Legislature(1997 - 1998)

02/06/1998 01:13 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING                                 
[Also contains some discussion of HJR 36.]                                     
Number 0025                                                                    
CHAIRMAN GREEN announced the committee would hear HJR 44, proposing            
amendments to the Constitution of the State of Alaska relating to              
redistricting of the legislature.  [In committee packets was                   
version 0-LS0528\C, 2/3/98, but it was never formally adopted as a             
work draft.]                                                                   
Number 0044                                                                    
REPRESENTATIVE BRIAN PORTER, joint sponsor of HJR 44, advised                  
members that the resolution suggests an amendment to the state                 
constitution to change basically two things.  The first is the                 
method in which the reapportionment board would be appointed to, in            
the sponsors' view, make it a bipartisan appointment rather than a             
partisan appointment.  And the second is to do what really exists              
in the state right now, to establish single-member districts.                  
Representative Porter indicated that is suggested by both the                  
Alaska Supreme Court and the U.S. Supreme Court.                               
REPRESENTATIVE PORTER advised members that Jim Sourant of his                  
office and Tim Sullivan of Representative Mulder's office, the                 
joint sponsor of the bill, have done a lot of research on this.                
Mr. Sourant, a retired attorney, has reviewed cases and can discuss            
them if those kinds of questions come up.  He then asked Mr.                   
Sourant and Mr. Sullivan to come forward to take the committee                 
through the bill.                                                              
Number 0200                                                                    
JIM SOURANT, Legislative Assistant to Representative Brian Porter,             
Alaska State Legislature, explained that HJR 44 sets up 40 single-member House 
has not been set out in the constitution before.  Each Senate                  
district is composed of two contiguous House districts; this is                
therefore very simple and straightforward.                                     
MR. SOURANT advised members there was language taken out of Section            
6, which is the redistricting language.  An amendment would be                 
offered by the sponsors to restore the original language, to make              
clear that when the reapportionment board is in the process of                 
redistricting or reapportioning - "however you want to look at it"             
- they look at the population as the first threshold area and then             
look second to make sure the districts are compact, contiguous and             
socioeconomically integrated.                                                  
Number 0328                                                                    
MR. SOURANT noted that in another part of HJR 44, the authority for            
reapportionment now will be in the hands of a five-member                      
bipartisan board.  The majority and minority parties each get two              
seats.  Mr. Sourant suggested this ideologically opposed                       
composition should ensure a diversity of views when drafting the               
final reapportionment bill.                                                    
MR. SOURANT explained, "It's not designed to be an adversary                   
system.  It's a system of cooperation.  The fifth member, who is               
the chair, is to be as politically neutral and independent as                  
possible, and the fifth member is selected by a majority of the                
first four members.  Simple enough.  Now, if the first four members            
cannot agree on their leader, then, the way the bill is drafted                
now, you have the speaker of the House, the House minority leader,             
and the chief justice vote by a majority vote who that fifth member            
will be.  There will be an amendment offered by the sponsors on                
that issue, as well, to address the concerns of the court system."             
Number 0418                                                                    
MR. SOURANT advised members that to enhance the political                      
neutrality of this fifth person, the person may not have held an               
elected state office or an elected office of a political party in              
the five-year period preceding appointment.  Mr. Sourant noted that            
"political party" is defined in AS 15.13.400.                                  
MR. SOURANT referred to the issues of removal and of filling of                
vacancies, if necessary.  He pointed out that the first four board             
members may be removed with or without cause, by whatever                      
appointing authority appointed them.  The fifth member, however,               
may only be removed for good cause shown, as determined by a                   
majority of the group consisting of the other four members and the             
chief justice.  Mr. Sourant commented that there are legions of                
cases talking about what "good cause shown" is.                                
Number 0491                                                                    
MR. SOURANT referred to a large chart prepared by Kevin Jardell.               
He told members the board is to be assembled within 15 days after              
the organizational meeting of the legislature that follows the                 
decennial census; that would be in January of 2001.  The board will            
be required to obtain its own independent attorney.  "And it's                 
very, very important that that attorney be independent," Mr.                   
Sourant stated.  "Then, ostensibly, this reapportionment board will            
be organized and ready to go by the end of January 2001, so that               
when the census data is released - which last time was in April -              
they'll be ready to act on it immediately."                                    
MR. SOURANT explained that when the census data is released, the               
board will have 30 days to come up with a proposed plan, if they               
can all agree on one.  If they can't agree on one plan, they can               
have alternative plans.  Then, over the next 60 days after the                 
first 30 days, there are public hearings around the state; and that            
is when the reapportionment board, by the end of that 60-day                   
period, should agree upon its reapportionment plan and                         
Number 0633                                                                    
MR. SOURANT said it is highly likely the reapportionment board will            
agree on a final plan of reapportionment.  However, in the remote              
event that they cannot agree, HJR 44 says there will be a three-judge panel for
judge will be selected by each of the following:  the speaker of               
the House, the minority leader of the House, and the chief justice.            
Mr. Sourant pointed out, however, that the sponsors would offer an             
amendment relating to how the three-judge panel is selected, to                
address concerns of the court system.                                          
Number 0725                                                                    
MR. SOURANT noted that the appeal process was set out on Mr.                   
Jardell's chart. If a qualified voter wants to challenge the                   
adoption of a reapportionment plan done by the reapportionment                 
board, that person has 30 days within which to bring the suit in               
the superior court; the superior court's scope of review is limited            
to whether the board acted arbitrarily or capriciously in adopting             
the plan.  Then, if an appeal is taken from the superior court to              
the supreme court, the standard of review will be limited to                   
whether the superior court abused its discretion in determining if             
the board acted arbitrarily or capriciously in adopting the plan.              
"That's if the appeal is taken from an adoption of a plan by the               
reapportionment board," Mr. Sourant added.                                     
MR. SOURANT advised members that under the scenario where the                  
three-judge panel adopts a reapportionment plan, the appeal goes               
directly to the supreme court, where the scope of the review will              
be limited to whether the three-judge panel acted arbitrarily or               
capriciously in adopting the plan.                                             
Number 0776                                                                    
MR. SOURANT pointed out that the powers of the three-judge panel to            
come up with a reapportionment plan will be limited to adopting one            
of the proposed plans that the reapportionment board is deadlocked             
about.  In other words, the three-judge panel does not hire its own            
experts and so forth, duplicating the process of the                           
reapportionment board.  The panel's job is simply to choose among              
alternative proposals.                                                         
Number 0811                                                                    
MR. SOURANT told members there is also language in HJR 44 to make              
clear that all these cases before the superior court or supreme                
court have priority over all other cases, so that the decisions                
will be expedited.  In the event a plan is invalidated and                     
remanded, it shall be remanded to the reapportionment board, not to            
a lower court or special master; that is in keeping with the                   
separation of powers expressed by the dissenting opinions in the               
Hickel case.                                                                   
MR. SOURANT explained that the scenario they are protecting against            
is one where a reapportionment plan is litigated so long that it               
won't be decided in time to have a primary election in the year                
2002.  The way the constitution is drafted now, the existing                   
reapportionment plan, which will be around until the end of                    
December 1999, would become inoperative when the decennial census              
is released.  Therefore, it is possible to have a big hiatus where             
there is no existing reapportionment plan and yet they haven't                 
litigated the new reapportionment plan.                                        
MR. SOURANT stated, "And that actually almost happened in the                  
Hickel case.  That was one reason why the supreme court remanded               
this thing down ... to the superior court.  And so, what is in HJR
44 now is a savings provision, so that if you do get a case that's             
not litigated in time to have the next primary election, then the              
old reapportionment plan ... will control.  And, again, you need to            
have not just a final judicial decision, but you have to have 60               
days at least, so that you know ... where the lines are, so you can            
come up with voter registration lists, so candidates can figure out            
if they're going to run in the district, because they don't even               
know where the lines are till it's all done.  And then you've got              
to print ballots.  And so, from the time it's finally remanded and             
decided, you need at least 60 days.  So, that's the language that's            
in HJR 44, that in effect preserves the old reapportionment plan               
until the new one is approved and 60 days have gone by to get ready            
for the next election."                                                        
MR. SOURANT asked whether Tim Sullivan had anything to add; Mr.                
