taking population 



from   the   Fairbanks   North   Star   Borough   was   that   this   area     had   excess   population 



equivalent to about one-half a district that had to be accommodated in some way. 



                Set forth here are the Board's findings concerning adoption of the Hickel 



plan: 



                         1.      As    a  starting  point   for  complying      with   the 

                Hickel Process, Board staff was tasked with designing several 

                "Hickel Plans" for consideration by the Board. 



                         2.      In   creating     these   plans,    Board    staff   was 

                instructed   to   create   a   "Hickel  Template"   as   the   basis   for 

                drafting the various options.        The Hickel Template does not 

                change those election districts from the Proclamation Plan 

                that:     (1)    were    constructed     to  comply      [with]   Alaska 

                constitutional redistricting requirements without reference to 

                the [Voting Rights Act]; and (2) were either not subject to, or 

                directly     or  indirectly,   affected    by   any   successful     legal 

                challenge.      Statewide      and   regional    maps    of  the  Hickel 

                Template were posted on the Board's website and are part of 

                the Board record. 



                         3.      Under   the  Hickel   Template,   there   were   four 

                undrawn election districts in rural Alaska that needed to be 

                created.    Based on the census data, Board staff determined 



        9       See Appendix C. 



                                                   -22-                                              6741 


----------------------- Page 24-----------------------

that    to  create   four   "ideal"   election    districts,  requires    a 

population of 71,020 (17,755 x 4). 



        a.       To draw these districts at deviations of -5.0% 

        requires a population of 67,468. 



        b.       The undrawn areas had a population of 62,240 

        or   enough   population   for   approximately   3.5   House 

        Districts. 



        c.       Thus,     in  order    to  comply      with   the   equal 

        population requirements of art. VI, sec. 6, substantial 

        population needed to be added from some urban area 

        of    the   state  to   at  least  one    rural   district.    The 

        requirement   of   adding   urban   population   to   a   rural 

        district   is,   as   noted   by   both   the   trial   court   and   the 

         Supreme Court, not a matter of "if" but only a matter 

        of     "where"      and    has   nothing     to   do    with    the 

        requirements of the [Voting Rights Act]. 



        4.       In order to resolve the rural population shortfall, 

staff was   instructed to attempt to design Hickel Plans that 

took   population   out   of   the   four   urban   areas   of   the   state: 

Fairbanks, the Mat-Su Borough, Anchorage, and Kenai. 



        5.       On    March      26,  2012,    the   Board    reviewed, 

considered and discussed on the record three Hickel Plans 

created by Board staff referred to as "Hickel 001," "Hickel 

002"     and   "Hickel   003."       These    plans   solved    the   rural 

population shortfall by taking population out of Fairbanks, 

Mat-Su, and Anchorage, respectively. Another plan, "Hickel 

004",     which     took    urban    population     from    Kenai,     was 

presented to the Board on March 27, 2012. Copies of all four 

Hickel Plans were posted on the Board's website and are part 

of the Board record. 



        6.       After    discussion,     the   Board     instructed     its 

counsel to review the proposed Hickel Plans for compliance 

with the Alaska Constitution. 



        7.       On    March     27,   2012,   counsel   for   the  Board 

provided the Board with a written memorandum setting forth 



                                   -23-                                               6741
 


----------------------- Page 25-----------------------

                his analysis of the four proposed Hickel Plans.  A copy of this 

                memorandum was posted on the Board's website and is part 

                of   the  Board    record.    Board    counsel    also  explained     his 

                analysis on the record and answered questions from Board 

                members. 



                        a.      Board   counsel's   analysis   determined   that   the 

                        Hickel 001 plan complied with the requirements of art. 

                        VI, sec. 6 of the Alaska Constitution. 



                        b.      Board counsel's analysis determined that each 

                        of the other three Hickel Plans did not comply with the 

                        requirements       of   art.  VI,   sec.   6  of   the   Alaska 

                        Constitution      for  the   reasons    set  forth   in   Board 

                        counsel's     memorandum         and   as  explained     on  the 

                        record. 



                        8.      After   discussion   and   deliberation,   the   Board 

                unanimously adopted by a 5-0 vote the "Hickel 001" plan as 

                its "Hickel Plan" for purposes of the Hickel Process. 



                        9.      The    Board's  Hickel     Plan   complies    with   the 

                requirements of the Alaska Constitution. All forty (40) of the 

                House   districts   are   contiguous,   relatively   compact   and,   as 

                nearly   as   practicable,   socio-economically   integrated.       The 

                Plan has an overall deviation of 8.93% which is within the 

                equal population requirements of art. VI, sec. 6 of the Alaska 

                Constitution. Each of the Senate districts is composed of two 

                contiguous House districts. 



                The Board next turned to the question of whether the Hickel plan it adopted 



complied with the Voting Rights Act.  Dr. Lisa Handley, the Board's expert consultant, 



studied the Hickel plan and came to the conclusion that it was retrogressive and would 



not be approved by the Department of Justice.            Dr. Handley explained that the original 

Proclamation Plan10 had five "effective" (or "ability to elect") Alaska Native state House 



        10      Which the Department of Justice had already approved and therefore would 



                                                                                        (continued...) 



