Legislature(1999 - 2000)
04/12/1999 01:55 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE CSSB 99(FIN) - REDISTRICTING BOARD/CENSUS FIGURES CHAIRMAN KOTT announced the next order of business is Senate CSSB 99(FIN), "An Act to clarify the meaning of 'decennial census of the United States' in art. VI, Constitution of the State of Alaska, to prevent discrimination in the redistricting of the house of representatives and the senate, and to prohibit expenditures of public funds for population surveys or sampling for certain purposes relating to legislative redistricting without an appropriation." Number 1132 TOM MOFFATT, Legislative Assistant to Senator Tim Kelly, Alaska State Legislature, came before the committee and read the following sponsor statement into the record: This legislation was introduced to end discrimination against members of the Armed Forces in legislative redistricting and insure that future redistricting plans are based on census figures derived from an actual count of every Alaskan. Senate Bill 99 will eliminate confusion by placing in our statutes clear answers to two major questions as we prepare for the United States census in the year 2000 and the subsequent redrawing of legislative district boundaries. This legislation will end the discriminatory practices of previous redistricting boards and direct that census numbers derived from estimates or adjustments based on statistical sampling will not be used to redraw district lines. The 1959 Alaska Constitution directed that only the 'civilian' population be considered when the boundaries for State House and State Senate districts were drawn. During the 1960's, reapportionment boards ignored the presence of members of the Armed Services completely, while later boards assigned various percentage values to service members. In 1970, each soldier, sailor, airman, marine and coast guardsman in Alaska was counted as 11 percent of a resident, while in the 1980 redistricting they were counted as 35 percent of other Alaskans. That's even worse discrimination than used before the Civil War when slaves were counted at only 60 percent of a person for congressional reapportionment. The redistricting board of 1990 was the only one to count members of the military equally with other residents. Today, Alaskans recognize that occupational discrimination is just as wrong as discrimination based on race, religion, sex, age, color, or national origin and that is why the voters removed the word 'civilian' from the Alaska Constitution at the most recent 1998 election. But, court decisions from old legal challenges to previous redistricting boards might still be used as an excuse to undercount our neighbors in the military. Senate Bill 99 will establish a statutory bar to future redistricting discrimination and insure the men and women serving here in our Armed Forces will not be treated as second-class Alaskans. Senate Bill 99 will also clarify questions regarding which numbers from the United States Bureau of the Census will be used by future redistricting boards to reapportion Alaska's Legislature. Some people have actively arguing that statistical sampling and estimates replace the actual head count of every American in the decennial census. Earlier this year, the U.S. Supreme Court prohibited the use of adjusted or estimated figures in reapportioning the seats of the U.S. House of Representatives among the states. But that decision left the door open for the Census Bureau to develop figures through sampling and estimates and make them available to the states along with the results of the traditional count. This bill will close that door in Alaska for purposes of legislative reapportionment. If the Census Bureau's report of the decennial census includes more than one set of figures for Alaska, SB 99 will facilitate the work of the redistricting board and avoid litigation over the plan they produce. Senate Bill 99 would prohibit them from using any numbers produced by estimates or sampling adjustments and directs them to use only the results of the actual count of Alaska's population, just as the nation has been doing for the past 210 years. MR. MOFFATT added Senator Kelly understands that there is a proposed House committee substitute and he thinks it is just fine. Number 1411 CHAIRMAN KOTT indicated there is a proposed House committee substitute for the committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99. He noted the change is on page 3. It provides a qualified voter the opportunity to bring a challenge against the redistricting board to the superior court. Number 1440 KEVIN JARDELL, Legislative Assistant to Representative Joseph Green, Alaska State Legislature, came before the committee to testify. He indicated there is also a grammatical change. The proposed committee substitute adds the word "and" to page 2, line 2. Number 1493 REPRESENTATIVE JAMES made a motion to adopt the proposed House committee substitute for committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99. There being no objection, it was so moved. MR. JARDELL explained the changes instill an insurance of bringing an action against using discriminatory practice or sampling numbers. It also makes current statutory language comply with the constitutional amendment passed last year. The constitutional amendment required independent counsel for the board, and the