lexsee babcock, allen vezey, mary lynne wood, john c ... v. alaska.pdf · lexsee. caution as of....

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LEXSEE

.��CautionAs of. Jun 02, 2011

WALTER J. HICKEL, Governor of Alaska, STATE OF ALASKA, TUCKERMANBABCOCK, ALLEN VEZEY, MARY LYNNE WOOD, JOHN C. INGRAM,

ROBERT PICKRELL, ORIE WILLIAMS, FISH AND GAME FUND, Petitioners,v. SOUTHEAST CONFERENCE, a non-profit Alaska corporation, PEGGY ANNMcCONNOCHIE, FREll E. REEDER; MATANUSKA-SUSITNA BOROUGH,

STEVE CYPRA, TED SMITH, AL JORGENSEN, HAROLD NEWCOMB, JOHNSTEIN, DUNCAN TRA7IER, GARY THURLOW, ELSIE O'BRYAN,120NDA L.KELLEY; OLIVER LEAVITT, JACOB ADAMS, GEORGE AHMAOGAK, WIL-LIAM LEAVITT, BENJAMIN NAGEAK, RONALD BROWER, MAX AHGEAK,

CHARLES A.N. BROWER, CHARLES "CHUCK" GREENE, ROSWELLSCHAEFFER, MARIE GREENE, REGINALD CLEVELAND, CHARLES CUR-TIS, WILLIE GOODWIN, JR.; MITCHELL A. DEMIENTIEFF, JERRY ISAAC,LEO MORGAN, NICK JACKSON, CLYDE PETER; ALASKA DEMOCRATICPARTY, LIDTA L. SELKREGG, Respondents. SOUTHEAST CONFERENCE, anon-profit Alaska corporation, Petitioners, v. WALTER J. HICKEL, Governor of

Alaska, STATE OF ALASKA, Respondents.

No . 3911 , Supr eme Court Nos . 5 -5093/5154 , Supreme Court File No . S-5156

SUPREME COURT OF ALASKA.

846 P.2d 38; 1992 Alas. LEXIS 136

December 29, 1 992, D ecided

SUBSEQUENT HISTORY: [**1] Petition for Re-hearing Denied March 12 , 1993, Reported at 1993 Alas.LEXIS 23 .

PRIOR HISTORY: Appeal from the Superior Courtof the State of Alaska, First Judicial District, Juneau,Larry R. Weeks, Judge. Superior Court No. IN 91-01608 Civil

DISPOSITION: AFFIRMED and REVERSED

CASE SUMMARY:

PROCEDURAL POSTURE: Petitioners, the State ofAlaska and the governor, sought review of a judgment ofthe Superior Court of the State of Alaska, First JudicialDistrict, which invalidated the governor's legislative re-districting plan as a violation of the Alaska Cons titutioa

OVERVIEW: Respondent voters brought an actionagainst the State of Alaska and the governor challengingthe governor's legislative redistricting plan . The superiorcourt found the plan unconstitutional . On review, thecourt noted that the governor had the power and duty toreapport ion the state legislature every 10 years pursuantto Alaska Const . a rt . VI , § 3. However, a redis trictingplan required contiguity, compactness, and relativesocio-economic integration. The court found that theplan lacked socio-economic integra ti on of the state'scommunities. The state constitution also required dis-tricts to be comprised of relatively integrated areas pur-suant to Alaska Const. art. VL § 6. The court found thatthe redistricting board had taken a " hard look" at the re-districting issue through the use of expert advice and theconsideration of alternatives . The court also found thatthe redistricting board was subject to the Open MeetingsAct, Alaska Stat. && 44 . 62310-312, and the Public Re-cords Act , Alaska Stat . § § 09 . 25 . 110 -. 140 .

846 P . 2d 38, * ; 1992 Alas . LEXIS 136 , **

OUTCOME: The cou rt affirmed in pa rt and reversed inpart the judgment of the superior court that the redistrict-ing plan was unconstitutional . The cou rt remanded thecase to the superior court with directions to devise aninterim redistricting plan.

CORE TERMS: deviation, reapportionment, governor's,native, voting rights, socio-economic , interim, borough,redistricting, southeast, integration, integrated, military,island , election, pairing, contiguous, voting , compact-ness , resident , interior , election districts , multi-member,contiguity, compact, census, voter , incumbent , reg ion ,personnel

LexisNexis(R) Fieadnotes

Constitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesConstitutional Law > State Constitutional Operation[FINl]Under the Alaska Constitution, the governor hasthe power and duty to reapportion the state legislatureevery ten years. Alaska Const. art . VI, S 3.

Constitutional Law > Congressional Duties & Powers >Census > Apportionment & RedistrictingConstitutional Law > Equal Pro tection > Voting Dis-tricts & RepresentativesGovernm ents > Federal Government > Election s[HN2]See Alaska Const. art. VIJ 6.

Constitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesConstitutional Law > State Constitutional Operation[HN3]Contiguity, compactness and relative socio-economic i ntegration are constitutional requirements. Adistrict lacking any one of these characteristics may notbe constitutional under the Alaska Constitution.

Constitutional Law > Equal Pro tec tio n > Voting Dis-tricts & RepresentativesConstitutional Law > Sta te Constitutional Opera t ion[HNS]A district may be defined as contiguous if everypart of the district is reachable from every other partwithout crossing the district boundary; i.e., the district isnot divided into two or more discrete pieces.

Constitutional Law > Equal Pro tection > Voting Dis-tricts & Representa tivesConstitutional Law > State Constitutio n al Operation[FIN6]"Compact" means having a small perimeter inrelation to the area encompassed. Compact districtingshould not yield bizarre designs. The court will look tothe relative compactness of proposed and possible dis-tricts in determining whether a district is sufficientlycompact.

Constitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesConstitutional Law > State Constitutional Operation[HN7]In order to satisfy the constitutional requirement,the governor must provide sufficient evidence of socio-economic integration of the communities linked by theredistricting, proof of actual interact i on, and intercon-nectedness rather than mere homogeneity. In areas wherea comrnon region is divided into several districts, si gnifi-cant socio-economic integration between communitieswithin a district outside the region and the region in gen-eral demonstrates the requisite interconnectedness andinteraction, even though there may be little actual inter-action between the areas joined in a district. The suffi-ciency of the contacts between the communities involvedcan be determined by way of comparison with districtswhich the court has previously upheld . A distric t will beheld invalid if the record is simply devoid of si gnificantsocial and economic interaction among the communitieswithin an election district.

Constitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tric ts & Representatives[HN4]Gerrymandering is the deliberate and arbitrarydistortion of district boundaries and populations for par-tisan or personal political purposes. The term "gerry-mandering," however, is also used loosely to describe thecommon practice of the party in power to choose theredistricting plan that gives it an advantage at the po l ls.

Constitution a l Law > Equal Protection > Voting Dis-tricts & Representa tivesConstitution a l Law > State Constitutional Operation[HN8]The Alaska Constitution requires distr icts com-prising relatively integrated areas. Alaska Const. art. V I .� 6 •

Constitutional Law > Equal Protection > Scope of Pro -tectionConstitutional Law > Equal Protection > Voting Dis-tric ts & Representa t ives

846 P . 2d 3 8, *; 1992 Alas . LEXIS 13 6, **

[HN9 ] " Relatively" means that the court compares pro-posed dis tr icts to other previously existing and proposeddistricts as well as principal alternative districts Co de-tennine if socio-economic links are sufficient . "Rela-tively" does not mean " minimally", and it does notweaken the constitutional requirement of integration .

Constitutional Law > Equal Pro tec tion > Scope of Pro-tec tionConstitutional Law > Equal Protection > Vo ting Dis-tricts & Representatives[T3N I 0] I n the context of voting rights in redistricting andreapportionment litigation, there are two principles ofequal protection, namely that of "one person, one vote",the right to an equally weighted vote, and of "fair andeffective representation", the right to group effectivenessor an equally powerful vote. The former is quantitative,or purely numerical, i n nature; the latter is qualitative.

if such deviations are a result o f the c reati on of contigu-ous, compact and relativ e ly s o ci o-economically inte -grated areas .

Constitutional Law > Congressional Du ties & powers >Census> General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstituti onal Law > Equal Protection > Scope of Pro-tection[ I IN1 4 ]The Lgual Pxotection Clause of the United StatesConstitut ion provides for t he more nebulous guarantee offair representation. Under this qualitative pr inciple, cer-tain mathematically palatab l e apportionment schemeswill be overturned because they systematica l ly circum-scribe the voting impact of specifi c population groups.This princip l e recognizes the danger that racial and po-litical groups will be fenced out of the political processand their voting strength invi diously minimized.

Constitutional Law > Equal Protection > Scope of Pro -tectionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[FIN 11]A state must make an honest and good faith ef-fort to construct districts, in both houses of its legislature,as nearly of equal population as is practicable. Whateverthe means of accomplishment, the overriding objectivemust be substantial equality of population among thevarious distric ts, so that the vote of any citi zen is ap-proximately equal in weight to that of any other citizenin the state.

Constitutional Law > Equal Protection > Scope of Pro-tec tionConstitutional Law > Equal Pro tection > Voting Dis-tricts & Representatives[HN12]Under a "one person, one vote" theory, minordeviations from mathematical equality among state legis-lative districts are insufficient to make out a prima faciecase of invidious discrimination under the FourteenthAmendment so as to require justification by the state. Asa general matter an apportionment plan containing amax imum population deviation under ten percent fal lswithin the category of minor deviations. The state mustprovide justifi cation for any greater deviati on.

Constitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN13]As a matter of federal constitutional law the gov-emor may in good faith declare election districts with amaximum population deviation greater than ten percent,

Civil Rights Law > Voting Righls > General OverviewConstitutional Law > State Constitutional OperationGovernments > Federal Government > Elections[HN15]A mere lack of proportiona l representation willbe insufficient to support a findi ng of unconstitutiona lvote dilution. Plaintiffs must prove both intentional dis-crimination again st a group and a discriminatory effecton that group.

Constitutional Law > Elections, Terms & Vo ting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN16]A finding of unconstitutionality must be sup-ported by evidence of continued fru stration of the will ofa majority of the voters or effective denia l to a minor i tyof voters of a fai r chance to influence the po l itical proc-ess.

Constitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN I 7]Under the qualitative pr i nciple of federal equalprotection, fair representation is denied where there isproof that the group has been consistently and substan-tially excluded from the political process and denied po-litical effectiveness over a period of more than one elec-tion.

846 P .2d 38 , * ; 1992 Alas . LLXIS 136 , **

Constitutiona l Law > Equal Protection > Scope of Pro-tectio nConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesConstitution a l Law > State Constitutional Operation[IIN18)The equal protection clause of the Alaska Consti-tuti on imposes a more strict standard than its federalcounterpart.

Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsGovernm ents > Federal Government > ElectionsGovernments > State & Territorial Governments >Elections[IINl9]Under § 5 of the Voting Rights Act, 42 U.S.C.S.� 1973, a reapportionment p lan i s invalid if it would leadto a retrogression in the posi tion of racial minor ities wi threspect to their effective exercise of the electoral fran-chise. 42 U.S.C S. 6 1973c. Compliance with § 5 is alegitimate goal of a reapportionment board: A state mayconstitutionally reapportion districts to enhance the vot-ing strength of minorities in order to facilitate compli-ance with the Voting Rights Act, 42 U.S.C.S. 6 1973.

Civil Rights Law > Voting Rights > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based VodngRestrde tionsGovernments > Federal Government > Elections[HN20)Section 2 of the Voting Rights Act, 42 U.S.C.S.1973, creates a cause of action to remedy the use of cer-tain electoral laws or practices which, when interactingwith social and historical conditions, create an inequalityin the opportunities enjoyed by voters to elect their pre-ferred representatives. Plaintiffs may have a redistrictingplan or an election invalidated if they can prove that 1)under the total ity of the circumstances, the redistrictingresults in unequal access to the electoral process; and 2)racially polarized bloc voting exists. The conjunction ofan allegedly dilutive electoral mechanism and the lack ofproportional representation alone does not establish avio lation.

Constitutional Law > State Constitutional OperationGovernm ents > Local Governments > BoundariesGovernments > Local Governm ents > Elections[FIIN211Alaska Const. art. VI, 6 does not require thatdistricts be drawn along municipal boundaries. Rather,the provision states only that consideration may be givento local government boundaries. Alaska Const. art VI. �6. However, local boundaries are significant in determirn

ing whether an area is relatively soc i o-e conomically in-tegrated . By statute , a borou gh mus t have a populationwhich is interrelated and integrated as to its social, cul-tural, and economic activities . Alaska Sta t S 2 9 .05 . 031 .

Constitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesConstitutional Law > State Constitutional Operation[IIN22]Exclusion is not constitutionally required if it isnot possible to accurately identify those military person-nel who are non-residents. However, it is necessary toconsider alternative plans for obtaining a sufficientlyaccurate p lan for estimating the number of non-residentmi litary personne l .

Constitutional Law > Equal Pro tec tion > Voting Dis-tricts & RepresentativesConstitutional Law > Sta te Constitutional Operation[I IN23] I t is not necessary to attempt a survey or statist i -cal analysis when a thorough examination revea l s thatsuch a survey is not possible. Rather, the court needsonly be assured that the governor's authority is exercisedin a rati onal as opposed to an arb i trary manner. Althoughthe court has found a thorough and exemplary explora-tion to be persuasive in proving that the reapportionmentboard's decision was rational, the court has not requiredit.

COUNSEL: For Walter J . Hickel, Governor of Alaskaand State of Alaska, Petitioners: Virginia Ragle andStephen C. Slotnick , Assistant Attorneys General, Jun-eau, Mary A. Lundquist , Assistant Attorney General,Anchorage, Charles Cole, Attorney General, Juneau. ForFish and Game Fund , Petitioners : Thomas M . Daniel,Perkins Coie, Anchorage .

For Southeast Conference , et al . and Mat-Su Borough, etal ., Respondents: Myra M . Munson , Sonosky, Chambers,Sachse, Mil ler & Munson, Juneau, Donald J . Simon,Sonosky, Chambers, Sachse & Enderson, Washington,D.C . For Leavitt , et al. , Respondents: David C . Crosby,Juneau, James Wickwire, Seattle, Wickwire , Greene,Crosby & Seward . For Alaska Democratic Party, et al .,Respondents : Don Clocksin, Wagstaff, Pope & Clocksin,Anchorage. For Demientieff, et al . , Respondents : Mi-chael J . Wall eri, Tanana Chiefs Conference , Inc . , Fair-banks,

Robert P . Blasco and Mary A . Nordale, Robertson,[ **2] Monagle & Eastaugh, Juneau, for Amicus CuriaeFairbanks North Star Borough .

846 P . 2d 3 8, * ; 1992 Alas . LEXIS 136 , * *

Joel H . Bolger, Jamin , Ebe ll, Bol ger & Gentry, Kodiak,for Amicus Curia e Kodiak Island B orough .

Kenneth P . Jacobus , Anchorage , fo r Amicus Curiae Con -stance Zawacki and The Republi can Party of Ala ska .

Michael W . Price , Groh , Eggers & Price , Anchorage, forAmicus Curiae Municipality of Anchorage .

Bruce Boltar , Dillingham, Alaska, for Amicus CuriaeBristol Bay Native Association .

JUDGES: Before: Rabinowitz, Chief Justice, Burke,Matthews, Compton and Moore, Justices .

OPINION BY: COMPTON

OPINION

[ *42] OPINION

COMPTON , Justice .

At issue in this petition for review is the validity ofthe 1991 Proclamation of Reapportionment and Redis-tricting Plan (plan) issued by Governor Walter J. Hickel.

1. FACTUAL AND PROCEDURAL BACK-GROUND

[HN1]Under the Alaska Constitution, the governorhas the power and du ty to reapportion the state legisla-ture every ten years . Alaska Const . art . VI, & 3 ; Wade v .Nolan, 414 P.2d 6 89 , 700 (Alaska 1966) . In December199 0, Governor Hickel appointed a five membe r advi-sory reapportionment board (Board), as is required byartiele VS section 8 of the Alaska ConsYitution. [* * 3 ]The Board was required to prepare and submit to theGovernor a plan for reappo rtionment and redistrictingfollowing the reporting of the decennial census. '

1 Article VI. section 10 of the Alaska Constitu-tion provides as follows:

Within ninety days following theofficial repo rting of each decen-nial census , the board shall submitto the governor a plan for reappor-tionment and redistricting as pro -vided i n this article. Within ninetydays a fter receipt of the plan, thegovernor shall issue a proclama-tion of reapportionment and redis-tricting. An accompanying state-ment shall explain any changefrom the plan of the board . Thereapportionment and redistric ti ngsha ll b e effective fo r the election

o f members of the l egisl ature untilafter the official report ing of thenext decennial census .

In January 1991 , the Board held an organizationalmeeting , elected Allen Vezey as chair and appointedTuckerman Babcock as director. In March it adopted th efollowing policies to guide the development of redistrict-ing plans: [* * q]

*"Che population base is the 1990 popu-lation repo rted by the United States Cen-sus Bureau for the State of Alaska .

* The redistricting plan will be com-posed of single- member dis tr icts .

* One person, one vote : equal protec-tion for all individuals will be realized byequal population among districts, with theleast populated and most populated dis-tr icts separated by a variance of no morethan two percent .

* Federal Voting Rights Act: protectand enhance minority po li tical votingstrength by a non-retrogression policy andby considering individual linguistic andethnic blocks.

* Alaska Constitution : compact, con-tiguous and relatively integrated socio-economic areas for House districts .

* Consider preservation of politicalsubdivision boundaries.

* Consider public testimony, whichwill be incorporated into the reco rd if re-ceived within 75 days after receipt of theUnited States Census PL94-171 data.

* Accept alternative plans submittedup to 60 days after receipt of the UnitedStates Census PL94-171 data for inputinto the state's computer system, i f re-ceived in a£orm allowing direct input intothe computer or on United S tates Geo-logical Survey maps or United [ ** 5]States Coast and Geodetic Survey map s. '

2 The Board later modified its policy regardingequal population among districts . It ad opted amotion which directed the staff to:

846 P . 2d 38, * ; 1992 Alas . LHXIS 136 , **

use up to a 10 percent variancein preparing the final three state-wide alternative scenarios, for thepurposes of compliance with thefederal Voting Rights Act. Anyother variance from the Board'stwo percent guideline must be jus-tified by the need to comply withthe Alaska Constitutional require-ment that each district contain asnearly as possible a relatively in-tegrated socio-economic area, orby limitations in the technology ordata bases used by staff in prepar-ing the statewide alternaCives.

With the assistance of computer technology, whichmade possib le more detailed analysis of potential redis-tricting than was previously available, the Board and itsstaff began forming a reapportionment plan based on theadopted policies. The [*43] Board received the decen-nial census report from the United States Bureau of theCensus in March [**6] 1991. The Board held a numberof public hearings and reviewed alternative redistrictingplans submitted by various interest groups. In June1991, the Board delivered its report and proposed plan tothe Governor.

