Legislature(1997 - 1998)
02/11/1998 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING CHAIRMAN GREEN announced the first item of business would be a revisit of HJR 44, proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature. Number 0042 REPRESENTATIVE BRIAN PORTER, joint sponsor of HJR 44, advised members that he, his staff member Jim Sourant, joint sponsor Representative Mulder, and Representative Mulder's staff member, Tim Sullivan, had gone over comments and suggestions from the previous meeting. He stated the belief that the new proposed committee substitute responds to most of those concerns. Number 0090 REPRESENTATIVE CON BUNDE made a motion to adopt version 0-LS0528\M, dated 2/9/98, as a work draft. There being no objection, it was so ordered. Number 0111 REPRESENTATIVE PORTER went through Version M to point out how they had amended the original resolution. On page 2, line 24, language is added, although it is basically returning to the language of the original constitution. Representative Porter explained, "It's placed here and in the article above, so as to establish, as per federal court rule, that the first thing in reapportionment is the equal distribution of the population into the election districts, and after that, as it indicates, that we can look at compactness and contiguousness and relatively integrated socioeconomic areas." REPRESENTATIVE PORTER referred to page 3, line 3, which adds the language, "and during the tenure of", to the prohibition of members of the apportionment board. He commented, "Having been state employees, obviously, they shouldn't be a state employee while they're in that capacity, either." REPRESENTATIVE PORTER referred to page 3, line 16. He explained, "Just to make clear that the board should stay in place until all of their work is done, we're saying that this article has been resolved after final remand or affirmation, not upon, so that they do have to correct their work and reissue it after it's remanded from a court." REPRESENTATIVE PORTER referred to page 3, line 23. He said if one body organizes as a whole, which the Senate did once with a 20-member "majority basically would elect their minority appointing authority. Number 0311 REPRESENTATIVE PORTER continued, "At the request of the court, on line 4 of page 4, if the four members appointed by the respective members of the legislature could not come up with a fifth, we have indicated now that the chief justice, by himself or herself, would appoint that member, rather than a three-way grouping of the speaker and the minority leader and the chief justice." Number 0346 REPRESENTATIVE PORTER referred to page 5, line 7. He said language has been changed to clarify that the 90-day period for action starts the later of the appointment process being culminated or the issuance of the decennial information; both must be in place. REPRESENTATIVE PORTER said on line 20, they had taken out, "except as provided in (c) of this section," because (c) of this section has been deleted. This basically returns to existing constitutional language which provides that any citizen can challenge the appropriateness of the reapportionment plan, under the process now in place in the constitution. The only significant change is on line 21, that upon a final judicial decision that a plan is invalid, the case shall be returned to the board for correction and development of a new plan. The plan will be completed, finally, by the reapportionment board and not by a master or by some level of the court. Number 0483 REPRESENTATIVE NORMAN ROKEBERG questioned the reference to line 21. CHAIRMAN GREEN said it is actually line 18. REPRESENTATIVE PORTER added that it begins on line 18 but that he himself was reading off another version which had been corrected. He acknowledged the line numbers may be off. Number 0525 REPRESENTATIVE PORTER advised members that those are the changes the sponsors had discussed, which he suggested reflect even Mr. Baldwin's concerns about the complexity of the appeal process, for example. CHAIRMAN GREEN expressed appreciation for the efforts and said it had taken care of his own concerns and the concerns of the committee. He asked whether anyone felt otherwise, or whether there were questions about Version M. Number 0565 REPRESENTATIVE ROKEBERG asked Representative Porter to briefly go through how the appeal process would change. REPRESENTATIVE PORTER explained that the board is required to come up with a plan in 30 days and then have hearings on the plan or plans that they have developed, and to present a proclamation at the end of 90 days, which would constitute their reapportionment plan. If a citizen feels that plan is in error, or has a constitutional challenge to the plan, it is brought before the superior court and that issue is litigated at the trial level. Representative Porter noted that they had eliminated the necessity of ever considering litigation at the supreme court level. REPRESENTATIVE