Hickel v. Southeast Conference

846 P.2d 38

• Court: Alaska Supreme Court
• Decided: March 12, 1993
• Docket: S-5093, S-5106, S-5154 and S-5156
• Status: Published

Opinions

OPINION

COMPTON, Justice.

At issue in this petition for review is the validity of the 1991 Proclamation of Reapportionment and Redistricting Plan (plan) issued by Governor Walter J. Hickel.

I. FACTUAL AND PROCEDURAL BACKGROUND

Under the Alaska Constitution, the governor has the power and duty to reapportion the state legislature every ten years. Alaska Const, art. VI, § 3; Wade v. Nolan, 414 P.2d 689, 700 (Alaska 1966). In December 1990, Governor Hickel appointed a five member advisory reapportionment board (Board), as is required by article VI, section 8 of the Alaska Constitution. The Board was required to prepare and submit to the Governor a plan for reapportionment and redistricting following the reporting of the decennial census.¹

In January 1991, the Board held an organizational meeting, elected Allen Vezey as chair and appointed Tuckerman Babcock as director. In March it adopted the following policies to guide the development of redistricting plans:

* The population base is the 1990 population reported by the United States Census Bureau for the State of Alaska.

* The redistricting plan will be composed of single-member districts.

* One person, one vote: equal protection for all individuals will be realized by equal population among districts, with the least populated and most populated districts separated by a variance of no more than two percent.

* Federal Voting Rights Act: protect and enhance minority political voting strength by a non-retrogression policy and by considering individual linguistic and ethnic blocs.

* Alaska Constitution: compact, contiguous and relatively integrated socio-eco-nomic areas for House districts.

* Consider preservation of political subdivision boundaries.

* Consider public testimony, which will be incorporated into the record if received within 75 days after receipt of the United States Census PL94-171 data.

* Accept alternative plans submitted up to 60 days after receipt of the United States Census PL94-171 data for input into the state’s computer system, if received in a form allowing direct input into the computer or on United States Geological Survey maps or United States Coast and Geodetic Survey maps.²

With the assistance of computer technology, which made possible more detailed analysis of potential redistricting than was previously available, the Board and its staff began forming a reapportionment plan based on the adopted policies. The Board received the decennial census report from the United States Bureau of the Census in March 1991. The Board held a number of public hearings and reviewed alternative redistricting plans submitted by various interest groups. In June 1991, the Board delivered its report and proposed plan to the Governor.

On September 5, 1991, Governor Hickel issued his Proclamation of Reapportionment and Redistricting and Accompanying Statement. The final plan³ included several relatively minor changes to the Board’s proposed district boundaries. The proclamation directed the Attorney General to submit the plan to the United States Department of Justice for preclearance in accordance with section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988).⁴

Seven lawsuits were filed in superior court challenging the Governor’s plan.⁵ Two cases were dismissed with prejudice pursuant to stipulations. Five cases were consolidated for trial before Superior Court Judge Larry R. Weeks.⁶

After a sixteen day bench trial, Judge Weeks concluded that the Governor’s plan was invalid because it violated the Alaska Constitution. Specifically, Judge Weeks concluded that the plan was not in compliance with article VI, section 6 of the Alaska Constitution because two of the districts were not “compact” and eight of the districts did not comprise “as nearly as practicable a relatively socio-economically integrated area.” He determined that the Board “needlessly nullified Alaska constitutional requirements” in its attempt to reach its various policy goals, including the creation of districts with no more than two percent population deviation from the ideal district size. He also concluded that the Board failed to give due consideration to the possibility of excluding non-resident military personnel from the population base, and that this failure was arbitrary and unreasonable. Judge Weeks held that the Board violated the Open Meetings Act, AS 44.62.310, but ruled that voiding the plan on the basis of this violation was not in the public interest. He also concluded that the Board violated the Public Records Act, AS 09.25.110-140, and the Procurement Code, AS 36.30.

Pursuant to Alaska Appellate Rule 402(a), Governor Hickel and the State of Alaska (State) petitioned this court for review, contending that Judge Weeks had erred: 1) in finding that the plan violated the equal protection clause of the Alaska Constitution; 2) in his interpretation of article VI, section 6 of the Alaska Constitution and in his determination that the plan violated this section; 3) in concluding that the Open Meetings Act, AS 44.62.310, and the Public Records Act, AS 09.25, applied to and were violated by the Governor’s Advisory Reapportionment Board; and 4) in substituting his judgment for that of the Board with regard to matters within the Board’s discretion.

We granted the State’s petition to review the decision, and expedited the proceedings. On May 28, 1992, we concluded that the Governor’s plan violated the Alaska Constitution. See Appendix B. We affirmed the superior court’s findings of fact and conclusions of law that House Districts 1, 2, 3, 6, 26, 28, 34 and 35 violate requirements of article VI, section 6 of the Alaska Constitution. We also affirmed its holdings that the Open Meetings Act and the Public Records Act apply to the Board. However, we reversed its holding that the Board’s decision not to exclude non-resident military from the population base was arbitrary and unreasonable.

In a separate Order of Remand, later corrected, we directed the superior court to remand the case to the Board for formulation of a final plan. However, because of time constraints', we also directed the court to formulate an interim plan so that 1992 state elections might proceed in conformity with the requirements of the United States Constitution, the Alaska Constitution and the federal Voting Rights Act. Further, we authorized the court to employ experts or masters to assist in the formulation of an interim plan. See Appendix C.

Thereafter the superior court appointed three masters. After receiving instructions from the court⁷ arid reviewing alternative plans proposed by the parties, the masters presented a recommended interim plan to the court on June 14. In Orders dated June 18 and 19,⁸ the superior court accepted the Masters’ recommendation, with several modifications including a redrawing of the Fairbanks House Districts. The parties cross-petitioned this court for review of the court’s orders. On June 25, after considering oral and written arguments, we granted the petition and affirmed the court’s interim plan with modifications required by our determination that the court had erred in redrawing the Fairbanks House Districts.⁹

II. LEGISLATIVE REAPPORTIONMENT

Now the goal of all apportionment plans is simple: the goal is adequate and true representation by the people in their elected legislature, true, just, and fair representation. And in deciding and in weighing this plan, never lose sight of that goal, and keep it foremost in your mind; and the details that we will present are merely the details of achieving' true representation, which, of course, is the very cornerstone of a democratic government.

