*1 Reapportionment Hartland, In re of Towns of
Windsor and West Windsor In Reapportionment re Montgomery of Town of In Reapportionment Shrewsbury re of Town of Reapportionment of Town of Berlin In Reapportionment re Springfield of Town of
In Reapportionment re of Town of Richford
[624 323] A.2d 92-088, 92-136, 92-230, 92-259, Nos. 92-261and 92-291 Allen, Gibson, C.J., Dooley, Johnson, Present: Morse and JJ. Allen, C.J., Dooley Gibson, Morse, JJ., Maloney, (92-230 Supr. J., Specially Assigned only)
Opinion January Filed Reargument Motions for in Docket Nos. 92-136 and 92-291 February Denied *3 Kenyon, al, Thomas O. et se, Brownsville, pro for Petitioners (92-088).
Douglas DeVries, D. Falls, and Michael Rose (On Enosburg Brief), (92-136 the Albans, St. for 92-291). Petitioners and M. James and RebeccaR. Osterhoudt, Shrewsbury, Jeffords for (92-230).. Petitioners Halpert,
Robert (92-259). Montpelier, for Petitioners Stephen Ankuda, S. Ankuda and Patrick M. (On Law Clerk Ankuda, P.C., of Parker & Brief), the for Peti- Springfield, (92-261). tioners
Jeffrey Amestoy, L. William E. Griffin, General, Attorney and Claudia Horack Bristow General, Chief Attorney Assistant Council, Russell, Legislative Montpelier, P. William and Respondents. from various towns the
Gibson, petitioners groups J. Six legislative districts the challenge reapportionment state session. Five during the Assembly General districts, and the other various House contest groups peti- five district. We dismiss challenges a Senate group the House tions, and, petition, to the other remand respect correction, if possible. for revision and I. Legislative Redistricting and requirements wfithfederal state constitutional comply To to citi- substantially weight afford legislatures equal that state votes, legisla- to redraw Assembly required General zens’ census or after districts after each federal decennial voting tive Const, redistricting. taken for the Vt. purpose state census 1903(a). § II, 73; § In forming representative ch. 17 V.S.A. “which shall equality representa- senatorial districts afford tion, the seek Assembly geographical General shall to maintain to boundaries of adhere compactness contiguity Const, existing political and other subdivisions.” Vt. counties as II, §§ criteria also “insofar Statutory require, ch. 18. consistent with fol- districts be drawn practicable,” “(1) subdivi- lowing policies: preservation existing political (2) lines; patterns and maintenance of recognition sion trade, interaction, social ties and common geography, political (3) interests; contiguous territory.” use of compact [and] 1903(b). V.S.A. census, Legislature reapportioned
Following (initial Sess.) (Adj. House House and Senate. See No. Sess.) (subdivided districts); (Adj. No. 147 House *4 districts). Senate The also Legislature and established for House statutory redistricting amended the the procedures the initial districts. in the same bill redrew House Sess.), law, §§ 7-12. the new the (Adj. bipartisan No. Under Board, do whose members Legislative Apportionment Assembly, the General must a tentative redis- prepare serve responsive consider the recommendations of tricting proposal, a final authority, boards of civil and then municipal prepare for proposal dividing the state into districts for the elec- initial of the 150 §§ tion representatives. V.S.A. 1905-1906. The final proposal referred to the appropriate legislative commit- tee, and eventually General which Assembly, may or accept amend the or proposal, § substitute another Id. plan. 1906. may members, House districts have no more than two Vt. Const, §II, 13, ch. larger but bemay approved prelimi- 1906a(c). narily subject further subdivision. § See V.S.A. Similarly, two-member districts at that may subdivided time. 1906a(b). §Id. The of civil authority boards within districts that are subdivided must a for prepare proposal the inter- drawing districts, nal within lines based considerations of “incum- bencies” addition criteria specified above. Id. (e) 1906b(b), 1906c(b), (c). §§ The proposal referred to the committee, appropriate legislative and eventually the General Assembly, which “shall” approve the House districts proposed “if town boards they are consistent with the.standards (f) (f). 1906b(e), §§ set forth” Id. 1906c(e), statutes. If majority of the town boards fail to to a agree subdivision pro- posal district, for two-member House the Legislature “may divide the initial single-member district into representative dis- 1906b(e). § tricts.” Id. If a majority the town boards fail to agree to subdivision for a proposal House district with three or more representatives, the Legislature “shall the ini- divide 1906c(e).1 tial district into representative § districts.” Id. Any five Court, citizens may petition this which original has jurisdiction, exclusive for review a final House Senate 1909(a). plan. § See id. If this Court finds the plan violation of constitutional or statutory requirements, it must its forward decision to the General Assembly jurisdiction and retain until changes procedures redistrieting in the brought the House about Act Legislative 116 limit the Apportionment role (LAB), Board place redistrieting more of the process in the hands of the House Govern Operations Committee, ment major which politi included members of both parties. law, cal prior Under LAB plan directly its referred to House, which § treated as a bill. No. 6. Whether the LAB, amended the plan, LAB’s or substituted its own after consul tation with authority, the town of civil boards determined the internal dis trict lines of §§ multimember Id. districts. 6. and Decisions of this Court accepting petition were sent back the LAB than rather the General Assembly. Id. at 9.