PORTER continued. If it is returned to the board by the superior court for correction, without an appeal of that decision - which could be appealed by either side - they would issue a corrected plan. If it were appealed to the supreme court and that court agreed there had been an error, that court would return it to the board for correction and reissuance. REPRESENTATIVE PORTER stated, "Either court would maintain concurrent jurisdiction, so that if they were not satisfied with the final plan, that they send back an instruction to do 'A,' and the plan came out with 'B,' then obviously it would not be in conformance with the court order, and they would be asked to reevaluate their position." He said that is the current constitutional provision, with the exception of specifically saying that it should be returned for correction. Number 0716 REPRESENTATIVE ROKEBERG suggested if they go through the full appeal process to the supreme court, and it is remanded to the apportionment board, it could be a perpetual motion machine. He asked whether there is any point at which they can stop the process. CHAIRMAN GREEN replied, "None, other than the fact that the remand, the supreme court would suggest what the problem was, and it would be up to the board to fix that." He said it is no different from the way it is now, except for who fixes it. REPRESENTATIVE ROKEBERG asked what would prohibit a citizen from bringing another suit and what would happen then. Number 0794 REPRESENTATIVE PORTER pointed out that there is language in the constitution, which they have retained, that the suits have to be filed within a certain length of time after issuance of the proclamation. He directed members' attention to page 5, line 26, which says, "Application to compel the board to perform must be filed not later than thirty days following the date that the duty is required to be done under this article." REPRESENTATIVE ROKEBERG requested a translation. REPRESENTATIVE PORTER explained, "Well, it means that ... if the reapportionment board has 90 days to issue a plan and they do so, within 30 days of that issuance, if anyone has a contention that ... the plan is in error, they must file their case." Number 0872 REPRESENTATIVE ROKEBERG referred to his original question and asked whether someone couldn't file an action on a second plan developed by the board. CHAIRMAN GREEN said not according to the way this is written. REPRESENTATIVE PORTER said not according to current constitutional provisions. Number 0903 REPRESENTATIVE BUNDE suggested that although of course someone could file a case, if the court found the challenge invalid, it would stop the cycle. Number 0941 REPRESENTATIVE PORTER replied, "I may be using the wrong legal term, but I think if someone filed after the time had elapsed for filing a case, much like someone filing a tort case after the statute of limitations had run out, they would be told, 'You don't have standing.'" CHAIRMAN GREEN commented, "I would think if they tried to exercise some thought that this plan now is changed, and so I should have 30 days from the new plan, ... I don't think that would read well." Number 0971 REPRESENTATIVE ROKEBERG asked whether Chairman Green was suggesting there is only one opportunity for public appeal. CHAIRMAN GREEN replied that as he reads it, a person has 30 days after the final plan is adopted. REPRESENTATIVE ROKEBERG asked whether that 30-day run is just for the first plan, not the second plan. CHAIRMAN GREEN said that is what he is suggesting. REPRESENTATIVE ROKEBERG said it is not clear from the language. CHAIRMAN GREEN noted that attorneys were present. Number 1011 REPRESENTATIVE ETHAN BERKOWITZ said he was also somewhat confused about the time line. He stated, "It would seem to me if someone has a complaint against a second plan, that oughtn't be precluded by language in the bill." REPRESENTATIVE ROKEBERG restated that he doesn't see how they can restrict the right to file an action on a second plan. For example, what if the second plan is worse than the first? Number 1089 REPRESENTATIVE PORTER said he could see, as often happens when trying to explain something better, that it has become more ambiguous. Referring to Section 9, he specified that it is the intent that there be one period for filing suit, and that is after the original proclamation. He suggested that the existing language probably says it better than what they had tried to add, with one exception. He stated, "If members would like, we could strike, 'thirty days following the,' strike the new language, but add the old language, only amended to say, 'expiration of the two' -- 'of the 90-day period specified in this article,' which refers up, then, to line 7, 'No later than 90 days after the board has been appointed and the decennial census has been released, the board shall adopt a final reapportionment plan.'" Number 1154 REPRESENTATIVE ROKEBERG asked whether there is any case law on that