Sullivan offered to answer questions.                                          
Number 1009                                                                    
REPRESENTATIVE CON BUNDE asked whether a "qualified voter" is                  
someone currently qualified to vote or is someone capable of being             
qualified to vote.                                                             
MR. SOURANT replied, "That is existing language in the                         
constitution.  That has not been litigated, so I don't know the                
answer to that."                                                               
REPRESENTATIVE BUNDE expressed the hope that it would be the                   
broader interpretation.                                                        
Number 1065                                                                    
REPRESENTATIVE JEANNETTE JAMES asked, "And the time line is 90 days            
to come up with the final plan, 30 days with a proposed plan, 60               
days to hold hearings and agree on a final plan; 90 days from when             
until when?"                                                                   
MR. SOURANT replied, "The clock starts to run on the date that two             
things happen.  The first one is that the reapportionment board is             
appointed, and they're sitting, ready to go, and secondly, the                 
release of the decennial census date.  Now, they normally happen in            
the order I just gave.  But we've also provided language in HJR 44             
that if the decennial census data comes out before the board is                
appointed, the clock doesn't run until ... both things have                    
occurred.  So, then the 90 days starts to run ... at that point."              
Number 1122                                                                    
REPRESENTATIVE JAMES suggested that if the "census plan" was out by            
May 1, 2001, for example, and previously the board had been                    
established, there would be 90 days from then to come up with a                
plan.  She said there would be until 60 days before August of the              
next year.  She asked whether that time would be taken up perhaps              
with appeals or decisions.                                                     
MR. SOURANT affirmed that, adding that he believed the 1990                    
decennial census was released in March of 1991.  Under the law, as             
he understands it, the census will be taken in April and the report            
releasing the data has to be done within 12 months.  Mr. Sourant               
stated, "But with technology improving as it is, as long as it                 
takes to get the data, it's going to take a lot less time to                   
process the data.  So, if last time the data was received in March             
of '91, ... I think if you're trying to sketch out a time line, you            
should almost assume it won't be any later than March of 2001."                
Number 1203                                                                    
REPRESENTATIVE ETHAN BERKOWITZ said it seems that two theories                 
drive any sort of redistricting.  They must redistrict because of              
new census data, and they want to redistrict so that everyone                  
achieves fair representation.                                                  
MR. SOURANT concurred.                                                         
Number 1243                                                                    
REPRESENTATIVE BERKOWITZ asked why the single-member district                  
necessarily is the best way of reaching those goals.                           
MR. SOURANT replied, "The short answer is that it's a more reliable            
way of ensuring a fair, objective way of ensuring true                         
representation.  If you have multimember districts, that concern is            
not as well-protected as it is with single-member districts; and               
this is not just a matter of my own opinion."                                  
MR. SOURANT continued, "Everyone should be aware and probably                  
should read the U.S. Supreme Court case which was Chapman v. Meier,            
... where the Supreme Court did mention a general approval of                  
single-member districts and cited a whole number of law review                 
articles that were critical of multidistrict-type of apportionment.            
And then it went on to cite with approval several factors why it's             
good to have single-member districts. ... I think the case they                
worried about was you may have a multimember district with as many             
as 30 candidates' names on it, so ... you have the problem of a                
voter just trying to get educated about whom to vote for; it puts              
an enormous burden on them."                                                   
MR. SOURANT continued, "It really does not encourage people to run             
for public office, because if you have that many people to compete             
against, it's going to cost a lot more money to be able to campaign            
in that kind of an environment, and that people themselves within              
multidistricts may not get ... the true representation that you are            
alluding to."  Mr. Sourant said those factors, and more, were                  
enunciated by the Alaska Supreme Court in, he believes, the Groh               
case; they had cited reasons why single-member districts are                   
Number 1367                                                                    
REPRESENTATIVE BERKOWITZ mentioned the example of a corporate board            
of directors where there is weighted voting, so that slates that               
have 51 percent don't control the agenda at all times.  He asked               
whether there is any possibility along those lines for House or                
Senate districts.                                                              
MR. SOURANT replied that he had never heard of an apportionment                
plan incorporating anything equivalent to cumulative voting.  He               
suggested that may fly in the face of trying to get true                       
representation, where everybody's voice within a district is heard             
Number 1412                                                                    
CHAIRMAN GREEN suggested that would be no different than a 51/49               
percent split of the popular vote, whatever the size of the                    
district.  He asked whether those 49 percent are not represented               
properly, and he submitted that that is the way a democracy works.             
Number 1435                                                                    
REPRESENTATIVE PORTER said to that point, one case spoke to the                
problem of block voting in multimember districts.  He suggested                
there could be multimember districts and single-member districts in            
the same body.  He stated, "There's nothing that precludes that,               
and I think at one time this state did.  The problem that presents             
is that these folks getting together is a block vote, and really               
having a distinct advantage which disadvantages the constituents of            
the single-member district."  He cited as an example the Anchorage             
School Board; many people in Anchorage feel disenfranchised because            
there isn't a particular member that lives in their area.   He said            
that is precisely what the U.S. Supreme Court and Alaska Supreme               
Court have indicated is not desirable.                                         
Number 1494                                                                    
CHAIRMAN GREEN advised members that he had asked Kevin Jardell,                
committee aide, to go over the process with a flow diagram prior to            
taking further testimony.                                                      
Number 1548                                                                    
KEVIN JARDELL, Legislative Administrative Assistant to                         
Representative Joe Green, Alaska State Legislature, directed                   
members' attention to a large chart he had drawn and walked them               
through the steps outlined in previous testimony.  He asked Mr.                
Sourant to correct any misstatements.  [Some questions and answers             
regarding specific portions of the chart are not included here.]               
MR. JARDELL advised members that under HJR 44, if the board could              
not come up with a single final plan, the board would transmit to              
a three-judge panel each proposal it had considered.  The panel                
would then select one proposal and issue a proclamation of                     
reapportionment based on that proposal.  Just as if the board had              
submitted the final plan, it would then be subject to legal                    
challenge from any qualified voter of the state.                               
MR. JARDELL said one change under HJR 44 is that at the supreme                
court level, instead of allowing the courts to have the authority              
to redraw, they would remand it to the board.  He said he assumes              
the court would point out the problems and instruct the board to               
make the appropriate changes.                                                  
Number 1731                                                                    
MR. JARDELL pointed out that a citizen could attack the                        
constitutionality of a decision.  In that case, the standard would             
not necessarily be "arbitrary and capricious."  The superior court             
would make a decision, and there could be an appeal to the supreme             
court.  If the supreme court finds there are problems, it will                 
remand it to the board to actually draw in the corrections.                    
Number 1782                                                                    
MR. JARDELL said because the three-judge panel is a new type of                
court proceeding, the supreme court would promulgate rules,                    
probably procedures that the panel would use.  However, he said, it            
is unclear how much discretion the three-judge panel would have to             
actually look into the board's decision making, such as calling the            
board members in front of them, asking them questions and taking               
testimony about why they chose one plan over another, for example.             
Number 1815                                                                    
MR. SOURANT clarified that if a three-judge panel made a decision              
that was appealed to the supreme court, the supreme court would                
review the decision to determine whether the three-judge panel was             
arbitrary or capricious in adopting one of those plans.  The                   
supreme court can only look at the record made by the three-judge              
panel, as it is brought up on appeal; it cannot open up the                    
evidentiary issues again. It is equivalent to judicial review of an            
administrative decision, and the scope of review is very narrow.               
Number 1867                                                                    
CHAIRMAN GREEN said he thinks that is the point of concern; if                 
there were an appeal to the supreme court on a point of law rather             
than an arbitrary or capricious decision, the supreme court would              
be powerless to act, the way it is written.                                    
MR. SOURANT said that is correct, noting that a constitutional                 
issue is a question of law.                                                    
MR. JARDELL clarified that for the three-judge panel, the method by            
which they choose a plan is unclear and would have to be                       
promulgated by the supreme court.                                              
Number 1908                                                                    
REPRESENTATIVE PORTER suggested the confusion might be because he              
doesn't believe there would be citizen suit in one of the loops.               
The three-judge panel would be in place because the five-member                
board didn't come up with a plan on their own.  He stated, "The                
three-judge panel is empowered under this provision only to look at            
the plans that they came forward with and select them.  They would             
select one, and then that would be the proclamation."                          
MR. JARDELL said his reading was that perhaps after the three-judge            
panel made its decision, if a qualified voter wished to challenge              
that decision on a point of law, the original jurisdiction would be            
in the supreme court; it would not come back to the superior court.            
REPRESENTATIVE PORTER concurred.                                               
MR. JARDELL indicated that if the original jurisdiction is in the              
supreme court on a point of law, it would be acting as a trial                 
court.  "And I don't know if that would cause problems for the                 
supreme court," he added.                                                      
Number 1973                                                                    
REPRESENTATIVE PORTER pointed out that in the last census, the                 
reapportionment board didn't reapportion the state.  It was not                
remanded ultimately to that board but to a judge who, with some                
special masters that he appointed, reapportioned the state.                    