14 to those re- a plan conforming has approved the Legislature Const, (authoriz- II, 1909(e); § 73 § see Vt. ch. Id. quirements. legislative reapportionment to order Court Supreme ing as required). to revise the districts fails Legislature if districts case, Board Legislative Apportionment present In the neither of which was ac- plan, and a House Senate proposed The committees devised legislative by Legislature. cepted in which most adopted by their were plans, own Act by created 116 initial multimember districts respects. The 147, in a final Act House resulting plan were subdivided a final The Legislature approved of 17.6%.2 an overall deviation Five petitions deviation 16.4%. with an overall plan Senate one plan, within the House and pe- challenged specific In all one plan. the Senate but challenged petitions, tition masters, testimony who took and held before hearings were 1909(d). § 17 We declined to of fact. V.S.A. findings made See relief, petitions, resolution of the and pending interim any order redistricting plans. the new under proceeded elections have Review II. The Standard of a matter Redistricting “primarily 177, 130 and In re Senate Bill Vt. determination.” consideration (1972). 365, 371, 657, A.2d Accordingly, redistricting 294 660 Assembly are to be presumed General approved by plans 358, 361, 653, valid, 177, 130 294 A.2d In re Bill Vt. Senate on those who (1972), proof and there is “a burden of heavy Davis that a violates the Constitution.” allege redistricting plan (1986) 109, 185 (Powell, J., Bandemer, 478 concurring U.S. Further, it is part). Legisla- dissenting primarily part 562,758. census, According population is size of the the state — — by dividing the total representative is arrived ideal district II, by Chapter population by representatives mandated the number Deviations, negative, positive or 13 of the Constitution. whether Vermont are norm. If the number of citizens the district below from this deviation, positive deviation results if there negative is a while there overall, maximum, or deviation than the district. The more 3752 citizens by disregarding positive negative signs, plan of a is calculated negative highest positive within the taking the deviations sum any plan in a plan. example, highest positive district For if the deviation 5.6%, plan highest negative in that deviation were and the -5.6%, would be 11.2%. the overall deviation of were ture, Court, necessary not this that must make the compro- mises to effectuate state constitutional goals poli- federal law. See In re cies within the limitations imposed Senate, House, & Legislative Apportionment Congres- (Me. 1983) (hereinafter Districts, 469 A.2d sional *6 Legislative Apportionment). Accordingly, 1988 the Legislature must tension resolve the that exists between the one-person, requirement concerning one-vote and state laws the mainte- nance of up districts made of commu- compact contiguous nities with common interests. If with the plan consistent fundamental constitutional be requirement drawn to afford equality representation, we will return when only there is no rational or basis legitimate for from statutory deviations other constitutional or crite- Farmer, (R.I. 1984). Holmes 976, ria. See A.2d 475 986 reject We will not a redistricting plan because the simply petitioners have devised one that to appears satisfy constitu statutory tional and to a requirements than greater degree the the Legislature. See Gaffney v. Cummings, plan approved by (1973) 735, 412 U.S. 750-51 is not (redistricting plan rendered simply unconstitutional some because “resourceful mind” has one). course, come with up a better the presentation Of a plan on the one substantially improves by the proposed Legisla may ture cast Legislature’s plan. In doubt the of the legality re 1988 Legislative Apportionment, 469 The peti A.2d 828. burden, however, tioners’ is not establish that some other exists, preferable plan but to demonstrate the of a ra absence tional or basis the legitimate for failure challenged plan’s criteria. In re 1991 satisfy constitutional or Pennsyl statutory Commission, vania Legislative Reapportionment 609 A.2d 88, 132, (Pa. 1992); see In re Senate Bills 177 & 132 Vt. 136-37 282, 290, (1974) (“Whatever 157, 318 A.2d this Court may solution, believe about wisdom an alternative our testing of this function must confined to its constitutional re In Reapportionment ....”); Colo statutory propriety rado (Colo. 1992) (court’s Assembly, General 185, 828 P.2d role is to measure redistricting plan against constitutional standards; the choice alternative for the among plans is redis court). commission, tricting not the
In reviewing petitions, we must not only consider claimed, specific violations but also those claims within the con- in mind the difficulties satis- keeping entire plan, text of the In re Senate statewide. legal requirements the various fying 162; Reap- A.2d at see In re 132 Vt. at Bills 177 & Assembly, General Pennsylvania Plan portionment for (Pa. 1981). Nevertheless, petitioners once A.2d or statu- has failed to meet constitutional shown that the State specific part policies regard standards or tory that satisfying the burden to show then has plan, State of the impermiss- was because requirements impossible those See, e.g., had on other districts.3 effect it would have ible shifting parallels precedents are no for The dissent states that there plan that meets constitu to show that an alternative burden to the State “remanding” plan if possible, and for tional or criteria is simply not true. As the dissent con fails to meet that burden. This is State cedes, jurisdictions plans reapportionment com have remanded several provide the commissions have failed to sufficient missions where justification plan was not or to show that a better alternative See, Reapportionment Assembly, possible. e.g., In re Colorado General *7 (Colo. 1992) 185, (plan to deter 828 P.2d 195-96 remanded commission alternative could be devised that would also sat mine whether less drastic requirement); Davenport Apportionment isfy equal population (N. 1973) Commission, (plan Super. A.2d 746-47 J. Ct. remanded to whether, extent, to what state constitutional crite commission to show considered, According plan, possible). if ria were and to devise alternative dissent, redistrieting controlling because commis these cases are not type agency over which the court has a form sions are “a of administrative review,” judicial relationship agency the “court’s to an administrative relationship legislature.” pro far different from its with a The dissent statements, true, assuming they support we vides no for these but even they nullify approach. provides that or more fail to see how our Our law five by plan “may petition supreme persons aggrieved a court of Vermont for 1909(a) added). § (emphasis In the event we review of same.” 17 V.S.A. met, statutory that constitutional or criteria have not been we are conclude opinion general assembly required to “forward and decision to the [our] light apportionment and correct the law in which shall forthwith revise decision, supreme requirements Id. court’s to conform to the of law.” 1909(e) added). jurisdiction general (emphasis “until the We must retain assembly plan conforming statutory produced to all constitutional and has requirements.” Id. Moreover, jurisdictions placed proof there are that have the burden commission, state, why plan legislature’s deviated not a show redistricting requirements. example, Legislative from For In re District- (Iowa 1972), ing Assembly, 193 the court held General N.W.2d why legislature that the state had “failed to sustain the burden to show requirement.” comply compactness In State ex rel. Lock- could not with the Assembly, Colorado P.2d at Reapportionment General 195-96 commission’s statement that substantial (redistricting equality populations among required dividing not county did “rise to the level of an factual adequate showing that not equal less drastic alternatives could have satisfied the population requirement Constitution”); Colorado Legislative Districting General 193 N.W.2d Assembly, (Iowa 1972) (state failed why to sustain its burden to show legislature comply could not with constitution’s compactness requirement).