particular point of the existing constitutional interpretation. REPRESENTATIVE PORTER replied, "I don't think it's ever been challenged, because it was pretty clear before we changed it. So, maybe we should return to the language we had." REPRESENTATIVE ROKEBERG expressed concern about the public's understanding. Number 1172 REPRESENTATIVE PORTER indicated he wanted to make an amendment. CHAIRMAN GREEN noted that Representative Bunde had a question. Number 1186 REPRESENTATIVE BUNDE said, "You've got the 30 days; someone files a challenge; the superior court - supreme court, one or the other - remands it back to the board. ... Is the board required to come out with the same plan? Or can it attempt to solve the problem by creating a whole new plan?" REPRESENTATIVE PORTER replied that it can do either, but generally the court's instructions are quite specific. Whatever the new plan might be, the instructions would have to be met. He noted that the court retains jurisdiction. CHAIRMAN GREEN suggested that any additional litigation would be on the change, rather than on the total plan, unless they had changed the total plan. Number 1240 REPRESENTATIVE BUNDE stated his understanding that the courts are not to draw the plan. If there is a plan and a challenge to it, and the courts find in favor of the challenge, the courts would send the plan back, with instructions to come up with a plan that addresses these challenges. He stated, "Now, if the court says you must do it in this fairly narrow confine, then they are essentially drawing the plan, based on the original plan, and preclude the board from coming up with a whole new solution. Is that correct?" REPRESENTATIVE PORTER responded that they are talking about hypotheticals, so it is hard to say. He explained that generally a challenge would be made that some area or group was disadvantaged somehow by drawing a line. If that challenge was sustained by the court, they would so indicate, and that line would have to be moved so as to remove the disadvantage. Representative Porter stated, "And I would suspect that the court would give guidelines on what that movement should be. It's hard to imagine that an entire new plan would be developed to try to correct something like that." Number 1325 REPRESENTATIVE BUNDE acknowledged they may be debating hypotheticals. However, there may be a domino effect from moving one line. He asked whether that constitutes a whole new plan or is simply reacting to the court's question. Number 1350 CHAIRMAN GREEN suggested that if that change adversely affected someone else, he supposed they could bring it up. REPRESENTATIVE BUNDE referred to Representative Rokeberg' concerns about a perpetual cycle, and he said, "I think the cycle goes until the courts say, 'This is a legitimate plan.' And if it takes three cycles, that's what it takes." CHAIRMAN GREEN asked what Representative Porter's suggestion was. Number 1376 REPRESENTATIVE PORTER answered that first of all, that possibility is in the constitution right now. He stated, "I guess the additional things in this bill that serve to address those kinds of extremely unusual eventualities are, one, unlike the current language, we leave in place the existing reapportionment plan, so that if litigation extends past the point where you have to start printing ballots and that sort of thing, they will be printed based on the previous plan. That's just not addressed currently in the constitution, and that's one of the reasons that the court took it upon itself to remand the third time to a superior court, rather than to the reapportionment board. But there is an accommodation now for the other plans, so that that wouldn't mess up ... an election." REPRESENTATIVE PORTER said it would be his guess that if the court issued an order and remanded it to the board, and the board wrote a plan that didn't conform to that order, the court of course would retain jurisdiction and require them to redo it. But this provides that the four members of the apportionment board that were appointed by the legislative representatives can be changed for no cause. He suggested that says, okay, if you guys can't get it right, we'll find someone that can. Number 1482 REPRESENTATIVE ROKEBERG responded that when it is remanded to the board, whatever comes out of that board is the new plan. He asked whether that wouldn't also be subject to challenges by citizens. REPRESENTATIVE PORTER answered that by the current constitutional provisions, no. REPRESENTATIVE ROKEBERG indicated that doesn't seem apparent, the way it is drafted, which is why he'd asked whether there is any case law. Number 1510 REPRESENTATIVE PORTER agreed the language they had added is confusing to that point. He suggested if the desire is to only have that one period, they shouldn't use the language on page 5, lines 28 and 29. Instead, they should return to the original language, deleting the need for two 90-day periods, because they had amended that to