KENAI PENINSULA BOROUGH, Onis King and Anne King, voters and residents of Nikiski Precinct 1; Karen McGahan and Richard McGahan, voters and residents of Nikiski Precinct 2; Marie Walli, voter and resident of Anchor Point Precinct; John Douglas, voter and resident of Salmatof Precinct; Stewart Brandon, voter and resident of Nikiski Precinct 2; Thelma McConnell, voter and resident of Nikiski Precinct 2; Delores Rappe, voter and resident of Nikiski Precinct 1; Terry King, voter and resident of Nikiski Precinct 2; Charles Crabaugh, voter and resident of Nikiski Precinct 2; Norman McGahan, voter and resident of Nikiski Precinct 2; and Caroline Huhndorf, voter and resident of Nikiski Precinct 2; Appellants, v. STATE of Alaska, Appellee. Jim CRAWFORD, Appellant, v. STATE of Alaska, Appellee.
Nos. S-1207, S-1216
Supreme Court of Alaska
Oct. 2, 1987
Rehearing Denied Nov. 10, 1987
743 P.2d 1352
Kenneth P. Jacobus, Hughes, Thorsness, Gantz, Powell & Brundin, Anchorage, for Jim Crawford.
Jonathan B. Rubini, Asst. Atty. Gen., Juneau, and Harold M. Brown, Atty. Gen., Juneau, for appellee.
OPINION
Before RABINOWITZ, C.J., and BURKE, COMPTON, and MATTHEWS, JJ.
RABINOWITZ, Chief Justice.
At issue in this appeal is the validity of the 1984 state legislative reapportionment plan which was promulgated in an attempt to comply with our decision in Carpenter v. Hammond, 667 P.2d 1204 (Alaska), appeal dismissed for want of substantial federal question, 464 U.S. 801, 104 S.Ct. 45, 78 L.Ed.2d 67 (1983). This appeal challenges the constitutionality of the plan‘s realignment of Southeastern Alaska; the creation of House District 7, the North Kenai-South Anchorage District; and the creation of Senate District E, a two-member senate district composed of the Prince William Sound, North Kenai-South Anchorage, and Matanuska-Susitna House Districts.
I. BACKGROUND.
A. Proceedings.
In Carpenter v. Hammond, 667 P.2d 1204, 1215 (Alaska 1983), we held that the 1981 state legislative reapportionment plan‘s inclusion of Cordova in House District 2 (the Inside Passage District) violated
The Board submitted to the governor a modified plan which in part proposed the following redistricting and reapportionment:
(1) the realignment of Southeastern Alaska by removing Cordova from House District 2 and placing it within House District 6 (the Prince William Sound District), including Metlakatla and Hoonah (formerly part of House Districts 1 and 3, respectively) in House District 2, and retaining a unified Juneau District (House District 4);
(2) the realignment of Southcentral Alaska by redrawing House District 7 (the North Kenai-South Anchorage District) to include North Kenai (Nikiski), Portage, Girdwood and portions of South Anchorage; and
(3) the creation in Southcentral Alaska of Senate District E (the “Donut” District), a two-member senatorial district composed of House Districts 6 and 7 combined with House District 16 (the Matanuska-Susitna District).
On February 16, 1984, Governor William Sheffield issued an Executive Proclamation of Reapportionment and Redistricting adopting the Board‘s proposed plan. Subsequently, the Kenai Peninsula Borough and several residents of House District 7 (collectively referred to as “Kenai“) filed suit against the state, alleging that the new plan failed to comply with our order in Carpenter and violated both the Alaska and Federal Constitutions. After trial without a jury, the superior court dismissed the complaint with prejudice. This appeal followed.
B. Challenged Aspects of the Plan.
1. Southeastern House Districts.
The Board‘s principal decision in formulating the 1984 reapportionment plan was the removal of Cordova from House District 2 and the retention of a unified Juneau District. This decision resulted in a total deviation from the ideal district population size for house districts of 14.8%.1 The communities of Metlakatla and Hoonah, which formerly comprised parts of House Districts 1 and 3, respectively, were added to District 2 in order to replace most of the 2,200 Cordova residents. The Board noted that this proposed configuration was the
The Board considered and rejected a series of proposals to move a portion of the Juneau community into another house district because the Juneau District retains the boundaries of a political subdivision and because maintaining all of Juneau as a two-member house district recognizes the unique social and economic nature of the community. The Board reasoned that while other Southeastern communities depend principally on fishing and timber, Juneau is inextricably tied to the operation of state government. The state directly employs approximately 4,000 people in Juneau, and tourism, not fishing or timber, is the community‘s second principal economic activity. The Board believed that a division of Juneau might contravene the state constitutional requirement of social and economic integration within the district.3
2. House District 7 (the North Kenai-South Anchorage District).
House District 7 contains: the Nikiski area on the northern Kenai Peninsula, and the southeastern reaches of the Municipality of Anchorage, including the community council areas of Old Seward/Oceanview, Rabbit Creek, Turnagain Arm, and Girdwood Valley. Its northern boundary proceeds east from Turnagain Arm along Klatt Road to the New Seward Highway, southerly on the New Seward Highway to Huffman Road, westerly along Huffman Road to the Old Seward Highway, southerly on the Old Seward Highway to DeArmoun Road, east on DeArmoun Road to Rabbit Creek, and easterly and southerly along Rabbit Creek.
District 7 has a population of 9,580.1 and thus a deviation from ideal district population size of + 4.0%.