On September 5 , 1991, Governor Hickel issued hisProclamation of Reappo rt ionment and Redistricting andAccompanying Statement . The final plan ' included sev-eral relatively minor changes to the Board's proposeddistrict boundaries . The proclamation directed the At-tomey General to submit the plan to the United StatesDepartment of Justice for preclearance in accordancewith section 5 of the Voting Rights Act of 1965, 42U.S C. & 1973c (1988) . °

3 The final plan which was reviewed in this caseis attached as Appendix A. It contains detailmaps of the Southeast and Matanuska-SusitnaBorough Districts , as well as a statew ide map .4 In April 1992 the U . S . Department of Justicenoti fi ed the State that it would not object to theGovernor's plan .

Seven lawsuits were [ **7] filed in superior courtchallenging the Governor's plan. ' Two cases were dis-missed with prejudice pursuant to stipulations. Fivecases were consolidated for trial before Superior CourtJudge I.arry R. Weeks . fi

5 A rt ic l e VI s ec ti on 11 o f the Alaska Constiru-ti o n provides :

Enforcement . Any qualifiedvoter may apply to the superiorcou rt to compel the governor , bymandamus or otherwise , to per-form his reapportionment duties orto correct any error in redistrictingor reappo rtionment.. . . Originaljurisdiction in these matters ishereby vested in the superiorcourt. On appeal, the cause shallbe reviewed by the supreme cou rtupon the law and the facts .

6 The five cases which were consolidated in-cluded : Alaska Democratic Party v . Hickel, CaseNo . 3AN-91-8539 Civil; Matanuska-Susitna Bor-ough v. Hickel , Case No. 3AN-91-8520 Civil ;Demientieff v . Hickel, Case No. 4FA-91 - 1730Civil; Leavitt v . Hickel, Case No . 2BA-91 -81Civil; and Southeast Conference v. Hickel, CaseNo. 17iJ-91 - 1608 Civil. All parties partic ipatedfully in the trial before Judge Weeks .

[**8] After a sixteen day bench trial, Judge Weeksconcluded that the Governor's plan was invalid because itviolated the Alaska Constitution. Specifically, JudgeWeeks concluded that the plan was not in compliancewith article VI section 6 of the Alaska Constitution be-cause two of the districts were not "compact" and eightof the districts did not compri se "as nearly as practicablea relatively socio-economically integrated area." He de-termined that the Board "needlessly nullified Alaskaconstitutional requirements" in its attempt co reach itsvarious policy goals, including the creation of dis trictswith no more than two percent population deviation fromthe ideal district size. He also concluded that the Boardfailed to give due consideration to the possibility of ex-cluding non-resident military personnel from the popula-tion base, and that this failure was arbitrary and unrea-sonable . Judge Weeks held that the Board violated theOpen Meetings Act, AS 44.62310, but ruled that voidingthe plan on the basis of this violation was not in the pub-lic interest. He also concluded that the Board violatedthe Public Records Act, AS 09.25 . 110- 140, and the Pro-curement Code, AS 36 . 30 .

Pursuant [* *9] to Alaska Appellate Rule 402(a) ,Governor Hickel and the State of Alaska (State) peti-tioned this court for review, contending that JudgeWeeks had erred: 1) in fi nding that the plan violated theequal protection clause of the Alaska Constitution; 2) inhis interpretation of a rticle VI, section 6 of the AlaskaConstitution and in his determination that the plan vio -

846 P . 2d 38 , * ; 1992 Alas . LEXIS 136 , **

late d this section; 3) in concluding that the Open Meet -ings Act, AS 44 . 6 2. 310, and the Public Records Act , AS09. 25, applied to and were violated by the Governor'sAdvisory Reapportionment Board; and 4) in substitutinghis judgment for that of the Board with regard to matterswithin the Board's discretion .

We granted the State's petition to review the deci-sion , and expedited the proceedings . On May 28 , 1992,we concluded that the Governor's plan violated theAlaska Constitution . See Appendix B . We affirmed thesuperior court's finding s of fact and conclusions of lawthat House Districts 1, 2, 3, 6, 26, 28 , 34 and 35 violaterequirements of article VI, s e ction 6 of the Alaska Con-sCiCution . We also affirmed its holdings that the OpenMeetings Act and the Public Records Act apply to theBoard, However , we [*44] [**10] reversed its holdingthat the Board's decision not to exclude non-residentmilitary from the population base was arbitrary and un-reasonable.

In a separate Order of Remand, later corrected, wedirected the superior court to remand the case to theBoard for formulation of a final plan . However, becauseof time constraints, we also directed the court to formu-late an interim plan so that 1992 state elections mightproceed in conformity with the requirements of theUnited States Constitution, the Alaska Constitution andthe federal Voting Rights Act . Further, we authorized thecourt to employ experts or masters to assist in the formu-lation of an interim plan . See Appendix C.

Thereafter the superior court appointed three mas-ters. After receiving instructions from the court ' andreviewing alternative plans proposed by the parties, themasters presented a recommended interim plan to thecourt on June 14 . In Orders dated June 18 and 19, s thesuperior court accepted the Masters' recommendation,with several modifications including a redrawing of theFairbanks House Districts . The parties cross-petitionedthis court for review of the court' s orders . On June 25,after considering [**11) oral and written arguments , wegranted the petition and affirmed the cou rt 's interim planwith modifications required by our determination that thecourt had erred in redrawing the Fairbanks House Dis-tricts. 9

7 On June 11, 1992, we disapproved of JudgeWeeks' instruction that wherever possible nativeinfluence districts must include a native popula-tion of at least 35%. See Appendix D.8 These are attached as Appendices E and F, re-spectively.9 Our order of June 25, 1992 is attached as Ap-pendix G. The map which depicts the interimplan of apportionment approved by this court onJune 25, 1992, is attached as Appendix H.

II . LEGISLATIVE REAPPORTIONMENT

Now the goal o f all apportionment plansis simple : the goal is adequate and truerepresentation by the people in theirelected legislature, true, just, and fair rep -resentation . And in deciding and inweighing this plan, never lose sight of thatgoal, and keep it foremost in your mind;and the details that we will present aremerely the details [**12] of achievingtrue representation , which , of course, isthe very cornerstone of a democratic gov-ernment.

3 Proceedings of the Constitut i onal Convention (PACC)1835 (7anuary 11, 1956).

Legislative reappo rtionment is subject to a variety oflegal requirements. The Federal Constitution, the Fed-eral Vo ti ng Rights Act, and the Alaska Constitution allcontain commands which guide the formation of a reap -po rtionment plan. It is the interac tion of these diverseand often diverging guidelines which makes reappor -tionment a difficult process . Because these guidelinessometnnes lead in different directions , it is important tounderstand how they fit together .

A. ARTICLE VI SECTION 6 OF THE ALASKA

[HN2]The mandate for redistric ti ng the election d is-tricts of the Alaska House of Representatives is found inarticle VI, section 6 of the Alaska Constitution :

The governor may further redis trict bychanging the size and area of election dis-tricts , subject to the limitations of this ar-ticle . Each new district so created shall beformed of contiguous and compact terri-tory containing as nearly as practicable arelatively integrated socio-economic area .Each area shall contain a[**13] popula-tion at least equal to the quotient obtainedby dividing the total civilian populationby fo rty . Consideration may be given tolocal government boundaries . Drainageand other geographic features shall beused in describing boundaries whereverpossible .

[HN3]

Contiguity, compactness and relative socio-economic integration are constitutional requirements.

8 46 P.2d 38, *; 1992 Alas . LEXIS 136 , **

See Kenai Peninsula Borou�h v . State 743 P 2d 13521360-61 (Alaska 19871 ("The state must consistentlyenforce the constitutional art icle VI, section 6 require-ments of contiguity, compactness , and relative integra-tion of socio- economic areas in its redistricting . ") . A[*45] district lacking any one of these characteristicsmay not be constitutional under the Alaska Constitution ."I

10 The requirement of relative socio-economicintegration is given some flexibility by the consti-tution since dist ri cts need be integrated only " asnearly as practicable." Alaska Const . art . VT, & 6.However, the flexibility that this clause providesshould be used only to maximize the other consti-tutional requirements of contiguity and compact-ness . The governor is not permitted to diminishthe degree of socio-economic integration in orderto achieve other policy goals.

[** 14] The requirements of conti guity, compact-ness and socio -economic integration were incorporatedby the framers of the reapportionment provisions to pre-vent gerrymandering. 3 PACC 1846 (January 11 , 1956)("[The requirements] prohibit[ ] gerrymandering whichwould have to take place were 40 districts arbitrarily setup by the governor . .. . The Committee feels that ger-rymandering is definitely prevented by these restrictivelimits . "). Gerrymandering is the dividing of an area intopolitical units "in an unnatural way with the purpose ofbestowing advantages on some and thus disadvantagingothers . " " Caroenter v. Hammond, 667 P.2d 1204, 1220(Alasl<a 19R3) (Matthews , I . , concurring) . The constitu-tional requirements help to ensure thatthe election dis -trict boundaries fall along natural or lo gical lines ratherthan poli ti cal or other lines .

11 Black's Law Dictionary defines gerrymander-ing as:

A name given to the process ofdividing a state or other territoryinto the authorized civil or poliYi-cal divisions, but with such a geo-graphical arrangement as to ac-complish an ulterior or unlawfulpurpose, as, for instance, to securea majority for a given politicalparty in districts where the resultwould be otherwise if they weredivided according to obvious natu-ral lines.

Black's Law Dictionary (6th ed. 1990).

We have previously stated :[IIN4] " Gerrymandering is 'the deliberate and ar-bi tra ry disto rt ion of district boundaries and popu-lations for parti san or personal po litical purposes .The term 'gerrymandering, ' however, is also usedloosely to describe the common practice of theparty in power to choose the redistricting planthat gives it an advanta ge at the polls . ' " KenaiPeninsula Borough, 743 P .2d at 1367 n . 28 (quot -ing Davis v Bai�demer 478 U S 109 164 92 LEd. 2d 85 106 S Ct 2797 (1986)) (citationsomitted).

The word "gerrymandering" has an unusualetymology. The word derives from "the fanciedresemblance to a salamander (made famous bycaricature) of the irregularly shaped outline of anelection district in northeastern [Massachusetts]that had been formed for partisan purposes in1812 during [Elbridge] Gerry's governorship."Webster's Third New International Dicti onary (3ded. 1969).

[ * *15] I. Contiguity.

Contiguous territory is territory which is borderingor touching . As one commentator has noted, [HNS]" [ a]dis trict may be defined as contiguous if every part of thedistrict is reachable from every other part without cross-ing the district boundary (i . e . , the district is not dividedinto two or more discrete pieces) . " Gro&nan, Criteria forDistricting: A Social Science Perspec tive , 33 UCLA L .Rev . 77, 84 (1985) . Absolute contiguity of land masses isimpossible in Alaska, considering her numerous archi -pelagos . Accordingly, a contiguous district may containsome amount of open sea . However, the potential toinclude open sea in an election district is not withoutlimits. If it were , then any part of coastal Alaska couldbe considered contiguous with any other part of the Pa -cific Rim. To avoid this result, the constitution providesthe additional requirements of compactness and socio -economic integration.

2 . Compactness .

[HN6 ] " 'Compact' in the sense used here means hav-ing a small perimeter in relation to the area encom-passed. " Carpenter, 667 P . 2d at 1218 (Matthews , 7 . , con-curring) . Compact districting (**16 1 should not yield"bizarre designs." Davenport v. Apportionment Comm'nof New 7ersev, 124 N.J . Super. 30. 304 A. 2d 736 743(N.J. Super. Ct. App. Div . 1973), quoted in Carpenter ,667 P . 2d at 1218 - 19 (Matthews, J ., concurring). We willlook to the relative compactness of proposed and possi -ble distr icts in determining whether a dis tr ict is suffi -ciently compact . Cazpenter , 667 P2d at 121 8 (Matthews ,J . , concurring).

846 P . 2d 38, * ; 1992 Alas . LEXIS 136, **

The compactne s s inquiry thus lo oks to the shape of adistrict . Odd-shaped districts may well be the naturalresult of Alaska's irr e gular geometry . However, " cocri-dors" of land that extend to include a populated area, butnot the less -populated [ *4 6] land around it , may runafoul of the compactness requirement . Likewise, ap-pendages attached to otherwise compact areas may vio -late the requirement of compact districting .

3. Socio-economic Integration.

In addition to preventing gerrymandering, the re-quirement that districts be composed of relatively inte-grated socio-economic areas helps to ensure that a voteris not denied hi s or her right to an equally [**17 ] pow-erful vote.

We should not lose sight of the funda-mental p ri nciple involved in reapportion-ment -- truly representative governmentwhere the interests of the people are re-flected in their elected legislators . Inher-ent in the concept of geographical legisla -tive districts is a recognition that areas ofa state differ economically , socially andculturally and that a truly representativegovernment exists only when those areasof the state which share significant com-mon interests are able to elect legislatorsrepresenting those interests. Thus , thegoal of reapportionment should not onlybe to achieve numerical equality but alsoco assure representation of those areas ofthe state having common interests .

Groh , 526 P2d at 890 (Erwin , J., dissenting).

We have looked before to the Minutes of the Consti-tutiona l Convention for guidance in defming "relativelyintegrated socio-economic area." Kenai Peninsula Bor-ough, 743 P.2d at 1360 n.ll; Carpenter, 667 P.2d at1215; Groh, 526 P.2d at 878. The delegates explained the"socio-economic princip le" as fol l ows: [** 1 8]

an economic unit inhabited by people .In other words , the stress is pl aced on thecanton idea, a group o f people livingwithin a geographic unit , socio-economic,following if possible , similar economicpursuits .

3 PACC 1873 (January 12, 1956) .

[I-IN7]In order to satisfy this constitutional require-ment, the Governor must provide "sufficient evidence ofsocio-economic integration of the communities linked bythe redistricting, proof of actual interaction and intercon-nec tedness rather than mere homogeneity." Kenai Penin-sula Borough. 743 P.2d at 1363. In areas where a com-mon region i s di vided into several districts, significantsocio-economic integrat i on between communities w i thina district outside the region and the region in general"demonstrates the requisite interconnectedness and inter-acti on," even though there may be little actual interaction[**19] between the areas joined in a district. Id. (declin-ing to draw a fine dist inct i on between the interaction ofNorth Kenai with Anchorage and North Kenai withSouth Anchorage). "The sufficiency of the contacts be-tween the communities involved here can be determinedby way of comparison with districts which we have pre-viously upheld." Id. A district will be held invali d i f "therecord is simply devoid of significant social and eco-nomic interaction" among the communities within ane lection district. Carpenter, 667 P 2d at 1215.

In ou r previous reapportionment decisions we haveidentified several specific characteristics of socio-economic integration. In Kenai Peninsula Borough, wefound that service by the state ferry system, daily localair taxi service, a common major economic activity,shared fishing areas, a common interest in the manage-ment of state lands, the predominately Native characterof the populace, and historical links evidenced socio-economic integration of Hoonah and Metlakatla withseveral other southeastern island communities. " 743P.2d at 1361 .

Where people live together and worktogether and earn their living together,where people do that , they should be logi-cally grouped that way .

3 PACC 1836 (J anuary 11 , 1956) . Accordingly , thedelegates define an inte grated socio -economic unit as :

12 We did not dec i de whether these characteris-tics were spec i fically necessary to pass musterunder article VI section 6 of the Alaska Constitu-[ion. Instead we merely found that a rationalstate policy existed in effectuating the const itu-t iona l mandate of relative socio-economic inter-vention. Kenai Peninsula Borough, 743 P.2d at1361.

[**20] [*47 ] In the same case, we found it per-suasive that North Kenai and South Anchorage weregeographically proximate, were linked by daily airlineflights , shared recreational and commercial fishin g areas ,

846 P . 2d 38, *; 1992 Alas . LEXIS 136, M*

and were b oth s trong ly d ependent on Anchorage fo rtran spo rtati on , e ntertainment , news and professional s er-vices . Id . at 1362 -63 .

In Groh , we sta ted that " patterns of housing , inc omelevels and minority residences" in an urban area "mayform a basis for districting, [although] they lack the nee-essary significance to justify" large population variances .526 P.2d at 879 . We identified transpo rt ation ties ,namely ferry and daily air service, geographical similari-ties and historical economic links as more significantfactors. Id. (holding that a district in southeast Alaskacomprising the mainland communities of Juneau, Hainesand Skagway was sufficiently integrated , consideringthat the rest of Southeast was island oriented) .

[HN8 ]The Alaska Constitution requires districtscomprising "relatively integrated" areas . Alaska Const.arC . VI , & 6 . Pe ti tioners argue that the term "relatively"diminishes the degree of socio-economic [**21] integra-tion required within an election distri ct We are urged tocompare all proposed districts with a hypothetical com-pletely unintegrated area, as if a district including bothQuinhagak and Los Angeles had been proposed. Wedecline to adopt peticioners' interpretation of this provi-sion .

[11N9 ] "RelaCively" means that we compare proposeddistricts to other previously existing and proposed dis-tricts as well as principal alternative districts to deter-mine if socio-economic links are sufficient . "Relatively"does not mean "minimally," and it does not weaken theconstitutional requirement of integration.

B. EQUAL PROTECTION .

[HNIO]"In the context of voting rights in redistrict-ing and reapportionment litigation, there are two princi-p les of equal protecti on, namely that of'one person, onevote' -- the right to an equally weighted vote -- and of'fair and effective representation' -- the right to groupeffectiveness or an equally power fu l vote." Kenai Penin-sula Borouah 743 P.2d at 1366. The former is quantita-tive, or purely numerical, i n nature; the latter is qual ita-tive. Id. at 1366-67 .

The equal protection clause of the Alaska [**22)Constitution " has been interpreted along lines whichresemble but do not precisely parallel the interpretationg iven the federal clause. 1 ° While the first part, "one per-son, one vote," has mirrored the federal requirement, see,e.g., Groh, 526 P.2d at 875, the second part, "fair andeffective representation," has been interpreted morestrictly than the analogous federal provision.

13 The Alaska Equal Protection clause providesthat " all persons are equal and entitled to equal

ri ghts , opportunities, and pro te cti on under thel aw . ... " Alaska Const . art . I, 6 I.14 The Federal Equal Protection clause providesthat " No state shall ... deny to any person withinits jurisdiction the equal pro te ction of the laws ."U . S . Const . Amend . XIV , $ 1 .

1 . One Person , One Vote .

[HNl I 1 ^[A] State [must] make an honest and goodfaith effo rt to construct districts, in both houses of itslegislature , as nearly of equal population as is practica-ble." Re olds v Sims, 377 U . S 533, 577 , 12 L. Ed . 2d506, 84 S . Ct . 1362 (1964) , [**23] quoted in Kenai Pen-insula Borou gh , 743 P .2d at 1358 . " Whatever the meansof accomplishment , the overriding objective must besubstantial equali ty of population among the variousdistricts, so that the vote of any c i tizen is approximatelyequal in weight to that of any other citi zen in the state . "Revnolds , 377 U.S . at 579.

We discussed the Supreme Cou rt 's equal populationrequirement of "substantial equality" in Kenai PeninsulaBorough : [HN 1 2]

Under a "one person, one vote" theory,"minor deviations from mathematicalequality among state legislative districtsare insufficient to make out a prima facie[*48] case of invidious discriminationunde r the Fourteen th Amendment so as torequire justi fication by the State." ... Asa general matter an apportionment plancontaining a maximum population devia-tion under 10% falls within the categoryof minor deviat i ons. The s tate must pro-vide justification for any greater devia-tion.