only one 90-day period. REPRESENTATIVE ROKEBERG asked whether the two 90-day periods might have meant there would be two cycles. REPRESENTATIVE PORTER replied that this was language to conform with the way it had been worded previously. REPRESENTATIVE ROKEBERG again suggested that when a second or third plan comes out of the board, there would be a right to file a suit at that point. Number 1595 REPRESENTATIVE PORTER replied that quite frankly, the way it is written, he thinks that is what it says. There is a requirement for the board to issue a corrected proclamation after remand from the court; that is a duty. "And by the way this reads now, which I don't think was intended, that would allow another 30-day period for a suit," he concluded. REPRESENTATIVE ROKEBERG asked for confirmation that it is the sponsors' intent to not allow that. REPRESENTATIVE PORTER affirmed that. He suggested going back to the original language. Number 1634 REPRESENTATIVE ROKEBERG referred to page 6, line 1. Noting that the word "final" appears on lines 1 and 7, relating to adoption of the final plan by the board and a final judicial decision, he asked what the intent is. REPRESENTATIVE PORTER said line 7 indicates the final judicial decision could be coming out of the superior court if it is not appealed; if it is appealed, it could come out of the supreme court. REPRESENTATIVE ROKEBERG asked whether it speaks to the issue they had just been discussing. REPRESENTATIVE PORTER said no. Number 1698 REPRESENTATIVE PORTER made a motion to adopt Amendment 1, "which will be the deletion on page 5, line 28, of the phrase, 'date that the duty is required to be done under', and reinserting the phrase, 'expiration of the 90-day period specified in this article.'" CHAIRMAN GREEN stated, "So, you're taking out 'EITHER OF' and 'TWO' in the bolder print." REPRESENTATIVE PORTER said yes. REPRESENTATIVE ERIC CROFT added, "'S' after 'PERIODS'." REPRESENTATIVE PORTER stated, "And an 'S'." Number 1750 CHAIRMAN GREEN asked whether there was any objection. Number 1781 REPRESENTATIVE BERKOWITZ indicated he wanted to understand the time line. He said the census comes out, this board comes together, and once the board comes together, it has 90 days to come up with a plan. REPRESENTATIVE PORTER referred to line 7. He said that no later than 90 days after the board has been appointed and the decennial population has been released, the board shall adopt a final reapportionment plan. So, the 90 days wouldn't run if the census was out but the board wasn't together, and it wouldn't run if the board was together and the census didn't come out. Number 1822 REPRESENTATIVE BERKOWITZ suggested the one fixed date in this is the release of the census report. CHAIRMAN GREEN asked whether Representative Berkowitz was thinking they may have trouble forming the board, then pointed out the likelihood that the board will be convened well ahead of that. REPRESENTATIVE PORTER said under a normal scenario, the board would be in place and have 30 days to set up the procedures that they would follow when they get the information, including getting the computer system in place that will take the data and apply it to the state, for example. Number 1853 REPRESENTATIVE BERKOWITZ said he was thinking of an example where the minority leader sees a census report that comes out as being very unfavorable, resulting in a reduced minority. He asked whether someone on the board could prevent the board from convening. Number 1872 REPRESENTATIVE PORTER answered that anyone can sue the board for an error or for failing to perform a duty. If people boycott meetings, there could be a suit or, more expeditiously, the legislature could reappoint. CHAIRMAN GREEN asked for confirmation that Representative Berkowitz wasn't talking about someone feeling there was an error in the census. REPRESENTATIVE BERKOWITZ said not an error in the census, but there is a possibility that for a political advantage, one side or the other may refuse to convene and make it as difficult as possible for the board to come together. Number 1910 TIMOTHY SULLIVAN, JR., Legislative Assistant to Representative Eldon Mulder, Alaska State Legislature, spoke on behalf of the joint sponsor. He stated that one of the key elements in this is that any three members of the board can hold meetings and continue actions as the board. If one member decides not to participate, the other four members of the board can continue. REPRESENTATIVE BERKOWITZ posed a situation where the Democrats don't appoint the two people to the board. MR. SULLIVAN said they are required to do it within 15 days of forming leadership for the legislature, under HJR 44. REPRESENTATIVE BERKOWITZ asked what would happen if no leadership formed. MR. SULLIVAN replied, "Well, you have to have a speaker and you have to have president of the Senate in order to do any business in the legislature." REPRESENTATIVE BERKOWITZ responded, "But you don't have to have