The record indicates that the Board based its decision to include Nikiski in District 7 on several factors. First, the 1981 reapportionment plan included the North Kenai communities and South Anchorage in the same senate district. Second, and of greater significance, the Board was convinced that the North Kenai-South Anchorage districting link was supported by substantial social, economic, and political underpinnings. The drawing of District 7 also reflected the Board‘s belief in a lack of available alternatives. Relocation of Cordova in District 6 resulted in an unacceptably large population base in the Southcentral area, and the Board concluded that creating the North Kenai-South Anchorage District was the only way to meet federal constitutional population standards while minimizing the number of changes to the overall 1981 plan. The Board considered the creation of a four-member district composed of proposed Districts 5 (the Kenai-Cook Inlet District), 6 (the Prince William Sound-Kenai District) and 7 (the North Kenai-South Anchorage District), but believed that the establishment of a multi-member district solely to achieve population parity would raise equal protection concerns and that the multi-member district would simply recast, rather than resolve, the social and economic integration concerns. The Board also took the position that its decision was no more problematic than the 1981 plan which linked North Kenai to Seward and Valdez, because North Kenai‘s
3. Senate District E (the “Donut” District).
Senate District E is a two-member district composed of House Districts 6, 7, and 16, with a population of 36,025.52 and a deviation from ideal district population size of -2.2%. The Board created this district to respond to public dissatisfaction with the former senate configuration linking House Districts 5, 6, and 7, and to retain the balance between regional and Anchorage senate representation.4 Based on testimony it received and the personal knowledge of its members, the Board‘s view was that a single-member senate district made up of House Districts 6 and 7 would become an “Anchorage” seat. The Board believed that alignment of Districts 6, 7, and 16 into a two-member senate district provided a strong foundation for regional representation. It found that the bulk of the senate district population was located in communities “in which the economic focus is independent of Anchorage in some respects, substantially intertwined in others,” and would share a common communication and transportation network.
One Board member testified that the Board attempted, to the extent possible, to leave traditional groupings intact. She added that it heard considerable testimony from members of the Prince William Sound communities who believed that combining House District 16 with Districts 6 and 7 to create a two-member senate district would “be[] a way in which to distribute political power in such way that the Prince William Sound, ... the Nikiski area and the Mat[anuska]-Su[sitna area] could be balanced.”
II. STANDARD OF REVIEW.
Groh v. Egan, 526 P.2d 863 (Alaska 1974), established, and Carpenter reaffirmed, the standard of review that we apply in exercising our jurisdiction to review reapportionment decisions under
“It cannot be said that what we may deem to be an unwise choice of any particular provision of a reapportionment plan from among several reasonable and constitutional alternatives constitutes ‘error’ which would invoke the jurisdiction of the courts.
We view a plan promulgated under the constitutional authorization of the governor to reapportion the legislature in the same light as we would a regulation adopted under a delegation of authority from the legislature to an administrative agency to formulate policy and promulgate regulations. We have stated that we shall review such regulation first to insure that the agency has not exceeded the power delegated to it, and second to determine whether the regulation is reasonable and not arbitrary. Of course, additionally, we always have authority to review the constitutionality of the action taken, but we have stated that a court
may not substitute its judgment as to the sagacity of a regulation for that of the administrative agency, and that the wisdom of a given regulation is not a subject for review.”
....
In short, our review is meant to ensure that the reapportionment plan is not unreasonable and is constitutional under
article VI, section 6 of Alaska‘s constitution .
Carpenter, 667 P.2d at 1214 (quoting Groh, 526 P.2d at 866-67).
III. DOES THE TOTAL DEVIATION OF 14.8% BETWEEN ELECTION DISTRICTS VIOLATE THE EQUAL PROTECTION CLAUSE OF EITHER THE UNITED STATES OR ALASKA CONSTITUTION?
House Districts 1 and 4 (the Ketchikan-Wrangell-Petersburg and Juneau Districts) have deviations from ideal district population size of -9.9% and +4.9%, respectively, resulting in a total deviation of 14.8%. Because these districts are respectively the least and most populated districts in the state, combining their percentage deviations yields the total deviation under the reapportionment plan—that is, the deviation from population equality of all districts in the state, not merely the deviation of the districts in Southeastern Alaska alone.6 Kenai argues that the state must justify this total deviation as necessary to effectuate a rational state policy and that the “rational state policies” identified in the superior court‘s decision are insufficient as a matter of constitutional law because they do not in fact represent uniform and coherent statewide policies.7
The state concedes that it must make a good faith attempt to achieve population equality among all the districts in the state and must justify deviations greater than 10% but less than 16.5% on the basis of a rational state policy. The United States Supreme Court has held that while the equal protection clause of the Federal Constitution does not require precise numerical equality of population in state legislative districts, “a State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536 (1964). Any divergence from strict population equality must be “based on legitimate considerations incident to the effectuation of a rational state policy.”8 Id. at 579, 84 S.Ct.
[t]hat in the absence of a showing that the manner of reapportioning a state was improperly motivated or had an impermissible effect, deviations of up to ten percent require no showing of justification. The state, however, has the burden of showing that deviations in excess of ten percent are “based on legitimate considerations incident to the effectuation of a rational state policy.”
526 P.2d at 877 (footnotes omitted) (quoting Reynolds, 377 U.S. at 579, 84 S.Ct. at 1391, 12 L.Ed.2d at 537).
In evaluating reapportionment plans in the past, we have not ignored the unique character of Alaska in distinguishing between state policies which justify deviations from districts of equal population size greater than 10% and those which have not.
At the outset we recognize the difficulty of creating districts of equal population while also conforming to the Alaska constitutional mandate that the districts “be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area.” When Alaska‘s geographical, climatical, ethnic, cultural and socio-economic differences are contemplated the task assumes Herculean proportions commensurate with Alaska‘s enormous land area. The problems are multiplied by Alaska‘s sparse and widely scattered population and the relative inaccessibility of portions of the state. Surprisingly small changes in district boundaries create large percentage variances from the ideal population.