743 P.2d at 1366 (quoting Gaffnev v. CumminQS, 412U.S. 735, 745, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973))[**24] (c itations omitted). "s Thus, we have recognizedthat the effectua tion of the artic l e VI, section 6 requ ire-ments will justi fy populat ion deviations greate r than 1 0percent. Id. at 1360. Accordingly, [HN13]as a matter offederal constitutional law the Governor may in goodfaith declare election districts with a maximum popula-tion deviation greater than 10 percent, if such deviationsare a result of the creation of contiguous, compact andrela tively socio-economically integrated areas. "

15 We also art iculated this the ory in Groh:

8 46 P . 2d 3 8, *; 199 2 Alas . LEXIS 13 6, * *

We conclude th at in the absenc eof a showing that the manner ofreapportio ning a state was im-properly motivated or had an im-permissible effect , deviations ofup to ten percent require no show-ing of justification . The state,however, has the burden of show-ing that deviations in excess of tenpercent are "based on legitimateconsiderations incident to the ef-fectuation of a rational state pol-icy . "

526 P . 2d at 877 (quoting White v. Re gester, 412U S 7 55 764 37 L. 2d 314 93 S. Ct 23321973 (footnote omitted) .

[ ** 25]16 In Mahan v. Howell, the United States Su-preme Court approved a deviation of 16.4 percentbased on the preservation of political subdivisionboundaries, 410 U . S . 315 (1973). That deviationhas been seen by many as the outer limit whichthe Supreme Court will allow, See Travis v .Kine 552 P Suoo 554, 562 (D. Haw. 1982) .

We have identified several other state policies whichmay also justify a population deviation greater than 10percent We noted that a state's desire to maintain politi-cal boundari es is sufficient justification provided thisprinciple is consistently applied. Kenai Peninsula Bor-ough, 743 P . 2d at 1360. Similarly, we implied that ad-herence to Native corporation boundaries might alsoprovide justification, as long as the boundaries were ad-hered to consistently . Groh , 526 P.2d at 877-78 (holdingthat the utilization of a portion of the Calista corporateboundary as a distr ict boundary was not an adequate jus-tification where the Calista region was otherwise [ * *26]fractionated by the reapportionment plan) . "

17 We recognized in Groh that it was reasonableto avoid combining two areas populated by resi-dents who had a history of confl ict . We rejectedthe suggestion that this factor alone justified theunderpopulation of the district comprised of oneof these areas . We noted that no explanation hadbeen offered "why other areas could not havebeen added to the district so as to create less of avariance," 526 P . 2d at 878 . Upon objection to theredistricting plan, however, we found suffi cientjustification for the Board's overrepresentation ofDis tr ict 16 (Bristo l Bay) :

It is now apparent that the onlyalternative to the Eoard' s originaldistricting of that area is to disre-gard an impassible mountainrange, the natural barrier formedby Cook Inlet, the lack of directtransportation or communicationlinks, the corporate boundaries ofthe Kenai Peninsula Borough , thecohesiveness of interests of resi-dents of that Borough and the dis-parate interests of the populationof the Bristol Bay area . We nowfind that legitimate considerationsincident to the implementation ofrational state policy j ustify theoverrepresentation of House Dis -trict No . 16 (Bristol Bay) as origi-nally designated and overridemathematical requirements .

Id . at 879 . Given the lack of reasonable alterna-tives to the initial plan, as well as the Board'sgood faith effort in adding to the district , we re-versed our initial order invalidating the plan .

[ **27] On the other hand, we have rejected severalpolicies as inadequate justifications for population devia-tion . We held that the "mining potential in the [Nome]area and the need for a 'common port facility"' did notjustify a 15 percent overrepresentation where "themakeup of the population both to the north and the east[did] not vary significantly from that of the adjoiningvillages within the Nome [election district] boundaries . "Groh, 526 P.2d at 877 .

2, Fair and Effective Representation .

In addition to the guarantee of substantial mathe-matical equality, [HN14]the Equal Protection Clause ofthe United States Cons ti tution provides for the more[*49] nebulous guarantee of fair representation . Underthis qualitative principle, certain mathematically palat-able appo rt ionment schemes will be overturned becausethey systematically circumscribe the voting impact ofspecific population groups . This principle recognizes thedanger that racial and political groups will be "fenced outof the political process and their voting s trength invidi -ously minimized." Gaffney v . Cummin £:s , 412 U S 735 ,754 , 37 L. Ld. 2d 298 , 93 S . Ct. 2321 (19731 . [**28 1

A plurality of the United States Supreme Court hasindicated that [HNIS]a mere lack of proportional repre-sentation will be insufficient to suppo rt a finding of un-constitutional vote dilution . Plainti ffs mus t prove bothintentional discriminat i on against a g roup and a dis-

8 46 P . 2d 38 , * ; 1992 Alas. LEXIS 136, * *

crimin atory effect on that group . 'a Davi s v . Bandemer478 U S 109 1 27 92 L. Ed. 2d 85 106 S . Ct . 27971986 . In addition , the plurality opinion requires ashowing of a pattern of discrimination:

In this context, such [HN16]a finding ofunconstitutionality must be suppo rted byevidence of continued frustration o f thewill of a majority of the voters or effec-tive denial to a minority of voters of a fairchance to influence the political process .

Id . at 133, quoted in Kenai Peninsula Borounh, 743 P .2dat 1369 . Thus , [HN 1 7]under the qualitative principle offederal equal protection, fair representation is deniedwhere there is "proof that the group has been consistentlyand substantially ex cluded from the political pro ce ss[and] denied political effectiveness over a[**29 ) periodof more than one election. " Kenai Peninsula Borough ,743 P . 2d at 1369 .

18 In the context of discrimination against a po-litical group , the intent requirement is probablyminimal . As Justice White noted in Bandeiner,"As long as redistr icting is done by a legislature,it should not be very difficult to prove that thelikely political consequences of the reapportion-ment were intended . " 478 U.S. at 129 . See Lanr-ence H. T ribe, American Constitutional Law §13-9 , at 1082 n . 9 (2d ed . 1988) .

The Supreme Court has also required ashowing of discriminatory intent in the context ofdiscrimination against a racial group . Mobile v .Bolden 446 U.S . 55 62 66 64 L Ed 2d 47 100S. Ct. 1490 (1980) . However, Congress re-sponded to the Bolden decision by amending sec-tion 2 of the Voting Rights Act so as to do awaywith the intent requirement . Voting Rights ActAmendments of 1982, Pub. L. No. 97-205, § 3,96 Stat . 134 . See L. Tribe, supra, § 13-8, 1078-80.

[**30] [HN18]

The equal protection clause of the Alaska Constitu-tion imposes a more strict standard than its federal coun-terpa rt . Kenai Peninsula Borough , 743 P . 2d at 1371;Tsakson v Rickey 550 P 2d 359 362-63 (Alaska 1976)(requiring a more flexible and demanding standard andnoting that the cou rt "wi ll no longer hypothesize factswhich would sustain otherwise questionable legislation

as was the case under the traditional rati ona l basis stan-dard") . In the context of reappo rtionment , we have heldthat upon a showing that the Board acted intentionally todiscriminate against the voters of a geographic area, theBoard must demonstrate that its plan will lead to greaterpropo rtionality of representation . Kenai Peninsula Bor-ouah, 743 P.2d at 1372 . Because of the more strict stan-dard, we do not require a showing of a pattern o f dis-crimination , and do not consider any effect of dispropor-tionality de minimis when determining the legitimacy ofthe Board's purpose . Id .

C . VOTING RIGHTS ACT .

The Federal Voting Rights Act, 42 U . S . C. & 19731988 , also plays a significant [**31 ] role in the reap-portionment of state election dis tricts. The purpose ofthis Act is to protect the voting power of racial minori-ties: [HN19]"Under section 5 of the Act, a reappo rt ion-ment plan is invalid if it 'would lead to a retrogression inthe position of racial minorities with respect to their ef-fective exercise of the electoral franchise . ' " Kenai Pen-insula Boroueh 743 P2d at 1361 (quoting Beer v .United States 425 U S 130 141 47 L Ed. 2d 629 96 S .Ct . 1357 (1976)) ; 42, U S C . 6 1973c (1988� . We havenoted that compliance with section 5 is a legitimate goalof a Reappo rtionment Board: "A state may constitution-ally reapportion districts to enhance the voting strengthof minorities in order to facilitate compliance with theVoting [*501 Rights Act." Kenai Peninsula Borouah,743 P .2d at 1361.

[HN20]Section 2 of the Act, as amended in 1986,creates a cause of action to remedy the use of ce rtainelectoral laws or practi ces which, when interacting withsocial and historical conditions, create an inequality inthe opportunities enjoyed by voters Co elect their [**32]preferred representatives . Thornburg v. Gineles , 478U . S 30, 47, 92 L . Ed . 2d 25 106 S. Ct. 2752 (1986) .Plainti ffs may have a redistricting plan or an electioninvalidated if they can prove that 1) under the totality ofthe circumstances, the redistricting results in unequalaccess to the electoral process; and 2) racially polarizedbloc voting exists. "The conjunction of an allegedly di -lutive electoral mechanism and the lack of propo rt ionalrepresentation alone does not establish a violation . " Id_at46 .

I n each of our previous reapportionment decisio nswe have noted the d i fficulty i n drawing el ection distric tsin Alaska. We have emphasized the need to preserveflexibility in the redistricting process so that all constitu-tiona l requirements may be satisfied as nearly as practi-cable.

At the outset we recognize the difficultyof creating districts of equal population

846 P . 2d 3 8 , * ; 1992 Alas . LEXIS 136, **

while also conforming to the Alaska con-stitution a l mandate that the districts " beformed of contiguous and compact terri-tory containing as nearly as prac ti cable arelatively integrated soci o-economic[ ** 33] area ." When Alaska's geographi -cal , climatical, ethnic , cultural and socio-economic di fferences are contemplatedthe task assumes Herculean propo rtionscommensurate with Alaska's enormousland area . The problems are multiplied byAlaska's sparse and widely scatteredpopulation and the relative inaccessibilityof po rtions of the state . Surprisinglysmall changes in district boundaries createlarge percentage variances from the idealpopulation .

and the cities of Haines and Petersbur g. District 3 in-cludes the downtown port i ons of Sitka and Ketchikan,the City of Saxman , the c ommuni ties o f Annette , Met-lakatla, Hydaburg, Crai g , Point Baker , Po rt Armstrong ,Pelican and Yakutat, As [**35] such , it includes pa rt sof CUicagof, Baranof, Admiralty , Kupreanof, Prince o fWales and Revi ll agi gedo Islands . District 3 stre tchesalmost the en ti re length o f Southeast from Annette toYakutat.

The districts created by the Governor's plan do nottake into account several local municipal boundaries .The plan separates [*51] the downtowns of two majorcities from the rest of the cities (Sitka and Ketchikan) . Italso splits two closely interrelated cities, Ketchikan andSaxman . Further, the plan ignores natural geographicboundaries by splitting all of the major islands of theAlexander Archipelago.

When confronted with conditions sodifferent from those of any other singlestate in the continental United States, it isreadily apparent that it becomes well nighimpossible to achieve the mathematicalprecision of equal proportions which isfeasible in those other states.

Eean v . Hammond, 502 P.2d 856, 865 -66 (Alaska 1972)(footnotes omitted) (quoting Alaska Const . art . VI & 6),quoted in Groh, 526 P.2d at 875 and Kenai PeninsulaB orough , 743 P . 2d at 1359.

Thus, although the Board and the Governor are freeto pursue their own policies and goals in recommendingand declaring redistricting and reapportionment, suchpolic i es may not [**34] be pursued at the expense of thefederal and Alaska constitutional and statutory mandates.

I II. REGIONAL APPLICATIONS

A . SOUTHEAST ALASKA.

Under the Governor's reapportionment plan, south-east Alaska (Southeast) was divided into five electiondistricts, designated I through 5 . " Respondent SoutheastConference contends that Dis tricts 1, 2 and 3 violatearticle VI section 6 of the Alaska Constitution . The trialcourt agreed, finding specifically that "The districts ofSoutheast are not socio-economically integrated and theyeasily could have been ." We affirm this conclusion.

19 See page 2 oFAppendix A.

District I includes most of the Ketchikan GatewayBorough , th e Ci ty of Wrangell and the eastern half ofPrince of Wales Isl and . District 2 includes most of Sitka

[HN21]Article VI, section 6 does not require thatdistricts be drawn along municipal boundaries. Rather,the provision states only that "consideration may begiven to local government boundaries." Alaska Const.art . VI, § 6. However, local boundaries are significant indetermining whether an area is relatively socio-economically integrated. By statute, a borough must havea population which "is interrelated and integrated as toits social, cultural, and economic activities." AS29.05.031 . 20

20 Although a reapportionment plan may splitboroughs in forming el ection districts, the divi-sion of a borough which otherwise has enoughpopulation to support an election district will bean indication of gerrymandering. There must besome legi timate justification for not preservingthe government boundaries in such a case.

[**361 Divisions of Ketchikan and Sitka are notpermissible unless the result ing districts evidence a pat-tern of relative soci

'o=economic integration . The resulting

Dis trict 3 is not composed of relatively integrated socio -economic areas. Distr ict 3 mixes the small, rural, Nativecommunities with the urban areas of Ketchikan andSitka . These rural and urban communities have differentsocial concerns and political needs . Logical and naturalboundaries cannot be ignored without raising the specterof gen-ytnandering .

The Ketchikan Gateway Borough has a populationof 13,828, only 71 people above the ideal district size.Saxman, part of the Borough, is more socio-economically integrated with the City of Ketchikan thanit is with other Native communiCies of the Southeast is-lands. " Prince of Wales Island is likewise more socio-economically integrated as a whole than it is rela tive to

846 P . 2d 38 , *; 1992 Alas . LEXIS 136 , * *

the rest of District 3 in which the western half of the is-land was placed .

21 The city of Saxman urged the governor not tosplit Saxman from the rest of the Borough. TheKetchikan Indi an Corporation , the Sealaska Cor-poration and the Grand Camp of the Alaska Na-tive Brotherhood all objected to the Governor'splanned splitting of the Borough .

[* * 37] The Board cited the Voting Rights Act as itsjustification in creating District 3 . District 3 was meantto be a Native influence district. The proposed configu-ration of District 3 raised the Native percentage of thedistrict two percentage points compared Co the old "Is -lands District . " However, such an awkward reapportion-ment of the Southeast Na tive population was not neces-sary for compliance with the Voting Rights Act . " An"Island" District [ * 52] can be configured which satisfiesthe requirements of the Voting Rights Act and which ismore compact and better integrated socially . "

22 Our conclusion underscores the error in theBoard's methodology in reconciling the require-ments of the Voting Rights Act with the require-ments of the Alaska Constitution. The Board wasadvised to expect that any challenges to the reap-portionment plan would come under the newlyamended section 2 of the Voting Rights Act.Consequently, the Board accorded minority vot-ing strength priori ty above other factors, includ-ing the requirements of article VI, section 6 of theAlaska Constitution. This methodology resultedin proposed dis trict 3 , a district which does notcomply with the requirements of the Alaska Con-stitution. However, proposed district 3 is not re-quired by the Voting Rights Act, either .

Article IV of the United States Constitutionprovides that "This Constitution, and the laws ofthe United States which shall be made in pursu-ance thereof ... shall be the supreme law of theland. . . ." This mandates that provisions of statelaw, including state constitutional law, are void ifthey conflict with federal law . To the extent thatthe requirements of article VI section 6 of theAlaska Constitution are inconsistent with theVoting Rights Act, those requirements must giveway. However, to the extent that those require-ments are not inconsistent, they must be given ef-fect . The Voting Rights Act need not be elevatedin stature so that the requirements of the AlaskaConstitution are unnecessarily compromised .

The Board must first design a reapportion-ment plan based on the requirements of theAlaska Constitution. That plan then must be

tested ag ainst the Voting Rights Act, A reappor-tionment plan may minimize a rt icl e VI, section 6requirements when minimization is the onlymeans available to sati s fy Voting Rights Act re-quirements .

In our order of June 8 , 1992 , we directed thatthe superior court, in drafting an interim plan,give priori ty to the Voting Rights Act over therequirements of article VI section 6 of the AlaskaConstitution. In that context , expediency man-dated that an interim plan be formulated in timefor the 1992 elections, and that compliance withthe Voting Rights Act be ensured . In drafting apermanent plan, however, the Board's design willnot be compelled by expediency . The Boardshall ensure that the requirements of a rt icle VIsection 6 of the Alaska Constitution are not un-necessarily compromised by the Voting RightsAct .

[* *38]23 The Island District approved by this cou rt aspart of the 1992 interim plan excludes the urbanareas of Ketchikan and Sitka and respects all lo-cal government boundaries in SoutheasternAlaska. While it is not compact, non-compactness appears to be necessary in order tocomply with the Voting Rights Act and it is , inany case, more compact than the proposed con-figuration of District 3 . See Appendix H .

Thus , Districts 1, 2 and 3 all violate article VI, sec -tion 6 of the Alaska Constitution, These districts do notcontain, as nearly as practicable, relatively integratedsoci o- economic areas, identified with due regard for l o-cal governmental and geographic boundaries . Althoughthese boundaries need not necessarily be followed increating election districts, they must be considered by theBoard in so far as they indicate the true socio-economicintegration of several areas,

B . MATANUSKA-SUSITNA BOROUGH.

The Matanuska-Susitna (Mat-Su) Borough was di-vided among five house districts, designated 6, 26, 27, 28and 34, '^ Only District 27 is wholly composed of landwithin the Mat-Su Borough. [**39] District 6 group sP almer with Pr i nce Wi ll iam Sound. District 26 groupsthe residential neighborhoods between Palmer and Wa-silla with Chugiak and the northern communities of theMunicipality of Anchorage. District 28, stretching to theCanadian border, comprises interior Ahtna areas andparts of the Gulkana and Copper River valleys. It in-cludes Glennallen, Tok and Delta Junction. It also in-cludes a narrow corridor which reaches into the Mat-SuBorough, and encompasses the outskirts of Palmer andWasi l la. " District 34 combines Willow, Talkcetna and a

846 P . 2d 3 8, * ; 1992 Alas . LEXIS 136 , **

large portion of the rural no rthern part of the Mat-SuBorough with a maj ority of the Denali Borough and apart of the Fairbanks North Star Borough that includesthe communities of North Pole, Salcha and Eielson AirForce Base .

24 See page 3 of Appendix A.25 Because of this corridor, District 28 becameknown as and is referred to in briefing as the"Oosik District . "

As noted above, a borough is by definition socio-economically integrated. It is axiomatic [* *40 1 that adis trict composed wholly of land belonging to a singleborough is adequately integrated . Thus, District 27 com-plies with that requirement .

We recognize that it may be necessary to divide aborough so that its excess population is allocated to adistrict situated elsewhere . However, where possible, allof a municipality's excess population should go to oneother district in order to maximize effective representa-tion of the exce ss group . " This result is compelled notonly by the art icle VI , section 6 requirements, but also bythe state equal protection clause which guarantees theright to propo rtional geographic representation . SeeKenai Peninsula Borough v. State , 743 P.2d 1352, 1369 ,1372-73 Alaska 19871 (stating that a primary indicationof intentional discrimination against a geographic regionwas a lack of adherence to established political subdivi-sion boundari es).