current statutes say that the attorney general's office shall represent the state in all matters. It also brings in the concept that by the time the board is constituted there isn't enough time to do the needed preparations to ensure that a fair and unbiased redistricting is completed. The compilation of geographical and cultural information takes an enormous amount of time. In recognizing that, the proposed House committee substitute gives the authority to the Alaska Legislative Council to come up and work with the Administration on developing data bases, budgets and accounting systems - the details that will have to be in place for the board to draft a fair and unbiased redistricting proposal. Number 1695 CHAIRMAN KOTT asked Mr. Jardell whether the legislative council would be the funding source for the redistricting board. MR. JARDELL replied it is assumed that the legislative council would be the funding source. It would be within its power to go to supplemental appropriations. It would have the ultimate responsibility to ensure that it gets done. Number 1731 REPRESENTATIVE GREEN said the state is behind the curve on data gathering. This would be an avenue to get the train rolling, but problems could arise that would be beyond the authority of the council. Number 1771 REPRESENTATIVE CROFT referred to Article VI, section 3, of the state constitution, and asked Mr. Jardell whether the bill attempts to define what the legislature thinks the people meant when they enacted the amendment to the constitution. MR. JARDELL replied Representative Croft's question refers to the original Senate bill and deferred it to the sponsor. In working on the constitutional amendment and looking at the situation created by the Clinton Administration since the amendment was passed, the only requirement is that a census be completed for apportionment. It doesn't speak to redistricting. He said, "Now, with--my understanding of this is that what they're attempting to do is come in and say, well, you can't just come up with numbers for some other reason whether it be for federal funding or any other reason and say--slap a (indisc.) and say this is the official one. The one that is referenced in the United State's Constitution is the one that they were intending to reference, and that this does, you know, speak to that and express the will of the legislature, if it does pass." REPRESENTATIVE CROFT asked Mr. Jardell how is the will of the legislature relevant to this. MR. JARDELL replied that is his understanding of what the sponsor in the Senate is trying to accomplish, and deferred the question to the sponsor's representative. Number 1959 MR. MOFFATT stated, when the amendment to the constitution was passed, nobody envisioned that the official decennial census would be anything other than that which has been in effect for 210 years. The legislature can always seek to make things clearer, to make suggestions, and to make laws. The members of the Senate Judiciary Standing Committee consider this appropriate. Number 2031 REPRESENTATIVE CROFT said it is not the legislature's place to interpret the constitution. That is for another branch of government. What role does the legislature have in telling the people what they meant when enacting the constitution or a constitutional amendment? According to his reading of the case law, the legislature has almost no role in that, and properly so. It is not what the legislature meant when putting the words before the people, but what the people meant when they passed it. Usually, the courts look at what the Official Election Pamphlet said, what the voters heard, and what information was available to them. When this issue has been tried, it has been uniformly rejected for a legislature to attempt to interpret the constitution or tell the people what they say it has to mean. Number 2135 MR. MOFFATT stated, obviously, this is a matter for a philosophical debate. He doubts that the voters had any information in the pamphlet that the official decennial census of the United States would be anything other than the traditional head count for the purposes of reapportionment. That is how it has invariably been done. The concept behind the original bill was because the use of samplings or surveys in Alaska have been used for purposes of discrimination, specifically against the military. This bill mainly seeks to do what the legislature can do to prevent discrimination, to prevent people being counted for less than a whole person for purposes of voting or representation. He said, 10 year olds don't vote, but they are represented. The homeless may not be registered to vote, but they are represented, as well as those who suffer disabilities. The legislature has a proper function in trying to be of every assistance to make sure that discrimination does not occur, and that the actual numbers are used, not just speculative ones. The courts may determine differently, but the legislature is a policy making body and has every right to do its best. Number 2395 REPRESENTATIVE MURKOWSKI asked Mr. Jardell to clarify Section 4(d). She can't imagine that the council independently would have the expertise to develop a computerized system of what the board would need. TAPE 99-29, SIDE A Number 0001 MR. JARDELL said it takes an enormous amount of time to work through any computer system. This provision is attempting