Egan v. Hammond, 502 P.2d 856, 865 (Alaska 1972) (footnotes omitted) (quoting
The retention of political boundaries is a legitimate justification for a deviation from ideal district population size in excess of 10%, but this policy must be consistently applied to the state as a whole. Cf. Kilgarlin v. Hill, 386 U.S. 120, 123, 124, 87 S.Ct. 820, 822, 823, 17 L.Ed.2d 771 (1967) (purported state policy requiring apportionment plans to respect county boundaries rejected as justification for deviation, because the state permitted the crossing of county boundaries in the formation of districts to equalize undue population deviations and did not demonstrate why or how respect for county lines required the particular deviations in issue). Here the state has crossed subdivision boundaries in creating districts; for example, Anchorage and Fairbanks were both divided. In light of this fact, the preservation of Juneau‘s political boundaries does not justify the deviation in issue because the districting of Juneau does not reflect implementation of a consistent state policy.
We are of the view, however, that the retention of a unified Juneau District is incident to the effectuation of the state‘s policy to promote the contiguity, compactness and socio-economic integration of its communities. The state must consistently enforce the
The redrawing of House District 2 to exclude Cordova and include Metlakatla and Hoonah also furthers the state policy of implementing the three elements of the
The state also argues that the 14.8% total deviation from ideal district population size is justified because the creation of District 2 advances the policy of facilitating review under the
IV. DOES HOUSE DISTRICT 7 OR SENATE DISTRICT E VIOLATE ARTICLE VI, SECTION 6 OF THE ALASKA CONSTITUTION?
A. House District 7.
Kenai argues that House District 7 violates
The state argues that no constitutionally permissible alternative to joining North Kenai with South Anchorage existed. Based on its calculation that the Kenai Peninsula Borough alone supports approximately two and three-quarters house seats and the Prince William Sound communities of Cordova, Valdez, and Seward together cannot support a single seat, and that the two areas combined are too populated to support three seats but not sufficiently populated to support four seats, the state asserts that it could not form districts of nearly equal population without linking some portion of the Kenai Peninsula with South Anchorage. Furthermore, the state contends that including Nikiski in the Kenai district or in a three-seat regional district would result in overrepresentation of the district by 10.2% and a total (statewide) deviation in excess of the 16.4% maximum deviation permitted under the Federal Constitution. According to the state, the other alternative considered by the Board, a three-member regional district excluding Valdez and Cordova, would have required those communities’ inclusion in District 17 and thereby triggered a domino effect, causing strained district configurations throughout rural Alaska. The state contends that the Board could not both maintain a unified Juneau District and establish a three-member district composed of the Kenai Peninsula and Prince William Sound.15 In support of the North Kenai-South Anchorage linkage, the state also asserts that the ties between the two are stronger than those established by the 1981 plan, which joined North Kenai in a district with Seward and Valdez, and stronger than those “implicitly identified as sufficient by this court in Carpenter.”
At the heart of this dispute is whether sufficient socio-economic integration of North Kenai and South Anchorage results from the former‘s interaction with Anchorage. The state argues that South Anchorage and Anchorage should be considered an indivisible area for the purpose of determining whether North Kenai‘s socio-economic ties with South Anchorage satisfy the constitutional mandate. Our review of the evidence reveals that actual interaction between the two areas is minimal. North Kenai and South Anchorage are essentially satellites of Kenai and Anchorage, respectively; to the extent that they interact at all, they do so as a consequence of the nexus between Kenai and Anchorage. For example, Nikiski has no high school of its own, so Nikiski students attend Kenai Central High School; Kenai Central plays in the Northern Lights Football Conference against Anchorage Christian High School, which South Anchorage students attend. Thus, to the extent that students from Nikiski and South Anchorage interact, it is through Kenai Central and Anchorage Christian. Similarly, as the state points out, the two areas are linked economically, because Anchorage-based professionals and financial institutions serve the needs of North Kenai developers with respect to major industrial activities in Nikiski, and because residents of both areas engage in
In Carpenter, we found the record “devoid of evidence of significant social and economic interaction between Cordova and the remaining communities comprising House Election District 2,” and accordingly held the inclusion of Cordova within the district constitutionally impermissible.16 Id. at 1215. We thus construed
A reapportionment plan will be upheld if reasonable and not arbitrary. See id. at 1214. The sufficiency of the contacts between the communities involved here can be determined by way of comparison with districts which we have previously upheld. Unlike the district linking Cordova and the Southeast which we invalidated in Carpenter, the communities of North Kenai and South Anchorage are relatively close geographically. Like the Juneau District upheld in Groh, which included Skagway and Haines, the communities here are connected by daily airline flights (and by highway transportation, whereas the Juneau communities used ferry service); both are linked to the hub of Anchorage, although North Kenai obviously has greater links to Kenai. We think Kenai draws too fine a distinction between the interaction of North Kenai with Anchorage and that of North Kenai with South Anchorage.17 We find no error in the superior court‘s decision to uphold House District 7.18
B. Senate District E.
The state contends that the
Unanticipated changes in the law of the land have invalidated the Senate apportionment and now require that the Senate be expeditiously reapportioned on a population basis.... The Governor and the Reapportionment Board have reapportioned the Senate in the same manner that the constitution requires them to reapportion the House.
An enlightened construction of
Article VI which permits realization of its fundamental purpose, that reapportionment not be dependent in any manner on legislative initiative and that effective means of enforcement be readily available to any voter, is that its remaining constitutional provisions provide the implied power in the Governor and the Reapportionment Board to reapportion the Senate on an interim basis and we so hold.