26 Dividing the municipality's excess populationamong a number of districts would tend to dilutethe effectiveness of the votes of those in the ex-cess population group . Their collective votes in asingle distri ct would speak with a stronger voicethan if distributed among several districts .

[ **41] In this case, the Mat-Su Borough populationis allocated between five districts . With the exception ofDis trict 27, the resulting districts have serious sho rtcom-ings in their resulting relative socio-economic integra-tion .

There is evidence of some soc i o-eco nomic integra-tion between the Mat- Su B o rough are a s and the Anchor-age areas of District 26 . However , considerable testi-mony indicated that the Mat- Su resid ents were morenaturally linked to Palmer and Wasilla than they were toAnchorage . Moreover, we find it si gnificant that Palmer ,Wasilla and the area between them were placed in threes eparate dis tr icts despite the fact that these [* *42 1 com-munities share most of their public facilities.

District 28 also does not contain relatively socio-economically integra ted areas. It too combines a regionof Mat-Su with an unorganized borough. It also includespart of the primari ly rura l Denali Borough. Moreover,District 28 fai ls for its lack of compactness. The corridorwhich extends into the Mat-Su Borough was promptedby a desire to attain mathematical equality among legis-lative distric ts. However, we have previously noted thatpopulation deviations up to 10 percent require no justifi-cation and that the Board may use larger deviations inorder to effectua te the requirements of article VI, section6. Kenai Peninsula Borough v. State, 743 P 2d 1352.1260 (Alaska 1987). The Board's failure to create a com-pact district is not justified by rigid adherence to mathe-matical equality.

District 34 al so fails for its lack of relative socio-economic integration. This district links two areas withalmost no soc io-economic integration. The Mat-Su Bor-ough communities in this dis trict are rura l and thus sharefew common interests with the suburban Fairbanks andmilitary areas of the Fairbanks North [**43] Star Bor-ough .

We thus hold that the configuration dividing theMat-Su Borough among five districts is invalid . TheGovernor's plan unfairly dilutes the proport ional repre-sentation the residents of the Mat-Su Borough are guar -anteed. A municipality should not be made to contributeso much of its population to dis tricts centered elsewherethat it is deprived of representation which is justified byits population. The plan also results in four districtswhich are not relatively socio-economically integratedand one district which is not suffi ciently compact .

District 6 merges Palmer with the Prince Wi lliamSound communities . Palmer is the governmental centerof the Mat-Su Borough, an established agricultural area .In [*53] contrast , the Prince William Sound communi-ties are oriented toward commercial fishi ng and maritimeactivities . Fu rt her, Palmer is part of an organized bor-ough whereas Prince William Sound is not . The interestsof Palmer residents may be adverse to those of the resi-dents of an unorganized borough on issues such as prop-erty taxes and state funding of programs such as educa-tion .

C. ELECT ION DISTRICT 35.

Under the Board's plan, District 35 encompasses avast portion of interior and northern Alaska . " Itsboundar ies extend from Point Hope on the northwestcoast to the border of Alaska and Canada on the east, andfrom Barrow in the no rth to Tyonek in the south . Thusconstructed, District 35 also includes the area betweenthe Brooks Range and the Arctic Ocean , which is c om-monly referred to as the North Slope , and traditionallyinhabited by the Inupiaq Eskimo. To the so uth, District35 ex tends acr oss the Brooks Range to in clude much o f

846 P . 2d 38 , * ; 1992 Alas . LEXIS 136 , **

the sparsely populated river drainages of interior Alaska'a traditionally [ **44] inh abited by the Athabaskan Indi-ans .

2 7 See page I o f Appendix A .28 The district includes the Koyukuk River val-ley, much of the area drained by the Yukon Riverfrom a point upstream from Russian Mission tothe Canadian border, and much of the Kuskok-wim River drainage upstream from a point nearStony River .

Judge Weeks described the joining of the NorthS lope Inupiaq and the I nteri or Athabaskan areas into onedistrict as "probably the si ngle worst combination thatcould be selected if a board were trying to maximizesocio-economic integration i n Alaska." The linkage ofthese geographically divided and [*54] culturally dis-tinct areas has been described as a "worst case scenario."

The record indicates that the Board formed theboundaries of Dis trict 35 with little consideration of therelative socio-economic integration of the people wholive there . Board Chair Vezey testified that he placedlittle reliance on a socio-economic study of the area . Mr.Vezey also noted that there was no testimony from[**45] Inupiaq or Athabaskan witnesses favoring link-age of the areas. Further, Board member Pickrell re-called no discussion by the Board regarding joining theInupiaq and Athabaskan areas .

The record also demons trates minimal past and pre-sent socio-economic integration between the Inupiaq andAthabaskan cultures. Brenda Itta- Lee, an Inupiaq com-munity leader from Barrow, and Georgianna Lincoln, arepresentative in the state legislature and Athabaskancommunity leader from Rampart, both testified regardingthe physical sep aration of the two cultures and the his-torical , linguistic and economic differences between thecultures . Evidence introduced at trial indicates that theaverage annual per capita resident income on the NorthSlope exceeds $ 26,000 while in the Doyon Athabaskanregion the average is less than $ 6000 . Social scientistswho testified at trial described the actual socio -economicintegration between the Inupiaq and Athabaskan as in-significant .

Based on the reco rd, we conclude that Dis trict 35violates article VI, section 6 of the Alaska Constitutionbecause it does not encompass , as nearly as practicable , arelatively integrated socio-economic area .

D. THE ALEUTIAN ISLANDS .

[**46] The Board's p lan divides the Aleutian Is-lands between two districts. 2' The eastern Aleutians arein District 39, and the western Aleutians in Dis trict 37.On its face this severance violates the contiguous terri-

to ry requirement of article VI, secti on s ix o f the AlaskaConstitution. ' 0 Although the part ies did not raise thisissue, the separation of the Aleu tia n Islands is so plainlyerroneous that we address th e issu e sua sponte . Thus, inexercise of our authority und e r arti c le IV, section two ofthe Alaska Constituti on , we hold that the separati on o fthe Aleutian Islands into two distri c ts violates art i c le VI,section six o f the Alaska Constitution .

29 See page 1 of Appendix A.30 In our order of remand, we noted that theAleutians must be joined together in one districtunless their separation is mandated by federallaw . Since federal law does not mandate theirseparation, the contiguous territory requirementof the Alaska Constitution controls .

I V. POPULATION BASE

The Board used the [ * *47] 1990 census as itspopulation base. However, the Board did not sub tr actfrom the census data military personnel who were sta-tioned in Alaska at the time the census was taken , butwho did not consider themselves Alaska residents . TheGovernor did not vary the population base from theBoard's recommendation .

Previously we held that the exclusion of non-resident military personnel (NRMP) from the populationbase is constitutionally pennissible . However , we havenever decided whether exclusion was constitutionallyrequired. We have not addressed this issue before be-cause NRMP have been excluded from the populationbase in every previous dis tr ict reappo rtionment, with theexception of the interim plan we devised for the 1972elections following Eean v . Hammond , 502 P2d 856,870 (Alaska 19721.

The state argues that the inclusion of NRMP was apolicy choice it was allowed to make , and that we shoulddefer to that choice . The state argues fu rther that inclu-sion of NRMP is permissible because it is impossible toaccurately estimate the number of military personnelwho are not residents . It notes that this question is differ-ent with this reapportionment [**48] because the UnitedStates Army and Air Force no longer make personneldata available to the state. The state maintains that inlight of this, it acted within its discretion [*55] by in-cluding all military personnel in the population base . "

31 The Board was advised that it would be ex-tremely difficult to accurately identify the NRMPbecause the U . S. census allowed cert ain militarypersonnel to allocate themselves to other states .Fu rther , they were told that the United StatesAimy and Air Force would no ] onger re l e aseresidency information because of the Privacy Act

8 46 P . 2d 38, *; 1992 Alas . LEXIS 136 , * *

and Civil Righ ts Act. The Board was also ad-vised that it migh t fac e Depart ment of Justicepreclearance problems if the NRMP were in-cluded .

The respondents argue that exclu sion is co nstitu-tionally required since inclusion would violate the reap-portionment provisions and the equal protection clause ofthe Alaska Constitution. They argue that the effect of theinclusion is the dilution of the voting power of residentsof areas of Alaska without [**49] large mi li ta ry popula-tions.

In Egan, we implemented an interim plan without aNRMP exclusion because "it was not possible to compilesufficiently accurate data to provide a reasonable basisfor excluding any number of military from the popula-tion base . " 502 P .2d at 870 . However, we also recog-nized "the need for a permanent plan which achieves alevel of accuracy of [the military population's] votingparticipation which is closer than either including or ex -cluding a ll mi li tary as a class . " 12 502 P . 2d at 870. "Thechallenge is to arrive at the best approximation of thepopulation to be counted without losing sight of the factthat the right of equal representation is also an individualand personal right . " Eean 502 P 2d at 869 .

32 This need was recognized in light of thethreat of "unbalanced representation" resultingfrom the inclusion of NRMP. Eean, 502 P . 2d at870. Thus the constituti onal concern is one ofequal protection . The reappo rt ionment provi-sions favor the use of census data . "Alaska's con-stitution requires that the requisite population to-tal be arrived at by use of the census data . It doesnot mandate a population base composed exclu-sively of registered voters, citizens who havepreviously voted in Alaska, or only those peopleliving in Alaska with the intention of makingAlaska their home. " Id . at 861 .

[ * *50] We therefore hold that [HN22]exclusion isnot constitutionally required if it is not possible to accu-rately identify those military personnel who are non-residents . " However, it is necessary to consider altema-dve plans for obtaining a sufficiently accurate plan forestimating the number of NRMP . Id . (noting that it was"incumbent upon [this court] to discuss alternative planswhich may be available to handle the problem") . Seealso Groh v. Eean , 526 P . 2d 863 , 868 (Alaska 1974)(finding that the Board's careful examination of alte rna-tives supported the conclusion that the state's choice ofpopulation base was rational) .

33 However, the estimation of the percentage ofNRMP need not be any more precise than the ap-

proximation o f o ther portions of the populationba s e . S e e Eean . 502 P . 2d at 869.

The key determination is whether the Board's ef-fo rts in " discussing the alternatives" were sufficient tosuppo rt its c onclusion that compiling accurate data was[* * 51] impossible , The trial court found that a "hardlook" was required . The hard look requirement is consis-tent with our previous acknowledgement that the statehas a compelling interest in attempting Co excludeNRMP . Caprenter 667 P .2d at 1213 (identifying the"compelling state interest" as " the prevention of the dilu-tion of its residents' voting strength"). See also Revnoldsv Sims 377 U . S . 533, 555, 12 L. Ed 2d 506 84 S Ct1362 (19641 ("The right of suffrage can be denied by adebasement or dilution of the weight of a citizen's votejust as effectively as by wholly prohibiting the free exer-cise of the franchise . ") .

Judge Weeks identified six "legitimate reasons" forincluding the NRMP . He also found that although theextent of non-residency among the mili tary was deter-minable , it was unclear whether it was possible to make areliable determination of the enumeration distr icts inwhich non-resident , off-base military personnel lived.Despite these findings, he concluded that the Board didnot take a "hard look" at this issue. The inclusion of allmilitary personnel in the population [**52] base wasthus not justifiable .

Judge Weeks apparently believed that the reasonsstated by the Board for including [*56] NRMP werepost hoc justifications. Also he found i t s i gnificant thatthe Board's legal adv i sor advised strongly to excludeNRMP.

At its March 4, 1991 meeting , the Board adopted thepolicy that the population base for the reapportionmentwould be the 1990 census data. The Board decided thatit would not adjust the census data to account for NRMP .

In its Report and Proposed Plan, the Board discussedseveral methods for determining the appropriate adjust-ment to be made . The Board discussed the method usedby the 1973 Board whereby the number of Alaska resi-dents on a military base was determined by multiplyingthe number of registered voters on the base by the state-wide person-counted/registered-voter ratio. The numberof "residents" obtained was then divided by the numberof adults living on the base to derive a percentage ofresidents. When the same method was applied to the1990 data, all the military bases showed a greater thanone hundred percent resident percentage .

The Board explained that other available surveymethods were not adequate. It indicated [ * *53 ] that ithad received expe rt advice that the survey method usedin the Department of Labor study made that study made-

846 P 2d 38 , *; 1992 Alas . LEXIS 136 , * *

quate to se rv e as a basis for making an adjustment . TheB oard also stated that it had solicited surveys from twopo litical po llsters in Alaska and had been rejected . " TheBoard explained that " a poll taken a sign i ficant period oftime after the Census enumerati on 'would be a samplingof a different set of people with possibly changed atti-tudes . ' "(quoting Eean , 502 P . 2d at 887) . Finally, theBoard eliminated Permanent Fund Dividend applica-tions, Military Leave and Earning statements, and regis-tered voter data bases as reliable sources of informationabout residency . "

V. PROCEDURAL DEFECTS (OPEN MEETINGSAND PUBLIC RECORD ACTS)

Judge Weeks concluded that the Board [*57] vio -lated the Open Meetings Act " and the Public RecordsAct 38 as it formulated its reapportionment plan . How-ever, he also determined that "because of the other deci-sions in this case , the public interest is better served bynot voiding the plan on the basis of Open Meetings Actviolations." He did not grant re li ef on the basis o f theOpen Meetings Act or the Public Records Act .

34 The evidence of these solicitations are per-sonal phone conversations between Babcock andthe solicited pollsters . There is no indication asto the reason the pollsters declined to conduct thesurvey.35 These were the only alternatives consideredat the March 4 , 1991 meeting at which the initial"guidelines" were adopted . At this meeting theBoard was presented with and accepted the ar-gument that the census was the only feasiblepopulation base .

[ * *54] The Board attempted to discover what otheraltern atives existed. As noted , the Board received expertopinion that an accurate survey was methodologicallyimpossible . Even when the Board was told that a state-wide survey was possible , it was told that identifying theNRMP in each district would be impossible . " The Boarddiscussed the expert opinion at its March 4 meeting andagreed with the proposal of director Babcock that, atleast as an initial guideline, the survey could not be per-formed. Additionally the Board determined that the in-clusion of NRMP would not result in a rural/urban bias .The Board thus concluded that its original guideline ofusing the census data as its population base was proper .

36 The Board also claims that the effect of in-clusion was minimal due to the very low NRMPpopulation. However, the Board did not produceany significant data supporting this assertion.

Based on what we have previously required of re-apportionment boards, we conclude that the Board's" look" was "hard" enough . [HN23 ] [**55] It is not nec-essary to attempt a survey or statistical analysis when athorough examination reveals that such a survey is notpossible . Groh, 526 P.2d at 868-69. Rather, we needonly be assured that the Governor's authority was "exer-cised in a rational as opposed to an arbitrary manner. " Id .at 868 . Although we have found a "thorough and exem-plary exploration" to be persuasive in proving that theBoard' s decisi on was rational, we have not required it.Groh , 526 P . 2d a t 868. The Board's consideration of al-tern ative s and expert advice was sufficient examination.

37 AS 44.62 . 310- 312.[* *56]

38 AS 09 . 25.110 - .140 .

We agree with Judge Weeks that these Acts gener-ally apply to the activities of the Reapportionment Board.However, since he did not grant re lief on the basis ofe i ther Act, we decline to determine the extent of theirapplicat ion to specific activit ies. S imi larly, we decline todetermine whether an independent constitu tional basisexists for ensuring public access to the B oard's meetings.Accordingly, we affirm only the trial court's determina-tion that the Open Meetings Act and Public Records Actapply general ly to the act iv it i es of the ReapportionmentBoard.

VI . CONCLUSION

We AFFIRM the superior court's conclusion that theplan's formulation of Districts 1, 2 and 3 violates articleVI , secCion 6 of the Alaska Constitution , because thedis tricts are not "socio-economicaliy integrated and theyeasily could have been." We also AFFIRM its conclusionthat the configuration which divides the Mat-Su Boroughamong five districts (designated 6, 26, 27, 28 and 34) isinvalid, since it unfairly dilutes the propo rtional repre-sentation guaranteed to the Mat- Su Borough's residents .[* * 57] Further , we AFFIRM its conclusion that District35, which joins the North Slope Inupiaq and the InteriorAthabaskan areas, violates arYicle VI section 6 of theAlaska Constitution because it does not encompass arelatively integrated socio-economic area .

We conclude independently that the separation ofthe Aleutian Islands into two districts violates the con-tiguous territo ry requirement of art icle VI section 6 ofthe Alaska Consti tuti on .

We AFFTRM the superior court's conclusion that theOpen Meetings Act and Public Records Act apply to theBoard . We decline to address its conclusion that thepublic interest would not be served by voiding the planon the basis of Open Meetings Act violations.

We REVERSE the superior court's conclusion thatthe Board failed to make a reliable determination regard-ing the inclusion or exclusion of non-resident military

8 46 P . 2d 3 8 , *; 1992 Alas, LEXIS 136 , **

pers onnel . The Board's consideration of various alterna-t i ves and expert advice was a sufficient "hard look" atthis issue .

The case has been remanded to the superior courtwith directions to remand the 1991 Proclamation of Re-apportionment and Redistricting Plan to the Board forrefonnulation consistent with our Order of June 8,[** 5 8 ] 1992 , and this op inion .

WALTER J . HICKEL, Governor of Alaska, STATEOF ALASKA , Petitioners, v . SOUTHEAST CONFER-ENCE, a non-profit Alaska corporation , et al . , Respon-dents .

[**59] Supreme Court File No . S-5093

ORDER

Superior Court File No. 1JU 91 - 1608 Civil

CONCUR BY: MOORE (In Par¢); BURKE (In Part)

DISSENT BY: MOORE (In Part); BURKE (In Part)

DISSENT

MOORE, Chief Justice, concurring, in part , and dis-senting, in part.

To the extent indicated in the attachment to today'sopinion marked "APPENDIX C , " I continue to dissent.Otherwise, I concur in the action that we have taken inthis case , and in the opinion of the court.

BURKE, Justice, concurring , in part, and dissenting,in part .

To the extent indicated in the attachments to today'sopinion marked "APPENDIX B" and "APPENDIX C," Icontinue to dissent. Otherwise, I concur in the actionthat we have taken in this case, and in the opinion of thecourt.

APPENDIX A(l)

Governor Walter J. Hicke l 's 199 1 ReapportionmentPlan

Final Plan

[ * 58] State of Alaska

[SEE ILLUSTRATION IN ORIGINAL]

APPENDIX A(2)

[*59] Southeast

Final Plan


APPENDIX A(3)

[*60] Houston-Wasi lla-Palmer Area

Final Plan


[*61] APPENDIX B

THE SUPREME COURT OF THE STATE OFALASKA

Before: Rabinowitz, Chief Jus ti ce, Burke , Matthews ,Compton and Moore , Justices .