Representative Porter said he doesn't believe that is an                       
appropriate function for the court system.  Rather, it should be               
done by the body recognized in the state constitution as the one               
that should do that kind of thing.  "So, that's what we're getting             
at with setting these standards of limited jurisdiction for the                
courts," he explained.  He then likened the three-judge panel's                
choosing among the plans to the "last best offer" in a wage                    
dispute.  He said it is constructed this way so that the                       
reapportionment board itself will be motivated to get as close as              
possible, and if they have a problem, it will be small.                        
Number 2051                                                                    
CHAIRMAN GREEN again expressed concern over what would happen if a             
point of law went to the supreme court.                                        
Number 2077                                                                    
MR. SOURANT explained that there are two possible ways that the                
supreme court can look at appeals from the three-judge panel.  One             
would be if a qualified voter appealed the ruling of the three-judge panel; the
done arbitrarily or capriciously, if they erred in the composition             
of the reapportionment plan.  At that point, the scope of review is            
just limited to the record, and it is not a de novo proceeding.                
Mr. Sourant added that the supreme court cannot substitute its                 
judgment for that of the panel.                                                
MR. SOURANT said on the other hand, if a qualified voter were to               
bring a lawsuit and raise a constitutional issue, the supreme court            
would decide that as a matter of law.  It is possible that some of             
reapportionment applications may rise to the level of a                        
constitutional issue.  Mr. Sourant commented, "You cannot                      
underestimate the creative powers of determined counsel.  And if               
so, there'll be a blurry area there as to whether or not the                   
supreme court is reviewing this thing from an arbitrary and                    
capricious way that the three-judge panel adopted this plan, or                
whether the supreme court is going to be looking at it as a                    
constitutional issue."  Mr. Sourant added that even if it is a                 
constitutional issue, however, he had doubts that the court can                
still draw up a reapportionment plan in the manner that                        
Representative Porter had just outlined.                                       
Number 2153                                                                    
CHAIRMAN GREEN said it is that gray area where there is concern.               
He noted that there would be testimony from the court system.                  
Number 2170                                                                    
REPRESENTATIVE BUNDE stated his understanding that citizens have a             
right to challenge the plan, both on the grounds of its being                  
arbitrary or capricious and on a point of constitutional law, on               
either side of the equation [referring to the chart].                          
MR. JARDELL clarified that it might not in actuality be equal on               
both sides.  If a citizen challenged the panel's decision on a                 
constitutional point, for example, the first adversarial proceeding            
would be at the supreme court level.  There wouldn't be a trial                
court taking testimony and having both sides argue the merits of               
the case, with another level of appeal.  He said his concern is                
that the supreme court is not set up to act as a trial court, and              
that it may be a better system to have constitutional challenges               
from the three-judge panel go to a superior court level, with                  
supreme court review.                                                          
MR. SOURANT responded that he would vigorously oppose that, saying             
that a constitutional attack, the issue raised by Mr. Jardell, is              
not a factual issue but an issue of law.  "And it can be disposed              
of by summary judgment motion at the supreme court level, and I see            
no reason to complicate this process any more than it already is,"             
he concluded.                                                                  
Number 2312                                                                    
REPRESENTATIVE ERIC CROFT spoke via teleconference from Anchorage,             
saying it seems a constitutional challenge could be many things,               
but one of the more prevalent is to say that somehow this plan                 
denies minority representation under the federal voting rights act,            
or, indirectly, under the equal protection clause of the                       
constitution, for example.  In that case, there would be                       
significant factual issues to determine, including where Natives               
reside or what proportion of the population they constitute.  He               
said one approach that occurs to him is that whether it is a final             
determination of the three-judge panel or of the five-member panel,            
it would go to the supreme court anyway.  He stated, "And you                  
preserve that superior court independent challenge loop, as it                 
currently stands, and preserve everybody's place in the hierarchy:             
the superior court making factual findings, the supreme court                  
Number 2380                                                                    
MR. SOURANT asked Representative Croft, "If it is the Federal                  
Voters Rights Act of 1965 you're raising, isn't that a federal                 
statute that would be litigated in federal court?"                             
REPRESENTATIVE CROFT said it may very well be, but he'd understood             
there is concurrent jurisdiction.                                              
MR. SOURANT replied that he knows of no reported case in this state            
or elsewhere where that Act has been litigated in state court.                 
REPRESENTATIVE CROFT responded that Mr. Sourant has more expertise             
in that area; however, it seems that wherever it is raised and                 
challenged, there could be factual issues that need to be                      
determined first.                                                              
Number 2410                                                                    
REPRESENTATIVE BERKOWITZ added, "Without jumping into whether it's             
a federal issue or a state issue, equal protection challenges can              
be raised at a state level.  And if there is an equal protection               
challenge, that would seem, as Representative Croft indicated, to              
require some factual determination.  And if there's a loop that                
includes the superior court, which is better-equipped - I think, in            
my experience - to handle factual questions and make factual                   
determinations than the supreme court, that loop ought to be                   
CHAIRMAN GREEN suggested asking that question of the court system              
Number 2432                                                                    
REPRESENTATIVE PORTER told members that certainly the sponsors are             
not locked into anything; if the process can be improved, they are             
open to that.  He pointed out the unusual position that this                   
particular process would put a superior judge in, of having to                 
review the decision of three presiding superior court judges.  He              
suggested that testimony may shed more light on that point.                    
TAPE 98-11, SIDE B                                                             
Number 0006                                                                    
REPRESENTATIVE JAMES stated her understanding that the three-judge             
panel wouldn't be used unless the five-member board could not                  
agree, and the panel would then choose from the plans that the                 
five-member board had come up with.                                            
CHAIRMAN GREEN concurred.                                                      
REPRESENTATIVE JAMES said she envisions additional litigation                  
because no matter how many plans they have, a challenge could be               
against a part of every plan, for example, rather than against one             
particular plan.  She asked when there would be a determination                
that the plans that were put on the table weren't right in some                
Number 0050                                                                    
REPRESENTATIVE PORTER stated his understanding that there would                
only be an opportunity for a citizen to challenge a proclamation,              
the publication of a plan.  That could happen from the plan which              
the five-member board agrees upon.  It could also happen from the              
plan that the three-judge panel agreed upon and, in effect, sent               
back to the board for publication.  But they wouldn't have to                  
concern themselves with the multiple plans, he said.  By the way it            
is constructed, there would be only one plan to challenge.                     
Number 0085                                                                    
REPRESENTATIVE JAMES said she sees the merit to that, because one              
problem they've had historically is picking the plans apart.                   
However, she said, she doesn't know that she is comfortable with               
having a plan where the plan itself cannot be challenged.  She                 
cited redrawing of lines as an example and asked, if there were a              
challenge about the unfairness of a line, who would actually redraw            
the lines.                                                                     
REPRESENTATIVE PORTER said the whole point is to have the                      
reapportionment board do that.                                                 
REPRESENTATIVE JAMES said she understands that goal.                           
Number 0135                                                                    
CHAIRMAN GREEN expressed concern and cited an example where the                
three-judge panel gets two plans and selects plan "A."  The supreme            
court then says it was arbitrary and capricious, so the three-judge            
panel offers up plan "B," which the supreme court agrees to.                   
Chairman Green asked whether that puts the supreme court in a                  
choosing mode for the plans.                                                   
Number 0153                                                                    
REPRESENTATIVE NORMAN ROKEBERG stated his understanding that the               
reapportionment board would generate a record of how they made                 
their decisions, as would the three-judge panel.  He referred to               
page 5, line 31, and said the supreme court shall adopt rules for              
the proceedings.  He stated, "Now, that is maybe where we're                   
getting a little hung up, because we assume that these rules will              
provide for a record, but maybe the language here doesn't say that,            
you know.  So, that could be one area to look at.  And I would                 
assume, then, that the record would then be from the board as well             
as the three-judge panel that the supreme court would then review,             
vis- -vis having to enter into an evidentiary-type trial, then; so,            
you don't have a de novo situation.  Is that right?  Is that what              
you're trying to do?"                                                          
CHAIRMAN GREEN agreed it wouldn't be de novo.                                  
Number 0217                                                                    
MR. SOURANT replied that if they use the last reapportionment as an            
example, there was a voluminous reapportionment board report, which            
was the basis of the appeal to the supreme court.  He stated, "In              
the scenario you sketched out, at first you have this written                  
record of what ... the apportionment board has done. ... You have              
what the three-judge panel did, a record of their proceedings.                 