We that recognize at least one has jurisdiction required peti- tioners to submit an alternative that demonstrates that a plan district could be reformed to challenged meet constitutional or criteria more statutory effectively without those contravening requirements In elsewhere the state. re Legislative Ap- portionment, 469 A.2d 831. But that considering Legisla- ture, the petitioners, responsible a valid producing that plan, and its staff Legislature and are better equipped to devise alternative we plans, believe that basic fair- notions of ness require the State show that a stat- constitutionally or deficient cannot utorily plan improved without violating the same Further, or other requirements elsewhere. alternative plan presented by would not petitioners be what purported be. It serve to build might petitioners’ case the Legisla- ture’s criteria, but, violated constitutional or as a matter, practical it could not serve as a truly viable alternative plan. Petitioners’ alternative plan invariably would affect un- (Term. Crowell, 836, 838, 1983), ert v. 656 S.W.2d the court affirmed a redistricting trial court’s plans conclusion that house and senate un- were they overemphasized constitutional achieving per- because near numerical ignoring prohibition fection while state’s against crossing constitutional county Finally, parallel lines. situation exists in the United States Su-
preme ruling greater equal popu- Court’s deviation of 10% from than *8 plan redistricting lation in a a legislative body requires state the state to justifies that policy plan. demonstrate there is some rational state that the (1983). Thomson, 835, very See Brown 462 U.S. ease cited the proposition petitioners dissent for the that the must come forward with an plan acknowledged accepted pro- alternative burden-shifting and House, Senate, Legislative Apportionment cedure. See Con-& (Me. 1983) gressional Districts, (“the 469 A.2d burden shifts to respondents to districting prod- show that this in the deviation House is the Legislature’s implementation uct of policy”). the a rational state further without be adopted and could not challenged Legislature. the consideration review and III. The Petitions Petition Montgomery A. The Legisla the challenge Montgomery from Petitioners composed House district of a new ture’s establishment and four County, in Franklin which is of Montgomery, town the Legisla argue Petitioners County. towns from Orleans by join law statutory and constitutional Vermont ignored ture with four Orleans a district Montgomery the town ing According it little in common. which has towns with County consti no consideration gave Legislature the petitioners, criteria, population from equality aside statutory tutional or is no indication that there agree We among districts. statutory all relevant constitutional considered Ac of this district. to the establishment respect criteria with fur for back to the Legislature this matter we send cordingly, ther consideration.4 Legislature considered whether the that it is irrelevant The dissent states criteria, reviewing commit statutory that our the constitutional precedent. support In of these dangerous create a tee’s actions here would them, argued statements, respondents In it three cases. one of cites accepted the com not be because apparent meaning of a statute should meaning that such a reports concerning statute did not indicate mittee the unremarkable rule contemplated. The Court restated was meaning successfully challenge plain of a that one cannot construction leg showing meaning was not considered merely by that that statute Industries, Inc., 446 U.S. history Harrison v. PPG islative of the statute. (1980). city regulation forbidding the case involves The second 589-92 the main aisle of the not visible from of movies enclosed booths exhibition regulation amounted to a de noted that the business. The court showings produced side effects destructive that closed booth termination News, Distributors, City Newport 782 F.2d Inc. v. public Wall health. 1986). court, (4th According could this determination Cir. facially factual long without attack as as was survive constitutional evidentiary record that legislature to create an support; was not bound necessity the desired regulation’s fitness to achieve demonstrated the determining Thus, for whether concerns the standard Id. the case results. restricting showing regulation government has met its burden of The third case con important government interest. speech an furthers handling prices maximum challenge statute that fixed to state cerned
19 overriding duty legis There is no doubt that the redistricting lature in is to assure substan establishing plan Sims, tial of equality population Reynolds districts. v. among (1964) (“the 533, 568 requires 377 U.S. Protection Clause Equal that the seats both houses of bicameral state legislature basis”); must see In Senate population be re apportioned (other 83, 132 286, Bills 177 & A.2d at 160 considera Vt. 318 such lines maintaining yield tions as must to integrity county that of equal representation). Our constitutional and statutory makes The language point this clear. constitution mandates that House and Senate districts “shall afford equality representa tion,” whereas the constitution requires Legisla only to ture “seek maintain geographical compactness Const, and to to contiguity adhere boundaries of counties.” Vt. II, 13,18. §§ Statutory Legislature, ch. law insofar requires practicable, as to with draw districts consistent “policies” lines, communities preserving existing political maintaining 1903(b). interest, and compact territory. 17 using V.S.A. Nevertheless, reapportionment subject state laws “are not to the same representation] strict to [equal applicable standards reapportionment congressional seats.” v. White Regester, selling In rejecting argument leaf tobacco. the tobacco ware- Georgia housemen that the had enacted the statute without suf- — investigation, ficient that a Court stated obvious statute will not legislature overturned because of how much howor little the researched for, possible of, Yeomans, the need or the effects the statute. Townsend v. (1937). U.S. unique Although These cases are not relevant to the situation here. statute, districting plans subject specific take the form of a statute procedures it, challenging jurisdiction original with in this Court. redistricting body criteria are set forth within the of state constitutional and hearings, testimony law.We are authorized to hold take and make findings of fact order to determine whether these constitutional and stat Indeed, us, utory criteria are met. “it reapportion is for to review and test legislation eye preserving, possible, ment purposes an as far as expressed statutory law, our violating Equal constitutional and without requirements.” 177, 130 358, 362, Protection Bill Vt. Senate 294 A.2d (1972). duty, To fulfill Legisla we must determine whether the required by ture considered the criteria that it was law to Cf. consider. State (court Crowell,
v. rejecting 656 S.W.2d at affirmed trial court decision plan House because drafters admitted “no effort” was made ad lines). county here to (1973). on, the Court acknowl Early Supreme U.S. state arranging impossibility edged practical of resi has an identical number “so that each one make an honest and dents,” “that State required only nearly of equal districts ... as faith effort construct good Sims, 577; practicable.” Reynolds 377 U.S. at *10 as is population Const, II, § shall “maintain (Legislature ch. 73 see also Vt. as districts among respective equality representation Thus, from “minor deviations practicable”). as it is nearly are in state equality among mathematical make out facie case of invidious discrimina prima sufficient to as to require tion the Fourteenth Amendment so under v. 412 Gaffney Cummings, at by U.S. justification State.” 10% within a rule, an overall deviation under general 745. As not is considered minor deviation does redistricting plan Brown v. rational justification by policy. some state require Thomson, v. (1983); Gaffney Cummings, 835, 462 U.S. 842 see (de violate equal 412 at 745 minimis deviation does not U.S. it is alone or compared clause whether considered protection Dis deviations); Legislative with another lower 1984) (Md. than 475 A.2d with less 10% tricting, (plan for state was “well limits permissible legis deviation within Farmer, Holmes v. constitution); under federal lative districts” (overall at is a minor deviation 475 A.2d deviation 5.4% faith). showing facie constitutional absent a bad prima “nonnumerical”5 constitutional and Accordingly, primary are not either superfluous criteria rendered for the one-vote or one-person, requirement concern has in nonnumerical flexibility legislature meeting crite Elections, v. Board Schrage State ria. 430 N.E.2d See 1981) (dominant (Ill. equal protection requirement should Ater as “death knell” to compactness requirement); not be read (Or. 1991) v. 296, 300, Keisling, 819 P.2d stat (redistricting as ute with criteria similar to those Vermont statute viewed criteria). Indeed, this applying “latitude” giving legislature jurisdiction redistricting Court has a mandate to retain over term, requirement rep By we refer criteria other than the that each nearly practicable. represent people as is the same number as resentative plan that conforms to “all until the con- Legislature produces 1909(e) and statutory requirements.” stitutional 17 V.S.A. added). (emphasis —
All of
the nonnumerical criteria
issue here
the mainte-
lines,
nance of
the use of
political
compact and
terri-
contiguous
tories, and the preservation
of communities with common
— are
only
interests
but
related
one an-
important
they
other
share the common
of assuring more
purpose
v.