                                                  -24-                                             6741 


----------------------- Page 26-----------------------

districts: Districts 36, 37, 38, 39, and 40.    All of these districts were majority Native 



population districts, but two of them, 37 and 38, had only approximately 46% Alaska 

Native voting age population (NVAP).11       Dr. Handley also explained that the original 



Proclamation Plan contained three effective Senate districts: two majority Alaska Native 

Senate districts, Districts T and S, and Senate District R with a 43.75% NVAP.12        But, 



because the  Hickel plan contained one fewer effective House district and one fewer 



effective Senate district, changes had to be made in order to comply with the Voting 



Rights Act and obtain preclearance from the Department of Justice. 



              How the Hickel plan should be changed to comply with the Voting Rights 



Act was much discussed by the Redistricting Board.  The Board eventually decided that 



three of the districts in the Hickel plan, 37, 38, and 39, would have to be altered in order 



to create a fifth effective House district. Because Districts 38 and 39 had NVAPs of over 

80%, and District 37 had an NVAP of only approximately 33%,13  the reconfiguration 



would have to place many Alaska Native voters from Districts 38 and 39 into District 37, 



which in turn would be altered to place some non-Native voters into Districts 38 and 39. 



The Board's report states the problem as follows: 



              In order to create a fifth effective House district, HD-37 in 

              the Hickel plan must be substantially reconfigured and the 

              two    districts  with  over  80%  Alaska   Native  Voting   Age 

              Population ("NVAP") - HD-39 with 84.22% NVAP and 

              HD-38 with 82.65% NVAP - must be unpacked and the 



       10     (...continued) 



serve as the benchmark for measuring retrogression. 



       11     This percentage was enough to make the districts effective. 



       12     This percentage was sufficient to make Senate District R effective. 



       13     Which would not be effective. 



                                            -25-                                        6741
 


----------------------- Page 27-----------------------

                NVAP spread out in order to allow for the creation of a fifth 

                effective House district. 



                Looking at the maps of the Hickel  plan and the Amended Proclamation 



Plan, one can see that the "unpacking" process primarily entailed three steps.  First, the 



Board combined the heavily NVAP Norton Sound and middle Yukon River areas with 



a   region   of   rural   eastern   Alaska   where   Alaska   Natives   are   not   a   majority   to   form 

District 39 in the Amended Proclamation Plan.14             Second, the Yukon River Delta (the 



Wade Hampton census district) with its heavy NVAP (which was the southern part of 



District 39 under the Hickel plan) was extended east to encompass the primarily non- 



Native Denali Borough and the suburban Fairbanks areas of Ester and the Goldstream 

Valley to create House District 38 in   the Amended Proclamation Plan.15                   Third, the 



remainder of District 38 in the Hickel plan was distributed to Districts 36 and 37 in the 

Amended Proclamation Plan.16 



                The creation of a third effective Senate district also required changes to 



what were Districts 36 and 38 in the Hickel plan.              The Board adopted the so-called 



Bethel-to-Chain Plan (referring to the Aleutian Chain) which placed the City of Bethel 



in the same district with the Aleutians by creating a long coastal district, District 37, in 

the Amended Proclamation Plan.17           The balance of the Bethel census area was packed 



into a district that includes areas of Southwest Alaska from Tyonek on Cook Inlet to 



King Salmon on the Alaska Peninsula.  This newly configured district, District 36, had 



an NVAP of 81.01%. This high NVAP allowed District 36 to be paired with District 35, 



        14      See Appendices B and C. 



        15      Id. 



        16      Id. 



        17      Id. 



                                                 -26-                                             6741
 


----------------------- Page 28-----------------------

the Kodiak and Central Coast district that had an NVAP of 17.55%, to create Senate 

District R with an NVAP of 47.76%.18          According to Dr. Handley, the NVAP of Senate 



District R was then sufficient to create an effective Senate district. 



                After clearing the proposed changes with Dr. Handley, the Board adopted 

the Amended Proclamation Plan.19           The Board found that the Amended Proclamation 



Plan departed from the Alaska constitutional requirements of article VI, section 6 "to the 



least degree reasonably necessary to ensure compliance with the [Voting Rights Act]." 



After making additional findings concerning the configuration of election districts in 



southeast   Alaska,   which   I   will   discuss   separately,   the   Board   adopted   the   Amended 



Proclamation Plan by a unanimous 5-0 vote. 