3 Proceedings of the Constitutional Convention (PACC) 1835 (January 11, 1956).

Legislative reapportionment is subject to a variety of legal requirements. The Federal Constitution, the Federal Voting Rights Act, and the Alaska Constitution all contain commands which guide the formation of a reapportionment plan. It is the interaction of these diverse and often diverging guideliries which makes reapportionment a difficult process. Because these guidelines sometimes lead in different directions, it is important to understand how they fit together.

A. ARTICLE VI, SECTION 6 OF THE ALASKA CONSTITUTION.

The mandate for redistricting the election districts of the Alaska House of Representatives'is found in article VI, section 6 of the Alaska Constitution:

The governor may further redistrict by changing the size and area of election districts, subject to the limitations of this article. Each new district so created shall be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socioeconomic area. Each area shall contain a population at least equal to the quotient obtained by dividing the total civilian population by forty. Consideration may be given to local government boundaries. Drainage and other geographic features shall be used in describing boundaries wherever possible.

Contiguity, compactness and relative socio-economic integration are constitutional requirements. See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1360-61 (Alaska 1987) (“The state must consistently enforce the constitutional article VI, section 6 requirements of contiguity, compactness, and relative integration of socioeconomic areas in its redistricting.”). A district lacking any one of these characteristics may not be constitutional under the Alaska Constitution.¹⁰

The requirements of contiguity, compactness and socio-economic integration were incorporated by the framers of the reapportionment provisions to prevent gerrymandering. 3 PACC 1846 (January 11, 1956) (“[The requirements] prohibit[] gerrymandering which would have to take place were 40 districts arbitrarily set up by the governor.... [T]he Committee feels that gerrymandering is definitely prevented by these restrictive limits.”). Gerrymandering is the dividing of an area into political units “in an unnatural way with the purpose of bestowing advantages on some and thus disadvantaging others.” ¹¹ Carpenter v. Hammond, 667 P.2d 1204, 1220 (Alaska 1983) (Matthews, J., concurring). The constitutional requirements help to ensure that the election district boundaries fall along natural or logical lines rather than political or other lines.

1. Contiguity.

Contiguous territory is territory which is bordering or touching. As one commentator has noted, “[a] district may be defined as contiguous if every part of the district is reachable from every other part without crossing the district boundary (i.e., the district is not divided into two or more discrete pieces).” Grofman, Criteria for Districting: A Social Science Perspective, 33 UCLA L.Rev. 77, 84 (1985). Absolute contiguity of land masses is impossible in Alaska, considering her numerous archipelagos. Accordingly, a contiguous district may contain some amount of open sea. However, the potential to include open sea in an election district is not without limits. If it were, then any part of coastal Alaska could be considered contiguous with any other part of the Pacific Rim. To avoid this result, the constitution provides the additional requirements of compactness and socio-economic integration.

10. The requirement of relative socio-economic integration is given some flexibility by the constitution since districts need be integrated only "as nearly as practicable." Alaska Const, art. VI, § 6. However, the flexibility that this clause provides should be used only to maximize the other constitutional requirements of contiguity and compactness. The governor is not permitted to diminish the degree of socio-economic integration in order to achieve other policy goals.

2. Compactness.

“ ‘Compact’ in the sense used here means having a small perimeter in relation to the area encompassed.” Carpenter, 667 P.2d at 1218 (Matthews, J., concurring). Compact districting should not yield “bizarre designs.” Davenport v. Apportionment Comm’n of New Jersey, 124 N.J.Super. 30, 304 A.2d 736, 743 (N.J.Super.Ct.App.Div.1973), quoted in Carpenter, 667 P.2d at 1218-19 (Matthews, J., concurring). We will look to the relative compactness of proposed and possible districts in determining whether a district is sufficiently compact. Carpenter, 667 P.2d at 1218 (Matthews, J., concurring).

The compactness inquiry thus looks to the shape of a district. Odd-shaped districts may well be the natural result of Alaska’s irregular geometry. However, “corridors” of land that extend to include a populated area, but not the less-populated land around it, may run afoul of the compactness requirement. Likewise, appendages attached to otherwise compact areas may violate the requirement of compact districting.

3. Socio-economic Integration.

In addition to preventing gerrymandering, the requirement that districts be composed of relatively integrated socio-eco-nomic areas helps to ensure that a voter is not denied his or her right to an equally powerful vote.

[W]e should not lose sight of the fundamental principle involved in reapportionment — truly representative government where the interests of the people are reflected in their elected legislators. Inherent in the concept of geographical legislative districts is a recognition that areas of a state differ economically, socially and culturally and that a truly representative government exists only when those areas of the state which share significant common interests are able to elect legislators representing those interests. Thus, the goal of reapportionment should not only be to achieve numerical equality but also to assure representation of those areas of the state having common interests.

Groh v. Egan, 526 P.2d 863, 890 (Alaska 1974) (Erwin, J., dissenting).

We have looked before to the Minutes of the Constitutional Convention for guidance in defining “relatively integrated socio-eco-nomic area.” Kenai Peninsula Borough, 743 P.2d at 1360 n. 11; Carpenter, 667 P.2d at 1215; Groh, 526 P.2d at 878. The delegates explained the “socio-economic ■ principle” as follows:

[WJhere people live together and work together and earn their living together, where people do that, they should be logically grouped that way.

3 PACC 1836 (January 11, 1956). Accordingly, the delegates define an integrated socio-economic unit as:

an economic unit inhabited by people. In other words, the stress is placed on the canton idea, a group of people living within a geographic unit, socio-economic, following if possible, similar economic pursuits.

3 PACC 1873 (January 12, 1956).

In order to satisfy this constitutional requirement, the Governor must provide “sufficient evidence of socio-economic integration of the communities linked by the redistricting, proof of actual interaction and interconnectedness rather than mere homogeneity.” Kenai Peninsula Borough, 743 P.2d at 1363. In areas where a common region is divided into several districts, significant socio-economic integration between communities within a district outside the region and the region in general “demonstrates the requisite interconnectedness and interaction,”, even though there may be little actual interaction between the areas joined in a district. Id. (declining to draw a fine distinction between the interaction of North Kenai with Anchorage and North Kenai with South Anchorage). “The sufficiency of the contacts between the communities involved here can be determined by way of comparison with districts which we have previously upheld.” Id. A district will be held invalid if “[t]he record is simply devoid of significant social and economic interaction” among the communities within an election district. Carpenter, 667 P.2d at 1215.

In our previous reapportionment decisions we have identified several specific characteristics of socio-economic integration. In Kenai Peninsula Borough, we found that service by the state ferry system, daily local air taxi service, a common major economic activity, shared fishing areas, a common interest in the management of state lands, the predominately Native character of the populace, and historical links evidenced socio-economic integration of Hoonah and Metlakatla with several other southeastern island communities.¹² 743 P.2d at 1361.