This matter having come before the cou rt upon a pe-tition and cross -petition for review , and the court havingheard oral argument, and being advised in the premises :

IT IS HEREBY ORDERED :

1. The Reapportionment P lan contained in the Gov-ernor of Alaska's Proclamation of Reapportionment andRedi stric t ing of September 5, 1991, is held unconstitu -tional in the following respects:

a) House Districts 1, 2 and 3 . The superior court'srelevant findings of fact and conclusions of law as toHouse Districts 1, 2 and 3 are AFFIRMED . These dis-tricts , as constituted, are violative of article VI , section 6of the Alaska Constitution . The dis tr icts do not contain,as nearly as practicable, relatively integrated socio-economic areas , identified with due consideration givento existing local government boundaries . Further, Dis-trict 3 , as constituted, violates the contiguous and com-pact territory requirements of article VI, section 6 of theAlaska Constitution.

b) House Districts 6, 26, 28 and 34 . The - superiorcourt's [**60] relevant findings of fact and conclusionsof law as to House Districts 6, 26, 28 and 34 are AF-FIRMED. These dis tr icts , as constituted, are violative ofarticle VI, section 6 of the Alaska Constitution. The dis-tricts do not contain, as nearly as practicable, relativelyintegrated socio-economic areas, identified with due con-sideration given to existing local government boundaries .Further, District 28, as consti tuted , violates the contigu-ous and compact territory requirements of article VI,section 6 of the Alaska Constitution.

c) House District 35. The superior court's relevantfindings of fact and conclusions of law as to House Dis-trict 35 are AFFIRMED . House District 35, as consti-tuted, is violative of article VI. section 6 of the AlaskaConstitution. It does not encompass, as nearly as practi-cable , a relatively integrated socio-economic area .

d) Western Aleutians . We deem it plain error underthe contiguous territory requirement of article VI, section6 of the Alaska Constitution not to include the WesternAleutians with the Eastern Aleutians in one district ,

846 P.2d 3 8, * ; 1992 Alas . LEXIS 136 , **

Thus unless the severance of the Western Aleutians fromthe Eastern Aleutians is mandated by federal law, ( **61]the areas must be joined in one district .

2 . Inclusion of Non-resident Military in PopulationBase . The superior court's holding that it was arbitraryon the pa rt of the Governor's Advisory ReappordonmentBoard (Board) not to exclude non-res i dent military fromthe population base is REVERSED . Review of the re-cord demonstrates that the Board had a reasonable basisfor its decision not Co exclude non-resident military fromits determination of the relevant population base .

3 . Applicability of the Open Meetings Act and thePublic Records Act to the Proceedings of the AdvisoryReapportionment Board. The superior courPs holdingsthat the Open Meetings Act, AS 44 . 62310 -312, and thePublic Records Act, AS 09.25.110 -. 140, apply to theBoard are AFFIRMED.

4. A separate order of remand will follow.

5 . An opinion will follow addressing the issuesraised in the petition and cross-petition for review .

Entered by direc tion of the Supreme Court at An-chorage , Alaska, on May 28, 1992 .

CLERK OF THE SUPREME COURT

JAN HANSENBurke, Justice, dissents in part.

Justice Burke disagrees with the court's conclusionthat Districts 28 and 35, as constituted, violate article[* *62] VI, section 6 .

[ * 62] APPENDIX C

THE SUPREME COURT OF THE STATE OFALASKA

WALTER J. HICKEL, Governor of Alaska; STATEOF ALASKA, Petitioner, v . SOUTHEAST CONFER-ENCE, a non-profit Alaska Corporation, et . al . , Respon-dents.

Supreme Court No. S-5093

Trial Court No. 1N 91 0160 8 Civil

CORRECTED

ORDER OF REMAND

In our order of May 28, 1992, this cou rt ruled on themerits of the petition and cross-petition filed herein. Thetrial cou rt's order of May 11, 1992, which invalidated thereapportionment and redis tricting plan of September 5 ,1991 , was affirmed in part and reversed in part. In ac-cordance with that order, this case is now remanded tothe superior cou rt with the following directions:

A: FORMULATION OF A FINAL PLAN .

The superior cou rt sha ll remand the case to the re ap -po rtionment board with instructions to formulate a finalplan of reapportionment and redistricting which complieswith the mandates contained in the superior court' s orderof May 11, 1992, as modifi e d by the order of this courtdated May 28 , 1992 .

B : FORMULATION OF AN INTERIM PLAN

1. An interim plan of reappo rtionment and redis-tricting plan is necessary so that the 1992 elections maybe conducted [** 63] in compliance with the equal nro-tection clause of the Federal Constitution, the federalvoting rights act, and article VI secrion 6 of the AlaskaConstitution.

2 . On remand, the superior court shall formulate aninterim plan . The plan shall be consistent with the supe-rior court's order of May 11, 1992, as modified by theorder of this cou rt of May 28 , 1992 . The plan shall com-ply with the eaual protection clause of the Federal Con -sYitution, the federal voting rights act , and the require-ments of article VI. section 6 of the Alaska Constitution,but need not comply with the guidelines adopted by thereapportionment board . Priority must be given first tothe Federal Constitution, second to the federal votingrights act, and third to the requirements of article VIsection 6 of the Alaska Constitution The requirements ofarticle VI, section 6 shall receive priority inter se in thefollowing order : (1) contiguousness and compactness, (2)relative socioeconomic integration, (3) consideration oflocal government boundaries , (4) use of drainage andother geographic features in describing boundaries .

3 . The superior court is authorized to employ an ex -pert or expe rts under Evidence [* * 64] Rule 706, or toappoint a master or masters under Civil Rule 53 to assistit in formulating an interim plan .

4 . In formulating an interim plan, the court maychange any district, in addition to those specificallyfound to be in violation of the Alaska Constitution underthe superior court's order of May 11, 1992, as modifiedby the order of this court of May 28, 1992, if necessaryto meet the requirements of the Federal Constitution, thefederal voting rights act, or the state constitution .

5 . Procedures and schedules regarding the submis-sion of proposed interim plans by the parties and objec-tions to the interim plan formulated by the superior courtshal l be established by order of the superior cou rt. Thesuperior court shall issue its final order formulating aninterim plan on or before June 18 , 1992 .

6 . The superior court is authorized to extend fil ingand related deadlines for the August 1992 primary elec-tions.

846 P . 2d 3 8, * ; 199 2 Alas . LEXIS 136 , * *

7 . Unless otherwise ordered by this cou rt , the lieu -tenant governor is to conduct the 1992 primary and gen-eral electi ons pursuant to the interim reapportiomnentand redistr i cting plan adopted by the superior court.

8 . The interim plan adopted by the superior cou rt[** 65] shall be subject to discretiona ry review by thi scourt under Appellate Rule 402 on an expedited basis .

ENCE, a non-profit Alaska corporati on , et al ., Respon-dents .

Supreme Court No. S-5 133

Superi o r Court No. 1 JU -91 - I 60 8 Civ il

Before : Rabinowitz, Chie£7ustice , Burke , Matthews ,and Moore, Justices.

SO ORDERED:

Entered by direc ti on of the court at Anchorage,Alaska this 8th day of June, 1992 . Burke , Justice, joinedby Moore, Justice , dissenting in part.

[*63) CLERK OF THE SUPREME COURT

JAN HANSEN

BURKE, Justice , with whom MOORE, Justice,joins, dissenting in part.

Legislative reapportionment responsibility is givenby the Alaska's constitution to the state's governor.Alaska Const . azt . VI , 3; Wade v . Nolan 414 P.2d 689(Alaska 19661. When properly challenged , however, areappo rtionment plan proclaimed by the governor is sub-ject to judicial scrutiny. Alaska Const. art. TV. § 11.When the challenge is successful, as is the case here, thestate constitution allows "the superior court to compelthe governor, by mandamus or otherwise, to perform hisreapportionment duties or to correct any error in redis -tricting or reapportionment." Id . I am not convinced,however , that the constitution allows us to direct the su-perior court to seize the executive's reins , and develop areapportionment plan of its own, even on an interim ba-sis , [** 66] unless and until it becomes clear that thegovernor is either unwilling or unable to develop aproper plan within the time that is available.

I, therefore, dissent from that part of today's order ofremand directing the superior court to develop an interimreapportionment pl an. I view the decision by this cou rtto issue the order, in its present form, as an abuse of ourjudicial power. If an interim plan is needed, which isclearly the case , the govern or should be directed to pre-pare it, within a speci fi ed period of time; the superiorcourt should be authorized to devise an interim plan onlyin the event that the governor fails to act within the timeallowed .

I am authorized to state that Justice Moore joins inmy dissent.

APPENDIX D

IN THE SUPREME COURT OF THE STATE OFALASKA

WALTER J . HICKEL, Governor of Alaska , STATEOF ALASKA, Pe titioners , v . SOUTHEAST CONFER-

[Compton, Justice, not participating.]

On consideration of the peti ti on for review, filed onJune 8, 1992, and the [**67] response to th e petition ,filed on June 10, 1992 ,

IT IS ORDERED :

1 . The petition is GRANTED,

2. In the superior court's instructions to the specialmasters, there is no legal basis for the requirement that,wherever possible, native influence districts be drawn toi nclude at l east 35 percent native population. Action thatis not required by the Voting Rights Act, which detractsfrom adherence to the requirements of the Alaska Consti-tution , is not allowed. The 35 percent requirement, istherefore, disapproved.

Entered by direction of the court at Anchorage ,Alaska on June 11, 1992,


JAN HANSEN

APPENDIX E

IN THE SUPERIOR COURT FOR THE STATEOF ALASKA

FIRST JUDICIAL DISTRICT AT JUNEAU

SOUTHEAST CONFERENCE, a a non -profitAlaska corporation, et al., Plaintiffs, vs. WALTER J .HICKEL, Governor of the State of Alaska, et al . , Defen-dants .

CaseNo . 1N-91-1608 Civil (Consolidated)

MEMORANDUM AND ORDER

Procedural History

On May 11, 1992, after extensive briefing and a 16 -day trial, this court held unconstitutional parts of Gover-nor Hickel's September 5, 1991 reapport ionment plan . Apetition for review was taken to the Alaska Supreme[**68] Cou rt on an expedited basis and on May 28 thesupreme court entered two orders in the case. The firstorder affirmed in part and reversed in part the decision ofthe superior court on the merits, ' The second order re-manded the case [*64] to this court with directi ons todevise an interim redis tr icting plan fo r use this ye ar . '

P ag e 21

846 P . 2d 3 8, *; 1992 Alas. LEXIS 13 6, **

This court was directed to dev is e the interim plan byJune 18, 1992.

I The suprem e cou rt affirmed this c ourt's rele-vant findings of fact and conclusions of law as toHouse Districts 1, 2 , 3 , 6, 26, 28, 34, and 35 . Thesupreme court affirmed this court's holdin g thatthe Open Meetings Act and the Public RecordsAct apply to the Governor ' s Adviso ry Reappor-tionment Board . The court reversed this court'sholding that it was arbitrary on the part of theBoard not to exclude non-resident military fromthe population base. Justice Burke dissented inpart , disagreeing with the court's conclusion thatHouse Districts 28 and 35 violated Article VI,Section 6 of' the Alaska Constiturion .2 For the final plan , the supreme court directedthis court to "remand the case to the reapportion-ment board with instructions to formulate a finalplan of reappo rtionment and redistricting whichcomp li es with the mandates contained in the su-perior court's order of May 11 , 1992 , as modifiedby the order of this court dated May 28, 1992."Order of Remand May 28, 1992, at p . 1. JusticeBurke, with whom Justice Moore joined, dis-sented from that part of the remand which re-quired the superior court to formulate an interimplan, stating :

If an interim plan is needed,which is clearly the case , the gov-emor should be directed to prepareit, within a specified period oftime; the superior court should beauthorized to devise an interimplan only in the event that thegovernor fails to act within thetime allowed .

Order of Remand at p . 4(Buxke, J., dissencing) .

[* *69] After soliciting suggestions from the partieson how to proceed, ' the court appointed three SpecialMasters to devise a redis tricting plan. The masters werechosen from nominations by the parties . One was sug-gested by the governor (Harold Gillam); one was sug-gested by the plaintiffs (B ri an Rogers); and one waspicked by the court with the agreement of the part ies(Wilson Condon) . The masters were sworn on June 3rdand Mr . Condon was appointed chair . °

3 See Memorandum and Order entered May 29,1992 . The May 29 order also extended to June26 , 1992 the deadline for candidates filing forleg islative office. Soon a fter this order was en-

tered , c onfusion aro se regarding that deadline .The issue was whether o r no t the deadline hadbeen extended fo r congressi onal candidates aswell as for state legislative candidates . This con-fusion was resolved when this cou rt entered anorder June 8 making it clear that the deadline ex -tension included congressional candidates . Thetwo deadlines are normally the same ; they are setin the same statnte ( AS 15 . 25 . 040(al(I)) . At thistime the court knows of no Petition fo r Reviewfiled in this matter .

[ * *7014 See Memorandum and Order of June 3 , 1992 .

The masters were given various written instructionsafter briefing from the parties and in response to the mas-ters' questions. '

5 This cou rt ordered that communica ti ons withthe Masters be in writing filed with the court, orin open court. The written communications withthe filing dates are as follows . Instructions toMasters (June 3); First Set of Questions fromMasters (June 3) ; Second Set of Questions fromMasters (June 4); Third Set of Questions from theMasters (June 5) ; Amended Instructions to Mas-ters (June 5); Fourth Set of Questions from Mas-ters (June 8) ; Request to the Cou rt From the Spe -cial Masters (June 9) ; Further Instructions toMasters (June 9); Amended Further Instructionsto Masters (June 9); Fifth Set of Questions fromMasters (June 11); Sixth Set of Questions fromMasters (June 11); Additional Instructions toMasters (June 11) .

The part ies filed draft plans [**71] on June 8 andmade presentations to the masters . The masters wereinstructed to return a draft plan to the court on SaturdayJune 13 ; this deadline was extended to noon, Sunday ,June 14 , 1992 , when the masters presented their recom-mended plan to the court. ` The parties and the public haduntil the close of business June 16 to make written objec-ti on to the masters' recommended plan . '

6 The Masters' written repo rt was filed June 14 ,1992 .7 See Order of June 9 .

Meanwhi le, the court entered an order on June 5,1 992, postponing the primary election from August 25 toSeptember 8; other election deadl i nes were al so pos t-poned in accordance with the supreme court Order ofRemand which authorized this court Co "extend filing andrelated deadlines for the August 1992 primary elections."

8 Order of Remand at p . 3 .

8 4 6 P . 2d 38 , *; 1992 Alas . LEXIS 136 , **

These changes in e le ction [**72] law as well as thec ourt' s proposed interim plan must be precleared by theU . S . Department of Justice . Thi s court has ordered theState to submit these to the depa rtment and ask for [*65 1expedited review . ' The State has done so with respect tothe change in election dates and filing deadlines . " TheState asked this cou rt to postpone some 24 Rural Educa-tion Attendance Area (REAA) and Coastal ResourceService Area (CRSA) elections until the Spring of 1993 .In pa rt because some of the REAA's objected to the de-lay , this motion was denied in an Order entered June 10.

9 Memorandum and Order entered June 3 at p .1 .10 See Submission Under Section 5 of the Vot-ing Rights Act filed with this court June 15.

Alaska constitutional requirements from Art icleVI, Sec tion 6 did not apply Co senate districts but:

This ins truction [above] indi-cates that, at least in the case of acourt- ordered interim reappor -tionment plan, Article VI, § 6 re-quirements apply to Senate dis-tricts . However, this standarddoes not necessarily circumscribethe governor's power to effect areapportionment of the senate be-cause of the greater discretion heexercises in carrying out his du-ties.

IntroductionThe plan being promulgated by this order is an in-

terim p lan . It is in effect only until a final plan i s prom-ulgated by the reapportionment board in accordance withthe supreme court's order.

A court creating an inte rim plan has less discretionthan does a governor creating a long-term [**73] p l an." Although Artiele VI Seetion 6 of the Alaska Constitu-tion does not restrict the creation of senate districts bythe governor, the Alaska Supreme Court has said that acourt is more restricted in creating senate seats for in-terim plans than the governor is in creating permanentplans. "

11 Two Alaska Supreme Court opinions apply.The 1972 reapportionment lawsuit resulted in aninterim plan prepared by mas ters appointed bythe court. The Supreme Court in that case gavethe masters the following instruction :

In establishing House and Senatedistricts you should, wheneverfeasible, create a district of con-a guous and compact territory con-taini ng as nearly as practicable arelatively integrated socio-economic area.

Eean v Hammond , 502 P 2d 856, 877 (Alaska1972).

Plaintiffs and the State have stipulated thatthe 1972 masters report would be considered asevidence in this 1992 case . (Ex . S - 82).

In the 1987 decision dealing with reappor-tionment the Alaska Supreme Court held that the

Kenai Peninsula BorouQh v. State, 743 P . 2d1352 , 1364 n. 19 (Alaska 1987) .

[* * 74]12 Even the governor's flexibility with respect cosenate dis tr icts is not unlimited . "Senate districtswhich meander and ignore political subdivisionboundaries and communities of interest will besuspect under the Alaska Equal Protectionclause" Kenai Peninsula Boroueh v State 743P . 2d 1352 , 1365 n . 21 (Alaska 1987) .

This decision will address the court's role in reap -port iomnent, Department of Justice preclearance underthe Voting Rights Act, how the court interacted with themasters in this case, the masters' plan and specific que-ries posed by the masters , objections raised by the publicand part ies, and the court's analysis of the plan and thecourt's changes to it .

Court Tnvolvement in Reapportionment

The State , and to some extent the masters, havequestioned the extent of court involvement in reappor-tionment and particularly court participation in preparingan interim plan . As explained in this court's opinion ofMay 11, 1992, it is clear that the authors of the AlaskaConstitution planned that the superior court and the su-preme court would review [**75 1 the reapportionmentprocess . " The chair of the convention's reapportionmentcommittee said during the constitutional convention thatthe reappo rtionment article in the constitution would

set up very, very carefu l standards andlimiting factors so that the Governor andthe Board wil l no t run away and wil l beacting within limits -- within clear limits -- and are not given w ide discretion.

3 Proceedings , Constitutional Convention, at p . 1839

8 46 P .2d 38, * ; 1992 Alas . LEXIS 136, **

13 The superior cou rt hears the case but the su-preme court reviews de novo the p ro ceedings .Article VI, S ection 11 . Groh v Eean 526 P 2d8 63 (Al aska 1 974 �

Article VI Sec flou I I o f th e Al�,ska Cons titutionprovides :

Any qualifi ed voter may apply to thesuperior court to compel the governor,[*66] by mandamus or otherwise , to per-form his reappo rtionment duties or to cor-rect any error in redistricting or reappor-tionment . (emphasis added)

Judicial review o f government action necessarily in-volves courts making [**76] decisions about executiveor legislative acts . Marburv v . Madison , 5 U . S . 137 , 2 L .Ed . 60 (1803) . In many other states , state courts havedrafted legislative reapportionment plans . See, e . g.,Wilson v. Eu, 1 Cal. 4th 707 4 Cal . Rptr . 2d 379. 823P.2d 545 (Cal . 19921(special masters draw up 1992 Cali-fornia legislative reappo rt ionment plan); Hellar v. Cenar-rusa 106 Idaho 586 682 P 2d 539 (Idaho 1984) (statecou rt- ordered plan for 1984 Idaho legislative reappor-tionment) ; Kallenbereer v Buchanan, 649 P . 2d 314fColo . 1982) (state court-ordered reapportionment planfor 1982 Colorado legislature) . Many federal courtshave rewritten plans to meet the requirements of the Vot-ing Rights Act . See, e.g. , Connor v. Johnson 402 U. S .690 29 L. Ed 2d 268 91 S . Ct . 1760 (1971); Upham v.Seamon 456 U S 37 71 L . Ed 2d �25 102 S Ct . 15181982 . Federal courts run school distr icts . [**77)Freeman v. Pitts U S 112 S . Ct. 1430, 118 L.Ed.2d108 (1992). In over 40 states, including Alaska, statecorrections systems are run by cou rt order . Cleary v .State, 3AN81-5274CI . Court s regularly amend or voidfish and game regulations and season and bag limits.See, e . g. , State v Kluti Kaah Native Village, 831 P .2d1270, Op. No. 3839 (Alaska, May 8 , 1992). Courtsmake detailed changes in utilities regulations and tari ffsand a variety of other executive branch matters. APUCv Municioalitv of Anchoraee 555 P.2d 552 (Alaska1976).