Gaffney
effective
See
Cummings,
representation.
412 U.S. at
(fair
748-49
representation
effective
“does not depend
solely on mathematical equality among
populations”);
Sims,
(“Indiscriminate
Reynolds v.
Similarly, compactness
to
to each other
citizens
relate
ability
concern “the
mately
ability
representatives
and ...
representatives
their
and
Eu,
v.
Wilson
constituency.”
to their
effectively
relate
(1992).
379,
These relation-
545, 553, 4
2d
Rptr.
P.2d
Cal.
membership
interests and
through
are fostered
shared
ships
Id.;
Plan
Reapportionment
community.
see
political
J.,
(Nix,
We Westfield, Lowell, and Mont- Jay, The towns of dispute. Troy, district, comprise the Orleans-Franklin gomery challenged 3,829 an which has overall deviation of population The northern of the Green Mountains divides spine 2.05%. towns, County affecting from the Orleans trans- Montgomery them, particularly communication between portation there are roads run east from Mont- Although winter. two over the one is a seasonal and the other is gomery spine, road in the natural difficult travel winter. Because barriers east, economic, social, Montgomery’s po- educational *12 the litical ties have faced from mountains toward always away Richford, For County and other Franklin towns. ex- Enosburg trade and commerce moves westward from ample, generally in schools towns in the school Montgomery, go high children west, generally district the social and events take sporting west, health are with towns to the serious dealt place problems west, in the for a few hospitals except Montgomery with area, at Peak Jay residents who work the ski the work force in westerly moves a lack direction. Because the of shared counties, interests between towns in weekly the two the of Franklin daily newspapers generally and Orleans counties do not cover local events outside their own counties. sum,
In these and other findings, evidence the presented hearing master, before the indicate that Montgomery was in placed a towns from a county different sepa- rated a mountain that range limits greatly transportation therefore, social, and communication —and political and eco- nomic interaction —between the two only explana- areas.6 The tion for the placement provided by the State is that the Orleans- Franklin 1 district did not an present protection equal problem. why joined When asked Montgomery was a district with Or- towns, leans County leader minority House Govern- ment Operations Committee stated that the Committee “felt that there was a with Jay connection Peak and that historically and in many ways there is strong connection in Montgomery numbers(Em- and Franklin County. we But were bound by added.) phasis He was unable to provide details support any connection between the two communities.7 Although the accepted The dissent states we incomplete that a shallow and notion of interest,” “community legislative day and then lists issues of the actually determine requires where common interests lie. The statute interaction, trade, “patterns geography, consider social political 1903(b). § ties and common pre interests.” V.S.A. These cisely by petitioners: the concerns difficulty addressed of transportation communication, lack social interaction and trade within the dis geographical trict because of considering barriers. Instead these statu concerns, tory the dissent would have us consider statewide issues that have do neighboring little to with the commoninterests of towns. Indeed, dissent, according very to the fact that communication between two towns is difficult creates a commoninterest. We little see relation to the dissent, 1903(b). interests noted and the interests enumerated in Jay The dissent states important Peak ski area is an connection Montgomery between and the in the Orleans towns Orleans-Franklin 1 dis trict, suggests significant portion jobs Montgomery depend on the ski resort. There is no supports evidence the record that these witness, long-time Montgomery statements. One resident of who has co town, history authored a book on the testified that the work force in Montgomery west, “nobody Montgomery travels to towns to the and that witness, toy factory, [is] working east.” Another the owner of testi-
24 dis- together it was “put how difficult to
minority leader stated 16.4% maximum exceeding a around the State” without tricts the considered deviation,8 he indicated that Committee never to with a up plan was unable come criteria but nonnumerical cri- the other concerns and equal population that satisfied both the ways were numerous Rather, that there teria. he testified vote specific there was no gone, and that Committee could that was Further, redistricting he conceded the on Montgomery. arith- by that it driven numbers and was upon “based primarily metic.” us, including in short,
In
the record before
nothing
there
brief,
Legislative Appor
either that
indicating
the State’s
cri
nonnumerical
considered
tionment Board or
Committee
district,
1
to the
respect
teria with
Orleans-Franklin
a
that
to
adhered
produce
or Committee could
Board
ex
that district.9 Cf.
rel. Lockert
regard
all criteria with
State
(court
(Tenn. 1983)
Crowell,
836, 838
affirmed
656 S.W.2d
that were
rejecting redistricting plans
lower court decision
total
low
objective
obtaining
percentages
with sole
drafted
years
employed
twenty-one
in his
of busi-
persons
fied
all of
he had
that
witness,
A third
a
of the
come from towns to the west.
member
ness had
Albans,
that he had testified before the
senate from St.
conceded
state
Operations
he
that
heard that at least some
House Government
Committee
resort,
Jay
ski
people
Montgomery
from
work at
Peak
some
cater,
part,
Jay
Montgomery
who ski at
Peak.
restaurants
tourists
Operations
Finally,
Committee testi-
of the House Government
member
fied,
any
explanation,
further
that the Committee “felt that there
without
Jay
testimony hardly suggests
This
that there
was a connection with
Peak.”