414 P.2d at 700. In Wade we did not reach the question of the applicability of
Wade does suggest the approach to be taken when, as here, circumstances require this court to decide an issue not explicitly considered by the framers themselves:
The facts before us were not anticipated by the Convention. It is appropriate, therefore, that we attempt to determine from
Article VI as a whole and appropriate Convention Minutes, what was the pervading purpose and intent of the Convention. We must then determine whether a fair interpretation of the various provisions ofArticle VI will support a construction which permits accomplishment of this purpose, bearing in mind that often “*** what is implied is as much a part of the instrument as what is expressed.”
414 P.2d at 698 (quoting Ex parte Yarbrough, 110 U.S. 651, 658, 4 S.Ct. 152, 155, 28 L.Ed. 274, 276 (1884)).
Regarding the issue at bar, the minutes of the Constitutional Convention indicate that the creation of the senate districts reflected a compromise between rural and urban interests. Representatives of urban areas sought at-large representation by population while those speaking for rural areas sought smaller districts determined by geographic area. See 3 Proceedings of the Alaska Constitutional Convention 1876 (January 12, 1956) (Statement of Delegate John Hellenthal) (“The Committee has not ignored the principle of representation at large.... [But] the Committee [also] felt strongly that emphasis should be placed on giving representation in both the house and the senate to a degree to representatives from nonurban areas“); see also id. at 1881-82 (Statement of Delegate Frank Peratrovich). To protect the interests of the less populous rural areas, the framers amended the proposed constitution to pro-
HARRIS: ... [T]he idea of the whole compromise from the beginning was that one [branch of the legislature] would be based on a geographic standpoint and the other one on a population standpoint, and the rural areas went along with it with that in mind, that they would be guaranteed representation.... [A] lot of other people from the rural areas ... said, “We may lose our house representatives, it is very possible, but we will never lose our senator.” [T]his amendment ... is a compromise. It is a guarantee to the rural areas that they will always have representation....
....
HELLENTHAL: ... [T]o clear up any doubts that the senate was to be based strictly on area and the house strictly on population, ... let me read from the report of the Committee: “In the composition of the senate, stress was placed upon area with minor stress upon socio-economic groups.” It did develop, though, that there was a conflict in the Committee.... This amendment ... is crystal clear. The senate of Alaska, and the constitution is now based strictly, 100 per cent upon area, but the great objective of this group has been secured in that the minor areas are assured of representation. That was what we set out to accomplish, that the minor areas in Alaska, the small hinterland, would be assured of representation, and it wouldn‘t all go to the cities.
5 Proceedings of the Alaska Constitutional Convention 3468-69 (January 28, 1956) (emphasis added).
We conclude that the framers aimed to ensure that rural communities retained senate representation by using geographic area as a criterion for establishing senate districts and did not contemplate socio-economic integration as a criterion for redistricting senate seats. Therefore, we hold that the provisions of
V. DOES SENATE DISTRICT E VIOLATE THE EQUAL PROTECTION CLAUSE OF EITHER THE UNITED STATES OR ALASKA CONSTITUTION?
A. The Federal Equal Protection Clause.
Appellant Jim Crawford argues that a reapportionment may be invalid under our
Kenai also argues that the Board had impermissible motives in designing Senate District E, contending that the Board included South Anchorage within the district in order to produce a rural constituency and to dilute the political power of Anchorage voters.22 Kenai asserts that such a dissipation of voting strength is invalid because it disfavors voters from a particular geographic area.
In the context of voting rights in redistricting and reapportionment litigation, there are two basic principles of equal protection, namely that of “one person, one vote“—the right to an equally weighted vote—and of “fair and effective representation“—the right to group effectiveness or an equally powerful vote. See Note, The Constitutional Imperative of Proportional Representation, 94 Yale L.J. 163, 163-64 (1984); Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 2808, 2828, 92 L.Ed.2d 85, 127-28 (1986) (Powell, J., dissenting); L. Tribe, American Constitutional Law §§ 13-2, 13-3, and 13-7 (1978); infra text accompanying notes 27-32. We will consider Senate District E with respect to each of these principles in turn.
1. One Person, One Vote.
Under a “one person, one vote” theory, “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298, 307 (1973). As noted above, as a general matter an apportionment plan containing a maximum population deviation under 10% falls within this category of minor deviations. Brown v. Thomson, 462 U.S. 835, 842, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214, 222 (1983). The state must provide justification for any greater deviation.23
Although seeking to attain a balance between rural and urban power will not justify denying voters an equally weighted vote, Davis v. Mann, 377 U.S. 678, 692, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609, 618 (1964), the record in the instant case contains no suggestion that Senate District E denies either Republicans or voters of urban Anchorage their right to an equally weighted vote.
Kenai relies on Justice Brennan‘s concurrence in Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320, modified, 411 U.S. 922, 93 S.Ct. 1475, 36 L.Ed.2d 316 (1973), in suggesting that the mere motive of favoring one geographic area over another in terms of voting effectiveness violates the equal protection clause. In his opinion Justice Brennan agreed with the majority that the apportionment process must be “free from any taint of arbitrariness or discrimination” and concluded that the lower court‘s finding that the apportionment in issue included a “built-in bias” tending to favor a particular area required invalidation of the apportionment without regard to the state‘s purported justification for the districts. Id. at 344, 93 S.Ct. at 995, 35 L.Ed.2d at 341-42. However, the plan which he found arbitrary resulted in “per-
Here, without the excessive deviation caused by the Southeastern districts, the reapportionment plan would be prima facie constitutional.26 To sustain a claim of political discrimination against Republicans or urban Anchorage voters merely because of “impermissible” motives would be inconsistent with the quantitative, “one person, one vote” prong of equal protection in the context of legislative reapportionment. For appellants to prevail on such a claim, they must prove a qualitative violation—that is, a denial of “fair and effective representation.”