In the same case, we found it persuasive that North Kenai and South Anchorage were geographically proximate, were linked by daily airline flights, shared recreational and commercial fishing areas, and were both strongly dependent on Anchorage for transportation, entertainment, news and professional services. Id. at 1362-63.

In Groh, we stated that “patterns of housing, income levels and minority residences” in an urban area “may form a basis for districting, [although] they lack the necessary significance to justify” large population variances. 526 P.2d at 879. We identified transportation ties, namely ferry and daily air service, geographical similarities and historical economic links as more significant factors. Id. (holding that a district in southeast Alaska comprising the mainland communities of Juneau, Haines and Skagway was sufficiently integrated, considering that the rest of Southeast was island oriented).

The Alaska Constitution requires districts comprising “relatively integrated” areas. Alaska Const, art. VI, § 6. Petitioners argue that the term “relatively” diminishes the degree of socio-economic integration required within an election district. We are urged to compare all proposed districts with a hypothetical completely unintegrated area, as if a district including both Quinhagak and Los Angeles had been proposed. We decline to adopt petitioners’ interpretation of this provision.

“Relatively” means that we compare proposed districts to other previously existing and proposed districts as well as principal alternative districts to determine if socioeconomic links are sufficient. “Relatively” does not mean “minimally,” and it does not weaken the constitutional requirement of integration.

B. EQUAL PROTECTION.

“In the context of voting rights in redistricting and reapportionment litigation, there are two principles of equal protection, namely that of ‘one person, one vote’ — the right to an equally weighted vote — and of ‘fair and effective representation’ — the right to group effectiveness or an equally powerful vote.” Kenai Peninsula Borough, 743 P.2d at 1366. The former is quantitative, or purely numerical, in nature; the latter is qualitative. Id. at 1366-67.

The equal protection clause of the Alaska Constitution¹³ has been interpreted along lines which resemble but do not precisely parallel the interpretation given the federal clause.¹⁴ While the first part, “one person, one vote,” has mirrored the federal requirement, see, e.g., Groh, 526 P.2d at 875, the second part, “fair and effective representation,” has been interpreted more strictly than the analogous federal provision.

1. One Person, One Vote.

“[A] State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964), quoted in Kenai Peninsula Borough, 743 P.2d at 1358. “Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.” Reynolds, 377 U.S. at 579, 84 S.Ct. at 1390.

We discussed the Supreme Court’s equal population requirement of “substantial equality” in Kenai Peninsula Borough:

Under a “one person, one vote” theory, “minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” ... [A]s a general matter an apportionment plan containing a maximum population deviation under 10% falls within the category of minor deviations. The state must provide justification for any greater deviation.

743 P.2d at 1366 (quoting Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298 (1973)) (citations omitted).¹⁵ Thus, we have recognized that the effectuation of the article VI, section 6 requirements will justify population deviations greater than 10 percent. Id. 743 P.2d at 1360. Accordingly, as a matter of federal constitutional law the Governor may in good faith declare election districts with a maximum population deviation greater than 10 percent, if such deviations are a result of the creation of contiguous, compact and relatively socio-economically integrated areas.¹⁶

We have identified several other state policies which may also justify a population deviation greater than 10 percent. We noted that a state’s desire to maintain political boundaries is sufficient justification provided this principle is consistently applied. Kenai Peninsula Borough, 743 P.2d at 1360. Similarly, we implied that adherence to Native corporation boundaries might also provide justification, as long as the boundaries were adhered to consistently. Groh, 526 P.2d at 877-78 (holding that the utilization of a portion of the Calista corporate boundary as a district boundary was not an adequate justification where the Calista region was otherwise fractionated by the reapportionment plan).¹⁷

On the other hand, we have rejected several policies as inadequate justifications for population deviation. We held that the “mining potential in the [Nome] area and the need for a ‘common port facility’ ” did not justify a 15 percent overrepresentation where “the makeup of the population both to the north and the east [did] not vary significantly from that of the adjoining villages within the Nome [election district] boundaries.” Groh, 526 P.2d at 877.

2. Fair and Effective Representation.

In addition to the guarantee of substantial mathematical equality, the Equal Protection Clause of the United States Constitution provides for the more nebulous guarantee of fair representation. Under this qualitative principle, certain mathematically palatable apportionment schemes will be overturned because they systematically circumscribe the voting impact of specific population groups. This principle recognizes the danger that racial and political groups will be “fenced out of the political process and their voting strength invidiously minimized.” Gaffney v. Cummings, 412 U.S. 735, 754, 93 S.Ct. 2321, 2332, 37 L.Ed.2d 298 (1973).

A plurality of the United States Supreme Court has indicated that a mere lack of proportional representation will be insufficient to support a finding of unconstitutional vote dilution. Plaintiffs must prove both intentional discrimination against a group and a discriminatory effect on that group.¹⁸ Davis v. Bandemer, 478 U.S. 109, 127, 106 S.Ct. 2797, 2807, 92 L.Ed.2d 85 (1986). In addition, the plurality opinion requires a showing of a pattern of discrimination:

In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.

Id. at 133, quoted in Kenai Peninsula Borough, 743 P.2d at 1369. Thus, under the qualitative principle of federal equal protection, fair representation is denied where there is “proof that the group has been consistently and substantially excluded from the political process [and] denied political effectiveness over a period of more than one election.” Kenai Peninsula Borough, 743 P.2d at 1369.

The equal protection clause of the Alaska Constitution imposes a more strict standard than its federal counterpart. Kenai Peninsula Borough, 743 P.2d at 1371; Isakson v. Rickey, 550 P.2d 359, 362-63 (Alaska 1976) (requiring a more flexible and demanding standard and noting that the court “will no longer hypothesize facts which would sustain otherwise questionable legislation as was the case under the traditional rational basis standard”). In the context of reapportionment, we have held that upon a showing that the Board acted intentionally to discriminate against the voters of a geographic area, the Board must demonstrate that its plan will lead to greater proportionality of representation. Kenai Peninsula Borough, 743 P.2d at 1372. Because of the more strict standard, we do not require a showing of a pattern of discrimination, and do not consider any effect of disproportionality de minimis when determining the legitimacy of the Board’s purpose. Id.