Jay
Montgomery
or that
significant
is a
connection between
Peak
significant
jobs Montgomery depend
portion of
on the ski resort.
largest
The
had been advised
deviation allowed
Committee
16.4%,
Supreme Court was
the Court had indicated
United States
may
approach
percentage
tolerable limits.” Mahan v. How
that “this
well
ell,
(1973);
88, 132
282, 288,
Bills
410 U.S.
see
Senate
177&
Vt.
(1974)
deviation).
(allowing
16.65%
A.2d
adopted
proposed
The
the same Orleans-Franklin
Committee
hearing.
majority
Board
The
the Board. No member
testified
report
“boilerplate”
of the
contained
statement
Board
possible
indicating that
consistent insofar as
its recommendation was
minority report
disagreed
all
with that
criteria.
Board
case,
summary
accept
general
In
state
we cannot
such
statement.
respect
that all
considered with
Or
ment as evidence
criteria were
1 district.
leans-Franklin
deviation, with no effort made to consider other nonnumerical
criteria); compare In re Reapportionment
Colorado General
Assembly,
Petitioners
argue that placing
with other
Montgomery
Franklin
in
County towns
the Franklin
satisfy
would
all constitutional and statutory criteria. The master found that
placing Montgomery
district,
Franklin
and not other-
wise
changing
House plan, would
improve the deviation
that district from
-8.3% 2.3%. The deviation in the Orleans-
district,
Franklin 1
however, would
-19.9%,
widen from 2.1% to
thereby
an
creating
overall deviation within the
plan
House
28.8%, approximately
greater
11.2%
than that of the current
plan. Petitioners
deviation,
contend that such a
justified
if
by
legitimate state policies, such as maintaining county lines or
interest,
communities of common
would pass constitutional
muster under the equal protection clause. We disagree; the case
law provides no such assurance. The United States Supreme
Court, in
an
permitting
overall
deviation
16.4% one state
redistricting plan based on rational
objectives,
state
warned
that “this percentage may well
tolerable
approach
limits.” Ma-
Howell,
315,
(1973);
han v.
Crowell,
410 U.S.
329-30
see State v.
(overall
deviation A.2d at 659-60. however, case law al- contend, that recent federal
Petitioners justified rational state ob- when greater lows much deviation their argument. support cases cite do not they but the jectives, (1967), Adams, Court ac- v. 444-46 In Swann 385 U.S. 26%, see maximum deviation of with a tually rejected Howell, only Mahan v. suggested nega- at U.S. of rational state pol- that the State’s presentation tive inference Thomson, the result. In Brown v. changed could have icies constitu- 839, 846, avoided on the ruling the Court U.S. maximum with a -89% redistricting plan a Wyoming tionality from giving representative resulted deviation in that of the limited review county. Because populated sparsely Brown situation, has opinion Wyoming’s unique case and little an value. precedential considered aberration been (“it J., id. at 850 (Brennan, stressing is worth dissenting) See is, and holding] empty narrow how extraordinarily how [the Crowell, State value”); at 840 S.W.2d likely precedential (“the deviation Brown inapplica- well be may unusual single *15 York Estimate v. City see also New Board elsewhere”); ble (1989) cases, Morris, 688, 702 other (citing, among 489 U.S. Thomson, has Brown v. noted that “no case of ours indi- Court justified”). of some 78% could ever be cated that deviation choice to Mont- only place that the was Assuming Legislature’s the or the Franklin dis- Orleans-Franklin gomery trict, not that its decision to Mont- place we could conclude was irrational or County illegiti- with towns Orleans gomery mate. to petitioners another also
Citing plan appended petition, have with Legislature kept Montgomery could argue Franklin and achieved minimal devia- County population towns been plan. plan pre- tions in the overall Because the has never it case,10 not here. part sented as of this we do consider plan, peti- of the merits cited alternative Regardless Shrewsbury petitioners sepa in a plan The devised the alternative was present plan petition. petitioners did to the master rate The instant not case, merely it in a footnote. not in this but mentioned brief The State did respect petition, sharply it respond plan with this but criticized to to Shrewsbury case. tioners contend that because have they shown that the statu- to, criteria tory have not been adhered it is up Legisla- ture, Court, not them or this an come with alternative up plan that satisfies both and the other equal population criteria. The that, flaw in is apparent this unless there is argument some that such an can showing produced, alternative be is unclear whether the has ignored duty its con- sider the Nevertheless, nonnumerical criteria. we believe further legislative instance, consideration is appropriate (1) petitioners where have shown that none11 of nonnumeri- cal or statutory constitutional criteria were adhered to with re- (2) gard to the Town of Montgomery; the State has failed to provide any rational reason for other Montgomery’s placement, (3) than a general equal reference population; and the State shown, affidavit, has not by evidence or that an alternative plan satisfying various constitutional and statutory criteria could not produced. noted,
As we have function, is a redistricting equal population objective. is the overriding We a duty, however, to review redistricting plans assure that Legis- lature has full given consideration to all constitutional and stat- utory criteria. We cannot allow equal population to be elevated an from overriding objective to the sole consideration. The non-
numerical criteria are neither nor superfluous unimportant. points The petitioners dissent out that have failed to show that the chal lenged geographically compact district is not contiguous. This techni cally part, true although for the Montgomery most the town of contiguous with the Jay.. town of geographical Or compactness district, however, leans-Eranklin 1 significant is less when we consider that a range noted, mountain compactness bisects the district. As is related to statutory other constitutional and purpose— criteria which share common representation. to create effective equate We do not compact mean to contiguity requirement ness and concerning criteria interests,” “community suggests. as determining the dissent But in *16 met, whether the criteria ignore reality have been we cannot of what they accomplish. seek to confusing require dissent criticizes us for ment purpose requirement, with the of the proceeds but then to discuss — compactness in purported purposes prevention terms of one of its political just gerrymandering component goal one of the overall —which representation. point effective Our is that none of the nonnumerical crite met, ria have been reading aside from a geographical shallow of the com pactness contiguity requirement. by representation that our citizens obtain effective
They assure of communities with shared comprised being placed interests. pref- that exists a not to establish there
Petitioners’ burden is
meet
alternative,
plan
that a
does not
but to demonstrate
erable
Pennsylvania
In re 1991
statutory
or
standards.
constitutional
Commission,
A.2d at 136.
