Legislature(2017 - 2018)GRUENBERG 120
02/20/2018 03:15 PM House STATE AFFAIRS
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HJR 26-CONST. AM: REDISTRICTING;BOARD MEMBERSHIP 3:20:47 PM CHAIR KREISS-TOMKINS announced that the first order of business would be SPONSOR SUBSTITUTE FOR HOUSE JOINT RESOLUTION NO. 26, Proposing amendments to the Constitution of the State of Alaska relating to the membership and actions of the Redistricting Board and relating to district boundaries and the establishment of a nonpartisan statewide district map. 3:20:58 PM REPRESENTATIVE LES GARA, Alaska State Legislature, as prime sponsor, presented SSHJR 26. He noted that a proposed committee substitute (CS) for SSHJR 26, Version 30-OS0155\N, Bullard, 1/31/18 [included in the committee packet and referred to as Version N] would attempt to eliminate politics from redistricting, which is also referred to as gerrymandering. He said that roughly ten states have adopted a non-partisan method of drawing district lines so as not to favor one party or another. He maintained that both parties have tried to take advantage of the redistricting process. 3:22:49 PM JUSTIN LEVITT, Professor, Loyola Law School, relayed his experience in the field of redistricting and voting rights. He testified that he agrees with Representative Gara's assessment that neither party has a monopoly on abusing the redistricting process when possible. He stated that in most states, sitting legislators draw both their own district lines and where applicable, districts of members of Congress. He said that it is often legislative leadership that wields redistricting power, not the "rank and file" legislators. He reported that in many states, leadership is at least tempted to use redistricting power as a cudgel against both members of the opposing party and occasionally against members of their own party. MR. LEVITT continued by saying that the process is rarely transparent; because redistricting can be very personal when it is pursued as an exercise in raw partisan power, it often appears to be overflowing with ill will, creating significant conflict among legislators that carries over into the legislative sessions. He maintained that when this happens, it creates substantial cynicism among the public, even if the process did not actually put personal and partisan interests ahead of the public interest. He said that in his experience and in the experience of many other redistricting commentators, it often appears to the public eye that the system is rigged, that is, members exercising the power granted to the state to act on behalf of all its constituents but exercising that power to benefit just a few. MR. LEVITT offered his belief that the U.S. is the only industrialized western democracy that allows those with the greatest potential for conflict of interest to draw their own electoral district lines. He said that many countries have observed the U.S. practice and determined that they can find a better way. 3:26:59 PM MR. LEVITT relayed that a few states, including Alaska, have taken a different approach to drawing state legislative districts. Connecticut and Maine allow the legislature to draw redistricting lines that have supermajority requirements, which can increase the likelihood of a more bipartisan outcome. He reported that seven states - Arkansas, Colorado, Hawaii, Missouri, New Jersey, Ohio, and Pennsylvania - have established commissions to draw redistricting lines but allow elected officials to serve on those commissions. In most instances these bodies are also structured in a manner designed to be bipartisan; therefore, they differ from the legislature. In two other states - Iowa and New York - there are advisory bodies with substantial independence from the legislature, but theoretically they are subject to legislative override. He said that New York's system is new for the year 2020, so it remains to be seen how it will work. Iowa's experience in the last four decades shows that its independent body substantially drives the process and has never been overridden by the legislature, even though the legislature has that authority. MR. LEVITT referred to several other states - Arizona, California, Idaho, Montana, Washington, and as of 1998, Alaska - that have asked commissions with substantial amounts of independence from the legislature to draw legislative lines. These states are often considered leaders of establishing redistricting processes in that the processes correspond more to public interest than to partisan or private interests. Members of the commissions in all these states must not be current sitting state legislators or other specified public officials; the list varies from state to state. He said that members of the commissions of these states are precluded from running for office in the districts for which they have drawn lines, at least for a few years. In the states with independent commissions, all but one are designed so that the membership of the commission is balanced in a bipartisan fashion. He offered that California, in addition, provides specific membership on the commission for those who are affiliated with neither major party. MR. LEVITT relayed that the one state that does not, at present, have a directly and intentionally bipartisan structure is Alaska. States have created a diverse array of options to perform legislative and congressional redistricting; even within the rough categories described, there is substantial variance in how each structure is designed and substantial variance in how each works in practice. He added that some of the systems work quite well; some work fairly well; and some work fairly poorly. Each likely could be improved - sometimes incrementally and sometimes exponentially. 