Whether or not the above is always good public pol-icy , there is no doubt that it is within the legal power ofthe court to remedy unconstitutional and illegal situationsby framing short-term solutions .

Court involvement in an interim reapportionmentplan is less intrusive and more naturally a part of thejudicial process than court involvement in such areas asrunning corrections systems. Courts writing an interim

reapportionment plan have no day-to - day supe rv isi on o rcontrol over an on-going process . There [**78 ] is butone decision to make and making that one-time decisionis what cou rts are best able to do .

A glance at Alaska histo ry shows precedent for thisapproach In 1972, an Alaska court appointed masterswho produced an interim plan . The masters were ap -pointed by the court from the opposing viewpoints of theparties in the case . Whether or not masters have pro -duced other interim plans in Alaska is not a part of thisrecord .

While the court in this 1992 case did not originallypostpone elections, extend deadlines, appoint masters orbecome involved in the preparation of any interim plan,there is no doubt that it has the legal power to do so .Egan v. Hammond, 502 P .2d 856 (Alaska 19721 ; Orderof Remand, May 28, 1992 .

Department of Justice Preclearance

Section 5 of the federal Voting Rights Acts requiresthe State of Alaska to submit any changes in election lawor procedure to the U . S. Department of Justice for a de-termination that the changes do not discriminate againstminorities .

That Department of Jus tice review is sometimeslong and thorough ' ° and it is sometimes governed byinformal practices of the Department of Justice, as wellas [**79] by explicit requirements of the statute . (Coo -per Memorandum to Board Ex . A, p . 3915 -3944) .

14 The original proclamation by the governor inthis case was made on the 5th of September,1991. The state submitted the reappo rtionmentplan to the Department of Justice on the Ist ofNovember, 199 1. The Department of Justice re-quested additional information on the 31 st of De-cember, 1991 . The State provided the requestedinformation in February of 1992. It was not untilthe 10th of April, 1992, that the department noti-fied the State that it would make no objection tothe plan.

This cou rt is very concerned that approval of the in-terim plan will not proceed quickly enough to allow ourstate to have an orderly and timely primary . In attempt-ing to meet what was said to be one of the [*67] infor-mal concerns of the Department of Justice , this cou rtgave the masters an instruction that encouraged the crea-tion of Nati ve "infl uence" districts, districts in whichAlaska Natives would comprise 35 percent of the popu-lation . [**80] This proportion was chosen because ex-pert study in Alaska suggests that Native in fluence dis-tricts of 35 percent are de facto Native control districts . "The instruction to the masters said, "Wherever possible ,

846 P . 2d 38, *; 1992 Alas . LEXIS 136 , * *

those [Native] influence distri c ts should be drawn withthe goal of creating a district with a Native population of35 percent . ° This instruction was intended to help obtainspeedy preclearance from the Department of Justice un-der Section 5 of th e Voting Rights Act . The State askedthe supreme court to review this instruction and the su -preme cou rt granted the petition, holding :

there is no legal basis for the re-quirement that, wherever possible, nativeinfluence districts be drawn to include atleast 35 percent native population . Actionthat is not required by the Voting RightsAct, which detracts from adherence to therequirements of the Alaska Constitution,is not allowed. The 35 percent require-ment is therefore, disapproved .

pact to be able to form a district in which theycomprise a majori ty, o r even a significant influ -ence group . Taken separate ly , the Black , His-panic and Asian populations in Anchorage andFairbanks are no t sufficiently large to be a factorunder the Votin g Ri ghts Act .

The Voting Rights Act protects vo ters , notincumbents . However, in evaluating a reappor-tionment plan for preclearance , the Justice De -partment might view the treatment of minorityincumbents as part of the totality of the circum-stances . For example , the Department of Justicemight view as suspect a pattern of pairing minor-ity incumbents in districts with other incumbents .Accordingly, you may consider treatment of mi-nority incumbents, although you should not pri -oritize this above other considerations .

Order of June 11, 1 992 (emphasis in origi nal).

15 Grofman's report (Ex. A. p . 7096 -7099)

[ ** 81] The masters were given a copy of the su-preme cou rt's order and told that this court's previousinstruction on that issue was deleted . Several other in-structions " that had been submi tted by the State andplaintiffs explaining the role oFpreclearance and some ofthe Department of Justice's informal considerations in thepreclearance process remained with the masters by stipu-lation of the part ies .

16 These other instructions were given on June9 and included:

Minori ty "influence" districts and treatmentof minority incumbents are part of the "totality ofthe circumstances" which the Justice Departmentwill examine to determine whether a reappor-tionment plan will be precleared under section 5of the Voting Rights Act. Accordingly, the in-structions you are provided regarding influencedistricts and minority incumbents cannot be pre-cise . With this in mind, the following answers toyou questions are provided.

Under Section 5 of the Voting Rights Act,the United States Department of Justice willevaluate the tota l ity of the circumstance whenpresented with a p l an which has retrogression inan existing Native influence district, to determinewhether the p lan has a discriminatory purpose oreffect. Creation of an al ternative Native influ-ence district will be viewed favorably as an indi-cation that the plan does not have a discrimina-tory intent and effect. Only Alaska Natives aresufficiently numerous and geographically com-

Preclearance under Section 5 of the VotingRights Act will be denied if, under the totality ofthe circumstances, the United States Departmentof Justice cannot determine whether a proposedplan has a discriminato ry intent or would have adiscriminatory effect . Preclearance will almostcertainly be denied if a plan results in avoidableretrogression of the number of Native majoritydistricts . . .

In Alaska any reduction to the number of Na-tive majority or Native influence districts cannotbe justified by a corresponding increase in Blackor Hispanic infl uence districts . You should onlyevaluate plans for the number of Native majorityand influence districts created .

[**82] The cou rt encourages those counsel andtheir clients who believe that they can live with this in-terim plan to lend their suppo rt to the State in its applica-tion to the Department of Justice for timely preclearance .An orderly election is important to the state and to all theparties to the litigation .

Priorities of an Interim Plan

This cou rt gave the masters instructions that re-flected the constraints of creating an interim plan. Inthose instructions , the U . S . Constitution ranked highest,fo llowed by the federal Voting Rights Act, the Alaska[*68] Constitution, procedural requirements and fina ll ypractical tips to aid the Division of Elections in preparingfor re-dis tricting . "

17 Those instructions are contained in the orderdated June 5, 1992 and provide in part:

You are to the best of your abili ty to draft aplan which is consistent with the superior court'sorder as modifi ed . It is no t your j ob to reconsider

846 P . 2d 3 8 , *; 1992 Alas . LEXIS 136 , **

the lawsuit; the lawsuit has been decided . It isyour job to draw up a plan consistent with the re-sult . You are to disregard anything inconsistentwith that direc t order of the Supreme Cou rt o f theState of Alaska .

der : (1) contiguity and compactness, (2) relativesocio-economic integrati o n, (3) consideration oflocal government boundaries , (4) use of drainageand other g eog raphic features in describingboundaries .

We have prepared a package of materials toaid you , and there will be additional materialsprepared in the near future . The package includesthese ins truc ti ons, the relevant orders of this courtand the supreme court , sections from the Code ofJudicial Conduct, and other materials. This pack-age will be made available to the public at Legis-lative Information Offices throughout the state.

You may have access to any part of the courtrecord on request . Please keep a list of materialsyou consider .

You are to operate by majori ty rule . If a mi -nority report is necessary, it may be prepared .Wilson Condon is appointed Chair .

The following restrictions apply to the planyou create:

1. Total deviation is not to exceed 16.4 per-cent

2 . Total deviation is not to exceed 10 per-cent unless required by constitutional considera-tions of compactness and contiguity or by effortsto conform dis trict lines to local governmentboundaries or to create districts which as nearlyas practicable contain relatively integrated socio -economic areas or to follow drainage or othergeographic features , or to comply with the federalVoting Rights Act . Any such justification for de-viations above 10 percent must be applied consis-tently by the masters in creating new districts .

3 . There is to be no exclusion of nonresidentmilitary personnel or their dependents from thepopulation base .

4 . You are to strive to maintain four houseand two senate districts in which Alaska Nativescomprise a majority of the population, and twohouse and two senate Native "influence" districts.Wherever possible those influence districtsshould be drawn with the goal of creating a dis-trict with a Native population of 35 percent .

5 . You may create multi-member districts,except in that part of the state now included inHouse District 17 (under the 1984 reapportion-ment plan) .

6 . The requirements of Article VI, Sectioal6shall receive priority inter s e in the following or-

7 . In formulating an interim pl an, you maychange any district in addition to those specifi-cally found to be in violation of the Alaska Con-stitution under the superior cou rt's order of May11, 1992, as modified by the order of the supremecourt of May 28, 1992, if necessa ry to meet therequirements of the Federal Constitution, the fed-eral Voting Rights Act, or the state constitution .

8 . If all the other instructions of the cou rtc an be complied with, and there is a choice ofwhether to use an intact Voting Tabulation Dis-trict (VTD), or fracturing a VTD , it is preferableto use an intact VTD.

The following are guidelines for your work:

1. You are to have no contact with the par-ties except in open court or in writings filed withthe court .

2 . You may devise your own work schedule.The court asks you to read the materials pre-sented to you as soon as possible, and you mustbe prepared to be at work in Juneau on Monday ,June 8, 1992.

3 . If you have any questions for the part iesor the court , please submit them in writing; theparties will respond within 24 hours, and thecou rt will respond as soon as possible .

4 . When working for the Special Masters,the computer operators may accept direction onlyfrom the Special Masters . The computer opera-tors may not disclose to the Special Masters anyinformation concerning redistricting that theyhave acquired from parties. The computer opera-tors may have no contact with the pa rties con-cerning their work for the Special Masters exceptthrough the Special Masters .

[**83 ] Following is a summary of the specific con-straints given to the masters .

Total deviati on deviation among districts was not toexceed 16.4 percent . Total deviation was not to exceed10 percent unless mandated by some legal requirement ,applied consistently across the state . The masters hadthe requirements of the Alaska constitution to : (1) main-tain contigui ty and compactness , (2) maintain rela tivesocio -economic integration, (3) consider local govern -ment boundaries, (4) use drainage and othe r geographicfeatures in describing boundaries . The masters were no t

846 P . 2d 38 , *; 1992 Alas . LEXIS 13 6 , **

to exclude non- resident military . They were to keepAdak in the Aleutians if that could possibly be done andcomply with the Voting Rights Act. They were to main-tain four house and two senate districts in which AlaskaNatives comprise a majority of the population , and twohouse and two senate Native "influence" districts . Theywere to avoid placin g former District 17 non-Native vot-ers [ * 69] in an election district that was minority influ-ence if the non-Natives might be able to overwhelm Na-tive citizens by polarized voting and they were to attemptto avoid pitting incumbent Native legislators againstother incumbents . [ * *84] Given all that, if possible theywere to avoid breaking up Voting Tabulation Districts(VTD's) . ' a

18 VTD's are a close approximation of pre-c incts.

gle member district , with two o r three representa-tives elected, usually at-large .

[ ** 86] Multi-member electi on dis tr icts have beenused in some places in thi s c ountry to dilute the vo tin grights of minority groups and are often therefore suspect .1 ' Good government groups now support the use of sin-g le -member districts, and people in Alaska testified dur-ing trial and before the Board in favo r of single -memberdistricts generally . This court, however, believes thatthere are places where multi-member districts are prefer-able and are used, not to dilute any segmenCs votingstrength , but to unify a community. Alaska public offi-cials s o testified in this case and before the Board .(Ulmer; Juneau's mayor Ex . A, p . 2232-2237; Kohler)The masters strongly agreed that a multi-member distr i ctwas best for Juneau. (Report p . 32 - 34)

The Masters' Plan

The masters adopted most of the plaintiffs plan forSoutheast Alaska, much of the State's alternative "A" forthe eastern and no rthern part of Alaska and mostly theState's alternative "B" for Weste rn Alaska. The mastersaccepted the Board's plan for Kenai and Anchorage andwere unable to agree on a single plan for Fairbanks,submitting two options for the court to consider .

Juneau

Juneau, is a highly integrated community with suffi-cient population to support two house dis tricts . " Thecity's economy is dominated by state, city, and federalgovernment employment; it is dramatically differentfrom the economy of cities anywhere else in SoutheastAlaska or in any other region of the state. Juneau resi-dents share few legislative interests with other residentsof Southeast Alaska , especially residents of the smallru ral communities that [**85] make up the bulk ofHouse District 3 . " '

19 See citations to record on pages 68 and 69 ofthis court's May 11, 1992 opinion.20 The court adopts the numbering system usedby the special masters. See attachment for a list .

Under every redistricting plan before this one, Jun-eau has been included in a two-member (multi-member)house district. " In the 1984 redistricting plan, the twoJuneau house districts were paired to form a single senateseat that contained all of Juneau. Governor Hickel's plandivides Juneau into two single-member house districts(Districts 4 and 5).

21 Single-member districts have populations of13 , 751 or thereabouts and elect one representa-tive . Multi-member districts are districts com-prised of double or triple the population of a sin-

22 However, mulU-member districts are of con-cern only when there is polarized voting .Thornbura v Gineles , 478 U S . 30. 51. 92 L Gd2d 25, 106 S. Ct 2752 (1986 ) . In Alaska, the costof campaigning in many districts is the samewhether the districts are single- o r multi -member .(Ulmer, Vol . VI , p . 157)

[**87] There is no evidence that Juneau's mul ti-member house district has ever in any way resulted inminimizing or canceling the voting strength of any racialor political group . The federal Voting Rights Act doesnot force the State to separate Juneau into two single-member house districts. Under that act, the only area inAlaska that could not be placed in a multi-member dis-trict would be former District 17, the only place inAlaska where racially polarized voting has been docu-mented in the record.

The plaintiffs recommended a multi-member districtfor Juneau and this court believes this would be the bestthing for that community . Juneau has always been in amulti-member district . There is no meaningful evidenceor testimony before the court that discourages a multi-member dis trict for Juneau. Rather, the cou rt has heardthe opposite .

[*70] The masters declined to put Juneau in amulti-member district because it was not require d by theU. S . Constitution, the federal Voting Rights Act or thestate constitution.

An argument can be made that putting Juneau in amulti -member district maximizes socio-economic inte-gration. This court found that the Alaska constitutionrequires [* *88] maxim izing socio- economic integration ,and the supreme court agreed . However , this cou rt inter-prets that requirement to pert ain with in distric ts , no t be-tween two districts .

84 6 P . 2d 3 8, " ; 199 2 Ala s. LEXIS 13 6, **

The £ailure by the State and the masters to put Jun-eau in a multi-member district elevates form over sub-stance . Sometimes , though , form is impo rtant . In thiscase , "form" is the law . The law , as stated by the Su-preme Court for th is case, is that districts should not bejoined unless that modification is required by the U . S .Constitution , the Voting Rights Act or the Alaska Cousti -tution . Such a change is not required in this case and thiscou rt is bound by that limitation, whether it is in the bestinterests of Juneau or not .

The essence of the process is that courts follow thelaw whether they agree with it or not . For that reasonalone , this court accepts the masters' recommendationthat Juneau be in two separate single-member house dis-tricts .

Southeast Alaska

The court accepts the masters' plan with respect toSoutheast Alaska, The cou rt does so because a similarversion of that plan, repo rted in the press for months iswidely supported by the communities and interest groupsin Southeast [**89] Alaska, especially by Alaska Na-ti ves, and because the plan meets the requirements offederal and state law. No one at trial suggested any al-ternative plan for Southeast, other than board members .

Military Bases in Alaska

The governor's reapportionment board did not ex-clude nonresident military in Alaska. The Alaska Su-preme Court said that the Board had a reasonable basisfor its decision . May 28 Order at 3. Including non -resident military personnel in the population base (peoplewho, because they claim residency elsewhere, may havelittle interest in Alaska affairs) creates odd situations,with legislators representing large populations on paperbut relatively few actual voters. This cou rt addresses themost extreme of these situations when it discusses Adakbelow . The decision not to exclude non-resident mili -tary, coupled with Alaska's large , undivided militaryprecincts, could perhaps be profitably addressed by thelegislature .

Adak

The Adak Naval Air Station is a military outpost onthe Aleutian Chain . Over 5 ,300 people live on the is-land, but fewer than 2 , 000 are registered to vote . Toursof duty are sho rt on Adak and few of those who livethere are involved [* *90] in Alaska affairs. Voter turn-out is abysmal - fewer than 400 voters actua lly go to thepolls in a typical election. " Most commerce is directlyfrom Anchorage by non-stop flight and much of that ismilitary . Adak (and the smaller military outposts on thenearby islands of Shemya and Attu) are U.S. Govern-ment reservations with limited acce ss . Airplanes cannotland without prior permission . Because federal law pro -

hibits government employees from standing fo r state ornational office , only a dependent of a military or civilianemployee could run for state o ffice from the three bases .

23 Ex . A . p . 2526 .

Adak, Shemya and Attu have littl e o r no socio-economic integration with any place else on the Aleu -tians . In many ways residents of these islands have morein common with military personnel on Elmendorf AirForce Base or Ft . Richardson near Anchorage or evenwith those at Eielson Air Force Base o r Ft . Wainwrightnear Fairbanks than they do with residents of the Aleu-tian Islands and the Alaska Peninsula . '° However,[**91 1 Article VI Section 6 of the [ * 71] Alaska Consti-tution, in setting out requirements for redistrict i ng , rankscompactness and contiguity higher than socio -economicintegration and there is good reason for this ranking . Thefear that politicians would attempt to carve out ]ittlepieces of geography and move them around the map forappo rtionment purposes has caused 34 states to add re-quirements for compactness and conti guity to their con -stitutions . '-`

24 The commander of Adak wrote the court alette r during the public comment period for theinterim plan supporting districting Adak withElmendorf.25 The court believes that requirements forcompactness and contiguity are meant to be readto avoid geographic manipul ation of districts forvoter dilution or enhancement. B y requiringphysical limits, those requirements avoid sacrific-ing groups for the benefit of those doing reappor-tiomnent.

Contiguity is widely recognized as an impor-tant consideration in redistricting .

I f the practice of keeping dis-tricts contiguous were seriouslyeroded, the abili ty of districtdrawers to accomplish partisangoals would be enormously en-hanced and, for better or forworse, substantia l departures fromgeographic representation wouldbecome possible. A requirementof contiguousness is the moststraightforward method of avoi d -ing this problem.