Legislative Reapportionment
must
showing,
such
the State
have made
Once petitioners
that
was not
or
possible,
a better alternative
why
demonstrate
is flawed. See
petitioners
submitted
plan
an alternative
Commission, 304
at 746-47
A.2d
v.
Davenport Apportionment
whether,
(where
to show
or
commission failed
reapportionment
considered,
extent,
court remanded
was
compactness
to what
possible
determine whether would be
plan for commission to
constitu-
that considered state
to devise an alternative plan
(house
criteria);
Crowell,
reap-
656 S.W.2d
tional
State
because
held to be unconstitutional
portionment
plan
lines);
county
justify
substantial crossing
failed
legislature
Assembly,
In
General
Legislative Districting
cf.
re
show
failed to sustain its burden to
(legislature
at 791
N.W.2d
compactness
state constitutional
it could not
why
comply
Legislative Apportionment,
But
In re 1983
requirement).
see
must
that district could be
(petitioners
B. The Petition Springfield of Act challenge Petitioners from various Springfield aspects (1) the House violates the They argue 116 and Act 147. has an deviation clause because it overall equal protection 10%, has failed to show the devi- than State greater legiti- necessary implementation ation was the result (2) their initial district violates policies; mate state a county criteria because it crosses constitutional and interests; common contiguity, compactness, line and lacks (3) resulted created the subdivided districts *17 from political rather than gerrymandering application (4) criteria; relevant constitutional and statutory the incum- bency criterion for subdividing multimember districts violates (5) Constitution; the Vermont Act 116 violates equal protection each town board of giving regardless civil authority, popu- lation, an vote in equal districts; multimember subdividing (6) the Legislature statutory violated when it procedure subdi- their vided initial district. reject We each of these arguments, and dismiss the petition.
Petitioners first argue that the State failed to jus adequately tify the House plan’s overall deviation of 17.6%. We agree the State that petitioners have their waived this right raise at juncture issue this because it was not raised their petition or at In Mullestein, hearing before the master. See te 170, 175, (1987) (absent Vt. 531 A.2d cir extraordinary cumstances, constitutional issues not raised before trial court are waived on appeal). Petitioners contend that the issue was — adequately raised aby for request relief their petition “Declare Act 116 unconstitutional under the Equal Protection Clause of the 14th Amendment the United States Constitu —tion” unspecified evidence presented at the master’s But hearing.12 the prayer for relief was one fifteen various requests for relief a thirty-page petition that never specifi cally challenged the overall deviation of the House Fur plan. ther, a based on the challenge overall plan’s deviation was not specifically addressed the master’s It is not hearing. enough that there was evidence before the master that could have sup ported this claim. The point is that the State was not given ade quate Further, notice of the claim. fact that this Court has original jurisdiction is not significant. The purpose of the mas ter is to take testimony and findings make for this Court. See 17 1909(d). V.S.A. Because the State was not on notice that peti tioners were challenging the overall deviation the plan, it had no opportunity create record before the master in justification cluded for the deviation. petitioners The mere fact that pursuant asked relief Equal Pro necessarily tection Clause does not they indicate that challenging were Indeed, plan. overall petitioners deviation of House challenging spe are provisions cific of Act 116 Equal under the Protection on other Clause bases. in a dis-
Next, Springfield that inclusion argue petitioners constitutional towns violated County with three Windham trict to create com- requiring criteria county that, if maintain possible, contiguous pact on pro- reject argument We common interests. lines and the initial First, challenging petitioners grounds. cedural *18 district, “rep- no exists as longer 1 which Windsor-Windham 1903(b) § standards (stating id. district. See resentative” districts). senatorial We and of representative the creation authority are directed of civil that the town boards aware recommending proposals § when the 1903 standards consider Board, see id. Apportionment Legislative initial districts is the initial the matter that Windsor- the fact of but not as a and does exist 1 has been subdivided Windham district Therefore, cannot petitioners complain district. representative it no common that towns within it not or compact that is interests. aas chal-
Second,
petitioners’ argument
if we accepted
even
district,
1
we agree
to the subdivided Windsor-Windham
lenge
to raise this
standing
have no
that petitioners
with the State
Peti-
district.
challenged
not reside in the
issue because
do
they
entail
arguments
of their
many
out that
correctly point
tioners
of their
foreclosing
petition
dismissal
challenge,
a broader
argu-
is not the case with this
standing.
But that
grounds
district,
they
yet
ment.
all reside
the Windsor
Petitioners
it crosses
that
is invalid because
argue
Windsor-Windham
composed
is not
lines,
compact
contiguous,
is not
county
their
po-
interests. We address
broader
of towns with common
below,
accept
but we do not
gerrymandering
litical
claims
petitioners
to a
which none of the
challenge
narrow
district
n
reside.
challenge of
if we considered
Wind-
Finally,
petitioners’
even
criteria,
reject
would
the nonnumerical
we
sor-Windham. on
of showing
have failed meet their burden
because petitioners
for cre-
had no rational or
basis
legitimate
that the argument
that
principal
the district. Petitioners’
ating
criteria would be
constitutional and
nonnumerical.
with other towns. The ques-
met by placing Springfield
better
however,
plan,
alternative
tion is not
there
a better
whether
violates the
standards.