        18      Id. 



        19      The Amended Proclamation Plan also altered House Districts 1 and 2 in the 



Fairbanks area in an effort to rectify the compactness problem found by the superior 

court.   It also reconfigured to   some   extent all five of the House districts within the 

Fairbanks North Star Borough because of the ripple effect of the changes to Districts 1 

and    2.  Further,    in  order   to  resolve  another   point   raised  by  Riley,   the  Amended 

Proclamation Plan distributed the excess population that remained after adding 5,757 

Fairbanks North Star Borough residents to District 38 into districts wholly within the 

Fairbanks North Star Borough.          The Amended Proclamation Plan also mooted another 

issue raised by   Riley   by   pairing the two Fairbanks House districts together to form 

Senate District B rather than pairing each of them with a district outside the City of 

Fairbanks as had been done in the original Proclamation Plan. 



                                                 -27-                                            6741
 


----------------------- Page 29-----------------------

B.      Subsequent Proceedings In The Superior Court 



                The City of Petersburg and the Riley plaintiffs immediately challenged the 

Amended Proclamation Plan in the superior court.20            The City of Petersburg argued that 



the Board did not comply with the Hickel process with respect to House Districts 34 and 



32 in southeastern Alaska because House District 34 in the original Proclamation Plan 



was designed to create a Native "influence" district and this design adversely affected 



the compactness of neighboring District 32 in which Petersburg is located.  Since these 



districts were the same under both the original and amended Proclamation Plans and 



were not based solely on the requirements of the Alaska Constitution, Petersburg argued 



that the Redistricting Board had failed to comply with our order on remand requiring 



adherence to the Hickel process. As I discuss below, I think Petersburg's point is correct 



and   this   case   should   be   remanded   for   the   limited   purpose   of   reconfiguring   House 



Districts 32 and 34, as well as the other two districts in southeast Alaska, 31 and 33, if 

required because of a ripple effect.21 



                Riley raised a number of objections including an argument that the Board 



did not follow the Hickel process because it started with a plan that left 36 of the initial 



districts intact.  Riley wrote: 



                The process used by the Board was a process designed to 

                limit and guide the Board by fixing 90% of the plan using 



        20      A number of the amici curiae did as well, sometimes on grounds separate 



from those raised by the parties.  Such grounds need not be considered since "[i]t is well 

settled that courts will not consider issues raised by amici curiae which are not raised by 

the parties."   State, Dep't of    Transp. & Pub. Facilities v. Fairbanks N. Star Borough, 

936 P.2d 1259, 1262 n.4 (Alaska 1997) (quoting Hootch v. Alaska State-Operated Sch. 

Sys., 536 P.2d 793, 809 n.62 (Alaska 1975)). 



        21      A   detailed   map   of  these   districts  as  they  were   configured    under    the 



Amended Proclamation Plan is attached as Appendix E.  The configuration of these four 

districts was unchanged from the original Proclamation Plan. 



                                                 -28-                                            6741
 


----------------------- Page 30-----------------------

               districts    from   the  previously    invalidated    plan,   creating 

               "Hickel"      options    that   were    clearly    intended    to   be 

               unconstitutional, and staff offering only one constitutional 

               plan.  The process was a guided staff dominated process that 

               claimed to be a "Hickel" process, but lacked any substantive 

               element of such a process. 



               The Board defended its decision to use most of the already-drawn districts 



on the grounds that they had been designed to comply with the Alaska constitutional 



criteria without consideration of Voting Rights Acts requirements. In addition, the Board 



argued that since the districts in the Hickel template had never been challenged, no new 



challenge would be timely since the 30-day deadline prescribed by article VI, section 11 

of the Alaska Constitution had expired.22 



        22     Article VI, section 11 provides in relevant part: 



               Any     qualified   voter  may   apply   to  the  superior   court   to 

               compel the Redistricting Board, by mandamus or otherwise, 

               to perform its duties under this article or to correct any error 

               in redistricting.  Application to compel the board to perform 

               must     be  filed  not   later  than  thirty  days   following    the 

               expiration of the ninety-day period specified in this article. 

               Application to compel correction of any error in redistricting 

               must be filed within thirty days following the adoption of the 

               final redistricting plan and proclamation by the board. 



The Board also made the following argument: 



               The Hickel template left Anchorage, Southeast, and the North 

                Slope    (Districts  12-27,   31-35,   and  40)  unchanged.      The 

               Board did not leave thirty-six districts unchanged as alleged 

               by the objecting parties.     This is evident by the fact that the 

               Board changed all five of the Fairbanks districts, and made 

               adjustments to districts in both the Kenai Peninsula Borough 

               and the Mat-Su Borough. 



                                                -29-                                           6741
 


----------------------- Page 31-----------------------

                The superior court ruled that the parties' objections that the Hickel process 



was not followed were well taken: 



                        Instead of redrawing a new plan that focused on the 

                Alaska Constitution, there is no dispute that the Board used 

                most of the districts   from the Proclamation Plan, with the 

                exception of the districts in Fairbanks and districts that were 

                                                                4 

                created to satisfy the Voting Rights Act.  . . .  The court finds 

                that the Board's method did not comply with either the spirit 

                or the letter of the Alaska   Supreme Court's order and the 

                Hickel process. 



                _______________________________________________ 

                        4       The Board also made adjustments to the districts 



                in Kenai and Mat-Su due to population shift. 