to have the council work with those who have experience, such as Kathryn Lizik with the Department of Labor and other experts to choose a system, to put it in place, and to start working on it in order to make sure it will operate when the board sits down and starts to draw a redistricting plan. The idea is not to have the council develop a system itself, but to make sure that one gets developed. Number 0088 REPRESENTATIVE MURKOWSKI asked Mr. Jardell whether that would be through a contractor, for example. MR. JARDELL replied it certainly could be through a contractor. It would be up to the council. The intent is that it gets done on time. Number 0121 CHAIRMAN KOTT said the council would not develop the software itself, but it would ensure that there is a vendor out there to provide the information needed, such as mapping. There are probably a half dozen vendors out there now that have the resources available to help. MR. JARDELL noted there are about a half dozen systems designed solely for redistricting at this time. It's a matter of finding out which one would be best for Alaska because it has some geographical problems that aren't considered in some of the programs for the Lower 48. It's a matter of making a decision to purchase or lease a program, and making sure that it is up and running when the board needs to sit down and use it. Number 0224 CHAIRMAN KOTT offered a technical amendment to change the language to read, "responsible for the development of a computerized system" [Section 4(d)]. There being no objection, it was so adopted. Number 0300 MR. JARDELL stated the intent of the sponsor of the proposed House committee substitute is not to step on the toes of the Senate Rules Standing Committee. It is really to make sure that the job gets done; to make sure that everything is completed; and to make sure that all the tools are available for the board in an honest, fair and unbiased condition. Number 0369 REPRESENTATIVE CROFT asked Mr. Jardell whether he is testifying to the intent of the Senate Rules Standing Committee. Is that committee the sponsor of the committee substitute? MR. JARDELL replied the sponsor of the committee substitute is Representative Green. He is testifying on Representative Green's intent. Number 0397 REPRESENTATIVE GREEN commented that he dropped by the U.S. Census Bureau when he was in Washington D.C. and was reassured of the enormous amount of preparation. The bureau said that the state is probably late. A state needs to gear up immediately which is why the committee substitute was prepared. The states needs to have an impartial organization and the council seems to be that organization because it doesn't consider one side or the other. He noted that at least it could get things started. The idea is to gain as much data as possible, and to check out the programs. The nuances would be done by the board. Number 0492 REPRESENTATIVE MURKOWSKI asked Mr. Jardell how much would it cost to do what the proposed House committee substitute is suggesting. MR. JARDELL replied it would cost anywhere from $50,000 to $2 million. There would also be costs for litigation, support services and contracting fees. There is a lot of room to add on incidental costs. Number 0576 CHAIRMAN KOTT commented the cost for software is anywhere from $3,000 to $150,000 per unit depending on the services associated with it. The figure of $50,000 is probably on the low end when looking at personnel, meetings, office space, length of time from start to finish, and support staff. The figure is probably closer to $1 million. Number 0675 REPRESENTATIVE GREEN noted the technical portion is probably closer to $100,000. That doesn't include any litigation expenses. Number 0700 REPRESENTATIVE MURKOWSKI asked what is happening with the process now. In other words, if this wasn't done, where would it put the state when it comes to the year 2000 census? Number 0734 CHAIRMAN KOTT replied there would have to be a supplemental appropriation probably from the legislature's and the Department of Labor's budget for the software. Number 0754 MR. JARDELL replied it's a good question. It speaks to the reason for the proposed House committee substitute. No one knows what would happen. No one is taking the responsibility at this time to get the ball rolling. It is a state-federal program and most every state is participating. Kathryn Lizik from the Department of Labor has been working to designate different geographical features into blocks to be used to collect data from. In towns and municipalities, the blocks are mostly the area of a city block, but there are a lot of blocks for a state with a very small population. There is no plan once she is finished with that. The Division of Elections [Office of Lieutenant Governor], and the Department of Labor have indicated that they aren't doing anything. Number 0868 MR. MOFFATT added that he was tangentially involved with the 1970 and 1980 reapportionment. The boards were operating in 1969 and 1979, respectively. Here, the board will not be constituted until the year 2000. "So, we're behind the eight ball in the substantive loss to catch up." Number 0929 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division, Department of Law, came before the committee to testify. He said a "severability" clause in a bill makes him nervous. The drafter, obviously, was concerned that