a minority leader." Number 1953 REPRESENTATIVE PORTER replied that there will be a constitutional requirement for the minority party, if it is an organization of the whole, or the minority organization to elect a minority appointing authority. If the minority couldn't agree on a leader for some reason, it wouldn't preclude their requirement to elect a minority appointing authority; it is a constitutional requirement. Representative Porter indicated he doesn't believe a minority group, no matter what the political party, would fail to meet the constitutional mandate. REPRESENTATIVE BERKOWITZ noted that they might not wind up with a speaker for a while, either. Number 2001 REPRESENTATIVE CROFT pointed out that the fifth member is appointed by the chief justice of the supreme court. There would be three if one group failed to appoint. MR. SULLIVAN said they have 15 days to appoint those members, and then five days in which the four members are supposed to pick a fifth member. If the four members don't get together, and don't pick a fifth member, then the chief justice of the supreme court appoints the fifth member. REPRESENTATIVE PORTER added that if the minority organization of either body, for some reason, couldn't come up with a minority leader, they would, by constitutional requirement, have to come up with a minority appointing authority for the purpose of appointing the member of the board. Number 2085 REPRESENTATIVE PORTER discussed the present system. In terms of timing, to get this whole process done in time for the next election, constitutionally the governor as the appointing authority has 90 days to look at and change, if so desired, the reapportionment plan that the board came up with. Representative Porter noted that that had happened ten years before. He stated, "There's one 90-day period that exists in the constitution now that we're kind of taking out of here, which I cannot imagine a 90-day period going by that the legislature would not be organized." He acknowledged there could be some interesting discussion for a few weeks. REPRESENTATIVE ROKEBERG suggested this mandate would help accelerate that organization, with the responsibility to meet it both practically and constitutionally. Number 2147 REPRESENTATIVE ROKEBERG referred to page 5, line 27, which deletes "his reapportionment duties." He suggested the sentence would read better if they inserted "its duties." CHAIRMAN GREEN stated his opinion that it reads as well either way. Number 2217 CHAIRMAN GREEN asked whether there was any objection to adopting Amendment 1. Hearing none, he announced that it was adopted. Number 2221 REPRESENTATIVE CROFT referred to page 4. Noting that the four legislative appointees can be removed with or without cause, he commented, "That makes sense to me, I guess; it may be problematic, but I understand why it's there." He pointed out that on page 4, line 16, however, the chair of the board may be removed only for good cause shown by a majority vote of the group. REPRESENTATIVE CROFT said "good cause" is a term of art defined in case law. A judge may rule on whether someone was terminated for good cause, for example. He asked whether it is Representative Porter's view that if three board members terminated someone, that person could go to court and claim it was not for good cause but for bad cause or a partisan cause, and get relief. He then asked, "Or is good cause really sort of superfluous there, we say, 'may be removed by a majority vote'?" REPRESENTATIVE PORTER replied that he thinks the person would have standing to make that claim. Number 2265 REPRESENTATIVE CROFT responded that normally, good cause has to do with performance of one's duties, outside of politics, sexual harassment, or other things which are "bad cause." He asked whether they could only say here that someone did a bad job, or whether they could replace someone for a larger, political reason. REPRESENTATIVE PORTER said he would guess that either of those scenarios could reach the level of "good cause shown," depending on the individual facts as applied to the case law. Number 2310 REPRESENTATIVE BUNDE made a motion to move HJR 44, Version M [0-LS0528\M, 2/9/9 recommendations. REPRESENTATIVE CROFT and REPRESENTATIVE BERKOWITZ objected. Number 2326 REPRESENTATIVE BERKOWITZ expressed appreciation for the effort to reform how redistricting or reapportioning occurs, doing away with some of the gerrymandering that was so popular last time. However, he had two overarching problems with this. The first problem is stylistic: He believes they should be parsimonious with constitutional language, that constitutional amendments should be short and that the constitution should be more of a general document. REPRESENTATIVE BERKOWITZ said the second problem is more substantive. What they are seeing here is a shift of power from the executive branch to the legislative branch, without any real showing that it will benefit the fairness of