3:30:53 PM MR. LEVITT maintained that he firmly believes that there is no single correct "cookie cutter" answer for every state; there is no "magic bullet" that can or should be uniformly implemented everywhere and in the same way, without concern for demography, history, or political context. He expressed that Iowa's system works well for Iowa but would not work well for California. California's system works well for California but is unnecessary for Idaho. Idaho's system works well for Idaho but isn't likely to work well in New York. He asserted that each system, even when it functions well for its own state, can likely be improved. 3:31:39 PM MR. LEVITT related that the present system in Alaska has many elements to commend it, but it, too, can be improved. He opined that the process was improved in 1998, when control passed from the governor alone to the current reapportionment board. He expressed his belief that Version N of SSHJR 26 would make even greater advancements to the process. At present, Alaska has some safeguards for the public. Those who draw the lines may not be public employees or officials at the time they are appointed or throughout the tenure of their appointments. There are provisions for geographic diversity; there must be a member from each judicial district on the board. There was substantial transparency in the manner that redistricting was conducted in the 2000 and 2010 redistricting cycles. MR. LEVITT said that in theory, appointment to the reapportionment board is to be made without regard to partisan political affiliation; the members of the board are not supposed to be partisan. He pointed out that currently, four out of five members of the reapportionment board are themselves appointed by officials elected to political positions; it is often the case that the officials of one political party will do most of the appointing. He explained that when elected officials with partisan allegiance make the appointments, even while the text precludes appointment regarding partisan affiliation, the public may be misled into perceiving that the board itself has a partisan slant. MR. LEVITT stated that Version N would continue Alaska's hardy tradition of a redistricting body distinct from the legislature and continue the tradition of precluding current public employees and officials. In addition, it would add a welcome measure of incremental independence by precluding former political party operatives and former elected officials from serving on the board. He maintained that Version N would prevent someone from retiring from a legislative office and serving on the board the next day. It would also add a measure of partisan balance to the reapportionment body itself with two members from each of the major parties and several members from neither. He opined that this would more closely approximate the structure of independent commissions in other states, such as Arizona, Idaho, Montana, and Washington; he noted the political and partisan diversity of this group of states. He opined it would strengthen the measures of incremental independence and incremental balance; it would strengthen the Alaskans' faith in the redistricting process. 3:35:16 PM MR. LEVITT relayed that Version N also would strengthen the redistricting process's focus on criteria that benefit Alaskans - retaining the state's very strong protections for communities of interest - and thus, legislators would really know who they are representing, and that would be felt and perceived by the public. The criteria would still be embodied in the requirement that districts contain relatively integrated socioeconomic areas but would add specific language that would preclude drawing a map to unduly favor a party or candidate. He maintained that aspect being important both for the substance of the map and the public perception of it. He said that the Alaska Supreme Court has emphatically enforced the redistricting provision of state law and that he expects it would enforce the provision of Version N, if it became law, which should give Alaska citizens incremental confidence that the process is defined for them. MR. LEVITT stated that he has focused his testimony on fair process, not results, which he said is appropriate. Alaskans are diverse with various protected racial and ethnic communities and many