Both of those would be part of the record that would go to the                 
supreme court to review."                                                      
REPRESENTATIVE ROKEBERG suggested there would be no need, then, for            
the evidentiary-type hearing at the supreme court level.                       
Number 0251                                                                    
MR. JARDELL explained that his concern comes in where the record is            
transmitted to the supreme court.  The challenger makes his                    
challenge in the supreme court; that is the first chance he gets to            
make his record.  Therefore, he is left with the cards that have               
been dealt all along.  Mr. Jardell stated, "He can't, as in a trial            
court, use the procedures, use the evidence rules, use the tactics             
and the tools that are available to him to attack the old record               
and make an actual trial court record which will be reviewed by the            
supreme court.  It's that record that is normally brought up to the            
supreme court, and, in my view, it works pretty well.  Otherwise,              
I think what you're going to end up with is having the original                
action filed in the supreme court and possibly having five justices            
act as a trial court.  And I don't think you'd find many attorneys             
that would think that would be a good idea."                                   
Number 0301                                                                    
REPRESENTATIVE BUNDE suggested that having the three-judge panel               
choose from among multiple plans would in effect be drawing lines              
that might favor someone over someone else.                                    
REPRESENTATIVE JAMES said the only reason the three-judge panel                
would choose a plan is because the reapportionment board could not             
choose a plan they liked; the panel's choice would be between the              
plans that were chosen.  The only thing that can be appealed is                
whether they chose the right plan, and the only decision that the              
supreme court could make would be to remand it back to the panel to            
do the plans over.  She asked whether that is how it is intended to            
Number 0414                                                                    
CHAIRMAN GREEN replied, "Well, on either side [speaking of the                 
chart], you're talking about an appeal to a plan."                             
REPRESENTATIVE JAMES said when a decision is made, if anybody wants            
to appeal the decision of a plan, certainly they could pick the                
plans apart from which the one plan was chose.                                 
REPRESENTATIVE PORTER responded, "I think that 'the' plans would               
certainly be a portion of a suit brought by an individual of the               
selection made by the three-judge panel of the plans.  Probably -              
and not necessarily, but probably - the person favored one of the              
other plans.  But the record of all of those plans will be                     
available from the consideration and adoption proceedings by that              
three-judge panel.  So, in that suit, they could certainly say if              
they just don't like one over another one; they can say that.  If              
they think that the one that was adopted was constitutionally                  
problematical, then they can allege that, which equal protection               
would allow the court to look at it from that standpoint.  The only            
thing ... that happens is that the court says if they just like one            
over another, which they certainly would be able to say, 'No, the              
three-judge panel was not arbitrary and capricious in making that              
selection.'  You have a constitutional problem?  They'll look at               
that constitutional plan.  And if that plan has a constitutional               
problem, they can send it back."                                               
Number 0490                                                                    
REPRESENTATIVE BERKOWITZ suggested they can send it back, but they             
can't fix the problem.  There is an automatic extra step.                      
REPRESENTATIVE PORTER responded, "They cannot interpose their                  
judgment, except to say that this is unconstitutional. ... If the              
worst possible situation occurred -- and, of course, that's what               
we're designing this thing to avoid, and currently it could happen             
that way, that a maverick, one-sided reapportionment board and the             
supreme court got into it, if this other procedure were in place,              
they could go back and forth all day, admittedly.  But the only                
thing that would happen under this bill would be that the old plan             
would stay in place.  But unconstitutional is unconstitutional, and            
they can make that finding every time and send it back to be fixed,            
and if they don't fix it, they can send it back ...."                          
REPRESENTATIVE PORTER said they are trying to get the most fair,               
equal, unbiased, balanced board, so that these kinds of problems               
are the exception, not the rule.  Under the present constitutional             
scheme, they have been the rule, he said, noting that there has                
been a challenge of every single reapportionment plan.                         
Number 0558                                                                    
REPRESENTATIVE ROKEBERG asked Mr. Jardell whether the Alaska                   
Supreme Court and particularly the U.S. Supreme Court sit as                   
tribunals of first referral for certain special cases.  For                    
example, if a state sues the federal government, that goes right to            
the U.S. Supreme Court.                                                        
MR. JARDELL agreed.  He said he is not an expert in that area but              
could make the firm statement that a trial court is in a much                  
better position to make those determinations and findings.  He                 
suggested that the point that there are just a few instances is                
REPRESENTATIVE ROKEBERG suggested since this would be                          
constitutionally mandated, the court would have that authority.                
CHAIRMAN GREEN said they would revisit that issue with later                   
Number 0648                                                                    
REPRESENTATIVE ROKEBERG referred to page 3, beginning on line 9,               
subsection (b).  He indicated it is about caucusing and the time               
line for that in relationship to the selection of the presiding                
officers of each body.  He expressed concern about the word "after"            
on lines 10 and 11; the word "following" on line 12; and the word              
"convenes" on line 13.  He explained, "We're aftering and we're                
following and we're convening, and the time line concerns me,                  
because I'm not sure what this says."                                          
REPRESENTATIVE ROKEBERG noted that many times, there are caucuses              
prior to the convening of the first session of the two-year                    
legislative session.  "Ergo, we'd have elected presiding officers,             
and ... the House and Senate don't necessarily happen on the same              
day," he said.  "And then, additionally, there's been instances in             
the past, I believe, in the history of the state, where we've had              
elections and selections of presiding officers that don't hold up              
until the first day of convening of session. ... Keeping those                 
types of things in mind in the history of what has occurred, ... it            
seems to me - and tell me if I'm right - I think what's desired                
here is to have a situation where we have a firm understanding of              
who those presiding officers are.  And I would suggest that                    
probably the best bet there would be that ... the time line on the             
15 days would only run after the convening of the first session.               
That may be the intent here, but I'm not sure it says that."                   
Number 0744                                                                    
REPRESENTATIVE PORTER responded that everything Representative                 
Rokeberg had just said was part of the discussion that went into               
creating this paragraph.  One of the first iterations had been that            
the minority leader would be selected by virtue of a vote by those             
that didn't vote for the presiding officer.  Representative Porter             
stated, "But that isn't the case, because, as we recognize,                    
generally what happens, unless there is a real knock-down, drag-out, which we h
appointed speaker, that person having been appointed by the caucus             
at their organizational meeting.  So, what this is intending to                
provide is that a recognition - although ... the constitution                  
doesn't recognize it, the Uniform Rules certainly do - that the                
first thing that happens after an election is that the folks that              
find themselves in the majority meet, and the first thing they do              
is select a speaker and a president.  The folks that find                      
themselves not in that group meet and generally elect a minority               
REPRESENTATIVE PORTER continued, "So as to account for the fact                
that there could be multiple minorities, we've just said those                 
folks that did not organize with the group that appointed; that                
took care of that concern.  But by way of what this is supposed to             
provide - and I believe it does - is that after the election, the              
majority organizes and makes a selection, but not until that                   
selection is really confirmed by the convening of the legislature              
and the actual election on the floor of the president ... and the              
speaker, the time line starts.  If that has happened, undoubtedly              
there is a minority leader of each body also.  And it hasn't been              
specifically said, I think, but the intent ... here, of course, is             
that the speaker and the president - and they may not be in the                
same party - but the speaker and the president appoint, and the                
minority leaders appoint; so, that's going to balance out, no                  
matter what happens, of two from one political party or philosophy,            
and two from the minority."                                                    
Number 0881                                                                    
REPRESENTATIVE ROKEBERG said he is glad he understands the intent,             
but he is not sure the sentence structure says that.                           
Number 0888                                                                    
REPRESENTATIVE BUNDE said at one time, the Senate had a coalition              
of the whole.  Because this specifically talks about a minority and            
a majority, he asked how that would work.                                      
REPRESENTATIVE PORTER agreed that had happened once.  He said, "We             
toyed with trying to figure out language that would describe the               
minority members of the majority caucus but ... decided not to try             
to go quite that far."                                                         
Number 0927                                                                    
REPRESENTATIVE BUNDE asked whether it would be possible to add                 
language that refers to a case where there is a coalition or no                
majority and minority, so that the two appointed members would come            
from that body.                                                                
REPRESENTATIVE PORTER said they should take a look at that, noting             
that if there was a banding together in an apparent bipartisan                 
group, the selection perhaps should represent that point of view.              
Number 0990                                                                    
REPRESENTATIVE ROKEBERG asked what they would do to resolve a                  
stalemate where the numbers of members were evenly divided.                    
REPRESENTATIVE PORTER replied, "That's why you'd put in here that              
you couldn't do anything until the permanent presiding officer was             
REPRESENTATIVE ROKEBERG noted that there could be multiple                     
minorities, for example, and a stalemate could occur.  He said                 
presumably it wouldn't happen in the majority.                                 