elections. Representative Berkowitz stated, "And I can give you a hypothetical. You're going to have four senior members of the legislature sitting together in a room, and they're going to be redistricting. And it seems to me that they would be hard-pressed not to succumb to the temptation of giving themselves safe districts, and maybe a few ...." CHAIRMAN GREEN said this doesn't say representatives. REPRESENTATIVE ROKEBERG added that those representatives just have appointing power. Number 2417 REPRESENTATIVE BERKOWITZ said, "But if ... you're in a position where the senior members of the House and the senior members of the Senate are, either themselves or through their deputies, going through a redistricting, the temptation is going to be hard for them to resist not to carve out safe districts for themselves and maybe for a couple of selected lieutenants. And that kind of temptation doesn't do much to ensure public confidence in the process. And I think if there were some insulation that kept the legislature from being involved in picking the reapportionment, this idea, the idea of redoing how we redistrict, might have more strength." Number 2443 CHAIRMAN GREEN responded that the governor, under the present system, chooses the members. He asked, "Wouldn't it ... seem to you that that would be more of a temptation for a single appointer to get gerrymandering than it is by a group made up of equal numbers of both sides?" REPRESENTATIVE BERKOWITZ replied, "I'm not saying that the way it's done now arrives at a perfect solution. And there's some advantages of it. I think, generally speaking, we've achieved a pretty good balance in terms of checks and balances here in this state. We have, I would venture to say, more personal freedoms than any other state I've ever been in [ends mid-speech because of tape change]." TAPE 98-15, SIDE B Number 0006 REPRESENTATIVE BERKOWITZ mentioned that there are many options, including appointing independent panels somewhat like the judicial council. Number 0016 REPRESENTATIVE PORTER responded that while the weight of this constitutional amendment is substantial, because the change from one system to another affects many sections of the constitution, he believes it is fairly simply stated in what this constitutional amendment would amount to: the shift from the governor appointing the board to a bipartisan representation of the legislature appointing the board. REPRESENTATIVE PORTER stated, "The benefit, I would think, as the chairman indicated, would be to eliminate that temptation. If you have the absolute power, there is absolute temptation. If you don't have the absolute power, there isn't absolute temptation. And, as a matter of fact, there's a bar to the temptation, if they had it, because it's a bipartisan group. The members of the legislature, to make the record perfectly clear, are not going to be sitting down and drawing up a plan. They are appointing folks, recognizing that the political opposite is appointing folks, also. I think it would be in everybody's best interest to appoint folks that would do an objective job in the first place." REPRESENTATIVE PORTER pointed out that of the other states, none allows the governor to appoint the reapportionment board without some check, and only Maryland allows the governor to make that appointment but requires legislative confirmation of those appointments. He suggested there would be lack of balance on the board, however, if the governor and the majority of the legislature belonged to the same political party. Number 0116 REPRESENTATIVE PORTER noted that California, Washington, Hawaii, Montana and a couple of other Western states have plans similar to this. He said most states have plans that are in this area, but this is probably closer to those Western states that have more recently adopted this kind of plan. Number 0136 CHAIRMAN GREEN suggested this actually gives the minority a disproportionate advantage. It wouldn't be heavily weighted in favor of one party or another. Number 0148 REPRESENTATIVE BERKOWITZ pointed out that they are ignoring the 50-plus percent while I know partisanship is almost necessarily a part of how we perform down here, I don't think we need to go about redrawing our district lines in a partisan way. I think there's got to be something that's above partisan politics." REPRESENTATIVE BERKOWITZ restated that the temptation to protect leadership slots or districts will be very hard to resist. When the leadership has the opportunity to pick individuals, he said, that is really the same position that the governor is in now. Even accepting the premise that it is better to have many people making a selection than just one, it will be a little less skewed than now but it will be a balanced skewing. He said he believes they must look at ways of drawing lines that provide fairness for everybody. Number 0197 CHAIRMAN GREEN asked why it is skewed if both parties get to appoint two members and mutually agree