Legislature’s plan
legal
but whether
boot-shaped
violation. The
find no such
We
contigu
compactness
not violate
clearly
principles
does
Elections,
Board
See,
N.E.2d at
State
e.g., Schrage
ity.
districts and de
noncompact
cases
(citing
involving
486-87
“extremely
district as “tortured” and
scribing
challenged
one
Districting,
A.2d
443-44
Legislative
elongated”);
pose compactness
districts that might
(describing odd-shaped
only begs
of alternative
noting
presentation
problem,
or statu
a district meets constitutional
question
whether
found that the town of
the master
tory requirements). Although
towns
was not
with the
of Windham
contiguous
Springfield
Grafton,
On
contiguity.
did
find that the district lacked
he
not
district shared
he found
all four towns
contrary,
Further,
vir
presented
petitioners
at least one common border.
among
lack of
interests
tually no
to show a
common
evidence
Indeed,
1.
master found
the towns Windsor-Windham
towns.
highways connecting
that there is network
state
only
by petitioners showing
evidence
Wind
presented
a nonnumerical criterion is that
sor-Windham does
meet
however,
alone,
does
district breaches a
line. That
county
*19
cre
that there was no rational or
basis for
prove
legitimate
not
In
Bills 177 &
83, 132
at
re Senate
of
Vt.
ation
the district. See
not
county
disqualify
Petitioners also that the subdivision Windsor argue lated that the seek to adhere requirement because the district political subdivisions existing boundaries streets, relies too much splits many line within too Springfield blocks, and, times, at all natu- ignores on boundaries census Petitioners, however, have to indicate ral boundaries. failed or to refute ade- political ignored, which subdivisions were line sepa- the State’s contention that the was drawn to quately areas that rate most urban from Springfield’s neighborhoods rural more in common with the town relatively would have there no rational cannot that was Rockingham. We conclude for internal line drawn within legitimate Spring- basis field.
Petitioners’ next contention is
subdivision of Wind-
sor-Windham amounted to
in favor
political gerrymandering
Party,
of the Democratic
violation of
the compactness
II,
I,
Ar-
contiguity requirements
Chapter
Chapter
13 and
ticle
the Common
Benefits Clause
the Vermont Constitu-
tion.
They
rely chiefly
hearsay testimony
the effect
Speaker
House indicated
he wanted internal
lines
drawn
certain
Springfield
protect
Democratic incum-
bents.
to petitioners,
According
goal
accomplished by
was
forming
pit
that would
a Republican incumbent
two
against
unbeatable Democratic incumbents rather
than
against a more vulnerable
argu-
Democratic incumbent. This
ment is without merit. Political considerations are an inevitable
component
not
redistricting
per
and are
se
improper.
Reapportionment
Colorado General
Assembly, 828 P.2d
at
199;
Bandemer,
(“As
see Davis v.
long
U.S.
as redis-
is done
tricting
legislature,
should not be very difficult to
prove
likely political consequences of the reapportion-
intended.”);
ment were
Gaffney v.
Cummings,
U.S. at 753
(“districting inevitably has
intended to have substantial
political consequences”); see also In
1991Pennsylvania
re
Leg-
Commission,
islative Reapportionment
(no
Regarding the Common Benefits of, how, or dis- part community not indicated what has been instance, majority Operations For chair of House Government Com incumbency you interpreted mean mittee criterion to that “where alternative, unnecessarily pit against an don’t each other.” [incumbents] two part petitioners of the Common Benefits Clause that claim is relevant is, be, “government ought common provides that or instituted for the nation, benefit, community, protection, security people, or and not man, any single family, particular advantage or set emolument Const, I, men, only community.” art. 7. part who are a Vt. ch. *21 34. Street, 264, One Church 260, Vt. 565
advantaged. Cf. 152 (1989) State v. Super- Ludlow 1349, (construing A.2d 1351 markets, (1982)) Inc., 141 Vt. 448 791 (supporters A.2d law that Sunday could not claim businesses com- closing large were in the Sundays general close on included class pelled beneficiaries, they only that the incurred was inci- or detriment dental). is a incumbency Petitioners criterion complain yet, form of the narrow construction gerrymandering, under it, it given we have can reduce the for potential gerrymandering it more difficult to by making pit targeted against a incumbent State v. likely prevail. another incumbent who is more .See Inc., Ludlow Supermarkets, 141 at Vt. 448 A.2d 795 must (preferential legislation goal further independent awarded). preference Although two incumbents had to be pitted case, one in this against another we believe that cases where it possible result, is to avoid this the criterion will prevent gerrymandering. We conclude that the of the criterion purpose Town to a reasonably legitimate related state interest. See Sandgate Colehamer, v. 77, 88, 156 Vt. A.2d (1990) (test of constitutionality is whether law’s is rea- purpose interest). sonably to promoting related valid state The second provision Act to which petitioners object the procedure concerns which town boards of civil authority share for responsibility sub preparing proposal division of multimember districts. After enactment of a final districts, for initial of towns within boards multimember districts are meet directed to and prepare for divi proposal 1906b(b) 1906c(b). §§ sion district. V.S.A. Each and town, regardless of population, has one vote on accepting rejecting any proposal, may town proposal veto 1906b(b) town. Id. draws internal lines within §§ 1906c(b). If a majority of the towns on a agree and is proposal, standards, consistent with the statutory must it. Id. 1906b(f) 1906c(f). §§ accept hand, On if the other boards are a majority unable obtain vote on a proposed sub division, the Legislature must subdivide the district. Id. 1906b(e) 1906c(e). §§ Petitioners contend each giving vote, town one regardless population, Equal offends Pro tection Clause the Fourteenth Amendment to the United States Constitution. We disagree. cases, which stand for the rely heavily
Petitioners
two
certain
that under
circumstances the
of lo-
proposition
makeup
subject
one-vote
governing
one-person,
cal
boards
(1964).
Sims,
See New
principle
Reynolds
U.S.
(1989);
Morris,
Estimate v.