citizens who prefer one of the major political parties. He offered that there is a fierce independent streak among Alaskans; some citizens prefer neither major party. Districts that are drawn through a fair process will inevitably in any given cycle or election end up creating some natural advantages for certain candidates; it is impossible to remove all political results from the redistricting process. However, he opined that a fair process - one designed to be independent of the candidate running in the districts drawn and one with natural balance - will give Alaskans increased confidence that the electoral contests, whatever their outcomes, have not been unfairly tilted. He expressed his belief that Version N brings Alaska's process closer to that ideal and moving in an incrementally positive direction. 3:38:46 PM REPRESENTATIVE LEDOUX moved to adopt the proposed CS for SSHJR 26, Version 30-LS0155\N, Bullard, 1/31/18, as the working document. There being no objection, Version N was before the committee. 3:39:06 PM REPRESENTATIVE GARA relayed that there are six changes in Version N. He referred to Section 1 of Version N, on page 1, lines 8-10, which read, "The map may not be drawn to unduly favor a political party, and a district may not be drawn to unduly favor a political party or candidate." He mentioned that the language was recommended by Mr. Levitt and was used in Hawaii's statutes. 3:39:57 PM REPRESENTATIVE LEDOUX asked for the difference between "favoring a political party" and "unduly favoring a political party." REPRESENTATIVE GARA responded that could be amended; the intent is to not favor a political party [through redistricting]. He stated that there are districts that favor the Democratic Party, the Republican Party, the Green Party, or the Alaska Independence Party (AIP); by virtue of the way even a non- partisan redistricting map is drawn, not every district will be fifty-fifty. He offered that technically a district may favor a [political] party, but the intent of the proposed legislation is to avoid unfairly favoring a party; the map should be written such that it does not unduly, unwarrantedly favor a party. REPRESENTATIVE LEDOUX asked if the language might be interpreted as the map may not be drawn with the intention of favoring one party or another. REPRESENTATIVE GARA answered, "Yes, the whole map." He added that the statewide map is intended to be nonpartisan, with the recognition that one district or another may favor one party or another. REPRESENTATIVE LEDOUX restated Representative Gara's answer by saying, "It may end up that way, but that shouldn't be the intention of how you draw the whole map or even the district map." REPRESENTATIVE GARA replied, "That's true." REPRESENTATIVE GARA referred to Section 2, on page 2, lines 4- 18, and relayed that the number of members on the redistricting board has changed over the years; under Version N, it would consist of seven members - two from the party with the most votes in the prior election, two from the party with the second most votes, and because most voters in Alaska are independent, three members who are independent. The first four political party members would choose the three independent members. REPRESENTATIVE GARA referred to Section 4, on page 3, lines 6-7, and relayed that there had been language banning political contributions by those appointed to the board; Mr. Levitt explained that might be unconstitutional; therefore, it was removed. He added that with the four party members choosing the three independent members, the political leanings of the three would become evident. REPRESENTATIVE GARA referred to Section 4, page 3, lines 9-11, which states that the four party members would appoint the three independent nonpartisan members. REPRESENTATIVE GARA referred to Section 4, page 3, lines 13-21, and explained that if the four party members can't agree on the three independent members by a certain deadline, the Alaska Supreme Court would appoint the three independent members. REPRESENTATIVE GARA relayed that Section 6, on page 4, lines 1- 3, contains conforming language. 3:43:53 PM REPRESENTATIVE TUCK asked if "independent" refers to a member of the Alaska Independence Party or to someone who is [registered] undeclared nonpartisan. REPRESENTATIVE GARA explained that the three members who are not members of the two major parties are non-party affiliated. REPRESENTATIVE LEDOUX referred to Section 4 (d), on page 3, lines 6-8, and asked whether a person appointed to the redistricting board is required to have never been elected to office. She asked whether someone elected 20 years ago would not be allowed to serve on the board currently. REPRESENTATIVE GARA responded that Version N would allow local officials to be appointed, since in Alaska they are often nonpartisan. He relayed that state and federal elected officials are usually affiliated with one party or another. He said he is open to an amendment but feels that these officials should not be on the redistricting board. REPRESENTATIVE LEDOUX expressed that she understands that reasoning for the nonpartisan members, but not for the [four] partisan members, because they are supposed to be partisan. REPRESENTATIVE GARA stated that he is amenable to a committee change on that provision. In either case, the result would be two members from each party and three independent members, who will be the "power brokers" on the board. 