REPRESENTATIVE PORTER replied that there have been multiple                    
minorities, but there has never been a situation where there hasn't            
been a single minority leader.                                                 
Number 1034                                                                    
REPRESENTATIVE BERKOWITZ reminded members that half of the state is            
not partisan.  If they are trying to design this so that the                   
Democrats (Ds) and Republicans (Rs) get to pick and choose, he                 
suggested that half of the state would be left out in the cold.                
CHAIRMAN GREEN said they do vote, however.  He pointed out that                
even within a party, there can be a minority.  "That hasn't been               
addressed, and that shall be," he added.                                       
Number 1071                                                                    
REPRESENTATIVE JAMES responded to Representative Berkowitz that                
while there are parties, and while there are people who are                    
nonpartisan, it is not true that each person doesn't have a                    
philosophical bent.  She asked whether there perhaps should be                 
language to ensure a balanced approach to the philosophical bents.             
CHAIRMAN GREEN replied, "We'll let the sponsor toy with that."                 
Number 1150                                                                    
REPRESENTATIVE BERKOWITZ said for the 50-plus percent of people who            
haven't chosen a party, one of the philosophies they are espousing             
is that they don't want state politics to get mired down in                    
partisanship.  It seems that when they design a redistricting or               
reapportionment board composed of partisan officials, it gets away             
from the will of the majority.  "And perhaps if the committee                  
decides that a reapportionment board is the course that we want to             
follow, maybe we ought to contemplate composing it of different                
individuals than those who've been elected," he added.                         
Number 1189                                                                    
REPRESENTATIVE JAMES suggested that when people don't choose a                 
party, it is not because they don't like partisanship; rather, it              
is because they don't like cronyism.                                           
Number 1228                                                                    
CHRIS CHRISTENSEN, Staff Counsel, Office of the Administrative                 
Director, Alaska Court System, pointed out that most testimony that            
day had not been on the original version of HJR 44 but on a draft              
committee substitute; however, he did not have a copy of the latter            
and so would therefore make some general remarks.                              
MR. CHRISTENSEN advised members that he had met with the supreme               
court twice in the last two weeks to discuss the original version              
of HJR 44.  He commented, "Of course, the court takes no position              
on 90 percent of that resolution; those are political issues which             
... the constitution vests in you, and in the voters, in this case.            
However, it has instructed me to express its concerns on two                   
specific provision of the resolution, which involve the judiciary              
in the reapportionment process more extensively than it is now."               
Number 1310                                                                    
MR. CHRISTENSEN provided background to help explain the court's                
concerns.  The men and women who drafted Alaska's constitution                 
spent a tremendous amount of time trying to decide what kind of a              
judiciary they would put together.  They started from the premise              
that a justice system should have a moral force in society, and in             
order to achieve that, it could not rely solely on coercion.                   
MR. CHRISTENSEN explained that people need to buy in to the justice            
system for it to work.  They need to believe they have a system                
that is fair and impartial, and that generally produces a just                 
result.  The drafters of Alaska's constitution looked at the                   
federal system and at the systems in the 48 states; they saw what              
was wrong and what was right, and they put together a judicial                 
system that is somewhat unique.  It has many features which at that            
time were not done in states, although many have since been copied             
by other states.  Mr. Christensen commented that it is not a                   
perfect system, that nothing created by the hand of man is ever                
going to be perfect, but that it generally works fairly well.                  
Number 1333                                                                    
MR. CHRISTENSEN explained that one thing the drafters did in order             
to achieve public confidence in the judiciary was to create a                  
system which, as much as humanly possible, was removed from                    
partisan politics.  He stated, "As legislators, I certainly don't              
need to tell you that whenever partisan politics is involved in an             
issue, there are going to be people who publicly questions your                
motives and your honor, for no other reason than the fact that they            
disagree with you on an issue.  That sort of thing isn't very good             
in your arena.  But in the judicial arena, it can have devastating             
consequences when you're trying to get people to accept decisions              
that go towards things like child custody and criminal convictions             
and emotional civil litigation."                                               
MR. CHRISTENSEN advised members that the concern of the court is               
that the two provisions which he would now address get the                     
judiciary involved in the reapportionment process, a very political            
process, to a greater extent than it is now involved, which may                
have long-term negative consequences for the institution.                      
Number 1394                                                                    
MR. CHRISTENSEN explained that the first provision relates to the              
appointment of the members of the reapportionment board.  The board            
has five members, one of whom would be appointed by the chief                  
justice.  The court is concerned about this provision because the              
chief justice is asked to select a person who is going to be                   
involved in a very actively political process.  Mr. Christensen                
stated, "He may be the deciding vote.  Now, this person's life and             
their decisions are going to be examined in great detail, and                  
people who don't like what they see are going to ask, 'Why did the             
chief justice pick that person?'  You know, 'What were his real                
Number 1425                                                                    
MR. CHRISTENSEN continued, "The second area of concern is, I think,            
more significant, and that is the creation of the three-judge panel            
of superior court judges to act if the reapportionment board can't             
come to a decision.  The supreme court opposes the use ... of this             
panel, as it's created in the original version of HJR 44, for two              
reasons.  First, right now we have over 30 superior court judges.              
There are people who are going to read something political into the            
selection of the particular three who are chosen.  I think that's              
inevitable.  Second, understand that at least under the original               
version of this legislation, the three-judge panel is not operating            
as a judicial body making a judicial decision, which is something              
that we all accept.  It's actually acting as an administrative body            
making an administrative decision. ... Human nature being what it              
is, I think the people who perceive themselves as the losers in the            
process are going to read political motives into the decision.                 
These are things we're trying to avoid."                                       
Number 1483                                                                    
MR. CHRISTENSEN advised members that in the bill draft they had                
been discussing, it is unclear to him whether this three-judge                 
panel will be a judicial panel or remain an administrative panel.              
He referred to the question of the original jurisdiction of the                
supreme court.  He said he doesn't believe the Alaska Supreme Court            
has original jurisdiction over anything to act as a trial court.               
He explained, "The U.S. Supreme Court does.  However, my                       
understanding is that when they exercise that jurisdiction, ... all            
of them don't sit there and act as a trial judge; they assign it               
off to a special master, or they appoint one of their members to               
conduct a trial.  It's very, very problematic for a multimember                
body to conduct a trial in which evidence is taken.  You know the              
obvious reason:  People object to evidence.  And a single judge can            
rule from the bench, but a committee of five has to step out of the            
room and argue it among themselves, take a vote and come back and              
rule.  There's all kinds of issues."                                           
MR. CHRISTENSEN noted that he hadn't had this particular part of               
the bill draft to present to the supreme court the other day.                  
However, he said, they have always objected when other bills were              
proposed that would have given them original jurisdiction.  It can             
be extremely time-consuming, and they are just not set up to handle            
that sort of thing.                                                            
Number 1559                                                                    
CHAIRMAN GREEN asked Mr. Christensen whether, if this were left as             
it is, the chief justice would make this selection.                            
MR. CHRISTENSEN replied that the constitution is the constitution,             
and if it requires the court or the chief justice to act, they will            
do so.  He said he believes the concern is that yes, this is                   
constitutional, but it has long-term ramifications for the                     
institution.  He reminded members that this is one case every ten              
years.  However, the court system, as an institution, deals with               
about 150,000 cases of all kinds over the course of a year,                    
everything from traffic tickets and small claims on up to permanent            
fund dividend decisions that affect everybody.  "And we want to try            
to make sure that the institution is not negatively affected by one            
very limited, once-a-decade kind of case; and since this is such a             
high profile, then there is always that potential," he concluded.              
Number 1690                                                                    
REPRESENTATIVE PORTER suggested it would be appropriate to explain             
the two proposed amendments [not formally offered], in order to get            
a response from Mr. Christensen.  He noted that they had already               
held discussions with Mr. Christensen.                                         
REPRESENTATIVE PORTER indicated that as HJR 44 exists now, if the              
appointed four-member board cannot agree on the appointment of a               
fifth member, then the speaker, the minority leader and the chief              
justice of the supreme court would agree on a member.  He said in              
thinking that through, he agrees that it puts the supreme court in             
a "mix" that they may not want to be in.  He indicated the first               
amendment would take away the two legislators and just provide that            
the supreme court would make that appointment if the four-member               
panel could not.                                                               
REPRESENTATIVE PORTER explained, "I recognize this still doesn't go            
all the way to the point that they would like, but, quite frankly,             
after a search of the state, we can't find anybody more credibly               
neutral than that person."  He noted that the legislature, in                  
another important area, has recognized that and has asked that the             
chief justice of the supreme court appoint the civilian members of             
the Ethics Committee, which he said has been satisfactory.  He then            
said that is the sponsors' response to that concern.                           
