Judge scolds Alaska Redistricting Board

Richard Mauer

A Fairbanks judge gave a stern rebuke to the Alaska Redistricting Board, saying in a decision Thursday that it was not worthy of the trust placed in it by the courts and accusing it of acting in a "dilatory" and "disingenuous" manner.

Superior Court Judge Michael McConahy, the judge hearing challenges to the failed redistricting plan under which the 2012 election was held, said the board's proposal to wait until August to begin crafting a new plan was unsatisfactory. He said the board had the computer power to draw new boundaries in a matter of days should it choose.

"There is no reason to delay this process further," he said.

As for whether the board should hold public hearings on a new plan, McConahy was even more blunt.

"The Board contends it is not required to hold hearings," McConahy wrote in his ruling. "It is wrong. Any argument that the hearings held in 2011 on plans that were found to be unconstitutional is inartful at best. At worst it is a sad commentary upon Alaskan life and constitutional principles."

The board's attorney, Michael White, declined to comment. Chairman John Torgerson, a former Republican state senator from Kasilof and one of two board members appointed by Gov. Sean Parnell, didn't return messages left by telephone and email.

The board is directed by the Alaska Constitution to set new legislative boundaries after each 10-year census to account for population movements. Its original plan, completed in 2012, was declared by the Alaska Supreme Court to be unconstitutional but the 2012 election was held using those districts anyway because there wasn't enough time for a new plan to be developed.

Democrats say the board, with its 4-to-1 Republican majority, gerrymandered enough districts to ensure one-party Republican rule in Juneau and ease passage of oil-tax cuts and other controversial measures. Republicans counter that the board fixed gerrymandered districts from redistricting in 2002 that favored Democrats.

The Supreme Court hasn't directly said whether districts were drawn to favor one party over another. Rather, it has said on several occasions that the board has failed to follow what has become known as the "Hickel process," named after a redistricting case in which then-Gov. Wally Hickel was a party.

At issue is how to match the requirements of the Alaska Constitution with those of the U.S. Voting Rights Act. The constitution requires districts that are compact, contiguous, of near equal population and of similar socioeconomic status. The Voting Rights Act mandates that Alaska Native votes not be improperly diluted in rural areas.

Under the Hickel process, state requirements must be set first, then adjusted to comply with federal law. The Alaska Supreme Court found that the redistricting board took the Voting Rights Act into consideration first in several House districts.

McConahy's ruling Thursday was an advisory opinion based on clarifications sought by the board and by opponents of the board's redistricting plan. Michael Walleri, an attorney for a pair of those opponents -- two voters from the Fairbanks area -- said he plans now to ask the Alaska Supreme Court to appoint a master to take over from the redistricting board.

"The Hickel process has been explained to the board by the courts five times already and they still say, at the meeting in February, they don't know what that means," Walleri said. "Either the board is being disingenuous and acting like they don't understand when they understand very well -- they just simply don't want to comply with it -- or that their failure to understand is in fact genuine, which would suggest that they're incompetent."

Despite McConahy's strong language, Walleri said the courts have been "profoundly restrained" in their dealings with the board.

"The board has been close to insulting to the courts, both to the Superior Court and the Supreme Court," Walleri said. "Judge McConahy is known for his literary flair. He was very careful to explain in strong language his thoughts but he never ordered them to do anything."

McConahy gave the board a quick lesson in civics lest it fail to understand that its actions are subject to judicial review. He cited Marbury v. Madison, the 1803 case in which the U.S. Supreme Court took the authority of judicial review of executive branch decisions, and he noted that military force was used to protect children in Arkansas attending schools that were opened to African-Americans under a 1955 Supreme Court decision.

Adapting a lament by a U.S. Supreme Court justice in a child protection case in 1989 -- then it was "Poor Joshua!" -- McConahy wrote: "Alaskans have not had finalized house and senate districts since the announcement of 2010 census. The lament today is 'Poor Alaskans.' "

Reach Richard Mauer at rmauer@adn.com or 257-4345.

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