3:46:50 PM REPRESENTATIVE TUCK referred to page 2, lines 16-18, which read, "three members who are not registered as affiliated with a political party and who have not been registered as affiliated with a political party within the preceding ten years". He expressed his understanding that it does not preclude someone who only has been a registered voter for five years. REPRESENTATIVE GARA replied that there is a requirement that the member would have to have voted in the last few general elections. He agreed that someone who has been in Alaska for six years, if he/she has been independent for the entire six years, would qualify for appointment to the board. 3:47:50 PM REPRESENTATIVE LEDOUX referred to Section 2, on page 2, lines 5- 6, which read, "members, all of whom shall be residents of the State and registered voters who have voted in each of the previous four state general and primary elections". She offered the scenario of a person selected for the board in 2017, who would have had to have voted in the general and primary elections in 2016 and 2014. She suggested that some of the most partisan people are the ones who vote in primaries; she asked, "If you're actually trying to eliminate partisanship ... why would you make voting in a primary mandatory?" REPRESENTATIVE GARA responded that he welcomes an amendment eliminating "primary elections." He reiterated that since the two Democrats and two Republicans would appoint three independent members who will outnumber them, the independents will be the power brokers, and making that change should not affect the outcome of creating a nonpartisan redistricting board. 3:50:14 PM MARGO WARING, League of Women Voters of Juneau (LWVJ), testified that the League of Women Voters (LWV) has long been concerned with reapportionment and redistricting in the U.S. She mentioned that she has belonged to the national LWV Redistricting Task Force (RTF) for the three years it has been in existence. She relayed that RTF has studied the structure of redistricting boards in every state and the improvements that states have made in their processes. The RTF developed a position on redistricting, which is now held by LWV. She expressed that she supports Representative Gara's efforts to devise a fair way to redistrict Alaska and asked for House support. MS. WARING said that Alaska's redistricting process has always been contentious. She relayed the following history: The Alaska State Constitution originally made redistricting a function of the governor; the [Alaska] constitutional convention, reacting to the problems other states had with conducting reapportionment in a timely and fair manner, selected the governor model. In 1964, the U.S. Supreme Court affirmed the rule of one person one vote. The redistricting maps of 1970, 1980, and 1990 were found by the Alaska Supreme Court to be unconstitutional. In 1998, the legislature initiated, and the public narrowly supported the creation of Alaska's current five-member redistricting board, in which two members are appointed by the governor, one by the Speaker of the House, one by the President of the Senate, and one by the chief justice - all "without regard to political affiliation." She offered that these words imply that the board would be nonpartisan; however, in practice, nonpartisanship was not achieved. The maps of 2000 and 2010 were challenged in court, and portions were found to be unconstitutional. The criteria cited in the Alaska Constitution are that districts be nearly equal in population and that one senate district encompass two house districts. The districts are to be compact and contiguous; they should be integrated socioeconomically as much as possible; and attention should be paid to local government boundaries and geographic features as much as possible. MS. WARING opined that the theme of this history is that Alaskans, aware of the possibilities of partisanship and gerrymandering and desirous of a nonpartisan apportionment of districts, have, since statehood, favored approaches that are fair; they support the one person one vote rule; and they do not allow legislators to pick their own voters. She maintained that Alaska has yet to achieve this goal. She expressed her belief that Representative Gara's effort to achieve this goal is to be commended. Representative Gara has studied a variety of approaches and selected one that can work for Alaska, one that provides the kind of fair redistricting process consistent with the concept of one person one vote, and one in which voters select legislators rather than legislators select voters. 3:54:04 PM CHAIR KREISS-TOMKINS announced that SSHJR 26 would be held over.