ANCHORAGE - The Alaska Supreme Court Thursday adopted a redistricting plan for this year’s legislative elections, except for Southeast Alaska.

The court ordered the Redistricting Board to redraw Southeast lines by noon next Tuesday, in light of the urgency expressed by the Division of Elections in preparing for the candidate filing deadline on June 1.

Superior Court Judge Michael P. McConahy earlier had expressed concerns about Southeast, writing: “While the court previously did rule that House District 32 in Southeast was ‘compact enough,’ this was in light of the board’s argument that the departure from strict adherence to the compactness requirement is justified by its need to draw a redistricting plan that avoids retrogression and complies with the Voting Rights Act.”

The board should have first tried to draw boundaries without regard to the federal voting law, McConahy wrote.

The City of Petersburg is objecting to its inclusion in a House district with Skagway and part of Juneau.

The interim plan for the rest of Alaska ordered by the court is not exactly the one recommended by the board. The adopted plan reunites the Aleutian chain, which had been split into two districts, and has some other minor differences.

With an interim plan in effect this year, another map would have to be adopted later for elections from 2014 to 2020.

The justices heard oral arguments on the case today, the second time the matter has come before them this year.

The post-Census redistricting process, always a Byzantine matter, is particularly complicated this year.

Alaska, more than twice the size of Texas but with the third smallest population in America, faces unique challenges in geography, distance, cultural differences and population dispersal.

Those problems are compounded by the tension between the state constitution and the federal Voting Rights Act.

A new map in Alaska must be “pre-cleared” by the U.S. Department of Justice to ensure that Alaska Natives do not lose voting strength. Under the Supremacy Clause of the U.S. Constitution, that federal review can supersede the state constitutional requirements that State House and Senate districts must be compact and socially and economically integrated.

So the question is how much “relaxation” of state constitutional standards is needed to get DOJ approval.

And that has been the basis of the litigation.

DOJ review can take up to 60 days, creating extreme time pressure now.

The Redistricting Board already has had the first iteration of its plan pre-cleared by DOJ. But it has since tweaked that plan to eliminate compactness concerns with two Fairbanks districts.

Board attorney Michael White told the justices the two districts do not have issues related to Alaska Natives, so there is no concern that DOJ would fail to approve.

But Justice Dana Fabe pressed the point that DOJ in fact has not approved that plan as a whole.

“DOJ isn’t going to backtrack on a plan it’s already cleared,” White responded.

The Fairbanks districts are largely the same in the board’s “amended proclamation” map, adopted by the Supreme Court.

While there are objections from Native groups to the board’s proposed interim plan, such objections also were lodged during the 2002 redistricting, and DOJ still pre-cleared the map, he said.

White warned that if the justices remanded the issue to the Superior Court, the delay would cause a default to the 2002 boundaries, and that would trigger federal intervention.

He says that’s because the existing lines are now, with population shifts, way out of whack with the “one man, one vote” principle in the U.S. Constitution. For example, the fast-growing Matanuska-Susitna Borough is now 46 percent over-populated when compared to the House seats allocated to the area 10 years ago.

Mike Walleri, attorney for two residents of the Fairbanks North Star Borough residents who have sued the board, countered that the 2002 lines are the least likely to be challenged by the feds. “I don’t think that’s really a credible concern.” He said the 2002 lines are not “retrogressive” – they don’t dilute Alaska Native voting strength.

Walleri says as long as state courts are attempting to resolve redistricting concerns, federal courts will refrain from interfering.

Walleri described his clients as retired University of Alaska Fairbanks employees who are captains of their fire districts with concerns about state funding under the legislative districts that would be created by the board’s plan. Their suburban Fairbanks areas are paired with large swaths of Bush Alaska stretching hundreds of miles to the western coast.

White says the redistricting board had no choice but to find urban residents to put into rural districts. The board considered Anchorage, Mat-Su and Kenai, as well, but decided that Fairbanks was the least objectionable, given that it serves as a hub for villages.

But the board’s opponents questioned whether the board followed the Supreme Court’s earlier instructions on amending its map.

The directive was to follow the so-called “Hickel process” – named after the late Governor Wally Hickel – born out of the redistricting fight in the 1990s.

The Hickel process calls for the board to first draft a plan that completely complies with the state Constitution, and only then amend it – and as little as possible – to conform to the Voting Rights Act.

Chief Justice Walter Carpeneti questioned whether the board really had followed that process, given that 36 of 40 House districts were not altered between iterations of the map.

Fabe said that if the board’s starting point was the Voting Rights Act, that probably eliminated options it could have considered.

White said the board didn’t start with the federal law and also didn’t interpret the court’s order on the Hickel process as a mandate to start from scratch.

McConahy had ruled against the board’s latest map on April 20, writing: “The Board did not make specific findings, by district, that each of the unchanged Proclamation Plan districts satisfied the requirements of the Alaska Constitution.”

White said that McConahy was trying to establish an unprecedented “two-tiered” review process that was not the intent of the Supreme Court. There was no need to revisit Anchorage, for example, because there are no Alaska Native voting strength issues, he said. For districts that have not been challenged as unconstitutional, the board didn’t attempt to re-draw, he said.

At this point, the discussion entered a new phase. Senate Judiciary Chairman Hollis French (D-Anchorage) who listened to the arguments, said afterward that at this juncture he saw the potential “formation of a new legal principle.”

Fabe asked of the board’s map: “Is it as contiguous and compact as it could be?”

“Does it have to be the maximum compactness?” White replied. “You don’t have to draw the most compact or the most socio-economically integrated.”

He compared it to a water balloon: Squeeze on one part, and another part bulges. Maximum compactness might affect integration, and vice versa, he said. Rather, it should be a balancing of all the interests and getting as close to goals as “practicable,” he said.
“It’s not a maximization policy.”

But the justices persisted. Justice Daniel Winfree, alluding to alternative maps submitted to the board by various groups, wondered if the existence of a better plan than the board’s would make the board’s, de facto, unconstitutional.

“It’s a bright line test: You look at if it’s constitutional or not,” White said. “(You) can’t make this into a beauty contest.”

In one of the few light moments during the two-hour hearing, Carpeneti said: “I was on your side of this argument 10 years ago. I lost, though.”

Attorney Thomas Klinkner, representing the City of Petersburg, says the board’s plan should be judged “relative to alternatives.” And all those, he said, “do less violence to the Alaska Constitution.” The board had rejected all of them for various alleged deficiencies.

One option for the Supreme Court was to appoint “masters” to draw up a plan. But that wouldn’t have eliminated the timing problem cited by the Division of Elections.