something in the bill may be found to be unconstitutional. At least, that's what he did as a bill drafter for the legislature several years ago. He is involved in the preclearance activity on voting laws to the U.S. Department of Justice (DOJ). He is, therefore, concerned how the state will be positioned for the next reapportionment. In the last election, the people voted on a process for a redistricting board composed of the three branches of government, under the theory that the balance would lead to a fairer process. That's how it was presented to the people, and he believes that the people accepted and believed that. He is concerned, therefore, to see one branch tipping that balance in the approach taken. "Now, you and I know that if you can control how a board is staffed and the kind of computer equipment that it uses, any kind of data that it considers, you have a big leg up over how that board functions." That is how the other two entities involved would view it. This is a partisan political process, and the aim of the constitutional amendment was to try to get away from that. He is concerned purely from a nonpartisan approach. And, having to be involved in the preclearance and litigation of this, he is concerned that a line is being crossed. He has discussed with Mr. Kevin Jardell the need for a task force including a three-branch effort. Therefore, he was disappointed to see this type of approach. Maybe, Mr. Jardell is trying to get there somehow, but is this the type of process that was intended with the constitutional amendment? he asked. He noted that there is a group within the Administration. It is set to meet tomorrow. The committee will hear from the departments involved in this area that the big problem is money. The Administration has given it a lot of thought in terms of cost and computer systems, but it realizes it can't do it on its own. The legislature will have to appropriate money. There is a need to get things going, but he questions the approach of placing it entirely within the legislative council. Number 1264 MR. BALDWIN further stated that he is also concerned about the sampling numbers. He was the losing party in the Hickel v. Cowper case, which tried to define the terms of the constitutional budget reserve fund in terms of appropriations. The Department of Law said that there was no problem in passing a statute interpreting and making the constitution specific. The supreme court reminded the department, however, that was its job to interpret the constitution and to make it specific. The legislature could do things of that nature, but it would be given only some weight. That is the approach being taken here - trying to define the terms of a recently passed constitutional amendment as to what the legislature meant by the relying "relying on the U.S. census." The census plans to give the state two sets of numbers which is a problem in terms of litigation and for any number purposes. He has talked to a lot of people with technical knowledge within the Administration and they don't know how the numbers will turn out. Who will be the winner? Who will be the loser? As a result, the Administration doesn't know what to do about them. They might be good for some programs and might not be good for others, but the underlying motive is to try and get a more accurate census number. They are not intended to dilute anybody's voting lines. He reiterated the Administration doesn't know whether to support or oppose sampling numbers. The legislators have to look at that too in terms of partisan politics and districts and what they mean for each district. It really is a national political issue involving whether Montana will lose a seat or New York will gain a seat. It really has no relevance to Alaska with one congressman and a state that is largely rural. Number 1422 MR. BALDWIN further stated the Administration couldn't do a military survey without an appropriation. A survey is very expensive. It was the intent last year with HJR 44 not to do a military survey. But, if the Administration goes to preclear this with the U.S. Department of Justice, it may well ask the state to prove that there is no discriminatory effect. He wondered how the state would do that without a military survey. It has the power to do that under section 5 of the Voting Rights Act. If that is the case, the Administration will be back asking for money. In addition, he sees that the preclearance would be done by the person hired as the independent legal counsel to the board. The current regulation says that the chief legal officer for the state does the preclearance. He doesn't know how that would square with DOJ regulations. He doesn't know if that is totally baring. He would be relieved to be out of the preclearance game on this one because it will be hot and heavy. That concern needs to be considered. Number 1599 CHAIRMAN KOTT pointed out, that at an overview made before the committee by Kathryn Lizik [Department of Labor], he indicated he was going to forward to the Speaker of the House a letter suggesting an ad hoc committee consisting of one person from the House and Senate, two people from the Administration, and one person from the Department of Law. That committee would meet on a periodic basis, so that everybody knew what was going on. He has also had three conversations with the Department of Labor indicating