Section Number

Changes Made to Existing Section of Constitution

Article VI

Reasons for Changes and Intent

Old language is deleted which referred to Article XIV. Article XIV is no longer necessary, and is repealed in Section 11 of HJR 44.

Article XIV is a lengthy description of existing house and senate districts, which changes every 10 years. The intent in eliminating Article XIV is to eliminate the need for unnecessary amendment of the constitution every ten years.

Language is added to make clear that both house districts and senate districts are reapportioned, and not just the house districts.

Language is added to make clear that reapportionment is based on the entire state’s population base, including military population, and not just the civilian population.

At the time the Alaska Constitution was drafted, The U.S. Supreme Court had not yet ruled that the one-person, one-vote equal protection requirement applied to senate districts as well as to house districts in state legislatures. As discussed above, this change is intended to conform the constitution to controlling federal and state case law.

Citing controlling U.S. Supreme Court case law, twenty six years ago the Alaska Supreme Court held that eliminating military personnel as a class from the reapportionment population base is unconstitutional. Egan v. Hammond, 502 P. 2d 856 (1972), at 871.

The issue then arose as to whether it is constitutionally required to exclude non-resident military personnel from the population base. In Hickel v. Southeast Conference (1992), 846 P.2d 38, at 55, the Alaska Supreme Court held that exclusion is not constitutionally required if it is not possible to accurately identify non-resident military personnel, after finding that it was "methodologically impossible" to accurately identify them.

There has been much discussion about changing "reapportionment" to redistricting" in many places in Article VI. The Alaska Supreme Court has stated by way of dicta that there is little difference between the two words, and that reapportionment is inseparable from redistricting. Egan v. Hammond (1972), 502 P. 2d 856, at 873. For that reason and because "redistricting" has not yet received acceptance in legal treatises and dictionaries, "reapportionment" has been retained.

reapportionment population base.

Language is added to create twenty single-member senate districts, which consist of two contiguous house districts.

Language is deleted about civilian population and creating forty equal election districts.

The intent is to confirm single-member senate districts, each coinciding with the boundaries of two contiguous house districts. This language is specifically intended to overrule the supreme court’s decision in Kenai Peninsula Borough v. State (1987), 743 P.2d 1352, at 1364-1365, in so far as the inapplicability of Article VI, section 6 factors to reapportionment of senate districts, with the result that here shall never again be another "Donut" district.

The deleted language refers to "civilian" population, which, as discussed above, has been struck down by the Alaska Supreme Court on constitutional grounds. The concept of forty equal election districts is retained in restated form in this section.

Language is added to clarify that compensation to be paid to board members is "as provided by law".

Language is deleted which previously required board members to be from certain geographic areas of the state, and which required that appointments be made without regard to political affiliation.

(b) New language is added which requires board members to be appointed after, but not later than 15 days after, the election of the Speaker of the House and of the President of the Senate in the year following the decennial census.

New language is added

to require the board members to serve until a final reapportionment plan and proclamation has been adopted, including all legal challenges and remands by the Alaska Superior Court or Alaska Supreme Court.

(c) New language is added which requires the Speaker of the House, the House Minority Leader, the President of the Senate, and the Senate Minority Leader to each select one board member. The appointments are to be made after the election of the Speaker of the House and the President of the Senate at the beginning of the legislative session following the decennial census.

Language is added provide for the rare instance where the senate or house organize as one majority. In such a case, the minority appointing officer of that house shall be appointed by the members of that house who are not members of the political party with the greatest number of members in that house.

(d)The fifth board member is appointed by a majority vote of the other four members. If there is a deadlock, the Chief Justice of the Alaska Supreme Court appoints the fifth member. The fifth member shall automatically become the chair.

The fifth member may not have held an elected state office or an elected office of a political party in Alaska in the five years preceding the appointment.

(e) New language is added which requires the legislature to pass a law determining the order in which each of the

appointing legislators makes his or her appointment.

(f) New language is added which allows for removal of any of the first four board members, with or without cause. However, removal may only be made the appointing legislator or that person’s successor. All vacancies created by the removal, resignation, death or incapacity of any of the first four board members are filled by the appointing legislator or that person’s successor.

The fifth board member may be removed only for good cause shown, as determined by a majority vote of a group consisting of the other four board members and the Chief Justice of the Alaska supreme Court. The vacancy due to removal, resignation, death, or incapacity of the fifth board member is filled by the appointing procedure set forth in (d) of this section.

(g) New language is added that precludes board members from seeking elected legislative office in the general election following adoption of the final reapportionment plan.

It is intended that the board members be compensated for per diem and travel expenses. If the constitutional amendment is approved by the voters, a bill will be drafted to provide for compensation.

It would be unnecessarily restrictive to allocate one board member to be from a certain geographic area of the state, considering how the board members are appointed. The intent of deleting the language referring to appointments "without regard to political affiliation" is to be consistent with the method by which the first four board members are appointed. Two are appointed by the majority party, and two by the minority party.

It is the intent of this language to have at least the first four board members appointed within 15 days after the Speaker of the House and the President of the Senate have been elected. The minority caucuses will organize and appoint two of the four board members within the same period of time.

It is the intent of this language to require board members to serve until a plan and proclamation have been adopted, and to continue to serve through any remands following superior court or supreme court decisions.