C. VOTING RIGHTS ACT.

The Federal Voting Rights Act, 42 U.S.C. § 1973 (1988), also plays a significant role in the reapportionment of state election districts. The purpose of this Act is to protect the voting power of racial minorities: “Under section 5 of the Act, a reapportionment plan is invalid if it ‘would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ ” Kenai Peninsula Borough, 743 P.2d at 1361 (quoting Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363-64, 47 L.Ed.2d 629 (1976)); 42 U.S.C. § 1973c (1988). We have noted that compliance with section 5 is a legitimate goal of a Reapportionment Board: “A state may constitutionally reapportion districts to enhance the voting strength of minorities in order to facilitate compliance with the Voting Rights Act.” Kenai Peninsula Borough, 743 P.2d at 1361.

Section 2 of the Act, as amended in 1986, creates a cause of action to remedy the use of certain electoral laws or practices which, when interacting with social and historical conditions, create an inequality in the opportunities enjoyed by voters to elect their preferred representatives. Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764-65, 92 L.Ed.2d 25 (1986). Plaintiffs may have a redistricting plan or an election invalidated if they can prove that 1) under the totality of the circumstances, the redistricting results in unequal access to the electoral process; and 2) racially polarized bloc voting exists. “[T]he conjunction of an allegedly dilutive electoral mechanism and the lack of proportional representation alone does not establish a violation.” Id. at 46, 106 S.Ct. at 2764.

In each of our previous reapportionment decisions we have noted the difficulty in drawing election districts in Alaska. We have emphasized the need to preserve flexibility in the redistricting process so that all constitutional requirements may be satisfied as nearly as practicable.

At the outset we recognize the difficulty of creating districts of equal population while also conforming to the Alaska constitutional mandate that the districts “be formed of contiguous and compact territory containing as nearly as practicable a relatively integrated socio-economic area.” When Alaska’s geographical, cli-matical, ethnic, cultural and socio-eco-nomic differences are contemplated the task assumes Herculean proportions commensurate with Alaska’s enormous land area. The problems are multiplied by Alaska’s sparse and widely scattered population and the relative inaccessibility of portions of the state. Surprisingly small changes in district boundaries create large percentage variances from the ideal population.

When confronted with conditions so different from those of any other single state in the continental United States, it is readily apparent that it becomes well nigh impossible to achieve the mathematical precision of equal proportions which is feasible in those other states.

Egan v. Hammond, 502 P.2d 856, 865-66 (Alaska 1972) (footnotes omitted) (quoting Alaska Const, art VI, § 6), quoted in Groh, 526 P.2d at 875 and Kenai Peninsula Borough, 743 P.2d at 1359.

Thus, although the Board and the Governor are free to pursue their own policies and goals in recommending and declaring redistricting and reapportionment, such policies may not be pursued at the expense of the federal and Alaska constitutional and statutory mandates.

III. REGIONAL APPLICATIONS

A. SOUTHEAST ALASKA.

Under the Governor’s reapportionment plan, southeast Alaska (Southeast) was divided into five election districts, designated 1 through 5.¹⁹ Respondent Southeast Conference contends that Districts 1, 2 and 3 violate article VI, section 6 of the Alaska Constitution. The trial court agreed, finding specifically that “The districts of Southeast are not socio-economically integrated and they easily could have been.” We affirm this conclusion.

District 1 includes most of the Ketchikan Gateway Borough, the City of Wrangell and the eastern half of Prince of Wales Island. District 2 includes most of Sitka and the cities of Haines and Petersburg. District 3 includes the downtown portions of Sitka and Ketchikan, the City of Sax-man, the communities of Annette, Metla-katla, Hydaburg, Craig, Point Baker, Port Armstrong, Pelican and Yakutat. As such, it includes parts of Chichagof, Baranof, Admiralty, Kupreanof, Prince of Wales and Revillagigedo Islands. District 3 stretches almost the entire length of Southeast from Annette to Yakutat.

The districts created by the Governor’s plan do not take into account several local municipal boundaries. The plan separates the downtowns of two major cities from the rest of the cities (Sitka and Ketchikan). It also splits two closely interrelated cities, Ketchikan and Saxman. Further, the plan ignores natural geographic boundaries by splitting all of the major islands of the Alexander Archipelago.

Article VI, section 6 does not require that districts be drawn along municipal boundaries. Rather, the provision states only that “[cjonsideration may be given to local government boundaries.” Alaska Const, art. VI, § 6. However, local boundaries are significant in determining whether an area is relatively socio-economi-cally integrated. By statute, a borough must have a population which “is interrelated and integrated as to its social, cultural, and economic activities.” AS 29.05.-031.²⁰

Divisions of Ketchikan and Sitka are not permissible unless the resulting districts evidence a pattern of relative socio-economic integration. The resulting District 3 is not composed of relatively integrated socioeconomic areas. District 3 mixes the small, rural, Native communities with the urban areas of Ketchikan and Sitka. These rural and urban communities have different social concerns and political needs. Logical and natural boundaries cannot be ignored without raising the specter of gerrymandering.

The Ketchikan Gateway Borough has a population of 13,828, only 71 people above the ideal district size. Saxman, part of the Borough, is more socio-economically integrated with the City of Ketchikan than it is with other Native communities of the Southeast islands.²¹ Prince of Wales Island is likewise more socio-economically integrated as a whole than it is relative to the rest of District 3 in which the western half of the island was placed.

The Board cited the Voting Rights Act as its justification in creating District 3. District 3 was meant to be a Native influence district. The proposed configuration of District 3 raised the Native percentage of the district two percentage points compared to the old “Islands District.” However, such an awkward reapportionment of the Southeast Native population was not necessary for compliance with the Voting Rights Act.²² An “Island” District can be configured which satisfies the requirements of the Voting Rights Act and which is more compact and better integrated socially.²³

Thus, Districts 1, 2 and 3 all violate article VI, section 6 of the Alaska Constitution. These districts do not contain, as nearly as practicable, relatively integrated socio-economic areas, identified with due regard for local governmental and geographic boundaries. Although these boundaries need not necessarily be followed in creating election districts, they must be considered by the Board in so far as they indicate the true socio-economic integration of several areas.