Number 1763                                                                    
REPRESENTATIVE PORTER referred to the second proposed amendment.               
He noted that the three-judge panel selection also put the chief               
justice in this kind of a mix with the legislature.   Therefore,               
they are proposing that they be selected at random from the four               
presiding superior court judges in the four judicial districts                 
throughout the state.                                                          
Number 1842                                                                    
MR. CHRISTENSEN thanked Representative Porter, noting that they had            
talked the other day at length and saying the amendments go a long             
way towards taking care of some of the concerns raised.  He stated,            
"It is certainly better, I think, for the chief justice to appoint             
alone, rather than to share a political decision with two elected              
leaders.  That is a mix that probably isn't good."                             
MR. CHRISTENSEN expressed appreciation for Representative Porter's             
kind words about the neutrality of the chief but pointed out that              
it can turn into a Catch-22 situation.  He explained, "People want             
you to do stuff because they perceive you as being neutral, and                
when they don't like what you do, they decide that you might have              
been political after all.  So, I just offer that."  He then stated             
that the supreme court does not oppose giving the chief this power             
but just wanted to express their concern about that.                           
Number 1915                                                                    
MR. CHRISTENSEN said with regard to the second change, as he had               
indicated, the court had had two concerns about the use of this                
panel.  The first was that there are more than 30 judges, and                  
people would read a political motive into the three who are picked.            
Mr. Christensen said he believes the amendment proposed by                     
Representative Porter essentially eliminates that concern.  Right              
now, there are four presiding judges in Alaska, each appointed for             
a one-year term to act as the chief administrative judge for each              
of the four judicial districts.  They have reduced caseloads and               
spend much of their time simply managing cases for the other                   
judges.  If three of those four were chosen, they would already                
have that position and wouldn't be hand-picked to handle                       
MR. CHRISTENSEN pointed out, however, that another concern still               
exists.  It is not clear to him whether the three-judge panel may              
or may not be acting as an administrative body, not a judicial                 
body, which may give rise to some question.  Nor is it entirely                
clear what their jurisdiction is, in terms of when it gets passed              
on up to the supreme court and when it doesn't.  He noted that                 
those are technical issues that can be worked out.                             
Number 1996                                                                    
CHAIRMAN GREEN referred to the chart and asked Mr. Christensen what            
his preference would be for how it would be remanded and where the             
hearing would occur if the state supreme court doesn't have the                
same hearing powers that the U.S. Supreme Court has.                           
Number 2060                                                                    
MR. CHRISTENSEN replied that a lot of these questions are policy               
decisions that he isn't comfortable commenting on.  He added that              
he is not an expert on reapportionment.  He offered the                        
observation, however, that using the supreme court as a trial court            
could create tremendous problems.  He said, "And if there is any               
thought that they might have to act as a fact-finder or something              
else, it would be very, very wise to make sure that there is a                 
superior court in there, acting in the process.  And I know there              
is some question as to whether or not that's what would really                 
happen.  And that may be something that requires a little more                 
Number 2105                                                                    
REPRESENTATIVE ROKEBERG referred to the chart and to review by the             
superior court and the supreme court.  He asked about the standard             
of review and whether Mr. Christensen sees any problem on that side            
of the equation.                                                               
MR. CHRISTENSEN replied that the court will follow the level of                
review that is in the constitution, which he believes is a policy              
question between the legislators and the voters who vote on this               
resolution.  "But in terms of the process, I think it's less                   
problematic because there is a fact-finder in there," he added.                
Number 2174                                                                    
REPRESENTATIVE CROFT asked Mr. Christensen whether retention                   
elections for the supreme court are partisan affairs now.  He also             
asked how much money a supreme court justice spends on a retention             
MR. CHRISTENSEN said he is not an expert on this, but he believes              
the rules of judicial conduct only allow a justice to begin raising            
money once someone has filed with the Alaska Public Offices                    
Commission (APOC) and indicated an intent to challenge.  He said               
that hasn't happened in many years.  One justice and two district              
court judges have been removed by the voters since statehood; very             
rarely has a challenge been mounted.                                           
MR. CHRISTENSEN advised members that the Alaska Judicial Council is            
in the process or making information even more readily available to            
voters than in the past.  He said many people aren't aware of this,            
but they send a questionnaire out to all law enforcement officers              
in the state, to ask what they think of the judge, in great detail.            
That is all posted now on the Internet, where voters can get a feel            
for a judge if they want to.                                                   
CHAIRMAN GREEN commented that he finds that particularly helpful.              
Number 2311                                                                    
JAMES BALDWIN, Assistant Attorney General, Governmental Affairs                
Section, Civil Division (Juneau), Department of Law, specified that            
he was there to speak for the Administration about HJR 44.  He                 
explained that the people under his supervision have advised the               
reapportionment boards in the past, as legal counsel.  He himself              
had been around through two reapportionments, or "three, I guess,              
if you count the two that happened during ... Governor Sheffield's             
administration."  He therefore has some experience, although he                
hasn't worked directly for the boards.                                         
MR. BALDWIN indicated he had done some research into the minutes of            
the constitutional convention, which contain a lot of history about            
not wanting the legislature to be responsible for reapportionment.             
He advised members that the strong bias on the part of the framers             
was built upon what had been happening at that time, in the pre-Baker v. Carr e
those days, legislatures delayed reapportionment for partisan                  
political reasons, and they had just not done reapportionment for              
a number of years.  The intention of the framers was to build a                
system that was fairly self-actuating.                                         
TAPE 98-12, SIDE A                                                             
Number 0006                                                                    
MR. BALDWIN said as he reads HJR 44, it would reverse the history,             
because now the officers within the legislature would be the                   
appointing authorities for the reapportionment board.  Effectively,            
it would be under the legislative branch, or at least that is how              
people would view it.                                                          
MR. BALDWIN noted that one of his other jobs is advising the                   
Division of Elections on how issues should appear on the ballot,               
helping that division write the ballot title and an impartial                  
summary.  He said with all due respect to the sponsors, as he looks            
at this chart, listens to the discussion, and looks at HJR 44, he              
wonders how they are going to do that in a way that the electorate             
will understand.                                                               
Number 0120                                                                    
MR. BALDWIN reminded members that when the constitution was written            
in the late 1950s, it used the most sparing language possible to               
clearly convey the ideas that were going to become the highest law             
of our land.  However, HJR 44 recognizes officers that the                     
constitution has never recognized before.  For example, minority               
members are not recognized officers but partisan political                     
appointments of private, partisan political organizations.                     
Minority caucuses and majority caucuses are private political                  
organizations, not official organizations of the state government.             
Mr. Baldwin explained, "They are established for purposes of                   
operating the legislature, but they are not official, by any means.            
They are partisan organizations, and we will now enshrine them in              
the constitution."                                                             
Number 0210                                                                    
MR. BALDWIN said he hoped his comments would be taken right, then              
characterized this as a "Rube Goldberg approach," explaining that              
Rube Goldberg created complicated, fanciful machines to accomplish             
a simple task at the end.  Mr. Baldwin said as he sees it, if one              
thing goes wrong anywhere along this stream of actions that must               
operate in concert, "we've got a terrible mess on our hands."                  
MR. BALDWIN pointed out that some situations described by                      
Representative Rokeberg have happened in Alaska.  For example, Mr.             
Baldwin recalled a deadlock for nearly a month at the beginning of             
the session when the House couldn't pick its leaders.  He cautioned            
that with the constitution, they are looking ahead 50 to 100 years,            
not just five years in advance.  Although there is currently a                 
strong majority in the legislature, with responsible leadership,               
that may not always be the case in the future.                                 
Number 0335                                                                    
MR. BALDWIN brought up a list of questions:  "What happens if there            
is a split in the leadership, and there are two speakers of the                
House?  This happened in the state of Washington.  The coalition in            
the Senate is a wonderful example, where you have no minority; what            
happens then?  What happens if this board gets together and there              
is no plan within the first 30 days?  The constitution says there              
shall be a plan.  What if there's no plan?  What does a three-judge            
panel have to select from?  Nothing.  That's the end of that                   
decision chain."                                                               
MR. BALDWIN advised members that he has other questions, but those             
had come to mind.  He recounted an occasion when the Senate                    
Judiciary Committee was considering another constitutional                     
amendment; Judge Stewart, who had been present when the                        
constitution was written, had recommended to the Senate that when              
there is a matter this far-reaching in consequence, perhaps it                 
should lie on the table for a while, so that people can think about            
it, read it and understand it before adopting it.                              