This language is intended to simply set out that the presiding officers and minority leaders of both bodies each appoint one board member. The rather obfuscatory and convoluted language is the result of drafting rules which do not allow the use of words not found and defined elsewhere in the constitution, such as "caucus" and "minority". The intent is to ensure that a fair balance is achieved by allowing the majority and minority two seats each on the board.

Several years ago the senate organized as on majority, with no ostensible minority leader to appoint a board member. This language provides for that rare contingency.

If the four board members cannot agree on the fifth member, a procedure is in place to avoid deadlock. The Chief Justice makes the appointment.

This provision is taken almost verbatim from New Jersey, and is intended to make the fifth member as politically neutral as possible. The phrase "political party" is defined in AS 15.13.400(10). It cannot be overemphasized that the intent behind the fifth board member’s appointment is to find a person as politically neutral as possible, for only such a person could lead the other four members to a fair and well thought out reapportionment plan.

The intent of this language is to allow for a random process for appointing the first four board members. A bill should be introduced to take care of this detail, upon approval of HJR 44 by the voters of the state. The bill should also provide for compensation of board members, as mentioned in Section 6(a).

The appointing legislators or their successors will control the discharge and appointment of the first four appointees.

As to the fifth member, who is the chair, removal must be for good cause shown. The requirement of showing good cause for removal applies only to the fifth member because a politically neutral chair should not be removable without cause. It is the intent that "good cause shown" is to be determined by case law. Vacancies for any reason are filled first by a majority vote of the other four members, or, in the event of deadlock, by the Chief Justice.

This provision is intended to avoid the appearance of impropriety on the part of a board member who might otherwise be accused of reapportioning a district for self serving reasons. The over-all goal of the changes to Article VI is to have as far as possible, a reapportionment plan that is fair, rational, objective, and free from undue political influence.

Language is added by which "actions of the board" require a majority vote, but ambiguous language is deleted about "a ruling or determination" and "or otherwise act for the board".

New language is added which requires the board to

"employ or contract for services of independent legal counsel".

The language in the existing constitution creates ambiguities about the legal effect of a majority of only three board members meeting somewhere and taking unspecified "rulings or determinations".

Two members in this scenario should not be able to bind a five member board.

The board will need independent legal counsel, and should not be allowed to utilize legal services from any of the three branches of state, local or federal government.

If the census data is released before the board is duly appointed, language has been added to clarify that the clock starts to run for coming up with a plan after the board is duly appointed and the census data has been released.

Language is deleted about the board reporting to the Governor, and the Governor submitting the final plan and proclamation.

New language is added by which the final plan is to set out boundaries of house election districts and senate districts.

New language is added to clarify that an existing reapportionment plan will remain effective until a new plan has been fully adjudicated in time for the next primary or general election. Existing language in Section 10 of Article VI states that reapportionment plans expire "after the official reporting of the next decennial census". The new language makes the old plan fully effective until the new plan has been litigated to a final decision, and 60 days remain for election officials to prepare registration lists and other materials after the final adjudication before the next election.

(b) New language is added to clarify that adoption of a final plan of reapportionment requires at least three votes of the board.

In the remote event the census data is released before the board is duly appointed, it is the intent of this language that the board has 30 days after it is appointed to come up with one or more proposed plans, and a total of 90 days after it is appointed to come up with the final plan.

This deletion is for consistency reasons. It is the Reapportionment Board which develops and adopts the proposed and final plans of reapportionment.

This provision is intended to clarify that the final plan sets out the boundaries of senate districts as well as of house election districts, as discussed above.

This language is intended to deal with the possible scenario where, because of protracted litigation, a general election cannot be held on time. Under the language found in existing Section 10 of Article VI, the presently existing reapportionment plan expires the minute the year 2000 decennial census is officially reported, which likely will be about April 1 of 2001. If a new reapportionment plan were not fully litigated in time for the 2002 elections, there would be no legal house and senate districts in which to hold an election: the old reapportionment plan would have expired, and the new plan would be snarled in litigation. The new language allows the old reapportionment plan to be used for primary and general election purposes until the new plan is litigated through a final judicial decision, plus 60 days to allow election authorities to prepare registration lists and other materials for the election.

This language is self-explanatory.

A lawsuit to compel performance of the duty to formulate a final reapportionment plan and proclamation at the end of 90 days must be filed not later than 30 days after the 90 day period. A lawsuit to correct any error in redistricting or reapportionment must be filed within 30 days after adoption of the final plan and proclamation by the board.

New language is added to require the courts to dispose of cases arising under Article VI on an expedited basis.

If any reapportionment remands are ordered by the courts, the matter shall be remanded directly to the board for correction and development of a new plan, and not to the superior court or to special masters.

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Self-explanatory, and is consistent with recent supreme court handling of such cases.

This language is intended to avoid the situation which arose in Hickel v. Southeast Conference, in which the court system in effect rewrote the reapportionment plan. The approach was criticized by two of the justices in a dissenting opinion in that case.

Language is added to ensure that the reapportionment plan in effect on December 31, 2000, will be the fall back reapportionment plan in the event the reapportionment process which will follow the 2000 decennial census is not fully completed in time for the 2002 primary and general elections.

This applicability of amendments language is intended to protect against the scenario spelled out in section 8 of this sectional analysis, which discusses section 10 of Article VI.