B. MATANUSKA-SUSITNA BOROUGH.

The Matanuska-Susitna (Mat-Su) Borough was divided among five house districts, designated 6, 26, 27, 28 and 34.²⁴ Only District 27 is wholly composed of land within the Mat-Su Borough. District 6 groups Palmer with Prince William Sound. District 26 groups the residential neighborhoods between Palmer and Wasilla with Chugiak and the northern communities of the Municipality of Anchorage. District 28, stretching to the Canadian border, comprises interior Ahtna areas and parts of the Gulkana and Copper River valleys. It includes Glennallen, Tok and Delta Junction. It also includes a narrow corridor which reaches into the Mat-Su Borough, and encompasses the outskirts of Palmer and Wasilla.²⁵ District 34 combines Willow, Talkeetna and a large portion of the rural northern part of the Mat-Su Borough with a majority of the Denali Borough and a part of the Fairbanks North Star Borough that includes the communities of North Pole, Salcha and Eielson Air Force Base.

As noted above, a borough is by definition socio-economically integrated. It is axiomatic that a district composed wholly of land belonging to a single borough is adequately integrated. Thus, District 27 complies with that requirement.

We recognize that it may be necessary to divide a borough so that its excess population is allocated to a district situated elsewhere. However, where possible, all of a municipality’s excess population should go to one other district in order to maximize effective representation of the excess group.²⁶ This result is compelled not only by the article VI, section 6 requirements, but also by the state equal protection clause which guarantees the right to proportional geographic representation. See Kenai Peninsula Borough v. State, 743 P.2d 1352, 1369, 1372-73 (Alaska 1987) (stating that a primary indication of intentional discrimination against a geographic region was a lack of adherence to established political subdivision boundaries).

In this case, the Mat-Su Borough population is allocated between five districts. With the exception of District 27, the resulting districts have serious shortcomings in their resulting relative socio-economic integration.

District 6 merges Palmer with the Prince William Sound communities. Palmer is the governmental center of the Mat-Su Borough, an established agricultural area. In contrast, the Prince William Sound communities are oriented toward commercial fishing and maritime activities. The record does not establish any significant interaction or interconnectedness between these areas. Further, Palmer is part of an organized borough whereas Prince William Sound is not. Because of this factor, the interests of Palmer residents may be adverse to those of the residents of an unorganized borough on issues such as property taxes and state funding of programs such as education.

There is evidence of some socio-economic interaction between the Mat-Su Borough areas and the Anchorage areas of District 26. However, considerable testimony indicated that the Mat-Su residents were more naturally linked to Palmer and Wasilla than they were to Anchorage. Moreover, we find it significant that Palmer, Wasilla and the area between them were placed in three separate districts despite the fact that these communities share most of their public facilities.

District 28 also does not contain relatively socio-economically integrated areas. As above, the record simply does not establish significant social or economic interaction between the connected areas. In addition, District 28 combines a region of Mat-Su with an unorganized borough, and includes part of the primarily rural Denali Borough. District 28 also fails for its lack of compactness. The corridor which extends into the Mat-Su Borough was prompted by a desire to attain mathematical equality among legislative districts. However, we have previously noted that population deviations up to 10 percent require no justification and that the Board may use larger deviations in order to effectuate the requirements of article VI, section 6. Kenai Peninsula Borough v. State, 743 P.2d 1352, 1260 (Alaska 1987). The Board’s failure to create a compact district is not justified by rigid adherence to mathematical equality.

Distnct 34 fails for its lack of relative socio-economic integration. This district links two areas with almost no social or economic interaction. Moreover, the Mat-Su Borough communities in this district are rural and thus share few common interests with the suburban Fairbanks and military areas of the Fairbanks North Star Borough.

We thus hold that the configuration dividing the Mat-Su Borough among five districts is invalid. The Governor’s plan unfairly dilutes the proportional representation the residents of the Mat-Su Borough are guaranteed. A municipality should not be made to contribute so much of its population to districts centered elsewhere that it is deprived of representation which is justified by its population. The plan also results in four districts which are not relatively socio-economically integrated and one district which is not sufficiently compact.

C. ELECTION DISTRICT 35.

Under the Board’s plan, District 35 encompasses a vast portion of interior and northern Alaska.²⁷ Its boundaries extend from Point Hope on the northwest coast to the border of Alaska and Canada on the east, and from Barrow in the north to Tyonek in the south. Thus constructed, District 35 also includes the area between the Brooks Range and the Arctic Ocean, which is commonly referred to as the North Slope, and traditionally inhabited by the Inupiaq Eskimo. To the south, District 35 extends across the Brooks Range to include much of the sparsely populated river drain-ages of interior Alaska²⁸ traditionally inhabited by the Athabaskan Indians.

Judge Weeks described the joining of the North Slope Inupiaq and the Interior Athabaskan areas into one district as “probably the single worst combination that could be selected if a board were trying to maximize socio-economic integration in Alaska.” The linkage of these geographically divided and culturally distinct areas has been described as a “worst case scenario.”

The record indicates that the Board formed the boundaries of District 35 with little consideration of the relative socioeconomic integration of the people who live there. Board Chair Vezey testified that he placed little reliance on a socio-economic study of the area. Mr. Vezey also noted that there was no testimony from Inupiaq or Athabaskan witnesses favoring linkage of the areas. Further, Board member Pick-rell recalled no discussion by the Board regarding joining the Inupiaq and Athabaskan areas.

The record also demonstrates minimal past and present socio-economic integration between the Inupiaq and Athabaskan cultures. Brenda Itta-Lee, an Inupiaq community leader from Barrow, and Georgian-na Lincoln, a representative in the state legislature and Athabaskan community leader from Rampart, both testified regarding the physical separation of the two cultures and the historical, linguistic and economic differences between the cultures. Evidence introduced at trial indicates that the average annual per capita resident income on the North Slope exceeds $26,000 while in the Doyon Athabaskan region the average is less than $6000. Social scientists who testified at trial described the actual socio-economic integration between the Inupiaq and Athabaskan as insignificant.

Based on the record, we conclude that District 35 violates article VI, section 6 of the Alaska Constitution because it does not encompass, as nearly as practicable, a relatively integrated socio-economic area.

D. THE ALEUTIAN ISLANDS.

The Board’s plan divides the Aleutian Islands between two districts.²⁹ The eastern Aleutians are in District 39, and the western Aleutians in District 37. On its face this severance violates the contiguous territory requirement of article VI, section six of the Alaska Constitution.³⁰ Although the parties did not raise this issue, the separation of the Aleutian Islands is so plainly erroneous that we address the issue sua sponte. Thus, in exercise of our authority under article IV, section two of the Alaska Constitution, we hold that the separation of the Aleutian Islands into two districts violates article VI, section six of the Alaska Constitution.

IV. POPULATION BASE

The Board used the 1990 census as its population base. However, the Board did not subtract from the census data military personnel who were stationed in Alaska at the time the census was taken, but who did not consider themselves Alaska residents. The Governor did not vary the population base from the Board’s recommendation.

