Alaska Supreme Court, in landmark ruling, says partisan gerrymandering violates state constitution

Alaska Supreme Court on Wednesday, Oct. 12, 2016. (Bill Roth / ADN)

In a landmark decision, the Alaska Supreme Court ruled Friday that partisan gerrymandering is unconstitutional under the Alaska Constitution’s equal protection doctrine.

The decision follows a contentious recent reapportionment cycle: The Alaska Redistricting Board was twice found by the state’s highest court of having unconstitutionally gerrymandered the state’s political maps by attempting to give solidly Republican Eagle River more political representation with two Senate seats. Following a court order, the board approved an interim map last year for November’s general election that kept Eagle River intact in one Senate district.

The court ruled Friday that the redistricting board would have 90 days to appear before a Superior Court judge and show cause why the interim political map should not be used until the 2032 general election. A board meeting hasn’t been scheduled yet to discuss the court’s decision, but that could happen as soon as next week.

John Binkley, chair of the Alaska Redistricting Board, said that the five-member board would need to carefully consider the court’s ruling, and that members would likely hear public testimony before deciding how to proceed. Binkley said he was personally satisfied with the interim political map, and the process he oversaw to redraw Alaska’s political boundaries.

Alaska Federation of Natives attorney Nicole Borromeo, who was in the minority of board members opposed to giving Eagle River two Senate seats, warned at the time that a court would likely rule that was partisan gerrymandering. In an interview Friday, she said she supported the interim map because it comported with the constitution, but she was interested in hearing if other board members wanted to reopen the map for additional drafting.

The court’s 144-page opinion explained in detail why the five justices believed board members engaged in unconstitutional partisan gerrymandering. The opinion — written by retired Chief Justice Daniel Winfree — described “secretive procedures” used to draw two Eagle River Senate districts to benefit Republicans behind closed doors, which the justices said was a violation of the state constitution’s equal protection doctrine.

Racial gerrymandering and drawing districts to penalize an incumbent lawmaker would likely already have been struck down by state courts before Friday’s decision, attorneys said. But the Alaska Supreme Court had not explicitly made a ruling that drawing maps for political purposes was illegal.

“We expressly recognize that partisan gerrymandering is unconstitutional under the Alaska Constitution,” the court’s opinion says on page 91.

“This is an incredibly important case,” said Scott Kendall, an attorney and former chief of staff to independent Gov. Bill Walker. “For the first time the Alaska Supreme Court has interpreted the equal protection doctrine to prohibit gerrymandering for partisan purposes. This decision will put vital sideboards on the redistricting process to prevent political abuse of the process in the future.”

Kendall said the court’s reading of the equal protection doctrine meant that there would effectively need to be a level playing field between communities. Maps could not be drawn to give more political power to residents of Eagle River over those of Muldoon, he said, referring to one map struck down by the court.

At a federal level, the U.S. Supreme Court ruled in a 2019 case that partisan redistricting was a political matter and beyond the reach of federal courts. The Alaska Supreme Court cited that decision, but said state constitutional convention delegates made clear that partisan gerrymandering was intended to be unconstitutional from the outset.

The Alaska Supreme Court, from left, Dario Borghesan, Warren Matthews, Daniel Winfree, Robert Eastaugh and Jennifer Henderson, heard arguments on March 18, 2022, regarding the decision of the Alaska Redistricting Board. (Marc Lester / ADN)

Stacey Stone, an attorney who has often appeared in court on behalf of Republican candidates, agreed Friday’s ruling was a landmark decision. She said that there was “significant case law” in the decision that would take a while to digest, and noted that the justices repeatedly admonished the board to reiterate the importance of drafting maps transparently for the public.

Redrawing the state’s political map is constitutionally required to take place every 10 years after the release of U.S. Census data, so that population changes are accurately reflected in new boundaries for 40 state House districts and 20 Senate districts.

Former Anchorage Democratic Sen. Tom Begich, who has long been involved in state redistricting cycles, was elated by Friday’s decision. He said that it put the burden of proof onto the board to show why the interim map should not be used for the next several election cycles. But the clear prohibition on partisan gerrymandering was a surprise.

“As soon as I read that, I actually said to my wife, “Oh my God, they’ve made it explicit,” Begich said.

Begich said to his knowledge, that was clearest prohibition against partisan gerrymandering issued by any state supreme court.

The Alaska Constitution requires that districts be compact and contiguous, and “as nearly as practicable a relatively integrated socio-economic area.” For decades, the redistricting boards and the courts have grappled with how to define “communities of interest” when drawing maps, Begich said. But the justices provided more clarity.

Following a definition written by Harvard law professor Nicholas Stephanopoulos, the court adopted a three-part test for what constitutes a community of interest: “A geographically defined group of people, who share similar social, cultural, and economic interests, and believe they are part of the same coherent entity.”

Begich said that definition — and others throughout the court’s long opinion — would clear up ambiguity for future redistricting cycles. Stone said sections of the decision to allow the boundaries of Alaska Native Claims Settlement Act regions to be used in political maps was “very interesting,” and would likely be a focus of future arguments about redistricting.

The state redistricting board has five members who are appointed to serve until a final map has been approved. Two members are appointed by the governor, and one each are appointed by the House speaker, the Senate president and the chief justice of the Alaska Supreme Court.

Bethany Marcum, CEO of the right-wing Alaska Policy Forum and a former legislative aide to Alaska Gov. Mike Dunleavy, was appointed to the redistricting board in 2020 by Dunleavy. She resigned in March after the governor appointed her to the University of Alaska’s Board of Regents, which requires confirmation by the Legislature.

The governor’s office said that Dunleavy would announce the appointment of a new redistricting board member soon. Binkley said that that the board would likely wait until it had a full complement of five members before announcing its next meeting.