2. Fair and Effective Representation.
That the equal protection clause protects the rights of voters to an equally meaningful vote has been inferred from Reynolds in which the Supreme Court said
that “the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment.”27 377 U.S. at 565-66, 84 S.Ct. at 1383, 12 L.Ed.2d at 529. While the Reynolds court stated that “the overriding objective [of apportionment] must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State,” id. at 579, 84 S.Ct. at 1390, 12 L.Ed.2d at 537, it subsequently acknowledged that multi-member districts “may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized.”28 Gaffney v. Cummings, 412 U.S. 735, 754, 93 S.Ct. 2332, 37 L.Ed.2d 312 (1973). Redistricting intended to achieve “a rough approximation” of the strengths of political groups in state legislatures, rather than fencing out such groups, is permissible. Id. at 752, 754, 93 S.Ct. at 2331, 2332, 37 L.Ed.2d at 311, 313.29
In Bandemer, the Supreme Court addressed a claim that Indiana‘s 1981 legislative apportionment plan unconstitutionally diluted the votes of Indiana Democrats.31 The Bandemer Court rejected the claim, with a plurality of four justices taking the position that “plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Id. at 102. The plurality explained in part:
In cases involving individual multi-member districts, we have required a substantially greater showing of adverse effects than a mere lack of proportional representation to support a finding of unconstitutional vote dilution. Only where there is evidence that excluded groups have “less opportunity to participate in the political processes and to elect candidates of their choice” have we refused to approve the use of multi-
Supreme Court, while recognizing that an equal protection claim may be made out even where districts were “equal or substantially equal in population,” concluded:
[N]either we nor the district courts have a constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.
Id. at 751, 754, 93 S.Ct. at 2332, 37 L.Ed.2d at 311, 313.
member districts. In these cases, we have also noted the lack of responsiveness by those elected to the concerns of the relevant groups.
....
As with individual districts, where unconstitutional vote dilution is alleged in the form of statewide political gerrymandering, the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination. Again, without specific supporting evidence, a court cannot presume in such a case that those who are elected will disregard the disproportionately underrepresented group. Rather, unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter‘s or a group of voters’ influence on the political process as a whole.
Although this is a somewhat different formulation than we have previously used in describing unconstitutional vote dilution in an individual district, the focus of both of these inquiries is essentially the same. In both contexts, the question is whether a particular group has been unconstitutionally denied its chance to effectively influence the political process. In a challenge to an individual district, this inquiry focuses on the opportunity of members of the group to participate in party deliberations in the
Id. at 104-06 (emphasis added and citations omitted). Thus, under the plurality‘s view, a showing of purposeful disproportionality alone can not support a challenge to a legislative apportionment plan; a consistent degradation of a minority‘s voting power must be demonstrated. Moreover, “[r]elying on a single election to prove unconstitutional discrimination” does not satisfy this threshold condition in stating and proving a cause of action. Id. at 107.
Both the “one person, one vote” and the “fair and effective representation” prongs of equal protection necessitate the use of “neutral and legitimate” criteria in redistricting. Id. at 127-28 (Powell, J., dissenting). As observed by Justice Powell in his Bandemer dissent, “exclusive or primary reliance on ‘one person, one vote’ can betray the constitutional promise of fair and effective representation by enabling a legislature to engage intentionally in clearly discriminatory gerrymandering.” Id. at 129. Justice Powell would test the constitutionality of an apportionment plan according to a number of neutral criteria,
[t]he most important of [which] ... are the shapes of voting districts and adherence to established political subdivision boundaries. Other relevant considerations include the nature of the legislative procedures by which the apportionment law was adopted and legislative history reflecting contemporaneous legislative goals. To make out a case of unconstitutional partisan gerrymandering, the plaintiff should be required to offer proof concerning these factors, which bear directly on the fairness of a redistricting plan, as well as evidence concerning population disparities and statistics tending to show vote dilution. No one factor should be dispositive.
Id. at 131-32 (Powell, J., dissenting, citing with approval Karcher v. Daggett, 462 U.S. 725, 753-61, 103 S.Ct. 2653, 2671-75, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring)).32
In summation, proof of purposeful discrimination alone is insufficient to state a cause of action for political gerrymandering. The plurality in Bandemer would require additional proof that the group has been consistently and substantially excluded from the political process, denied political effectiveness over a period of more than one election, in order to raise a constitutional claim. With these principles in mind, we turn to the specific allegations made by Crawford and Kenai in this case.
We can summarily dispose of Crawford‘s claim that the Board‘s improper motivation in discriminating against the Republican Party renders the apportionment plan un-
[r]eferences to identifiable political groups, and any adverse impact on any group‘s ability to effectively participate in the political process, are references to a gerrymandering claim, which is not involved in this case.