Previously we held that the exclusion of non-resident military personnel (NRMP) from the population base is constitutionally permissible. However, we have never decided whether exclusion was constitutionally required. We have not addressed this issue before because NRMP have been excluded from the population base in every previous district reapportionment, with the exception of the interim plan we devised for the 1972 elections following Egan v. Hammond, 502 P.2d 856, 870 (Alaska 1972).

The state argues that the inclusion of NRMP was a policy choice it was allowed to make, and that we should defer to that choice. The state argues further that inclusion of NRMP is permissible because it is impossible to accurately estimate the number of military personnel who are not residents. It notes that this question is different with this reapportionment because the United States Army and Air Force no longer make personnel data available to the state. The state maintains that in light of this, it acted within its discretion by including all military personnel in the population base.³¹

The respondents argue that exclusion is constitutionally required since inclusion would violate the reapportionment provisions and the equal protection clause of the Alaska Constitution. They argue that the effect of the inclusion is the dilution of the voting power of residents of areas of Alaska without large military populations.

In Egan, we implemented an interim plan without a NRMP exclusion because “it was not possible to compile sufficiently accurate data to provide a reasonable basis for excluding any number of military from the population base.” 502 P.2d at 870. However, we also recognized “the need for a permanent plan which achieves a level of accuracy of [the military population’s] voting participation which is closer than either including or excluding all military as a class.”³² 502 P.2d at 870. “[T]he challenge is to arrive at the best approximation of the population to be counted without losing sight of the fact that the right of equal representation is also an individual and personal right.” Egan, 502 P.2d at 869.

We therefore hold that exclusion is not constitutionally required if it is not possible to accurately identify those military personnel who are non-residents.³³ However, it is necessary to consider alternative plans for obtaining a sufficiently accurate plan for estimating the number of NRMP. Id. (noting that it was “incumbent upon [this court] to discuss alternative plans which may be available to handle the problem”). See also Groh v. Egan, 526 P.2d 863, 868 (Alaska 1974) (finding that the Board’s careful examination of alternatives supported the conclusion that the state’s choice of population base was rational).

The key determination is whether the Board’s efforts in “discussing the alternatives” were sufficient to support its conclusion that compiling accurate data was impossible. The trial court found that a “hard look” was required. The hard look requirement is consistent with our previous acknowledgment that the state has a compelling interest in attempting to exclude NRMP. Carpenter, 667 P.2d at 1213 (identifying the “compelling state interest” as “the prevention of the dilution of its residents’ voting strength”). See also Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964) (“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”).

Judge Weeks identified six “legitimate reasons” for including the NRMP. He also found that although the extent of non-residency among the military was determinable, it was unclear whether it was possible to make a reliable determination of the enumeration districts in which non-resident, off-base military personnel lived. Despite these findings, he concluded that the Board did not take a “hard look” at this issue. The inclusion of all military personnel in the population base was thus not justifiable.

Judge Weeks apparently believed that the reasons stated by the Board for including NRMP were post hoc justifications. Also he found it significant that the Board’s legal advisor advised strongly to exclude NRMP.

At its March 4, 1991 meeting, the Board adopted the policy that the population base for the reapportionment would be the 1990 census data. The Board decided that it would not adjust the census data to account for NRMP.

In its Report and Proposed Plan, the Board discussed several methods for determining the appropriate adjustment to be made. The Board discussed the method used by the 1973 Board whereby the number of Alaska residents on a military base was determined by multiplying the number of registered voters on the base by the statewide person-counted/registered-voter ratio. The number of “residents” obtained was then divided by the number of adults living on the base to derive a percentage of residents. When the same method was applied to the 1990 data, all the military bases showed a greater than one hundred percent resident percentage.

The Board explained that other available survey methods were not adequate. It indicated that it had received expert advice that the survey method used in the Department of Labor study made that study inadequate to serve as a basis for making an adjustment. The Board also stated that it had solicited surveys from two political pollsters in Alaska and had been rejected.³⁴ The Board explained that “a poll taken a significant period of time after the Census enumeration ‘would be a sampling of a different set of people with possibly changed attitudes.’ ” (quoting Egan, 502 P.2d at 887). Finally, the Board eliminated Permanent Fund Dividend applications, Military Leave and Earning statements, and registered voter data bases as reliable sources of information about residency.³⁵

The Board attempted to discover what other alternatives existed. As noted, the Board received expert opinion that an accurate survey was methodologically impossible. Even when the Board was told that a statewide survey was possible, it was told that identifying the NRMP in each district would be impossible.³⁶ The Board discussed the expert opinion at its March 4 meeting and agreed with the proposal of director Babcock that, at least as an initial guideline, the survey could not be performed. Additionally the Board determined that the inclusion of NRMP would not result in a rural/urban bias. The Board thus concluded that its original guideline of using the census data as its population base was proper.

Based on what we have previously required of reapportionment boards, we conclude that the Board’s “look” was “hard” enough. It is not necessary to attempt a survey or statistical analysis when a thorough examination reveals that such a survey is not possible. Groh, 526 P.2d at 868-69. Rather, we need only be assured that the Governor’s authority was “exercised in a rational as opposed to an arbitrary manner.” Id. at 868. Although we have found a “thorough and exemplary exploration” to be persuasive in proving that the Board's decision was rational, we have not required it. Groh, 526 P.2d at 868. The Board’s consideration of alternatives and expert advise was sufficient examination.

V. PROCEDURAL DEFECTS (OPEN MEETINGS AND PUBLIC RECORD ACTS)

Judge Weeks concluded that the Board violated the Open Meetings Act³⁷ and the Public Records Act³⁸ as it formulated its reapportionment plan. However, he also determined that “[bjecause of the other decisions in this case, the public interest is better served by not voiding the plan on the basis of Open Meetings Act violations.” He did not grant relief on the basis of the Open Meetings Act or the Public Records Act.

We agree with Judge Weeks that these Acts generally apply to the activities of the Reapportionment Board. However, since he did not grant relief on the basis of either Act, we decline to determine the extent of their application to specific activities. Similarly, we decline to determine whether an independent constitutional basis exists for ensuring public access to the Board’s meetings. Accordingly, we affirm only the trial court’s determination that the Open Meetings Act and Public Records Act apply generally to the activities of the Reapportionment Board.