The Board has petitioned for review of this decision. 



C.	     The   Board   Complied   With   Our   Order   Concerning   The  Hickel   Process, 

        Except For Southeast Alaska.23 



                Today's majority opinion affirms the superior court to the extent that the 



court    concluded     that  the  Board    failed  to  follow   the  Hickel    process    by  using   the 



unchallenged districts from the Proclamation Plan.             The majority opinion's rationale is 



that the shape of the unchallenged districts was necessarily affected by the Board's initial 



decision   to   draft   the   original   Proclamation   Plan   by   addressing     Voting   Rights   Act 

considerations first and therefore the "Hickel template limited its available options."24 



The majority states that by adopting the Hickel template "the Board 'painted itself into 



a corner' by leaving only a few blank areas on the map.                  This structure limited the 



Board's ability to consider a wide range of plans to achieve maximum constitutional 



        23      The   southeast   districts   are   discussed   in   subsection   D   of   this   dissenting 



opinion. 



        24      Slip Op. at 12. 



                                                  -30-                                              6741 


----------------------- Page 32-----------------------

compliance; notably, each of the Board's four Hickel options was aimed at addressing 

the same population shortfall issue in a single rural district."25         This rationale leads the 



majority to conclude that the Board did not comply with the Hickel  process when it 



maintained the original Proclamation Plan's unchallenged districts, and that the Board 



should have begun with a clean slate. 



                To explain why I reach a different conclusion, I begin with the language of 



our order of March 14, 2012.         In paragraph 11 of the order we directed the Board on 

remand to "follow the Hickel process."26          In paragraph 5 of the order we described the 



Hickel process as mandating that the Board first "design a reapportionment plan based 

on the requirements of the Alaska Constitution."27            Thus, to belabor the obvious, what 



we    required    the  Board    to  do  was   "design    a  reapportionment      plan   based   on   the 



requirements      of  the  Alaska    Constitution."     If  the Hickel     plan  complied     with   the 



requirements of the Alaska Constitution, the Board did what we asked it to do.  Today's 



opinion declines to answer whether the Board's Hickel plan meets Alaska constitutional 

criteria.28  I agree that this is a question that remains to be resolved.29 



        25      Id. 



        26      In re 2011 Redistricting Cases , 274 P.3d 466, 468 (Alaska 2012). 



        27      The full quote is:   "After receiving the decennial census data, '[t]he Board 



must   first   design   a   reapportionment   plan   based   on   the   requirements   of   the   Alaska 

Constitution.' " 



        28      Slip Op. at 13 ("We do not know if these districts will meet the Alaska 



Constitution's       requirements      of    compactness,      contiguity     and    socio-economic 

integration . . . ."). 



        29      The Board in its petition asks us to assume jurisdiction of this and other 



remaining questions in the interest of judicial economy and expediting the final decision 

in this case.   I think it would be reasonable to grant this request and invite additional 

                                                                                       (continued...) 



                                                 -31-                                             6741
 


----------------------- Page 33-----------------------

                The premise of the majority's opinion is that the Board unduly limited its 



ability to craft a Hickel plan by starting with the Hickel template.  Today's opinion refers 

to the Board's actions as "leaving only a few blank areas on the map."30                  But reference 



to the Hickel template, Appendix D, immediately calls into question the characterization 



of   the   undistricted   space   as   "a   few   blank   areas." The   template   left   blank   a   huge 



contiguous area that constitutes more than half the land mass of the State of Alaska. 



Within this Texas-sized area the Board obviously had numerous redistricting options. 



                Further, the Board was not constrained by the Hickel template.  The Board 



considered   three   alternatives   to   its Hickel   plan,   each   of   which   ignored   the   template 



boundaries in different ways.         For example, in what the Board called the "Hickel 003 



Plan" the Board considered taking the needed urban population from the western portion 



        29      (...continued) 



briefing    on   the  issue   of  the Hickel     plan's   compliance     with   Alaska    constitutional 

requirements as well as all other outstanding issues. 



                The standard of review that should be employed in review of the Hickel 

plan would also have to be addressed.             Under article VI, section 11 any challenges to 

districts contained in a final plan must be brought within 30 days after adoption of the 

plan by the Board.      Districts that are unchallenged within that period are immune from 

challenge within the next decennial cycle.  Arguably, and most deferentially, since any 

unchallenged district is good enough for voting purposes, it should be considered good 

enough for purposes of the Hickel process.            At the other end of the spectrum, the least 

deferential standard would review all districts for Hickel process compliance de novo - 

the same standard that would be used if timely challenges had been made under article 

VI, section 11. But the first standard may be seen as too restrictive for the Hickel process 

to have much significance, and the de novo standard ignores the purpose and effect of 

the 30-day constitutional limit.   The best standard might be one which asks whether the 

unchallenged districts in a Hickel process plan can reasonably be viewed as complying 

with constitutional redistricting requirements.   Such a standard would allow the Hickel 

process   to   remain   useful,   while   protecting   districts   that   should   be   constitutionally 

unchallengeable from being disturbed except in clear cases. 