In light of the constitutional doctrine just outlined, Crawford obviously has not stated a claim for violation of the equal protection clause of the Federal Constitution.33
In regard to Kenai‘s claim of impermissible discrimination against Anchorage voters, we find that Kenai has not made the requisite demonstration under Bandemer that the Board attempted to consistently and substantially deny them representation. Although the Board did seek to prevent another “Anchorage” senate seat, proportionality was the Board‘s expressed goal in redistricting: the suggested purpose for the creation of Senate District E was to insure that “there would be a far better balance of interests” in the legislature. Moreover, at least eleven of the twenty state senators represent urban areas, and of these, eight are from Anchorage. If senate representation were mathematically proportional to population, Anchorage would be entitled to 8.51 senators.34 Anchorage has a population as calculated for apportionment purposes of 42.6% of the state‘s total population and has received 40% of the state‘s senate seats; given an additional senator, for a total of nine, it would then have 42.6% of the population and 45% of the senate seats. (Kenai itself argues that the facts show another Anchorage seat would not be created by severing Senate District E into two districts.) We think the effect of this disproportionality is de minimus in a traditional system of winner-take-all representation.
Therefore, we hold that Senate District E does not violate the equal protection clause of the Federal Constitution.
B. The Alaska Equal Protection Clause.
We have explained the equal protection analysis that we apply under the
Alaska‘s own equal protection analysis was engendered in Isakson v. Rickey, 550 P.2d 359 (Alaska 1976), and State v. Erickson, 574 P.2d 1 (Alaska 1978). Erickson articulated an adjustable “uniform-balancing” test which placed a greater or lesser burden on the state to justify a classification depending on the importance of the individual right involved. Id. at 12. In effect, Erickson created a continuum of available levels of
scrutiny, beginning with the rational basis test described in Isakson, 550 P.2d at 362-63, and ending with the functional equivalent of the federal compelling state interest test at the highest level of review.
In Erickson we looked first to the legitimacy of the state purposes behind challenged legislation, second to the relationship between the chosen means and the asserted goals of the statute, and third to the state‘s interest in the means chosen as balanced against the nature of the constitutional right infringed. 574 P.2d at 12. Our recent opinion in State v. Ostrosky, 667 P.2d 1184 (Alaska 1983), formally revised the order of the analytic stages of Erickson. First, it must be determined at the outset what weight should be afforded the constitutional interest impaired by the challenged enactment. The nature of this interest is the most important variable in fixing the appropriate level of review. Thus, the initial inquiry under
article I, section 1 of Alaska‘s constitution goes to the level of scrutiny. Ostrosky, 667 P.2d at 1192-93 & n.14. Depending upon the primacy of the interest involved, the state will have a greater or lesser burden in justifying its legislation.Second, an examination must be undertaken of the purposes served by a challenged statute. Depending on the level of review determined, the state may be required to show only that its objectives were legitimate, at the low end of the continuum, or, at the high end of the scale, that the legislation was motivated by a compelling state interest.
Third, an evaluation of the state‘s interest in the particular means employed to further its goals must be undertaken. Once again, the state‘s burden will differ in accordance with the determination of the level of scrutiny under the first stage of analysis. At the low end of the sliding scale we have held that a substantial relationship between means and ends is constitutionally adequate. At the higher end of the scale, the fit between means and ends must be much closer. If the purpose can be accomplished by a less restrictive alternative, the classification will be invalidated.
Id. at 269-70 (footnote omitted).
On several occasions we have further explained that where there is no fundamental right at stake, the equal protection clause of the Alaska Constitution imposes a stricter standard than its federal counterpart.35 While the applicable federal equal protection standard in reapportionment cases has not been clearly established, see L. Tribe, supra § 13-6 at 748, we will continue to use our stricter equal protection standard when assessing the constitutionality of a reapportionment plan. Because we conclude that the effect of the Board‘s intentional geographic discrimination in creating Senate District E tends toward disproportionality of representation and its purpose is therefore illegitimate, we hold the district unconstitutional under the equal protection clause of the Alaska Constitution.
1. Weight of Constitutional Interest Impaired.
While it is clear that the right to vote is fundamental, Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982), the constitutional interest allegedly impaired here is not the right to vote per se, but the interest of individual members of a geographic group or community in having their votes protected from disproportionate dilution by the votes of another geographic group or community. That is, the interest asserted is the right to an equally powerful and geographically effective vote in the state legislature. In this connection we note that it is implicit in our constitutional structure that similarly situated communities be treated
2. Purpose Served by the Board‘s Action.
Expressing its concern that a single-member senate district composed of House Districts 6 and 7 would result in the district‘s domination by the South Anchorage area and the creation of an additional Anchorage senate seat, the Board deliberately fashioned Senate District E to retain the balance between regional and Anchorage senate representation. The legitimacy of this purpose hinges on whether the Board intentionally sought to dilute the voting power of Anchorage voters disproportionately. Thus, if the Board sought to denigrate the voting power of Anchorage voters systematically by reducing their senate representation below their relative strength in the state‘s population, then such a purpose would be illegitimate.
We are of the view that a neutral factors test, similar to that proposed by Justice Powell in Bandemer, 106 S.Ct. at 2832, 92 L.Ed.2d at 131-32 (Powell, J., dissenting), should be employed to assess the legitimacy of the Board‘s purpose in designing Senate District E.36 Under such a test we look both to the process followed by the Board in formulating its decision and to the substance of the Board‘s decision in order to ascertain whether the Board intentionally discriminated against a particular geographic area. Wholesale exclusion of any geographic area from the reapportionment process and the use of any secretive procedures suggest an illegitimate purpose. District boundaries which meander and selectively ignore political subdivisions and communi-
ties of interest, and evidence of regional partisanship are also suggestive. The presentation of evidence that indicates, when considered with the totality of the circumstances, that the Board acted intentionally to discriminate against the voters of a geographic area will serve to compel the Board to demonstrate that its acts aimed to effectuate proportional representation. That is, the Board will have the burden of proving that any intentional discrimination against voters of a particular area will lead to more proportional representation. Because our equal protection clause is more stringent than the federal equal protection clause, a showing of a consistent degradation of voting power in more than one election will not be required; rather once the Board‘s discriminatory intent is evident, its purpose in redistricting will be held illegitimate unless that redistricting effects a greater proportionality of representation. Moreover, because of our stricter constitutional standard, we will not consider any effect of disproportionality de minimus when determining the legitimacy of the Board‘s purpose.