VI. CONCLUSION

We AFFIRM the superior court’s conclusion that the plan’s formulation of Districts 1, 2 and 3 violates article VI, section 6 of the Alaska Constitution, because the districts are not “socio-economically integrated and they easily could have been.” We also AFFIRM its conclusion that the configuration which divides the Mat-Su Borough among five districts (designated 6, 26, 27, 28 and 34) is invalid, since it unfairly dilutes the proportional representation guaranteed to the Mat-Su Borough’s residents. Further, we AFFIRM its conclusion that District 35, which joins the North Slope Inupiaq and the Interior Athabaskan areas, violates article VI, section 6 of the Alaska Constitution because it does not encompass a relatively integrated socio-eco-nomic area.

We conclude independently that the separation of the Aleutian Islands into two districts violates the contiguous territory requirement of article VI, section 6 of the Alaska Constitution.

We AFFIRM the superior court’s conclusion that the Open Meetings Act and Public Records Act apply to the Board. We decline to address its conclusion that the public interest would not be served by voiding the plan on the basis of Open Meetings Act violations.

We REVERSE the superior court’s conclusion that the Board failed to make a reliable determination regarding the inclusion or exclusion of non-resident military personnel. The Board’s consideration of various alternatives and expert advice was a sufficient “hard look” at this issue.

The case has been remanded to the superior court with directions to remand the 1991 Proclamation of Reapportionment and Redistricting Plan to the Board for reformulation consistent with our Order of June 8, 1992, and this opinion.

1 . Article VI, section 10 of the Alaska Constitution provides as follows:

Within ninety days following the official reporting of each decennial census, the board shall submit to the governor a plan for reapportionment and redistricting as provided in this article. Within ninety days after receipt of the plan, the governor shall issue a proclamation of reapportionment and redistricting. An accompanying statement shall explain any change from the plan of the board. The reapportionment and redistricting shall be effective for the election of members of the legislature until after the official reporting of the next decennial census.

2 . The Board later modified its policy regarding equal population among districts. It adopted a motion which directed the staff to:

Use up to a 10 percent variance in preparing the final three statewide alternative scenarios, for the purposes of compliance with the federal Voting Rights Act. Any other variance from the Board’s two percent guideline must be justified by the need to comply with the Alaska Constitutional requirement that each district contain as nearly as possible a relatively integrated socio-economic area, or by limitations in the technology or data bases used by staff in preparing the statewide alternatives.

4 . In April 1992 the U.S. Department of Justice notified the State that it would not object to the Governor's plan.

5 . Article VI, section 11 of the Alaska Constitution provides:

Enforcement. Any qualified voter may apply to the superior court to compel the governor, by mandamus or otherwise, to perform his reapportionment duties or to correct any error in redistricting or reapportionment.... Original jurisdiction in these matters is hereby vested in the superior court. On appeal, the cause shall be reviewed by the supreme court upon the law and the facts.

6 .The five cases which were consolidated included: Alaska Democratic Party v. Hickel, Case No. 3AN-91-8539 Civil; Matanuska-Susitna Borough v. Hickel, Case No. 3AN-91-8520 Civil; Demientieff v. Hickel, Case No. 4FA-91-1730 Civil; Leavitt v. Hickel, Case No. 2BA-91-81 Civil; and Southeast Conference v. Hickel, Case No. 1JU-91-1608 Civil. All parties participated fully in the trial before Judge Weeks.

7 . On June 11, 1992, we disapproved of Judge Weeks’ instruction that wherever possible native influence districts must include a native population of at least 35%. See Appendix D.

8 . These are attached as Appendices E and F, respectively.

9 .Our order of June 25, 1992 is attached as Appendix G. The map which depicts the interim plan of apportionment approved by this court on June 25, 1992, is attached as Appendix H.

11 . Black’s Law Dictionary defines gerrymandering as:

A name given to the process of dividing a state or other territory into the authorized civil or political divisions, but with such a geographical arrangement as to accomplish an ulterior or unlawful purpose, as, for instance, to secure a majority for a given political party in districts where the result would be otherwise if they were divided according to obvious natural lines.

Black’s Law Dictionary (6th ed. 1990). We have previously stated: "Gerrymandering is ‘the deliberate and arbitrary distortion of district boundaries and populations for partisan or personal political purposes. The term 'gerrymandering,' however, is also used loosely to describe the common practice of the party in power to choose the redistricting plan that gives it an advantage at the polls.’ ” Kenai Peninsula Borough, 743 P.2d at 1367 n. 28 (quoting Davis v. Bandemer, 478 U.S. 109, 164, 106 S.Ct. 2797, 2826, 92 L.Ed.2d 85 (1986)) (citations omitted).

The word "gerrymandering" has an unusual etymology. The word derives from "the fancied resemblance to a salamander (made famous by caricature) of the irregularly shaped outline of an election district in northeastern [Massachusetts] that had been formed for partisan purposes in 1812 during [Elbridge] Gerry’s governorship.” Webster’s Third New International Dictionary (3d ed. 1969).

12 . We did not decide whether these characteristics were specifically necessary to pass muster under article VI, section 6 of the Alaska Constitution. Instead we merely found that a rational state policy existed in effectuating the constitutional mandate of relative socio-economic intervention. Kenai Peninsula Borough, 743 P.2d at 1361.

13 . The Alaska Equal Protection clause provides that "all persons are equal and entitled to equal rights, opportunities, and protection under the law_” Alaska Const, art. I, § 1.

14 . The Federal Equal Protection clause provides that "No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.Amend. XIV, § 1.

15 . We also articulated this theory in Groh:

We conclude that in the absence of a showing that the manner of reapportioning a state was improperly motivated or had an impermissible effect, deviations of up to ten percent require no showing of justification. The state, however, has the burden of showing that deviations in excess of ten percent are "based on legitimate considerations incident to the effectuation of a rational state policy.”

526 P.2d at 877 (quoting White v. Regester, 412 U.S. 755, 764, 93 S.Ct. 2332, 2338-39, 37 L.Ed.2d 314 (1973)) (footnote omitted).

16 . In Mahan v. Howell, the United States Supreme Court approved a deviation of 16.4 percent based on the preservation of political subdivision boundaries. 410 U.S. 315 (1973). That deviation has been seen by many as the outer limit which the Supreme Court will allow. See Travis v. King, 552 F.Supp. 554, 562 (D.Haw.1982).