        30       Slip Op. at 13. 



                                                   -32-                                              6741
 


----------------------- Page 34-----------------------

of the Municipality of Anchorage and including it in a district with rural villages that 



stretched from Cook Inlet to Bethel in western Alaska.  The other two options likewise 



were not constrained by the template boundaries.  The so-called Hickel 002 Plan added 



population from the Matanuska-Susitna Borough - including Talkeetna and Willow - 



to a large interior district.  Hickel 004 added population from the northern portion of the 



Kenai Peninsula (the Nikiski area) to a district that ran from the western shore of Cook 

Inlet to the mouth of the Kuskokwim River.31 



                 Thus, the Hickel template, the structure chosen by the Board, did not limit 



the   Board's   ability   to   consider   alternative   plans.   We   can   say   this   with   confidence 



because the Board in fact considered alternative plans that were not constrained by the 



template. 



                 In addition, there are practical reasons that support the Board's decision to 



use unchallenged districts when it constructed its Hickel plan rather than to start from 



scratch. 



                 First,   beginning     the Hickel     process    with   unchallenged       districts  was 



desirable because the Amended Proclamation Plan, so based, could be in place in time 



for   the   2012   elections   and   could   be   used   for   all   of   the   subsequent   elections   in   the 



        31       The majority opinion states that "notably, each of the Board's four Hickel 



options was aimed at addressing the same population shortfall issue in a single rural 

district."   Slip   Op.   at   13. This   should   not   be   read   as   implying   that   the   population 

shortfall would be added to the same rural district, for that was not the case.                 One may 

question why the majority finds it to be "notable" that in each of the Hickel options an 

urban area contributed to only one rural district.           Of course the Board might also have 

considered options that scattered the population shortfall from one or several urban areas 

among several rural areas, but to suggest that the Board had a duty to do so would be, 

it seems to me, an unwarranted invasion of the Board's prerogatives.                      Further, if the 

Board   had   scattered   smaller   urban   population   blocks   among   several   rural   districts 

substantial claims of voter dilution would be presented. 



                                                   -33-                                               6741
 


----------------------- Page 35-----------------------

decennial cycle.      This would have been an impossibility if the Board had started with 



newly drawn districts because new districts would have created new controversies with 



new parties, just as every new redistricting has done.  By contrast, new challenges to the 



districts   built   into   the Hickel   template   were   already   barred   by   the   30-day   period   of 



limitations expressed in article VI, section 11 of the Alaska Constitution. 



                 Second, the unchallenged districts had already been reviewed through the 



public hearing process required by article VI, section 10 of the Alaska Constitution. 



Starting anew would have negated the value of these hearings, and might have required 



new hearings. 



                Underlying these reasons is the fact that it is highly desirable that election 



districts not change, or change as little as possible, from one election to the next during 



every   ten-year   census   cycle.     Redistricting   inevitably   generates   significant   political 



disruption and voter confusion, and gives rise to charges of partisan and ad hominem 



gerrymandering.   It results in the truncation of four-year senate terms to two-year terms 



when there are substantial changes in a Senate district.  Further, redistricting may place 



two incumbents in one district, thus resulting in the inevitable defeat of one of them.  In 



addition, redistricting may cause incumbents to lose the core of their constituency. 



                In recognition of the undesirable effects of unnecessary redistricting, the 



Alaska Constitution contains provisions designed to ensure that one redistricting plan 



will be effective for the   whole of a   census cycle.           The tight deadlines in article VI, 

section 1032 are designed to achieve this goal.  They require the adoption of a preliminary 



        32      Article VI, section 10 provides: 



                         (a)     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 

                                                                                          (continued...) 



                                                   -34-                                              6741
 


----------------------- Page 36-----------------------

plan within 30 days after the Board has been appointed or the census has been reported, 



whichever is later, and a final plan within 90 days thereafter.   The plan is to be effective 



for the next ten years.        It "shall be effective . . . until after the official reporting of the 

next decennial census of the United States."33           Similarly, the strict deadlines of article VI, 



section 1134 likewise are designed to produce a final plan that will serve for the entire 



        32	      (...continued) 



                 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. 



                         (b)      Adoption      of   a  final  redistricting    plan   shall 

                 require     the  affirmative     votes    of  three    members      of  the 

                 Redistricting Board. 



        33	      Id. 



        34	      Article VI, section 11 provides: 



                         Any qualified voter may apply to the superior court to 

                 compel the Redistricting Board, by mandamus or otherwise, 

                 to perform its duties under this article or to correct any error 

                 in redistricting.  Application to compel the board to perform 

                 must     be   filed  not   later   than   thirty   days   following     the 

                 expiration of the ninety-day period specified in this article. 

                 Application to compel correction of any error in redistricting 

                 must be filed within thirty days following the adoption of the 

                 final   redistricting    plan    and   proclamation       by   the  board. 

                                                                                            (continued...) 