A totality of the circumstances assessment of the Board‘s reapportionment process is unnecessary here because the Board‘s intent was discriminatory on its face. Cf. Bandemer, 106 S.Ct. at 2833-35, 92 L.Ed.2d at 133-36. It is evident that the Board sought to prevent another Anchorage senate seat in the state legislature, and normally the Board would thus be required to demonstrate that this intentional discrimination resulted in increased proportionality of geographic representation in the state legislature. We will not remand this aspect of the case, however, since we are able to decide the issue based on the statistical evidence of disproportionality developed in the record below.
As noted above, Anchorage has a population for apportionment purposes of 42.6% of the state‘s total population and has received 40% of the state‘s senate seats; with an additional senate seat, it would have
Because it is clear that the Board intended to discriminate against the voters of Anchorage,38 the Board has the burden of proving that it intentionally discriminated in order to increase the proportionality of geographic representation in the legislature. Since the record demonstrates that the action of the Board tends toward disproportionality—2.6% or .51 senate seat underrepresentation is more disproportionate than 2.4% or .49 senate seat overrepresentation—we conclude that the Board‘s purpose in creating Senate District E was illegitimate.39 We therefore hold the district unconstitutional under the equal protection clause of the Alaska Constitution.40
Nevertheless, although we will not consider any effect of disproportionality de minimus in determining whether the Board‘s purpose is illegitimate, the degree of disproportionality will be considered in determining the appropriate relief to be granted. Here the effect of the Board‘s discriminatory intent is de minimus. Given this circumstance we conclude that a declaration that the Board‘s purpose in fashioning Senate District E was illegitimate under Alaska‘s equal protection clause is an adequate remedy, and we will not require the Board to redraw Senate District E. In contrast with federal apportionment decisions which have not held unconstitutional an insubstantial disadvantagement of groups of voters, e.g., Bandemer, 106 S.Ct. at 2810, 92 L.Ed.2d at 106, or a minor deviation from ideal district size, e.g., Brown, 462 U.S. at 842-43, 103 S.Ct. at 2695-96, 77 L.Ed.2d at 221-22, we are of the view that declaratory relief in this instance promotes scrupulous observance of the law and at the same time adheres to the principle that the relief fashioned remedies the actual injury.41
MOORE, J., not participating.
COMPTON, J., dissents.
COMPTON, Justice, dissenting in part.
In interpreting Alaska‘s equal protection clause we expressly depart from the burdensome federal constitutional threshold test which requires both a showing of intentional discrimination against an identifiable group and a substantial discriminatory effect on that group. See Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 2808, 92 L.Ed.2d 85, 102 (1986) (plurality). The test we set out under Alaska‘s equal protection clause also has two parts: 1) a showing of purposeful discrimination against voters of a geographic area; 2) without effectuating proportional representation. However, unlike the federal standard, “we will not consider any effect of disproportionality de minimus when determining the legitimacy of the Board‘s purpose.” Opinion at 1372.
The extra protection afforded by Alaska‘s equal protection clause is, however, illusory. Although we are willing to “declare” Senate District E unconstitutional, we refuse to grant affirmative relief1 because the effect of disproportionality is de minimus. Because relief is tied to a showing of more than a de minimus violation, Alaska‘s equal protection clause goes no further to protect Alaskan citizens than does the United States Constitution. If indeed the harm in this case is de minimus then we should have declined to reach the constitutional issue in the first place. Cf. Wickwire v. City and Borough of Juneau, 557 P.2d 783, 786 (Alaska 1976) (Boochever, J., dissenting). However, after having articulated the Alaska constitutional standard the court should not now be heard to say that it is not going to do anything about it.
The court reaches the incredible conclusion that a mere “declaration” of illegitimate purpose is an adequate remedy. Such a declaration is no remedy at all. The United States Supreme Court has stated: “once a State‘s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan.” Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506, 541 (1964).2 Merely opining that Sen-
The court decides to withhold affirmative relief based on the principle that the relief fashioned should remedy the actual injury. Opinion at 1373. The court concludes that because the actual injury in this case is a de minimus discriminatory effect3 of underrepresentation of .51 senate seats, the relief fashioned should be similarly inconsiderable.
The court relies upon cases brought under
Similarly misguided is the court‘s reliance upon cases which stand for the proposition that the motivation of those who undertake an act does not in and of itself violate equal protection guarantees. See Opinion at 1373 n. 41 (citing Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971); Bandemer, 106 S.Ct. at 2808, 92 L.Ed.2d at 102). The court today expressly rejects the two part federal analysis in formulating Alaska‘s equal protection standard. We state “once the Board‘s discriminatory intent is evident, its purpose in redistricting will be held illegitimate unless the redistricting effects a greater proportionality of representation.” Opinion at 1372. Thus, improper motive with no redeeming purpose is enough to violate Alaska‘s equal protection guarantees. Therefore, it is illogical to embrace the more demanding federal analysis to justify denial of affirmative relief under the Alaska standard.
Notes
In another context, the Court has emphasized that the motivation of those who undertake an act will not in and of itself violate equal protection guarantees. In Palmer v. Thompson, 403 U.S. 217, 224, 91 S.Ct. 1940, 1944, 29 L.Ed.2d 438, 444 (1971), having found no discriminatory effect in a local government decision to surrender the lease of one city pool and close four others rather than operate them on a desegregated basis, the Court went on to note “no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it.” See also, Bandemer, 106 S.Ct. at 2808, 92 L.Ed.2d at 102 (“plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group“).