Number 0456                                                                    
MR. BALDWIN reminded members that in 2002, the state is set for                
another decennial vote on a constitutional convention.  He asked,              
"And why not let something like this soak for a while, so that if              
the people want to vote for a convention, they can take it up and              
resolve it?"                                                                   
Number 0489                                                                    
MR. BALDWIN brought up another legal point:  He sees a problem with            
the provision for when the old plan would cease to be effective and            
the transition to the new plan.  He stated, "I know where you want             
to be.  The situation you want to be in is not having the court                
rewrite the plan; and believe me, the Governor wants to be in that             
position, too.  Every governor that I've known that has issued a               
reapportionment plan had many unspeakable things to say about                  
having his plan rewritten. ... But that's been how it is.  It's                
viewed as a protection in some quarters.  It's a protection of the             
court system, which is, just as the previous testifier stated, an              
impartial body, which is what the public might view as a safeguard             
here."  Mr. Baldwin said that both in Alaska and in other states,              
there is very rarely a situation where there isn't litigation in               
connection with a reapportionment plan.                                        
MR. BALDWIN said there is a built-in incentive here for people to              
sue to prevent the transition from happening; if they can hold it              
up for 60 days, there is no transition to the new plan.  As he                 
reads it, the old plan stays in effect.  Mr. Baldwin stated, "What             
has happened in the past is we have transitioned for one election,             
and then while that transition has gone into effect, they have                 
rewritten the plan."                                                           
Number 0610                                                                    
REPRESENTATIVE PORTER responded that HJR 44 envisions that the work            
will continue until a plan is developed.  Although it may miss the             
time table for the upcoming election, it would be in place for the             
next election.  He said if that is not clear, they would try to                
clarify it in the resolution.                                                  
REPRESENTATIVE PORTER added, "The way the constitution is right                
now, I think you agree, there's a big gray area there:  What if you            
don't have a plan and the other one's already expired?  Then you               
are up a creek.  But what we're allowing is that the old plan would            
stay in effect for that one election, until all the litigation and             
whatever it was that was holding it up was completed, the process              
is over, ... a plan is finally published.  And that is the plan for            
the next election."                                                            
Number 0683                                                                    
MR. BALDWIN responded that there is a real incentive there for                 
someone to bring an action to try to keep the new plan from going              
into effect.                                                                   
REPRESENTATIVE PORTER suggested that worse than that would be                  
having no plan, and no election.                                               
MR. BALDWIN replied, "If history is any indication, though, what               
has happened - and this may be something of a policy matter that               
you disagree with - is that the plan that the board proposed, the              
most recent plan, has gone into effect."  He said that has then                
been adjusted by referral to a master or to a judge, for example.              
He noted that the second plan under Governor Hickel's                          
administration went first to a master, then back to the board,                 
which came up with the final version.                                          
MR. BALDWIN said HJR 44 incorporates other provisions that he had              
testified on regarding HJR 36.  He stated, "And I just want to                 
quickly say that we think that the ability to do multimember                   
districts is a valuable tool, and this would remove that.  I know              
that's your intention, and I think -- I'd just ask you to harken               
back to that testimony."                                                       
MR. BALDWIN asked whether his understanding was correct at the                 
hearing on HJR 36 that the committee's intention is that the                   
reapportionment board not have the ability to do military surveys              
for active duty military or to deduct active-duty nonresident                  
military from the statewide population totals.                                 
Number 0815                                                                    
CHAIRMAN GREEN replied, "What I think they were indicating was that            
the population of service people would be given to us, and that the            
current attitude of the military is not ... to segregate those.  We            
can't actually get accurate figures from that."                                
MR. BALDWIN stated his understanding that the wording was designed             
so that a future board would only be able to reapportion based on              
the census numbers, and there would not be the ability to deduct               
the nonresident military voter from that total.                                
CHAIRMAN GREEN said it wouldn't be required.                                   
Number 0856                                                                    
REPRESENTATIVE PORTER said that is correct; this would guide it to             
take the numbers presented from the census.  He stated, "I can't               
remember which review case it was, but when the issue came up, the             
constitution -- as it's currently worded, saying that it would be              
based on the civilian population is unconstitutional by federal                
law.  So, the court has asked, in that case and a couple of others,            
to please clean up your constitution.  All of the court's concerns             
that have been expressed in case law are reflected in this                     
REPRESENTATIVE PORTER said he believes that in the Hickel case, the            
nonresident military population was addressed.  Noting that he was             
paraphrasing, he stated that the board at that time said they                  
couldn't do it, and the court agreed that it seemed to be an                   
impossible task.  Representative Porter stated, "So, we said, 'Why             
repeat that effort?'"                                                          
Number 0833                                                                    
MR. BALDWIN offered his perspective on that case.  The court had               
said there is an obligation to attempt to undergo the analysis to              
determine whether they can deduct nonresident military voters from             
the totals, to prevent overrepresentation of certain districts as              
opposed to the rest of the state.  In 1990, the board justified -              
going through a rather extensive analysis - that it was unable to              
determine that population.  And in any case, the numbers were                  
small.  "And that's what the case said," Mr. Baldwin added.                    
MR. BALDWIN suggested in the next reapportionment it is likely                 
there will be a loss of minority representation for House seats,               
because of population shifts.  It will be very close, and to                   
prevent that, we may need to look at doing a nonresident voter                 
survey.  Mr. Baldwin commented, "Again, we're going to have to do              
that anyway, under the way the constitution reads now, and under               
the court decisions, and that with the base realignments and                   
closings, it's going to become even more critical that we be able              
to do that, in order to deal with possible retrogression situations            
and claims under Section 5 of the voting rights Act."  He mentioned            
the necessity of preclearing plans with the justice department.                
Number 1020                                                                    
MR. BALDWIN advised members that with Adak closing by the next                 
reapportionment, the military population will be focused in                    
Fairbanks and Anchorage.  He had run some rough numbers that day.              
The latest official state population is around 611,300.  Mr.                   
Baldwin stated, "That would mean an ideal district of somewhere                
around 15,200.  We did a run with the permanent fund numbers under             
the last application. ... People who are claiming a permanent fund             
dividend have to check a box, 'Are you military?  Active duty                  
military?'  And we came up with 9,000 people who checked those                 
boxes, who, under the permanent fund standard of residency are ...             
on active duty and are claiming residency."                                    
MR. BALDWIN said the strength of active military personnel in                  
Alaska is around 18,000 now, not counting military dependents who              
may or may not be claiming residency.  He pointed out that the                 
rough estimate of 9,000 is over half a district, no "small                     
potatoes."  Mr. Baldwin commented, "That could be seen as giving us            
the ability to deal with a retrogression situation."                           
MR. BALDWIN referred to suggestions at the previous bill hearing               
that many military people claim residency to attain a permanent                
fund dividend (PFD).  He said he doesn't think that is the case.               
Many military people, if they change residence, lose their right to            
be shipped back to their home of record, which is very costly and              
outweighs the PFD.  Mr. Baldwin said while their dependents may                
claim residency and get PFDs, 40 to 50 percent of the military                 
personnel do not.                                                              
MR. BALDWIN stated, "And under the case law, as I understand it, we            
have the ability to take those people out of the count.  And what              
that means, on a regional basis, would mean that those districts               
which have military personnel residing in them will be overcounted.            
Their population will be overweighted, as opposed to those who do              
not.  So, it's a regional issue in the state.  I don't see it as               
being a partisan issue in the state.  I see it as being a regional             
issue in the state for the next reapportionment."                              
Number 1190                                                                    
CHAIRMAN GREEN asked, in Mr. Baldwin's study, how many of those                
were living off-base in Alaska.  He stated, "I mean, you begin to              
see the problem that we get into, no matter what system we use, and            
that the military themselves do not furnish us the necessary                   
information anymore.  So, I'm not sure how you would suggest that              
we go about changing that count."                                              
MR. BALDWIN replied that he is not sure how he would do it, either.            
The numbers he ran from the Permanent Fund Dividend Division, which            
can also be obtained from the state demographer, show all in-Alaska            
zip codes.  The figures he'd used were for those people who had                
checked on the PFD application the box that says, "I was on                    
military duty during the last application period."                             
Number 1225                                                                    
REPRESENTATIVE PORTER asked for confirmation that Mr. Baldwin                  
wasn't suggesting that those people who have indicated they are                
Alaskan residents, and who are in the military, should be excluded.            
MR. BALDWIN said no, just the ones who are here, who are not                   
claiming Alaska residency.                                                     
Number 1241                                                                    
REPRESENTATIVE PORTER said he had some different numbers than Mr.              