                                                    -35-	                                               6741
 


----------------------- Page 37-----------------------

census cycle.  Thus, under section 11, suits challenging a plan must be filed no later than 



30 days following the adoption of the plan.   Further, all decisions by the superior court 



and the supreme court concerning such challenges "shall be expedited and shall have 

priority over all other matters pending before the respective court."35 



                 For the above reasons, I think that the majority   opinion is mistaken in 



concluding that the Board unduly limited its range of choices by adopting the Hickel 

template.36	   The Board considered options outside the template.37                Further, the Board's 



        34	      (...continued) 



                 Original jurisdiction in these matters is vested in the superior 

                 court.  On appeal from the superior court, the cause shall be 

                 reviewed   by   the   supreme   court   on   the   law   and   the   facts. 

                Notwithstanding Section 15 of Article IV, all dispositions by 

                 the superior court and the supreme court under this section 

                 shall   be   expedited   and    shall   have   priority   over   all   other 

                 matters pending before the respective court.              Upon a final 

                judicial decision that a plan is invalid, the   matter shall be 

                 returned to the   board for correction and development of a 

                 new plan.  If that new plan is declared invalid, the matter may 

                be referred again to the board. 



        35	     Id. 



        36       The majority's opinion identifies only three of the template districts that it 



claims were drawn or approved with Voting Rights Act requirements in mind, House 

Districts 32 and 34 in southeast Alaska, and House District 40 encompassing the North 

Slope Borough and the Northwest Arctic Borough.   Slip Op. at 8 n.13.  As explained in 

part D of this dissenting opinion, I agree that District 34 was given a non-compact shape 

in order to comply with what were thought to be Voting Rights Act requirements.  This 

decision in turn affected the shape of District 32 and probably District 33.  But I do not 

think that the shape of District 40 was affected by Voting Rights Act considerations. 

That district in terms of contiguity, compactness, relative socioeconomic integration, and 

adherence to local government boundaries and major drainage features is about as ideal 

as any Alaska rural district could be.           In stating that House District 40 was drawn or 

                                                                                           (continued...) 



                                                   -36-	                                              6741
 


----------------------- Page 38-----------------------

        36      (...continued) 



approved with Voting Rights Act requirements in mind, the majority opinion cites the 

preclearance submission of August 9, 2011 made by the Board to the Department of 

Justice concerning the original Proclamation Plan.             But the submission itself indicates 

only that the Board was aware that District 40 would comply with the Voting Rights Act, 

not that the shape of District 40 was influenced by Voting Rights Act considerations. 

Here is all the Board said concerning House District 40 in the submission - I add 

emphasis where mention is made of District 40: 



                The Proclamation House Plan includes five districts where 

                Alaska Natives constitute a majority of the total population : 

                District 36 with 78.26%; 37 with 56.18%; 38 with 53.38%; 

                39 with 72.50%; and 40 with 71.15%.              While only three of 

                these districts retain their majority Alaska Native status when 

                voting age population statistics are considered - District 36 

                with    71.45%     VAP,    39  with   67.09%     VAP,   and     40  with 

                62.22%   VAP  -   the   other   two   districts,   37   and   38,   likely 

                remain   "effective".     Both   have   Alaska   Native   VAP   over 

                4.46% higher than the 41.8% statewide target effectiveness 

                standard.   Moreover, District 37 is only 26.65% white VAP. 

                As     discussed     further    below,    the    non-Alaska      Native 

                population added to District 38 was specifically chosen in 

                order to enhance the effectiveness of that District for Alaska 

                Natives to elect their preferred candidate. 



                In order to maintain the requisite number of Alaska Native 

                districts and still meet the one person, one vote standard, the 

                configuration      of  the   Benchmark      House    Plan   had   to  be 

                substantially changed.       [See Appendix C to Dr. Handley's 

                report, found in Volume 1, Folder 6, for a map that compares 

                the Benchmark and Proclamation districts.] District 40 in the 

                Proclamation House Plan remains essentially intact.  The 

                Alaska   Native VAP percentage declines only slightly from 

                63.60% to 62.22%.  In order to construct a plan that avoided 

                retrogression,   however,   it   was   necessary   for   the   Board   to 

                unpack   two   of   the   other   Benchmark   House   districts   with 

                substantial     Alaska    Native    Populations,    Districts   38   and 

                                                                                        (continued...) 



                                                  -37-                                             6741
 


----------------------- Page 39-----------------------

decision   to    use   as   many   unchallenged   districts   as   possible   in   its  Hickel   plan   was 



reasonable and practical because that was the only course of action that could have 



resulted in a plan that could be employed for every election in this census cycle. 



D.	     With Respect To Districts 32 And 34 In Southeast Alaska The Board Did Not 

        Comply With Our Order Concerning The Hickel Process. 



                I agree with the majority opinion that, as to House Districts 32 and 34 in 

southeast Alaska, the Board did not comply with the Hickel process.38                  As the majority 



opinion states, these districts were drawn under the assumption that a Native "influence" 



district had to be maintained in southeast Alaska in order to comply with the Voting 



Rights Act. 