D . Lowensteen and J. Steinberg , The Quest forLegislative Districting in the Public Interest : Elu-

Pag e 28

846 P . 2d 3 8, * ; 19 92 Alas . LEXIS 136 , * *

sive o r Illusory?, 33 U . C L. A . L Rev 1 2 119 8 5 ,

[ ** 92] The governor's o ri g inal reappo rtionmentplan combined the military base a t Adak with the Wade-Hampton census area in Weste rn Alaska to provide aNative majority district. The Alaska Supreme Cou rtfound this to b e clear error, saying that the Aleutiansshould be kept together unles s doing so would vio late therequirements of the federal Voting Rights Act . Later, in aresponse to a petition filed during this case, the state su-preme cou rt made it clear that it wi ll require a plan tocomply with the expressed terms of the Voting RightsAct but that it will not derogate the Alaska Constitutionin order to obtain preclearance of an interim plan withthe Department of Justi ce. Order of June 11, 1992 .

The masters keep Adak in the Aleutians . It is possi-ble to keep Adak in the Aleutians and keep all of theAleutians together , as suggested by the supreme cou rt,and still comply with the minimum explicit requirementsof the Voting Rights Act - that is, make the district aNative influence district . However, local communities,legislators and the plaintiffs think this is a bad idea be-cause it severely fractures other socio -economic groups .2 6 The supreme court's directive to keep Adak [**93]with the Aleu ti an Islands, the constraints set down in thelaw and those ordered by this court to ensure compact-ness and contiguity, force unfortunate and undesirabledecisions along all of Western Alaska , Bristol Bay,Princa William Sound, and the Southcentral part of thestate. Those include dividing the Bristol Bay region,splitting the Yupik area , taking Kodiak out of the senatepairing it has held since before Statehood, and other Vot-ing Rights Act decisions . The resulting Adak-AleutiansNative influence district is only barely an influence dis-trict and this rai ses concern that the Department of Jus-tice may not give the speedy preclearance necessary if aplan is to be ready for this election.

26 See letter from Senator Fred Zharoff, plead-ings from amicus Bristol Bay Native Association,near unanimous testimony before the reappor-tionment board and other materials in Exhibit A;letters from many community leaders .

Because the Alaska Supreme Court has emphasizedthe impe rative of the Alaska constitutiona l [**94] provi-sions of compactness and contiguity, thi s court adoptsthe masters' plan, with changes noted, which keeps Adakin the Aleutians.

Fairbanks

This court believes that the Fairbanks redis tr ictingproblem differs from the problem presented by multi -member districts in Juneau . The unconstitionality of thegovern or's o rig inal plan required rearrangements in other

di stricts , and these rearrangements forced changes in theFairbanks districts. (Masters' Report p . 55)

Meanwhile, the masters , unable to agree on a redis-tricting scheme for Fairbanks, presented masters' altern a-tive plans "A" and "B ". The two masters from Fairbanksimplicitly agreed that their alternative plan "B" was abetter plan for Fairbanks . (p . 23 of the transcript of theirpresentation; [ *72 ] p . 57 -59 of report) All three mastersagreed on and recommended certain changes because oftheir knowledge of socio -economic relationships withrespect to Livengood, Cen tr al and Circle Hot Springs.

One master recommended masters' alternative plan"A" because it was similar to a plan brought forward bythe governor after the reapportionment board's originalplan was ruled unconstitutional , and because this masterbelieves [ **95 1 the governor is given the responsibili tyfor reapport ionment in Alaska . " (Tr . 21-23, Masters'Report p . 56-57 and Appendix P) That master believesthe State's plan should receive deference.

27 The court's involvement in reapportionmentis addressed in a different section in this opinion.

After the original plan was ruled unconstitutional,the State presented two separate , widely varied alterna-tive plans to the masters, and there would seem to be areal question which, if either, is to be accorded defer-ence, These State alternative plans were offered duringlitigation. They were not derived through any part icularpolitical process involving public participation or formalstructured decision making .

Despite this cowt's respect for that part icul ar master,this court is unwilling to give any de ference to the pol it i -cal process that led to the original reapportionment boarddecision rel ating to Fairbanks. That process was themost suspect of all the Board's efforts. The chair of thereapportionment board sent hand [ **96] drawn scenar-ios to the executive director and these drawings becamethe basis for the eventual alternatives. Neither these sce-narios nor the correspondence were part of the pub licrecord nor was it made known that the communicationwas occurring. There was little discussion of the Fair-banks alternatives in hearing transcrip ts. The chair hasnow announced his candidacy for the legislature fromone of those Board-created Fairbanks di str i cts with noincumbent.

G iving defere nce to that process would be givingdeference to vio lations of the Open Meetings Act, viola-tions of the Public Records Act and violations of consti-tuti onal requ i rements produced by this skewed poli ticalp rocess.

The court believes that the state's alte rnative plansoffered during litigation deserve no greater deference in

846 P . 2d 3 8, *; 1992 Alas . LEXIS 136 , **

this situation than alternatives offered by any other liti-gant. If the districts have Co be changed, they should bechanged to conform co the best possible redistricting inaccordance with law. Masters' alternative plan "B" doesthat best, with exceptions noted.

The masters ' Fairbanks plan "B" be st meets thesocio-economic integration goal of reapportionment . Itkeeps urban and rural populations [**97] together. Ithelps with speedy clearance of the plan under Sec ti on 5of the Voting Rights Act by the U.S. Department of Jus-tice in two ways . It creates a mixed minority influencedistrict and it avoids placing any portion of the old Dis-trict 17 (the only Alaska district where voting was polar-ized in 1990 , according to voting expert, Dr. BernardGrofman) in a Native influence district. The plan "A"District 34 is much like the plan the supreme court foundunconstitutional .

This cou rt accepts the masters' plan "B " , except asnoted .

Senate Pairings

In creating senate districts , permanent governor-created plans have ignored the requirements for com-pactness and contiguity, socio-economic integration,observance of local boundaries and geographical featuresthat are mandated in the state constitution for house dis-tr icts . This court feels bound , however , to obse rve thoserestrictions in preparing an interim plan . Again, the pri-ority Alaska constitutional concern is compactness andcontiguity. Only the restrictions of the United StatesConstitution and the Voting Rights Act take priority overthat requirement .

The lack of population gain in Southeast Alaska, ascompared to the [**98] rest of the state between 1980and 1990, creates a conundrum . Southeast Alaska hasfive [*73] house districts. Four Southeast house dis -tricts can be paired to create two senate seats, but theremaining house dis trict must be paired with a dis trictoutside the geographica l con fi nes of Southeast Alaska .In one scenario , the Southeast Alaska Islands districtcould be joined with neighboring Prince William Soundto form a compact and contiguous senate dis tr ict . Thatcombination, however, dilutes the proport ion of Nativesin that dis tr ict to such an extent that a senate Native in-fluence district would be lost . Such a pairing is imper-missible and must yield to the federal Voting Rights Act.The masters reviewed an altemative that would join aPrince William Sound district with the Sitka-Wrangell-Petersburg house district, or with a Ketchikan house dis-trict . None of the above alternatives is attractive.

This cou rt , believing that the Southeast Alaska Is-lands district has interests in common with the marine -o ri ented communi ty of Kodiak, accepts the masters' sug-

ges tion and combines these two house districts . Such apairing ma i ntains Nati ve voting power under the VotingRights [ ,* * 99] Act .

As discussed above, there is no constitutional re-quirement in Article VI , Section 6 that senate districts becontiguous . There is an Alaska equal protection guaran-tee against hodge-podge senate pairings . The supremecourt has also restricted masters in what should be at-tempted in interim plana supra . However, that require-ment must yield to the Voting Rights Act when drawinga plan. Given the requirements for keeping Adak in theAleutians and for passing muster with the Department ofJustice under Section 5 of the Voting Rights Act, thecourt makes that one senate pairing that is not contigu-ous .

This alignment allows other senate pairings that willhelp to meet the requirements of the Voting Rights Act .The court pairs Kodiak with the Southeast Islands dis-trict, Bethel with the North Slope/NANA district and theBristol Bay dis trict with the Aleutian district. The Inte-ri or Rivers district is joined with the Fairbanks BadgerRoad district that has no previous non-Native votersfrom old District 17. This provides two Senate Nativemajority districts and two Senate Native infl uence dis-tricts.

To the extent it is possible , the cou rt pairs Fairbanksand Anchorage according [**100] to the contiguity andpopulation and surrounding district characteristics . ThePrince William Sound district , including Cordova , Val-dez and Whittier , is paired with Seward and Soldotnabecause of the commonality of interests of those com-munities. Mat-Su pairings are done much as the boroughrequested for the reasons the borough stated. A list ofsenate pairings is attached .

It is ordered that all senators must run for office thisyear. Length of terms shall be two years or four years ,depending on the toss of a coin, in a manner and place tobe stipulated to by counsel .

Western Alaska

The masters adopted the State's alternative "B" forWestern Alaska. The court believed that "B" undulydisrupted the socio-economic fabric in Bristol Bay andsubstituted State's alternative "A" instead. Changes thenhad to be made in State's alternative "A" to establish con-tiguity, to maxim ize socio-economic integration, to avoidpitting incumbent minorities one against another, and toequalize population. This was done as the court ran intothe same problems the masters had undoubtedly run into.Many people have talked about earthquake zones in re-apportionment, Bristol Bay has felt that [**101] trem -bler this year . The requirement to keep Adak in theAleutians and to comply with the voting rights act re-

846 P2d 38 , * ; 1992 Alas . LEXIS 136, **

quires splitting of groups and traditional district associa-tions in that area.

Obj ections of the Pa rties to the Masters' Plan

The parties have raised the following objections tothe redistricting plan drafted by the special masters.

elec ti on in a dis tr ict with a 60 percent Native population .Both Tok and Nenana are hubs of surrounding interiorareas . Nenana is the hub of the " Rivers" area. It is 42percent Native an d it contributes significantly to thesparse population of this district . Tok is a highway hubof surrounding villages .

Interior Plaintiffs

Plaintiffs Demientieff et al. object to the inclusion ofCordova and Prince William [ *74] Sound communitiesinto District 35 , the exclusion of substantial Ahtna popu -lation from Dis tr ict 35, and the exclusion of Nenanafrom District 35 . The basis for their objection to thePrince William Sound combination is the lack of socio-economic integration between the Sound and the InteriorAthabascan village s . These plainti ffs believe that theline between District 35 and District 6 fails to place thebulk of the Ahtna Native population in District 35 , andsuggest that this placement may have been the uninten-tional result of a technical problem. These plaintiffs ar-gue that Nenana should be placed in Dis trict 35 becausethis placement is required under the court 's May 11 deci-sion which held that Nenana is more integrated [**102]with the Interior Rivers district than with the Highwaysdistrict. The reappo rtionment board had come to thesame conclusion . Interior plaintiffs also suggest that Tokshould be in District 35 ,

The court has modified the recommendations of themasters to the extent that Cordova and the Eyak regionwest of Cordova is included with Valdez and Whittier inDistrict 6 as a part of the Pri nce William Sound District.This is based on the socio-economic integration of thearea, the need for additional population in that districtand the unanimous public comment with respect to thatarea . The Native communities believed themselves moreintegrated into Prince William Sound than into an inte-rior district. The court see s this area as being dominatedby its connection to the sound. This is different from thecourt change with respect to Tok that is both interior andon the road system .

The court has moved Copper Center, Kenney Lake,Tonsina, pa rts of Mentasta, Chistochina, Tok, Nenanaand areas around Gulkana and Gakona into District 35.

This is based on the socio-economic relationsh ipstes tifi ed to by Ms. Evelyn Beeter of Chistochina, and bythe anthropologists , Polly Wheeler and Dr. [**103]Steven McNabb. These experts and local people said theAhtna people are most integrated with the Athabascanvillages comprising an important part of District 35. Thedecisi on is also based on testimony before the court andthe Board, as well as on the Board's decision to includeN enana in this district. Nenana and Tok both includenon-Native population once included in former District17, That non-Native population is unable to dominate an

Interior plaintiffs prefer masters' alternative "B" forFairbanks. These plaintiffs argue that no deferenceshould be given the governor acting as a party in thisphase of the litigation, as distinct from the governorpromulgating the Board's plan. They argue that the Dis-trict 34 in masters' alternative "A" is similar to the D is-tr ict 34 that was found unconstitutiona l by this court andthe supreme court, and that the Board's plan for [**104]Fairbanks was highly suspect due to the actions of thechair in drawing up that plan. Finally these plaintiffssuggest a senate pairing of District 35 with the Univer-sity district. Senate pairings are discussed later in th i sdecision .

Sou theast Conference

Plaintiffs Southeast Conference, et al ., object to theCity and Borough of Juneau being dis tricted as two sin-gle-member house districts, preferring that it be com-bined as one two -member district . These plaintiffs arguethat the masters ignored Instruction 5 which specificallyauthorized them to create multi-member dis tricts , andmisread Instruction 7 to restrict their flexibility ratherthan to grant them authori ty to make changes . Theseplaintiffs note that the masters did, despite their readingof Instruction 7, make changes to Juneau districts, andthat all three masters believe that a two-member dis trictis preferable for Juneau . Southeast plaintiffs list the ex -tensive testimony to this court and the Board favoring asingle district for Juneau. These plaintiffs point out thatthis court's decision of May 11 said that the Board hadnot adequately considered the issue of single- versus[*75] multi-member dis tricts, and [**105] that the su -preme court Order of Remand does not address the issueof multi-member districts but specifically states that theBoard's guidelines need not be followed. The cou rt hasaddressed this issue above .

Southeast plaintiffs also object to the masters'placement of the land mass between Petersburg andWrangell and the Canadian border in the Islands district.They point out that the masters' report and map are in-consistent in this respect, and suggest that the placementmay be inadvertent. They argue that this area is moreintegrated with Petersburg and Wrangell than with theIslands district, pointi ng to Rep . Jerry Mackie's plan, thestate's Department of Community and Regional Affairs"model" borough boundari es, potential road develop-ment, fishing in the area, and the lack of evidence in therecord to support moving this are a from one dis trict to

Page 3 1

846 P2d 38 , *; 1992 Alas. LEXIS 136 , **

another . Finally, they argue that considerations of conti -guity do not require this configuration; both the State'salternative plan " A" and plaintiffs' proposal are contigu-ous only over water .

The court upholds the masters' intent to incorporatethe land mass next to the Canadian border into the Is-lands distri ct . This area, although [* * 106 ] not nowpopulated, is contiguous to the Islands district. Addingthis area makes that district itself contiguous and thepeople in that area in the future are as likely to be inte-g rated in the Islands district as in the Sitka-Wrangell -Petersburg dis trict.

Mat-Su Borough

Plaintiffs Matanuska-Susitna Borough, et al . , objectto the masters' treatment of the eastern boundary of therural Mat-Su dis trict, argu ing that the district boundaryshould be the same as the borough boundary . Theplacement of the boundary, they argue, unnecessarilyfragments the borough, placing 1,177 borough residentsin the Interior Highways district, and failing to give dueconsideration to local government boundaries and socio -economic integration. These plaintiffs suggest movingthe above population into a Mat-Su district, replacingthem in District 6 by moving Cordova and nearby com-munities into District 6 from District 35. Mat-Su plain-tiffs argue that the proposed highways district has thesame infirmities as did District 28 from GovernorHickel's plan which was found unconstitutional partlybecause it ignored local government boundaries andsocio-economic integration within the borough.

The Mat-Su [**107] plaintiffs' second objection isto proposed District 26 which combines Wasilla andChugiak . They argue this proposed district suffers fromthe same problems as did the governor's District 26,which was found unconstitutional . They argue that thesouthern boundary of the Mat-Su districts should be thesouthern boundary of the borough . They point out thatthis court found that the govern or's District 26 was un-consti tutional and the supreme court affirmed this find-ing . They argue that the masters' proposed Dis trict 26still lacks socio -economic integration between the Mat-Su portion and the Chugiak portion. Mat-Su plaintiffssuggest that adding the Chugiak population to Anchoragedis tr icts would increase the average Anchorage districtpopulation by only 1 . 18 percent, well within tolerances .The court upholds the masters recommendations withrespect to these objections for the reasons stated in theirreport . The addition of 2600 persons from the Chugiakregion does not significantly change the character of theregion . The population of District 6 is insufficient towithstand taking 1,266 people out to make the Mat-Suborough bounda ry tidy . The court believes that preserv -ing the [** 108J ethnic and cultural unity of the Athabas-

cans and Ahtna and the maintenance of a Native maj oritydistrict and senate Native influence district takes weighsmore heavily than the preserv ati on of this boundary .

The third objection made by the Mat-Su plaintiffs iswith respect to the senate pairing of districts within theborough . They argue that the Wasilla and Palmer housedistricts should share a senate district . The senate pair-i ng problem stems in part , Mat-Su plaintiffs argue , fromthe fact that under the masters' senate pairings, Anchor-age [*76] will effectively control nine senate seats in-stead of the 8 . 2 to which they are entitled using the cho-sen population base. That objection is dealt with in thesenate pairings section of this opinion .

Alaska Democratic Party

Plaintiff Alaska Democratic Party, et al . , (ADP) ar-gue that adoption of the masters's plan will result in rig-orous and prolonged Department of Justi ce review, thatthe masters' plan does not adequately respect local gov-emment boundaries, and that it rubber stamps districts inAnchorage which were likely created based on impropermotives . ADP argues that Adak does not have to be dis-tricted with the Aleutian [* * 109] Chain, that keepingAdak within the Chain results in many problems, such asa fractured Bristol Bay district . The proper dis trict forAdak is with Elmendorf Air Force Base, ADP argues.

ADP plaintiffs argue that the masters gave undueweight to what the masters understood as a restriction ontheir authority to redraw distr icts which were not foundunconstitutional. In pa rticular, ADP argues that MasterGillam's deference to the State's litigation proposal wasunfounded. Finally, ADP argues that it is error to incor-porate into the court's plan Anchorage districts whichwere created with the strong appearance of improprietyas found by this court . The court deals with these objec-tions in appropriate secti ons of this opinion.

Fish and Game Fund

Defendant Fish and Game Fund is not pleased withthe masters' proposed reapportionment plan . This plan,they argue, fr actures the largest language minority groupin rural Alaska , the Yupiks. The Yupik groups are splitamong District 35, (the Interior Rivers district), Distri ct37, (the Bering Straits district), and District 38, whichhas a Yupik majority. In Districts 35 and 37, Yupiks arele ft as a minority in districts controlled by [**I 10] oth-ers, Fish and Game Fund ' s second objection is to theproposed senate pairings , which, they argue, leaves themwithout a majority in any senate seat . The court 's adop-tion of State's alternative "A" with respect to WesternAlaska meets most of the Fish and Game Fund objec-tions . They had endorsed this plan . To the extent thatchanges were made they were mostly made in accor-dance with recormnendations that had been made by the

8 46 P . 2d 38 , * ; 1992 Alas . LEXIS 13 6, **

Fish and Game Fund. Senate pairing s are dis cussedelsewhere in this o pini o n .

The masters encouraged just this s ort o f part i c ipation andthe court c ommends this procedure to future boards .

S ta te

Defendant State o f Alaska recommends that thecourt adopt House Di s trict 26 as proposed by the specialmasters and by the State in both its alternatives. TheState argues that the district is well integrated and thatleaving it as they have proposed it will save considerabletime and effo rt in preparing for the election because nodistrict or precinct in Anchorage will have to be changedfrom the governor's proposed plan.