to a fifth member, or if they can't agree, it is done by the chief justice. REPRESENTATIVE BERKOWITZ replied, "Well, if, for example, ... you and I were to appoint people, your guy might say, 'Leave Joe's seat alone,' and my guy might say, 'Leave Ethan's seat alone,' and those two are now off the table. And so, our seats ... are thereby protected. But my guy might also say, 'We want to take care of Eric Croft at the same time, but there's a couple of seats we're willing to put into play.' And that's what you wind up doing, is negotiating which seats are going to go into play." CHAIRMAN GREEN suggested the other board members may disagree, however. He asserted that it is balanced, not skewed. REPRESENTATIVE BERKOWITZ replied that for anything that goes on in a closed room, it is hard to say what will happen. Number 0241 REPRESENTATIVE BUNDE said the check and balance here is that if it is skewed, people will be standing in line to file suit, and the court will act. He noted that they are talking about a worst-case scenario, suggesting that there will be people with good public policy intentions. He restated that there is the check by the courts against gerrymandering. CHAIRMAN GREEN pointed out that there are guidelines, also. Number 0276 REPRESENTATIVE CROFT said he continues to object to the change from counting residents to counting nonresidents under the decennial census, although he acknowledges there are administrative efficiencies from that. He said that was an objection he had to the prior reapportionment schedule. REPRESENTATIVE CROFT noted that there are only three branches of government, and this is a tough, important, contentious area that has been abused in the history of the nation and of the state. He said it is safe to say the legislature should not be in charge of it alone. This resolution has searched for a tie-breaker and found it in the court system, which people in the state think of as impartial. However, Representative Croft said, he continues to have a number of concerns about involving the court. REPRESENTATIVE CROFT cited as an example the appointment of Justice Eastaugh by then-Governor Hickel. He stated, "I think as long as we've got the court doing its job, deciding cases on the merits, what'll happen was what happened when Hickel appointed Eastaugh. There was not a partisan uprising on it. ... There was no attempt to get him out of office when his first confirmation came up .... We knew him to be a qualified attorney, would make a qualified judge, and a loyal Republican." REPRESENTATIVE CROFT said that is all right as long as the chief justice's job is interpreting the law and deciding the facts. However, if the job includes appointing the fifth and deciding member of the reapportionment board, Representative Croft said he thinks it makes a significant difference what happens. He stated, "In that situation, as important as this deciding vote is and this reapportionment process is for us in this body, we prefer an incompetent Democrat appointed than a competent Republican, and I would submit you would promote the opposite view, because it's so vital. And if that person has a legitimate shot, one in five and a little more than that, at being the chief justice when this rolls around, I want to make sure ... that it's a Democrat." Number 0393 REPRESENTATIVE CROFT referred to the role of tie-breaker and said it seems improper to involve the court system in that manner. He expressed concern that where so far there has been a very impartial judiciary, they are now politicizing it. He stated, "And I think we will see the day under this plan where there is a significant partisan attempt to knock a member of the supreme court off because it's heading up to reapportionment time. REPRESENTATIVE CROFT, speaking of the supreme court, said, "There's only five members. We know who's been there before. We know it's a small enough state, their prior leanings. As I said, it doesn't make any difference, I'd trust Justice Eastaugh to decide a case on me, on nonpartisan grounds. But I'd also trust him probably to appoint someone maybe I didn't like if it was to be a partisan decision." REPRESENTATIVE CROFT concluded, "So, I don't like involving the court system. I know that having the governor do it has its flaws. But I think of the three branches of government, we shouldn't be doing it - it's too much mischief there possible. The court system shouldn't be doing it - it ain't their job and I want to keep them pure. And the only other branch of government with a statewide focus and not at least a direct interest in the particular seats involved is the governor. I think the Founding Fathers in our state chose the lesser of two, three evils, maybe, and did it for that reason. And though imperfect, it's preferable." Number 0475 CHAIRMAN GREEN took exception, suggesting it is just the opposite. Citing the last election as an example, he said there is a strong political influence from the governor's