                On remand from our order of March 14, 2012, the Board took the position 



that it did not have to revisit the configuration of the districts in southeast Alaska.  This 



        36	      (...continued) 



                 39. . . . 



By suggesting that District 40 did not comply with the Hickel process merely because 

the Board was aware when it   approved the district that it would meet Voting Rights Act 

requirements - even though the boundaries of the district were not shaped in order to 

meet   Voting   Rights   Act   requirements   -   the   majority   opinion   seems   to   be   policing 

abstract thought rather than conduct.           In my view this is unjustified.          Moreover, it is 

worth considering whether on remand the Board will be precluded from replicating 

House District 40 in its current and nearly ideal form, and instead must select a different, 

and likely inferior, shape in order to purge the impermissible taint found by today's 

opinion. 



        37      Perhaps   what   the   majority   is   concluding   is   that   considering   only   three 



Hickel plan options outside the template was not enough.  But surely such decisions are 

properly left to the discretion of the Board.  We said nothing about the number of plans 

the Board should consider in our order of remand, only that the Board should design a 

plan based on the requirements of the Alaska Constitution. 



        38      See Slip Op. at 8 n.13.      A map of these districts appears at Appendix E to 



this dissenting opinion. 



                                                   -38-	                                             6741
 


----------------------- Page 40-----------------------

was based on a ruling made by the superior court in response to the City of Petersburg's 



motion   for   summary   judgment   in   which   the   superior   court   held   that   District   32   is 



"compact enough" to satisfy the requirements of the Alaska Constitution.                      But as the 



superior court later pointed out, in its order of April 20, 2012, this conclusion was only 



reached in light of the court's assumption that the Voting Rights Act required a Native 



influence district in southeast Alaska.         The superior court stated: 



                 While the court previously did rule that House District 32 in 

                 Southeast   was   "compact   enough,"   this   was   in   light   of   the 

                 Board's argument that departure from strict adherence to the 

                 compactness requirement is justified by its need to draw a 

                redistricting plan that avoids retrogression and complies with 

                the Voting Rights Act.   The court's 12 December 2011 order 

                took into account the Board's arguments that it needed to 

                have an influence district in Southeast Alaska (House District 

                 34),   and   that   it   needed   to   avoid   pairing   an   Alaska   Native 

                 Legislator (Representative Bill Thomas).  In order to comply 

                with     the  Hickel     process,    the   Board    must    first  redraw 

                 Southeast Alaska without any deviations based on the Voting 

                 Rights [Act], specifically without an influence district and 

                without   any   deviations   based   on   avoiding   the   pairing   of 

                minority incumbents. 



                 In our order of May 10, 2012, we ordered that the Amended Proclamation 



Plan be adopted as an interim plan to govern the 2012 elections except for the districts 



in southeast Alaska.  As to the southeast Alaska districts, we recognized that the Board 



had   not   followed   our   order   of   March   14,   2012   concerning   the  Hickel   process   and 



concluded that there was no Voting Rights Act justification for deviating from Alaska 



constitutional criteria.      We therefore required the Board to reformulate the southeast 



districts within five days.      Our May 10 order stated in relevant part: 



                 We first remand to the Board for reformulation of the districts 

                 in   Southeast   Alaska.    These   districts   are   presently   House 

                 Districts 31-34 and Senate Districts P and Q in the Amended 



                                                   -39-                                               6741
 


----------------------- Page 41-----------------------

               Proclamation Plan.      On remand, the Board must "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 wherever possible."[39]  The reformulated plan should 



               not be altered based on the Voting Rights Act (VRA) because 

               there   is  no  VRA    justification  for  deviating   from   Alaska 

               constitutional requirements in Southeast Alaska.[40] 



               The Redistricting Board dutifully complied with our order of May 10.  It 



worked over a weekend and approved a new plan for southeast Alaska that it submitted 

to this court on May 15, 2012.41 



               After inviting and considering comments on the Board's new configuration 



of southeast Alaska, we decided to accept the Amended Proclamation Plan of April 5, 



2012 with respect to southeast Alaska for the 2012 elections rather than the reformulated 



plan submitted on May 15.       Our order explained the reasons for this decision: 



               The court has accepted the Southeast districts as configured 

               in the plan of April 5, 2012 rather than the reconfigurations 

               submitted by the Redistricting Board to the court on May 15, 

               2012 because of the numerous objections to the reconfigured 

               districts that this court has received.  While the reconfigured 

               districts may comply with the redistricting criteria of article 

               VI, section 6 of the Alaska Constitution, there is a risk that 

               the United States Department of Justice would decline to pre- 

               clear them under the Voting Rights Act.  Notice of the failure 

               of the Department of Justice to pre-clear the new districts 

               would come so late in the 2012 election cycle that a great 

               disruption to the election process would result.        In order to 



        39     Quoting In re 2011 Redistricting Cases , 274 P.3d 466, 467 (Alaska 2012).
 



        40     Alaska Supreme Court Order (May 10, 2012).
 



        41     This plan is attached as Appendix F.
 



                                               -40-                                           6741 


----------------------- Page 42-----------------------

                avoid this possibility, the court will not require the use of the 

                May 15, 2012 reconfigured districts for the 2012 elections.[42] 