Baldwin had.  He had checked with the military and found that they             
haven't had, don't have, and have no intention of having available             
a distinction that they could provide between residents and                    
REPRESENTATIVE PORTER stated, "The courts finally indicated that               
the number was insignificant.  They seem to indicate that in any               
event, it's their experience and opinion that a very high majority             
of folks up here do sign up for the permanent fund dividend,                   
indicating, then, that they are a resident; they wouldn't be                   
excluded anyway."  He suggested that the amount of money a military            
family could amass in a three-year assignment could get them back              
and forth several times.  He indicated he would get more numbers               
relating to that.                                                              
Number 1307                                                                    
REPRESENTATIVE CROFT asked Mr. Baldwin whether there is any                    
principle of federal law that requires that they count people who              
are not residents of the state.                                                
MR. BALDWIN replied that the decennial census counts them when they            
are here; he doesn't believe it distinguishes between residents and            
nonresidents.  He said he is not really well-informed on the census            
rules, but he had asked the demographer:  If our military people               
who can claim residency are assigned outside of the state, to                  
another state, would they somehow be allocated back to Alaska?                 
"And he said no," Mr. Baldwin concluded.                                       
Number 1350                                                                    
REPRESENTATIVE CROFT asked whether the case law they had talked                
about, or any other federal case, required that they count                     
nonresidents, whether they be military personnel or others, when               
doing reapportionment.                                                         
MR. BALDWIN replied, "No, it did not require us to count them."  He            
noted that the Southeast Conference case, 846 P.2d 38, said that               
"we were acting reasonably by not counting them."  He added, "But              
it said that we had to go through the exercise of convincing                   
ourselves, or convincing the court, that ... we didn't need to                 
count them."                                                                   
Number 1393                                                                    
REPRESENTATIVE CROFT noted that they are talking about the                     
military.  He pointed out, however, that Alaska sometimes has a                
significant nonresident population, such as occurred when the                  
pipeline was being built.  He asked, "If this amendment, as it's               
currently drafted, is enacted, will we be required to count those              
nonresidents as residents?"                                                    
Number 1431                                                                    
REPRESENTATIVE PORTER replied, "We would be required, under this               
proposal, to adopt the decennial census as the basis for our                   
reapportionment.  To the extent that there are nonresident military            
in it, the answer would be yes.  I would only add that in our                  
anecdotal checking ... with folks that are familiar with the                   
process - the census bureaus and past reapportionment people - I'm             
of the opinion, and they were, that, based on what they said, that             
other nonresident civilians are caught up in our census, also.                 
They're supposed to take people at their normal place of abode.                
And I would suggest that there's an awful lot of camp construction             
activity in the Bush - not downtown Anchorage or Fairbanks, but in             
the Bush - where folks spend a considerable amount of months                   
working, but they go back home to wherever they live afterwards.               
And if they got caught on the snapshot of the state, that's their              
normal abode, and they'd be counted.  So, I think that balances                
out, quite frankly."                                                           
CHAIRMAN GREEN mentioned students, as well.                                    
Number 1489                                                                    
REPRESENTATIVE BERKOWITZ suggested that what has gone unsaid is                
that the military personnel will vote Republican, whereas the                  
people in the labor camps will be Democrats.  He said he doesn't               
think that is the case.  He said he understands using the decennial            
census as a starting point, but that he thinks what Representative             
Croft is driving at is to ensure that when we do have a snapshot of            
Alaska, the people are permanent residents, not those who are                  
passing through and have a transient interest in the state.                    
Number 1543                                                                    
REPRESENTATIVE ROKEBERG pointed out that there is a major                      
controversy nationwide about the method of counting being proposed             
for the new decennial census, which he said has "very partisan-type            
aspects to it as to the extrapolation of phantom or homeless people            
and so forth, which would just have the very opposite effect of                
what you were talking about."                                                  
Number 1579                                                                    
CHAIRMAN GREEN noted that if this is going to be a major concern,              
a member of the legislature has been intimately involved in census-taking and c
in the year 2000.                                                              
Number 1593                                                                    
REPRESENTATIVE PORTER clarified that he wasn't implying that the               
military personnel are Republicans and the camp workers are                    
Democrats.  He stated, "The whole idea that I got from Mr.                     
Baldwin's presentation was that the population shift would leave               
the rural areas with less representation.  What I'm saying is that             
I think that there's a balance of, if you will, nonresidents in the            
Bush, just as much as there would be nonresident military in the               
urban areas if all the base closures end up creating that                      
situation, so that those populations would be balanced out.  But               
our constitution - which we're not changing, by the way - provides             
that the apportionment board would look at, first, dividing it up              
proportionately, because that's federal law, by numbers, then to               
look at continuity, contiguousness and socioeconomic groupings.                
Most states go between 1 and 2 percent variance in their election              
districts and have to justify anything over that. ... By case law,             
ours in 10 percent and justifying something over that.  So, I don't            
think that we're constrained, by this proposal, from great                     
consideration for minority populations."                                       
Number 1669                                                                    
REPRESENTATIVE JAMES suggested that if Mr. Baldwin was saying the              
system is working fine, she disagrees.  She mentioned the                      
perception that construction workers are of one philosophy, whereas            
the military are of another.  She said that is the perception that             
the public lives with on a daily basis, and there is questioning of            
anything people do as being partisan-motivated.                                
REPRESENTATIVE JAMES said redistricting in Alaska has been                     
partisan-motivated, and anything that eliminates that is well-worth            
their efforts to try to find some common ground.  She said that is             
one reason she appreciates having HJR 44 before the committee.                 
REPRESENTATIVE JAMES acknowledged that there is no quick or easy               
fix.  She said it will take good heads to come together, to try to             
make it so that "the vision in the redistricting does not greatly              
change or persuade a different philosophy than we currently have in            
the state."  She said there has been gerrymandering every ten                  
years, and to eliminate that should be the goal.  She pointed out              
that there is a natural pendulum swing by the public.  She stated,             
"That's all we need.  We don't need to redistrict places to make it            
be an advantage for one party or the other, no matter which it is,             
because then the public ... is not served well."                               
Number 1784                                                                    
REPRESENTATIVE PORTER said they have tried to come up with a bill              
that presents a fair way of reapportionment, absolutely as fair as             
possible.  However, he would ask Mr. Baldwin to provide input on               
anything in HJR 44 that doesn't look fair, outside of policy                   
decisions, or on anything that would be problematic in terms of                
there being a better way to do it.                                             
MR. BALDWIN replied, "We do want to follow this process and offer              
our constructive comments.  I would just say that reapportionment              
is a very difficult job.  It's made difficult by geography and                 
sparse populations spread over a wide area.  I've been working in              
connection with ... many of the boards and the staff who have                  
worked for those boards.  And I know when they've come out of the              
process, ... they firmly believe that what they did was a fair and             
nonpartisan approach."                                                         
MR. BALDWIN agreed with Mr. Christensen that people get offended by            
the process because they don't get out of it what they want.  He               
noted that the drawing of boundaries for local governments is not              
done by the legislature but by a separate, independent board,                  
because that is such a contentious issue.  He said it is the same              
kind of thing for reapportionment.  While there have been                      
allegations of gerrymandering and that sort of thing, it is a                  
really tough job to try to make those lines work with what there is            
to work with.  Mr. Baldwin said he thinks that everyone who has                
approached the job has done it honorably.                                      
Number 1887                                                                    
CHAIRMAN GREEN noted the lateness of the hour.  He then referred to            
Mr. Baldwin's testimony on HJR 36 before the House Finance Standing            
Committee, which he said had castigated the current committee as               
not doing its job.  He asked that in the future, if Mr. Baldwin had            
disagreements, that he bring them to the relevant committee rather             
than to another committee.                                                     
MR. BALDWIN apologized, saying he didn't mean to have Chairman                 
Green take offense.  He stated, "In the heat of the moment - the               
bill was moving quickly - I did not show the respect to you or this            
committee I'm sure that you deserve.  I felt that a bill had come              
out of this committee that did not reflect ... what had been passed            
out here.  And so, I meant to bring that to the attention of the               
next committee and thought that it would be corrected.  Again, I               
apologize. ... I didn't mean to do anything that would show lack of            
respect to this committee."                                                    
REPRESENTATIVE ROKEBERG said he had questions of the sponsor but               
would talk directly to him.                                                    
Number 1985                                                                    
CHAIRMAN GREEN announced they would hold over HJR 44, expressing               
his understanding that the sponsor would consider the comments that            
had been made.                                                                 

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