office in the affairs of the legislature, in who is elected; the closer it gets to an even balance, the more that is true. He expressed confidence in the proposed system, and he suggested it contains more avenues than presently available for making it more neutral and fair. Number 0570 REPRESENTATIVE ROKEBERG emphasized the importance of this, saying he looks forward to its being on the ballot. He stated his belief that Alaska lacks the enhanced checks and balances of the other 49 states. He said Alaska has a long history of gubernatorial abuse and a litany of case law and litigation that stretches back decades on this. He suggested looking at the wishes of the framers, who he said intentionally weakened the separation of powers to give the executive more strength in Alaska, which was, he said, an experiment. The resulting problems that have occurred because of this are the rationale for pursuing this particular amendment. REPRESENTATIVE ROKEBERG characterized HJR 44 as strengthening the separation of powers between the branches, saying it would preclude the governor from having a greater ability to appoint a board who, in turn, will appoint a more like-minded legislature. He stressed the importance of that point. He submitted that on this count, the framers of Alaska's constitution erred, which he said they are trying to right. He agreed with the chairman that the intent is to make it more balanced, level and fair. REPRESENTATIVE ROKEBERG expressed his hope that the procedures will be expeditious, not protracted court battles, which is another important element of this. He cited a personal example where a shortened campaign season resulted in significant disruption. He concluded by saying he would be voting for HJR 44. Number 0695 REPRESENTATIVE BERKOWITZ responded that the framers deliberately crafted a strong executive branch, because the qualities of a state this big required some authority that could move quickly and decisively. He stated, "That was a deliberate decision, and it was done, probably, throughout this constitution. And if we're going to nibble at it in a piecemeal fashion, the unintended consequences could be quite profound. I don't know what they are. But there's a possible reason why, excepting all the chicanery that went into some of the past redistricting." REPRESENTATIVE BERKOWITZ continued, "There's some merit to an argument that a governor draw district lines in such a way as to get a legislature willing to move forward with his or her legislative agenda. And we've seen, for the last eight years - it'll be ten years - a Republican agenda move forward. And I think that span of time is sufficient for the people of the state to determine whether that agenda is one they want to pursue or not. If it's one they want to pursue, they have the opportunity of electing a Republican governor ... at the next election. If it's not one they want to pursue, well, then, they can stay with Governor Knowles. So, before we dispense with some of the thinking that went into putting together a strong executive, I think there's a lot underneath it that deserves some consideration." Number 0792 REPRESENTATIVE BUNDE noted that one thing people frequently say about the Alaska electorate is that they vote for a person first. He acknowledged Representative Berkowitz' mention of the majority of voters who are not affiliated with any party. He suggested that giving voters an extra burden of voting not only for the person but also for a governor that will redistrict in such a manner as to affect future state programs would complicate elections unnecessarily. REPRESENTATIVE BUNDE said he thinks the strongest argument he has heard for this resolution is that a governor may try to gerrymander to support his program, as Representative Berkowitz has indicated. He stated, "And it's happened in the past, and it's time to say, 'Whoa, enough. Let's get on with a more fair way.'" Number 0898 REPRESENTATIVE PORTER suggested they can look at current language in the constitution and see the consequence of repeated litigation and alleged or substantiated gerrymandering. He suggested they can also look at the consequences of this form of provision in state constitutions nationwide; he indicated those states don't have those kinds of problems. He concluded that the consequences will be positive. CHAIRMAN GREEN noted the motion before the committee and asked whether the objection was maintained. REPRESENTATIVE BERKOWITZ said yes. Number 0945 CHAIRMAN GREEN requested a roll call vote on moving HJR 44, Version M [0-LS0528\M, 2/9/98], as amended, from the committee with individual recommendations. Voting to move it from committee were Representatives Bunde, Porter, Rokeberg and Green. Voting against it were Representatives Berkowitz and Croft. Representative James was absent. Therefore, CSHJR 44(JUD) moved from the House Judiciary Standing Committee by a vote of 4-2.
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