that as well, but at this point the "left hand is out here and the right hand is out here, and vice versa." Number 1650 MR. JARDELL noted that Representative Green has contacted the Administration on several occasions, and that he has spoken with them as well on many occasions. They are still waiting for a return phone call to convey the point person. The bill speaks to the need to do something, and it speaks to the importance of acting on it, given the time left in the session. MR. JARDELL further noted that DOJ regulations say, "or other authorized person." According to Representative Green's office and Legislative Legal and Research Services [Legislative Affairs Agency], the "other authorized person" would be in line with the type of position in the bill. MR. JARDELL further stated, in referencing partisanship, the importance of ensuring that the adequate tools are provided far outweigh any speculation of partisanship. It is recognized that this has to get done, but nobody is doing anything about it, which is why the bill is here. Number 1758 REPRESENTATIVE GREEN asked Mr. Jardell to discuss the severability clause in the bill. MR. JARDELL replied the severability clause is in the bill because there is doubt about what the courts would do. But, because the importance of this is so high, if a portion is found unconstitutional that's fine and it should be knocked out. The assurance of the tools that are necessary is the reason for the severability clause. Number 1796 MR. MOFFATT stated the Senate Finance Standing Committee rejected the $100,000 fiscal note for military surveys that Mr. Baldwin referenced. "This bill, that the Senate Rules Committee has sponsored was passed overwhelmingly in the Senate, specifically sets forth that we don't want anything more to do with surveys, particularly with the military. We want things to remain the same as they were in 1990. No discounting or discrimination against the military or any other Alaskan, and the numbers in 1990 the Justice Department cleared nondiscrimination. It cleared and okayed that we don't use surveys and statistical tinkering. The only reason that those samples have ever been used in the past in Alaska is to discriminate. The Justice Department has already cleared the procedure of using the census figures for head count - the enumeration that has been used for 210 years. We don't need to spend $100,000 to come up with any other justification. The census of 2000 will be (indisc.) there and that's all the numbers that the Department of Law or anybody else needs to justify a fair and equitable reapportionment or redistricting. And, the use of any surveys, I think, even might jeopardize our case. Thank you." Number 1874 REPRESENTATIVE GREEN stated the current federal administration would favor some sort of statistical analysis because, in very high concentrations of minorities, it's extremely difficult to get a true head count. In Alaska it's just about the opposite. A village count is very simple because everybody knows everybody. The only problem would be Anchorage which is broken down by small blocks. A true nose count in Alaska makes a whole lot more sense than trying to do some sort of projection that is envisioned for large metropolitan areas with extreme numbers of varying types of minorities. The Census Bureau has said for allocation of legislators at the federal level the actual head count will be used, and is leaving the individual states to determine how they will do it. "We're just saying, if it's good there, it should be good all the way around." Number 1953 CHAIRMAN KOTT closed the meeting to public testimony. Number 1977 REPRESENTATIVE JAMES made a motion to move the proposed House committee substitute for committee substitute for SB 99, 1-LS0380\S, Kurtz, 4/10/99, from the committee with individual recommendations and the attached fiscal note(s). REPRESENTATIVE CROFT objected. He remembers the arguments clearly on HJR 44, and the civilian versus military issue. The discrimination that is being discussed has long been a dead letter in the constitution. The word "civilian" hasn't been used in the constitution for decades. It was not appropriate to take out the word "resident" and the question is whether or not the state should be counting residents or nonresidents. Most people would think that the state would want to count the residents for reapportionment purposes. "We may have a significant amount of a population that it--the federal government will tell us very little about that is nonresident. There are various procedures to figure out whether they're residents or nonresidents, and we're being prohibited from using those. I think it's just plain silly to count people who don't reside here. It--and I think it's purely for partisan purposes on--on calculation on how they might vote that we're counting nonresidents in our apportionment. I was also here for the discussion of--of--of what we'd specifically would say in the reapportionment division to tie it to a very specific number, and I remember very clearly then Representative, now Speaker Porter saying we want--we wanted to be absolutely clear, let's tie it to a number that will be put out - the official decennial census of the United States. And, that's exactly what he wrote and was passed. The new Article 6, section 3 says, 'reapportionment shall be based upon the population within each House and Senate district as reported by the official decennial census of the United States.' Now, oops we find out we don't like the official decennial census of the United States, that over 200 years how we understand the best way to get an accurate count can develop, and in fact it's been shown over and over mathematically that for various reasons, sampling gives you a better number, If done right, it is--it is irrefutable on good numbers that with enough--with proper sampling can get you a better number than trying to count every single person. 