17 . We recognized in Groh that it was reasonable to avoid combining two areas populated by residents who had a history of conflict. We rejected the suggestion that this factor alone justified the underpopulation of the district comprised of one of these areas. We noted that no explanation had been offered “why other areas could not have been added to the district so as to create less of a variance." 526 P.2d at 878. Upon objection to the redistricting plan, however, we found sufficient justification for the Board’s overrepresentation of District 16 (Bristol Bay):

It is now apparent that the only alternative to the Board’s original districting of that area is to disregard an impassible mountain range, the natural barrier formed by Cook Inlet, the lack of direct transportation or communication links, the corporate boundaries of the Kenai Peninsula Borough, the cohesiveness of interests of residents of that Borough and the disparate interests of the population of the Bristol Bay area. We now find that legitimate considerations incident to the implementation of rational state policy justify the overrepre-sentation of House District No. 16 (Bristol Bay) as originally designated and override mathematical requirements.

Id. at 879. Given the lack of reasonable alternatives to the initial plan, as well as the Board’s good faith effort in adding to the district, we reversed our initial order invalidating the plan.

18 . In the context of discrimination against a political group, the intent requirement is probably minimal. As Justice White noted in Ban-demer, "As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended.” 478 U.S. at 129. See Laurence H. Tribe, American Constitutional Law § 13-9, at 1082 n. 9 (2d ed. 1988). The Supreme Court has also required a showing of discriminatory intent in the context of discrimination against a racial group. Mobile v. Bolden, 446 U.S. 55, 62, 66, 100 S.Ct. 1490, 1497, 1499, 64 L.Ed.2d 47 (1980). However, Congress responded to the Bolden decision by amending section 2 of the Voting Rights Act so as to do away with the intent requirement. Voting Rights Act Amendments of 1982, Pub.L. No. 97-205, § 3, 96 Stat. 134. See L. Tribe, supra, § 13-8, 1078-80.

19 . See page 2 of Appendix A.

20 . Although a reapportionment plan may split boroughs in forming election districts, the division of a borough which otherwise has enough population to support an election district will be an indication of gerrymandering. There must be some legitimate justification for not preserving the government boundaries in such a case.

21 . The city of Saxman urged the governor not to split Saxman from the rest of the Borough. The Ketchikan Indian Corporation, the Sealaska Corporation and the Grand Camp of the Alaska Native Brotherhood all objected to the Governor’s planned splitting of the Borough.

22 . Our conclusion underscores the error in the Board’s methodology in reconciling the requirements of the Voting Rights Act with the requirements of the Alaska Constitution. The Board was advised to expect that any challenges to the reapportionment plan would come under the newly amended section 2 of the Voting Rights Act. Consequently, the Board accorded minority voting strength priority above other factors, including the requirements of article VI, section 6 of the Alaska Constitution. This methodology resulted in proposed district 3, a district which does not comply with the requirements of the Alaska Constitution. However, proposed district 3 is not required by the Voting Rights Act, either.

Article VI, cl. 2 of the United States Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land_” This mandates that provisions of state law, including state constitutional law, are void if they conflict with federal law. To the extent that the requirements of article VI, section 6 of the Alaska Constitution are inconsistent with the Voting Rights Act, those requirements must give way. However, to the extent that those requirements are not inconsistent, they must be given effect. The Voting Rights Act need not be elevated in stature so that the requirements of the Alaska Constitution are unnecessarily compromised.

The Board must first design a reapportionment plan based on the requirements of the Alaska Constitution. That plan then must be tested against the Voting Rights Act. A reapportionment plan may minimize article VI, section 6 requirements when minimization is the only means available to satisfy Voting Rights Act requirements.

In our order of June 8, 1992, we directed that the superior court, in drafting an interim plan, give priority to the Voting Rights Act over the requirements of article VI, section 6 of the Alaska Constitution. In that context, expediency mandated that an interim plan be formulated in time for the 1992 elections, and that compliance with the Voting Rights Act be ensured. In drafting a permanent plan, however, the Board's design will not be compelled by expediency. The Board shall ensure that the requirements of article VI, section 6 of the Alaska Constitution are not unnecessarily compromised by the Voting Rights Act.

23 .The Island District approved by this court as part of the 1992 interim plan excludes the urban areas of Ketchikan and Sitka and respects all local government boundaries in Southeastern Alaska. While it is not compact, non-compactness appears to be necessary in order to comply with the Voting Rights Act and it is, in any case, more compact than the proposed configuration of District 3. See Appendix H.

24 . See page 3 of Appendix A.

25 . Because of this corridor. District 28 became known as and is referred to in briefing as the "Oosik District.”

26 . Dividing the municipality's excess population among a number of districts would tend to dilute the effectiveness of the votes of those in the excess population group. Their collective votes in a single district would speak with a stronger voice than if distributed among several districts.

27 . See page 1 of Appendix A.

28 . The district includes the Koyukuk River valley, much of the area drained by the Yukon River from a point upstream from Russian Mission to the Canadian border, and much of the Kuskokwim River drainage upstream from a point near Stony River.

²⁹

30 . In our order of remand, we noted that the Aleutians must be joined together in one district unless their separation is mandated by federal law. Since federal law does not mandate their separation, the contiguous territory requirement of the Alaska Constitution controls.

31 . The Board was advised that it would be extremely difficult to accurately identify the NRMP because the U.S. census allowed certain military personnel to allocate themselves to other states. Further, they were told that the United States Army and Air Force would no longer release residency information because of the Privacy Act and Civil Rights Act. The Board was also advised that it might face Department of Justice preclearance problems if the NRMP were included.

32 . This need was recognized in light of the threat of “unbalanced representation” resulting from the inclusion of NRMP. Egan, 502 P.2d at 870. Thus the constitutional concern is one of equal protection. The reapportionment provisions favor the use of census data. “Alaska’s constitution requires that the requisite population total be arrived at by use of the census data. It does not mandate a population base composed exclusively of registered voters, citizens who have previously voted in Alaska, or only those people living in Alaska with the intention of making Alaska their home." Id. at 861.

33 .However, the estimation of the percentage of NRMP need not be any more precise than the approximation of other portions of the population base. See Egan, 502 P.2d at 869.

34 . The evidence of these solicitations are personal phone conversations between Babcock and the solicited pollsters. There is no indication as to the reason the pollsters declined to conduct the survey.

35 . These were the only alternatives considered at the March 4, 1991 meeting at which the initial "guidelines” were adopted. At this meeting the Board was presented with and accepted the argument that the census was the only feasible population base.

36 .The Board also claims that the effect of inclusion was minimal due to the very low NRMP population. However, the Board did not produce any significant data supporting this assertion.

37 . AS 44.62.310-.312.

38 . AS 09.25.110-.140.

10 . See Submission Under Section 5 of the Voting Rights Act filed with this court June 15.