With respect to Fairbanks, the State argues that mas -ters' alternative "B" should be rejected because it ignoresthe governor's plan and that alternative "A" should beaccepted because it conforms most closely to the gover-nor's plan . Even alternative "A", [ * * 111] however,changes every Fairbanks district from the governor'splan . The State argues that the governor's plan for Fair-bunks has been through a public proce ss, and that mas -ters' alternative "A" most closely resembles that plan .The State also argues that the advantages claimed in themasters' report for alternative "B" are illusory. For ex-ample, the state says , alternative "B" splits ten VoterTabulation Districts (VTD's) , while alternative "A" spl itsonly 18 VTD's , and the related manual work with so-called geographic information files ("GIFing") in theDivision of Elections has already been completed for thegovernor's plan . The stated goal of avoiding a pairingwith parts of former District 17 is accomplished as wellwith alternative A, the state says . The creation of amixed minority influence district in South Fairbanks inmasters' alternative "B" does not justify that plan, theState argues, because mixed minority districts [*77]have no legal significance, and, in any event, alternative"A" creates two such districts .

With respect to Southwest Alaska, the State recom-mends that the court adopt the State's alte rn ative plan"A" instead of the plan recommended by the [**112]masters. To bolster this recommendation , the State citesthe suppo rt of the Fish and Game Fund for this proposaland the fact that plan "A" increases the ratio of AlaskaNatives in proposed District T, an Alaska Native major-ity senate district . The State also suggests a system fordistrict numbering.

Comments and Objections by the Public

The public - as individuals, organizations , publicbodies and public officials - produced an outpouring ofcomment on the masters' proposed plan . It was a gratify-ing response to the court's effo rts to obtain public inputand it dramatically demonstrates the importance of pro-ducing a tentative plan , with an invitation for specificcomments about how that tentative proposal would work.

Prince William S ound

In less than 4 8 hours , hundred s of people from theCordova and Eyak region let the cou rt know in writing o ftheir desire to be included in the Prince William Sounddistrict. Whoever organized this effo rt should be incharge of any future oil spill cleanup . The commentsranged from the gruff to the amusing but they werethoughtful [* * 113] and valuable . They helped convincethis court that the socio-economic ties cited unanimouslyin this public outpouring justified moving Cordova andthe Eyak region into District 6 .

Western Alaska

The Aleutian Chain , Bristol Bay, Kodiak and Bethelareas all provided this cou rt with a wealth of materialsdescribing how each area could be districted so as tomaximize the part icular interests of that area . Unfortu-nately, given the law and population, not all those needscould be met. The supreme court's decision with respectto Adak and the Voting Rights Act drove deviations thecou rt made from the masters' recommended plan . Themasters had adopted the State's alternative "B" for West-ern Alaska in an effort to keep the Lake and PeninsulaBorough intact . The court believed that goal laudable,but the resulting disruption was so severe to communitiesof interest in Bristol Bay area that the court instead sub -stituted the State's alternative "A" for this region . Thecourt then ran into other considerations and amended thatsubstitution. It turns out that the masters were right andthe court amends its substituted plan to conform in manyways with plaintiff Leavitt and defendant Fish [** 114]and Game Fund proposals . That will make the plan withthe other changes much like the masters' plan . The courtputs Bethel with the southern District 38 rather than Dis-trict 37. Bethel is more integrated with the villagesaround it than it is with Nome . The populations makemore sense together .

The court made other minor adjustments to State'salternative "A". The court put Akiak in the Bethel Dis-trict 37. This is more in keep ing wi th its ethnic back-ground. The court al so extended District 38 to make itcontiguous with the Kod iak Borough and District 40,inc luding Pedro Bay.

Kodiak and Aleutian Pa i ring

The Kodiak and Aleutian traditional senate pairingis simply impossible under the requirements of the Vot-ing Rights Act and the state supreme court's ruling withrespect to Adak . That situation is described elsewhere inthis opinion .

Anchorage

846 P .2d 38 , *; 1992 Alas. LEXIS 13 6, **

Some of the comments received from Anchorage re-flect the writers ' discomfort with the Board's ori g inaldecisions about tha t community . The pairing of Adakwith Elmendorf Air Force Base would , indeed, give An-chorage an additional house seat and would require someother re-alignments that well might be improvements indistricting in [ ** 115] Anchorage as well as all the [ *78 ]rest of the state . However, this court has found that thesupreme court 's order to keep Adak with the AleutianChain, if poss ible, is possible and the court accepts themasters' recominendations to use the Board's reappor-tionment of Anchorage . No person or group challengedthe Anchorage configuration, as opposed to the processof reapportionment, and no illegal configuration in An-chorage has been pointed out to the court.

Southeast Alaska

each area . The a ttached maps are illus trative o f theco urt' s [** 117 ] pl an . The repo rt s attached show devia-tio ns from ideal si ze districts and the Native population .A computer diskette of this mapped plan is today pro-vided to the divisi on of el ecti ons .

Some of the court 's changes are :

The court substituted the State's alternative " A" inWestern Alaska and then modified it much in the waythat had been suggested by the Fish and Game Fund andthe North Slope plaint i ffs . Bethel is put in District 38,Akiak is put in Dis trict 37, Tuluksak was moved fromDis trict 38 to District 35 . Pedro Bay an d nearby popula-tion was moved from 35 to 38 .

Teller is left in 36 because that district is underpopu-lated .

As discussed above, some district in Southeast hasto "go north" for a senate pairing and that is unattractive .It is, none the less, a requirement of reapportionment. Allpubl ic comments received said that some o ther districtshould be paired with an over-the-water district. Thecourt believes that the most logical pairing is that of theIslands district with the Kodiak district . This creates aNative influence district .

Fai rbanks

Fairbanks, like Anchorage, did not have any litigantin the lawsuit to po int out configuration illegalities, otherthan how redistricting affected District 34 . While somepublic officials do not li ke the current plan for Fairbanks,it appears best to the court with [** 116] the changesmade as required.

The court received the comments from the Fairbanksmasters with respect to Livengood, Central and CircleHot Springs and from individuals in some of thoseplaces. In some ways, the socio -economic relations ofthose communities are more closely linked with Fair-banks. They are also geographically most properlywithin Dis tr ict 35 and the court moved them back to thatdistrict . At one point, the masters' map with respect tothis recommendation actually showed non-contiguouscircles around those three communities inside Dis trict35 . District 35 is low on population in the court 's draftand fiuther taking of non-contiguous areas from withinthe district directly detracts from its ability to be an ac-ceptable Native influence district. The court took part ofthe area near Lathrop Road in Fairbanks District 32 andput it in Dis trict 30. Part of District 30 in the CollegeRoad area was put in District 29 . These adjustmentswere made to try to equalize the population distribution.

Conclusion

The Court adopts the masters' recommended planwith the exceptions noted above in detail with respect to

The court moved Cordova and the Eyak communi-ties from District 35 to the Prince William Sound/InteriorRoads D istrict 6 .

Kenney Lake , Tonsina, Copper Center, pa rt of Men-tasta, areas around Gulkana and Gakona and Tok weremoved from District 6 to district 35.

Nenana was moved from Dis tr ict 29 to District 35 .

Part s of Fairbanks near Lathrop were moved from32 to 30 and parts near College Road were moved to 29from 30 .

Livengood, Circ le Hot Springs and Central aremoved back into District 35.

This configuration with the corresponding senatepairi ngs [**118] preserves all necessary Native majorityand influence districts. It does not pair i ncumbent Na-tives against o ther Natives.

The court accepts the masters' recommendationswith the exceptions noted and orders that the plan beeffec tive until a permanent pl an be produced by the re-apportionment [*79] board. " The matter is remanded tothe reapportionment board for preparation of a perma-nent plan in accordance with the supreme court's orderand opinion .

28 The plan meets the maximum deviations al-lowed overall and maximum allowed without jus-Yification under the federal law or Alaska Consti -tution . The districts meet the Alaska constitu-tional requirements except when those require-ments had to yield to the Voting Rights Act, Themasters are to be commended and thanked by thecitizens of Alaska for their willingness to con-tribute to the State .

Dated June 18 , 1992

846 P . 2d 3 8 , *; 1992 Alas . LEXIS 136 , * *

Larry Weeks

Superior Court Judg e

PLAN DEVIATIONS FROM IDEAL POPULA-TION

COURT INTERIM PLAN

With Senate Pairings

8 4 6 P . 2d 3 8, *; 1992 Alas . LEXIS 136 , * *

[ ** 119] ALASKA NATIVE MAJORITY ANDCOURT INTERIM PLAN

INFLUENCE DISTRICTS With Senate Pairings

8 46 P . 2d 38 , * ; 1992 Alas . LEXIS 136 , * *

(* * 120] 6/18/92

* Alaska Native Influence Distr ictPopulation Summary Report

** Alaska Native Majority District

846 P . 2d 38 , *; 1992 Alas . LEXIS 136 , **

[ * * 121]

Pag e 38

846 P . 2d 38 , *; 1992 Alas . LEXIS 136 , **

8 46 P.2d 3 8, *; 1992 Al a s . LEXIS 136, **

846 P.2d 3 8, *; 1 9 9 2 Alas . LEXIS 136 , **

846 P . 2d 3 8, *; 19 9 2 Alas . LEXIS 1 36, * *

846 P . 2d 38 , *; 1992 Alas . LEXIS 136, **

846 P.2d 38 , *; 1992 Ala s. LEXIS 136 , **

846 P . 2d 3 8, *; 19 92 Ala s. LEXIS 136 , **

846 P.2d 3 8, *; 1 992 Alas . LEXIS 13 6, **

846 P.2d 3 8, * ; 1 9 92 Alas. LEXIS 136 , **

84 6 P.2d 3 8, *; 1 992 Alas . LEXIS 136 , **

846 P . 2d 38, "` ; 1992 Alas . LEXIS 13 6, **

[ * *122) [*92] Prince William Sound


[ *93 1 REDISTRICTING PLAN

Southeast


[*94] BETHEL AREA


[*95] Fairbanks


( *96] [SEE ILLUSTRATION IN ORIGINAL]

APPENDIX F

IN THE SUPERIOR COURT FOR THE STATEOF ALASKA

FIRST JUDICIAL DISTRICT AT JUNEAU

SOUTHEAST CONFERENCE , a a non-profitAlaska corporation, et al ., Plaintiffs, vs. WALTER J .HICKEL, Governor of the State of Alaska , et at, Defen-dants .

Case No . IN-91-1608 Civil

MEMORANDUM AND ORDER

The Fish and Game Fund has moved for reconsid-eration of the court's decision on reapportionment, point-ing out that Native incumbents are paired against oneanother. All plaintiffs join in the motion, and the Stateagrees in substance. ' Representative Ivan M. Ivan, aYupik Eskimo from Akiak is pitted against Representa-tive Richard Foster, an Inupiak from Nome, in the court'sinterim reapportionment plan.

I The State argues that this court no longer hasjurisdiction because the date specified in the su-preme court's Order of Remand , June 1 8, 1992 ,

has passed . The court believes it has j urisdictionto correct this error . Civil Rule 60(b)(I) . This isa rather odd position for the State to take in lightof its motion earlier today for the cou rt to take ac-tion it requested in the case .

[**123] The court erred. I

2 The court made this error out of ignorance . Atthe time of issuing its decision , the court was un-aware of the impact on any incumbent candidatesexcept ce rtain Alaska Na ti ve candidates to whichthe court's attention had been drawn and certainSoutheast Alaska candidates of which the courtmay have had personal knowledge . Obviouslythe court did not know enough.

While the pairing or not pairing of Native incum-bents is not a driving force in reapportionment i t is some-thing that the courts have considered under the Voting[ *97] Rights Act. ' The court also understands that theDepartment of Justice uses a "totality of circumstances"approach in its preclearance review and considerswhether proposed plans pit minority candidates againsteach other. The court attempted to avoid such problemswhere other lega l requireme nts could be met.

3 Thornbur v Gingles, 478 U. S . 30, 92 L. Ed .2d 25. 106 S. Ct. 2752 (1986)

[**124 ] Fish and Game Fund po ints out that plac-ing Akiak in the di s tric t wi th Nome and Pedro Bay in thedi str i ct with Bethe l inevitably p l aces two Alaska Nat iveincumbent candidates against each other.

The court believes that Akiak can be placed i n either37 or 38 and meet socio-econoinic integration s tandards.Pedro Bay has traditionally been associated with District39. These changes require that Clark's Point be placed inDistrict 38 and that change will also be made.

IT IS ORDERED that the motion to reconsider isgranted . The court amends the previously published

846 P . 2d 3 8, *; 199 2 Alas . LEXIS 136 , **

decision in this case to place Pedro Bay with its tradi-tional Aleutians District, District 39 , and Akiak is placedwith Bethel in Distri ct 38 . Clark ' s point precinct ismoved to District 38 to minimize the population devia-tion for District 39 which is the most overpopulated dis -trict . That Distri ct has Co be overpopulated Co maintain itas a Native in fluence district under the Voting RightsAct . The heavy concentrat ion of non-Native populationat the Adak Naval Air Station skews the natural civilianethnic make-up of the region .

Attached to this is Order is a summary repo rt show-ing new population deviations from the ideal [ * * 125]district and the minority population statistics based onthis Order .

Dated June 19 , 199 2

i .arry Weeks

Superior Court Judge

6/19/92

Population Summary Report

8 46 P . 2d 38 , *; 1992 Alas . LEXIS 136, * *

[ ** 126]

8 4 6 P .2 d 3 8, * ; 19 92 Alas . LEXIS 13 6, **

846 P 2d 3 8, *; 1992 Alas . LEXIS 136, * *

846 P . 2d 3 8, * ; 1992 Alas . LEXIS 136 , **

8 46 P . 2d 38 , * ; 199 2 Alas . LEXIS 136 , **

846 P . 2d 3 8, * ; 19 92 Alas . LEXIS 13 6, **

P age 5 6

8 46 P . 2d 3 8, *; 19 9 2 Ala s . LEXIS 13 6, **

846 P . 2d 3 8, *; 199 2 Alas . LEXIS 13 6, * *

8 46 P.2d 38 , * ; 1992 Alas. LEXIS 136, **

846 P . 2d 3 8, *; 1992 Alas . LEXIS 136 , * *

846 P . 2d 3 8, *; 1992 Ala s. LEXIS 136 , **

846 P.2d 3 8, *; 1992 Alas . LEXIS 13 6, * *

[ ** 1271 [* 1081 APPENDIX G

IN THE SUPREME COURT OF THE STATE OFALASKA

WALTER J. AICKEL, Governor of Alaska, STATEOF ALASKA, Petitioners, v . SOUTHEAST CONFER-ENCE, et al . , Respondents .

Supreme Court Numbers 5 -5154/5156

ORDER

Superior Court No. 1N 91 - 1608 Civil

Before: Rab i nowitz, Chief Justice, Burke , Matthews,Compton and Moore, Justices .

On consideration of the petition for review, filed bythe State of Alaska on June 22, 1992 ,

IT IS ORDERED :

1 . The petition is GRANTED .

2 . The cou rt agrees with the arguments presented inParts V. C and V . B of the peti tion .

(a) The superior court's instructi ons tothe Masters regarding the popul ation fromformer Distr i ct 17 were not required bythe Voting Rights Act.

[*109] (b) The superior court erredin redrawing the Fairbanks House Dis-tricts to an ex tent not requ i red by thiscourt's order of remand of May 28, 1992.

3. The court rej ects the argument presented in Pa rtV . D of the petition. The superior cou rt's configurationof the Western Alaska Districts involved does not violatethe Federal Voting Rights Act . Senate District T resultsin a district having a fifty-one perc ent majority of AlaskaNatives . There [**128 ] is no evidence o f raci a ll y po lar-ized voting in Senate District T . Furt her , there has tradi -

846 P.2d 3 8, * ; 1 9 9 2 Alas . LEXIS 136 , * *

tionally been a very low voter turnout among the non-native military personnel and their dependents at Adak .House Districts 38 and 39 are superior on the state con-stitutional grounds of compactness and relative socio -economic integration to the state's proposed modifica-tions of these districts .

4 . The argument presented in Part V . A of the peti -tion is mooted by our acceptance of the argument pre -sented in Part V . C of the petition.

5 . The relief requested by the intervenor Fish andGame Fund is DENIED . The configuration of WesternAlaska does not violate the Federal Voting Rights Act .The modification requested by the intervenor would besuspect under the Voting Rights Act because it results inthe loss of one Native influence senate district.

6. The interim plan adopted by the superior court ismodified to reflect the changes required by our ruling inparagraph 2 of this order . These modifications are re-flected in the map filed by petitioners with this courtdated June 25, 1991 As modified , the superior court'sinterim plan is AFFIRMED.

7 . The Lieutenant Governor is to conduct [**129]the 1992 primary and general elections pursuant Co theinterim plan as MODIFIED.

8 . The cross-petition for review is DENIED .

9. The original application for relief filed on behalfof the Kodiak Island Borough is DENIED .

10. On remand, the superior court should extend fil-ing and related deadlines as necessary for the conduct ofthe 1992 primary election .

11. This case is REMANDED to the superior courtfor further proceedings, including the entry of a finaljudgment in accordance with this order .

Entered by direction of the court at Anchorage,Alaska on June 25, 1992 .


JAN HANSEN

[Burke, Justice, concurring, and Compton, Justice,dissenting in part . The separate opinions are attached tothis order.]

Burke, Just i ce, concurring.

Although the views which I have expressed previ-ously remain unchanged, I concur (1) in the decision toreview, in part, the orders of the superior court, and (2)

in the result . I will comment further when the court pub -lishes its opinion .

COMPTON , Justice , dissenting in pa rt.

I would revis e the superi o r court' s interim plan ofJune 19 , 1992, as follows :

(a) Pair Election District 28 (Rural Mat- Su) with 35(Interio r [* * 130] Rivers) ;

(b) Pair Election District 29 (Chena- Denali) with 32(South Fairbanks) ;

(c) Pair Election District 33 (Fox-Badger) with 34(North Pole-Eielson).

These pairings would not require changes in anyelection district boundaries established by the plan . Theobjections of the State to the ,plan's configuration of Fair-banks are answered in part , as are the objections of theMat-Su Borough plaintiffs to Governor Hickel's Procla -mation of Reapportionment and Redistricting of Septem-ber 5, 1991 .

Under this court's revisions , one of the major objec-tions of Mat-Su is silenced by once again separating Wa-silla from Palmer, a result Mat-Su sought consistently toavoid. Mat-Su does not get even half a loaf for argu-ments which I consider well taken, while Fairbanks getsa whole loa£ [ * 110] Rural Mat-Su arguably wouldprefer not to be joined with Interior Rivers, yet that prob-lem can be addressed during preparation of a new plan .As long as it is to be separated from Chena-Denali, Ibelieve its realignment with Interior Rivers preferable tothe wholesale realignment that will result from the at-tachment of Chena-Denali to the Fairbanks area .

The changes I propose would not result in [ * *131]significant changes in total or native population figures,thus minimizing the overall deviation percentage figureand presumably enhancing the plan's potential for clear-ance by the United States Department of Justice. Fur-thermore, any question concerning racially polarizedvoting in former Elec ti on Dis trict 17 will be minimizedby the continued pairing of Election Dis tr ict 6 (PrinceWilliam Sound) with Election District 8(Soldoma-Seward) .

[*lll] AT'PENDIXH

State of Alaska

1992 Interim Reapportionment Plan

June 25, 1992


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