1, 2, 3, oh did I get Bill? I'm up to a million three. That--so, we are now trying to fix the fact that we were overly precise then. We wanted to be precise and have a number. I remember Representative Porter saying it would not be open to debate. It really isn't. But--but, for again partisan political reasons we don't like the number that we tied ourselves to just a year ago and so we're gonna attempt to change it. Attempt, I say, because I don't think we have the power to do this. The Hickel v. Cowper opinion is very clear that what the twenty-first legislature has to say about what the twentieth legislature meant in putting before the public an amendment to the constitution that they for their own reasons approved just ain't particularly relevant. You know, some of us served then, not all of us, but us saying what they meant, more importantly proposing something that the people approved is just not our place in the--with three branches of government. We're suppose to have checks and balances on each other and interpreting the constitution is the classic role of the judiciary. It's why they were put there 200 years ago - to defend the minority against the majority, and to depend the legislature--the people against the legislature trying to go in certain areas. This is the problematic area that I think may--that's such a close vote on that constitutional amendment. People were legitimately worried about what we would do, we the legislature, if we were involved in something that was so important to us writing our own district lines. And, here we're trying to get more and more involved. We're threatening funding on positions, we're cutting off, we're trying to get in...To describe the leg. council as an impartial body, particularly with the history over the last two years of what is has done, strains (indisc.). This is a partisan group trying to get in--much involved in this area as they can and luckily we have very little that we can't do. We're buying ourselves a lawsuit to say what we can read in the statutes. We're trying to define what other people did and what other people approved. But, more importantly we're just more and more getting into an area that we know it is so important to us we can't be trusted with it. It's so important to us that we cannot resist the urge to play partisan games with. It's also the reason that there was such trouble--there was such worry about bringing the judiciary in. We're gonna put a case before the supreme court that says we've defined it one way were we right? And, the chief justice and four others are gonna vote on that and then the chief justice is gonna appoint a person to implement that. On this, on any number of--of judicial reviews it is troubling on the same separation of power argument to have that judicial officer involved. The heart of SB 99 to me is exactly what Mr. Moffatt ended with. We want things to say the same as they were in 1990. The 1990 census did an excellent job of gerrymandering this state in--tilted towards a Republican majority, and it is a desire that it stay that way. This is why we shouldn't be involved in this process at all. And I object for all the reasons...". Number 2264 REPRESENTATIVE JAMES said she agrees with a lot of what Representative Croft said. However, the legislature consistently tries to make, in other areas, laws that are criticized as unconstitutional. She believes that the court didn't make a decision based on the intent of her last constitutional amendment to the constitutional budget reserve fund or based on what she, as a voter, said it was. The court read every single word and their basic meanings. She believes it is necessary to have legislation that describes what the legislature's intent. She certainly wants to have everyone counted, but if "you don't count them where they're residing, where are you gonna count them? And, people should all be counted." Number 2351 REPRESENTATIVE MURKOWSKI stated there isn't anybody at this table or in this room that doesn't agree something needs to be started. Personally, she would have preferred an approach suggested by Mr. Baldwin and Chairman Kott - a task force comprised of members from the Administration and legislature, so that there isn't an appearance of bias or partisanship. She is not convinced that this is a perfect approach, but it is better than the alternative - inaction. CHAIRMAN KOTT agreed that this is not a perfect approach. A task force could have been formed, but it wouldn't have had any power to appropriate money. CHAIRMAN KOTT called for a roll call vote. Representatives Green, James, Murkowski and Kott voted in favor of the motion. Representative Croft voted against the motion. The motion passed with a vote of 4-1. The HCS CSSB 99(JUD), was so moved from the House Judiciary Standing Committee.