1. Crawford requests that the court create a two-member district composed of House Districts 5, 6 and 7 and a single member senate district for House District 16. Kenai requests a remand to the Board for further action.
This court has adopted an analogous supervisory approach in the context of criminal constitutional rights. In State v. Sundberg, 611 P.2d 44, 52 (Alaska 1980) we decided not to apply the exclusionary rule to an excessive force arrest because we noted that there are other deterrents and at that time there was no history of excessive force arrests. However, this court specifically left open the option to reexamine the exclusionary sanction in future cases, not so with respect to reapportionment.
I disagree that the discriminatory effect is de minimus. As a result of this Board‘s plan Anchorage may have been denied one senate seat. Moreover, by refusing to order the Board to redraw Senate District E, Anchorage voters will remain underrepresented in elections to be held before the next reapportionment process. Since the next federal census is in 1990, elections in 1988 and possibly 1992 will be held under an illegal plan.Redistricting. The governor may further redistrict by changing the size and area of election districts, subject to the limitations of this article. Each new district so created shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area. Each shall contain a population at least equal to the quotient obtained by dividing the total civilian population by forty. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.
Application to compel correction of any error in redistricting must be filed within thirty days following the proclamation. Original jurisdiction in these matters is hereby vested in the superior court. On appeal, the cause shall be reviewed by the supreme court upon the law and the facts.
Id. at 842-43, 103 S.Ct. at 2696, 77 L.Ed.2d at 221-22 (citations omitted) (quoting Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298, 307 (1973); Mahan v. Howell, 410 U.S. 315, 328, 93 S.Ct. 979, 987, 35 L.Ed.2d 320, 332 (1973)). Brown noted that among the legitimate state objectives which would justify such deviations were maintaining the integrity of various political subdivisions and providing for compact and contiguous districts. Id. at 842, 103 S.Ct. at 2696, 77 L.Ed.2d at 221.[W]e have held that “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State. The ultimate inquiry, therefore, is whether the legislature‘s plan “may reasonably be said to advance [a] rational state policy” and, if so, “whether the population disparities among the districts that have resulted from the pursuit of this plan exceed constitutional limits.”
In Groh we also rejected the Board‘s reliance on neighborhood cohesiveness as a rational state policy justifying deviations. The Anchorage District boundaries were based on the Board‘s attempt to apply state policy as required by the mandate of article VI, section 6 of the Alaska Constitution that districts contain “as nearly as practicable a relatively integrated socio-economic area.” Id. at 878. Having previously decided to divide Anchorage into six districts, the Board endeavored to identify like socio-economic areas based on the cost of housing, ethnic composition, income levels, transportation, growth and development plans. Id. However, the testimony showed that few if any homogeneous areas existed within Anchorage, and although the patterns which the Board sought to delineate might have provided a basis for redistricting, they lacked “the necessary significance to justify the substantial disparities of 5.9, 6.5 and 8.6 percent.” Id. at 879.
Groh, 526 P.2d at 878 (quoting Minutes, Constitutional Convention 1836, 1873).Where people live together and work together and earn their living together, where people do that, they should be logically grouped that way.
It cannot be defined with mathematical precision, but it is a definite term, and is susceptible of a definite interpretation. What it means is an economic unit inhabited by people. In other words, the stress is placed on the canton idea, a group of people living within a geographic unit, socio-economic, following if possible, similar economic pursuits. It has, as I say, no mathematically precise definition, but it has a definite meaning.
We also note that sheer practicality may provide a justification for attempting to resolve population imbalance within a problematic area of relatively high population rather than outside it. As noted above, in Groh we upheld a district in the Aleutian Chain because of the imbalance which would have increased in the rest of the state had the district been drawn to include population from outside that area. 526 P.2d at 879-80. Here, an alternative configuration of districts for Alaska as a whole might well have caused greater population imbalances in rural parts of the state and heightened the difficulty of maintaining the constitutionally required compactness of the Kenai area.
Id. at 877. This instruction indicates that, at least in the case of a court-ordered interim reapportionment plan, article VI, section 6 requirements apply to senate districts. However, this standard does not necessarily circumscribe the governor‘s power to effect a reapportionment of the senate because of the greater discretion he exercises in carrying out his duties. Compare Hammond v. Carpenter, Order S-451 (Alaska, May 25, 1984) (invalidating superior court‘s order to the Board to make the fewest possible changes in modifying the reapportionment plan because it restricted “the Governor‘s discretion in a way inconsistent with the Constitution and Groh v. Egan“) with Egan, 502 P.2d at 877 (instructing master “to make the districts correspond, where feasible, with the approximate boundaries in the 1971 reapportionment plan.“).In establishing House and Senate districts you should, wherever feasible, create a district of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area.
The senate districts ... may be modified to reflect changes in [house] election districts. A district, although modified, shall retain its total number of senators and its approximate perimeter.
The dispute over Senate District E turns on the question of whether House Districts 6 and 7 should be separated from House District 16, resulting in two separate senate districts. It is clear that the governor has the power to create either single or multi-member districts, see Egan, 502 P.2d at 873, and although
X Senators = or 156,787.20 = Anchorage Population
20 Senators = 368,420.29 = State Population
[W]e have underscored the danger of apportionment structures that contain a built-in bias tending to favor particular geographic areas or political interests or which necessarily will tend to favor, for example, less populous districts over their more highly populated neighbors.
Common-law courts traditionally have vindicated deprivations of certain ‘absolute’ rights [such as rights to constitutional procedural due process] that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the