                We also stated: 



                The   Board's   petition   for   review   from   the   superior   court's 

                order of April 20, 2012, has been submitted to this court and 

                remains under advisement.          One of the issues raised by the 

                petition for review is whether the Redistricting Board failed 

                to comply with the Hickel process as mandated by this court's 

                order    of  March     14,  2012,   with   respect   to  the  Southeast 

                Alaska districts.   Our order of May 10, 2012, is premised on 

                the conclusion that the Board did not so comply.             When we 

                issue an order and opinion on the Board's petition for review, 

                the    order   will   contain    a  discussion     of   and   directions 

                concerning the reconfiguration of the Southeast Districts, and 

                will seek to ensure that districts that comply with the Alaska 

                Constitution can receive timely review by the Department of 

                Justice for use in subsequent elections.[43] 



                It seems clear that District 34 in the Amended Proclamation Plan was not 



reasonably compact and that the Board drew its boundaries so that it would be a Native 



"influence" district under the Voting Rights Act.             Further, the configuration of District 

34 also affected the shape of District 32 and possibly District 33.44               The Redistricting 



        42      Alaska   Supreme   Court   Order   (May   22,   2012).         Justices   Winfree   and 



Stowers dissented from the order of May 22, 2012 and would have required that the 2012 

elections be conducted under the reconfigured districts that were submitted by the Board 

on May 15, 2012. 



        43      Id. 



        44      Whether failing to maintain an "influence" district would be retrogression 



under the Voting Rights Act was a disputed issue in the superior court.  During an early 

presentation to the Board, Dr. Handley had referred to "a continuum of types of protected 

districts" including "effective districts," which always elected the minority-preferred 

candidate   and   "influence   districts,"   which   usually   did.    In   its   motion   for   summary 

                                                                                         (continued...) 



                                                  -41-                                              6741
 


----------------------- Page 43-----------------------

Board was mistaken in relying on the superior court's "compact enough" language from 



the court's order of December 12, 2011 and therefore did not comply with the Hickel 



process. 



                 While   this   conclusion   likely   will   result   in   three   of   the   four   districts   in 



southeast Alaska being redrawn and this will potentially result in some of the undesirable 



effects that result from multiple redistricting in a single census cycle, the effects are 



limited   to,   at   most,   four   districts. Further,   the   Board   has   already   reformulated   the 



southeast districts, so compliance by the Board need not entail much additional effort by 

that agency.45 



E.       Conclusion 



                 Today's opinion sends the redistricting process mandated as a result of the 



2010 census back to ground zero.   Much new litigation, by new parties as well as those 



         44      (...continued) 



judgment   the   City   of   Petersburg   argued   that   "it   was   not   necessary   to   establish   an 

influence district in Southeast Alaska."  The trial court initially found for the Board, but 

at   trial   Dr.   Handley   testified   that   the   Department   of   Justice   no   longer   recognized 

influence districts as such and that districts were either effective or they were not.  She 

also testified that she understood that the Department of Justice believed that there are 

only five effective districts in Alaska.           She thus suggested that the Voting Rights Act 

does not require maintenance of an influence district in southeast Alaska.  In our order 

of May 10, 2012 we accepted this position.                On the other hand, our order of May 22, 

2012 indicates concern that the Department of Justice might not agree or at least might 

not do so readily.       Underlying this uncertainty is the fact that it is difficult to determine 

just   what   is   forbidden   by   section   5   of   the   Voting   Rights   Act.  This   increases   the 

importance of Department of Justice approval, at least for jurisdictions wishing to avoid 

a test case. 



         45      I   am   not   by   this   comment   suggesting   that   the   Board   must   necessarily 



reformulate       the  southeast    districts   as  it  did  in   the  May    15   plan.    I  realize   that 

reformulation       was   necessarily     put  together    on   a  rushed    basis,   without   formalized 

methods for public input, and that there undoubtedly are other reconfigurations that 

would also meet our state's constitutional redistricting criteria. 



                                                    -42-                                                6741
 


----------------------- Page 44-----------------------

already before us, will result.  All the disruptions of redistricting that are necessarily 



endured every ten years will be repeated in the next two. 



              The cause of this drastic remedy, according to the majority opinion, is the 



Board's use of unchallenged districts in devising a Hickel plan.    But the Board did not 



consider that its hands were tied by the unchallenged districts, and there were practical 



reasons why the Board would choose to build on rather than toss out the unchallenged 



work that it had already done.   Rather than force a return to the point of beginning, I 



think we should take the next logical step in this litigation and determine whether the 



Board's Hickel plan was based on the requirements of the Alaska Constitution. 



                                           -43-                                      6741
 


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