According to petitioners, second criterion satisfied here because the boards of civil each town authority perform many functions common municipal governments. Petitioners miss the point, They however. challenging voting pro- of a cedure created “superboard” by combining the boards of town in district, each a multimember an not of individual town This board. does not a “superboard” perform wide range lo- governmental Rather, cal functions. the Legislature has dele- an function, gated aspect redistricting, “superboard,” deference perhaps to Vermont’s his- unique tory as a an state formed association inde- preexisting Thus, towns. rather than pendent performing wide range functions common to local government, “superboard” per- forms an narrow extremely role within a legislative function. There is no equal violation. protection 1906c, § petitioners argue
Assuming constitutionality its own by adopting violated section Legislature that a ma- the fact despite subdivision of Windsor-Windham of civil authority agreed upon of the district’s boards jority cannot that this fact alone is agree their own subdivision. We § 1906c. or before April sufficient to establish a violation of On of civil au- majority of an election of a district’s boards year, must for the district. thority present proposal subdividing 1906c(e). 30,1992, § March Springfield’s proposal V.S.A. On 1 was transmitted to the clerk subdividing Windsor-Windham required of the House. The subdivision lines within proposal no internal lines were Rockingham, both but Springfield drawn The House Government through Rockingham. Appro- 2, 1992, in hearing Committee held a priations public April Grafton, Springfield, which learned or was aware but ob- supported Springfield plan, Rockingham Windham jected being subdivided. was entitled sub- 1 because the Springfield plan divide Windsor-Windham divided, had a required Rockingham Rockingham to veto a that drew internal lines within its bound- right 1906c(b). aries. Id. *23 reject also that petitioners’ argument Legislature’s
We the only subdivision favored Democrats. Because of the decline area, population any subdivision would have had to pit Republican against incumbent Democratic incum- bents. are not in- speculation We concerned with as to which had the chance to prevail cumbent best over which incumbent situation, In party. other one of the had political parties in presumably to be a favored find no violation of position. We statutory or constitutional criteria.
C. The Berlin Petition Petitioners from Berlin of an initial challenge subdivision district, three-member of the town of comprised Berlin and the Barre, into a city one-member district within completely that City, Barre and two-member district included the town of Barre portion City. gist petitioners’ Berlin and argu- ment is that Berlin should have in a placed been .one-member district with a small of Barre so as to assure that at part least one of the three of the initial district would representatives rep- rural, resent the interest of Berlin’s small town voters. that, scenario, in any Petitioners residents of acknowledge Barre and Berlin have to in a joined would be representative district. believe to be of a They they part entitled one-mem- district composed approximately ber 1500 Barre residents and 2500 out They during Berlin residents. that the last point decade the of Berlin from 2454 population increased residents residents, while Barre’s fell from 9824 population resi- Thus, dents to 9482 residents. Barre has a that population approximately would two and one-half support representatives, while Berlin’s population would support approximately two- that, thirds of a representative. given Petitioners argue these numbers the fact that residents their rural commu- nity virtually residents, have with nothing common Barre fundamentally unfair to disenfranchise them by them placing in a two-member district with majority Barre residents. We disagree. Berlin
The residents of are not disenfranchised simply because make they up minority of their two-member repre sentative district. Even in situations involving political racial groups, proportional is not representation constitutionally re Bandemer, (one See Davis v. quired. 478 U.S. cannot presume that candidate winning entirely will the vot ignore candidate; ers who supported losing “a group’s electoral unconstitutionally power diminished fact simple apportionment an scheme makes winning elections more difficult”). Members of a group only are disenfranchised when they are denied an opportunity effectively influence the elec tion results by the attention securing winning candidate. Id. at 132-33. There has been no such showing here.
Ironically, petitioners acknowledge approximately 1500 Barre residents would to be joined Berlin residents any single-member They district. argue those will not disenfranchised be because their interests will represented by the other two Barre representatives. This is un- argument *24 If lack tenable. of common interests would preclude placing Berlin, 5000 Barre residents with it would also preclude placing 1500 Barre residents with Berlin. claim,
Stripped aspect disenfranchisement of their pe- titioners are left with that argument Berlin placing and Barre residents the same representative district violates have the two communities criteria because statutory
Vermont’s Berlin that Barre and The master found interests.15 no common towns do not share districts, that the two school are in separate services, that have distinct they governmental essential structures, higher in a much resulting governmental types Berlin, has an urban Barre, that, unlike Barre and tax rate density. a relatively high population pattern residential that there is a network hand, the master found the other On communities, that both commu- the two of roads connecting residents from areas which serve have commercial large nities work towns, community residents from each many both in each com- that there are state offices community, the other communities, that the that serve the residents both munity communities, that both serve both hospital airport regional Re- are members of the Central Vermont Berlin and Barre Vermont Waste Central Planning Commission gional District, municipalities of both governing and that the bodies and problems. to address common issues currently meeting between short, of common interest ample In there is evidence of the cre- of Barre city support the town of Berlin and the no district. We find Washington representative ation of the violation. statutory
D. The Hartland Petition Hartland, Windsor, and Petitioners from the towns West of two sin- establishment challenge Legislature’s Windsor Windsor, districts, town of containing one gle-member and Hartland. one the towns West Windsor containing all Board three towns proposed Legislative Apportionment district, in a two-member which would had remain single statutory apply Legis suggests that the criteria do not when the The State authority of civil have failed to lature subdivides districts after the boards proposal. argument the fact that the up with a The State bases its come subdividing only provision referring districts is standards boards, Legislature. disagree with the not the We State’s addressed Legislature approve the subdivision of dis position. The fact that the must they imposed on the “if are consistent with the standards” boards tricts suggests must abide those standards. V.S.A. 1906b(f) 1906c(f). Further, §§ set forth in 17 V.S.A. the standards 1903(b) districts, representative in apply creation of which would Legislature. clude districts subdivided *25 deviation of -1.6% from the ideal district. The Windsor and West Windsor boards of civil authority expressed prefer- their district, ence for a while single two-member the Hartland board wanted two single-member Eventually, districts. the House recommended, Government Committee and the Operations two Legislature adopted, creating districts. The district -1.0%, the town of has a deviation the containing Windsor of containing the towns West Windsor and Hartland has a deviation of 4.2%. argue
Petitioners that the creation of the two districts vio- lates the Protection Equal Clause the Fourteenth Amend- ment of the United States Constitution because the new districts not attain do the minimum of deviation percentage practicable. According petitioners, the State failed show that the increase deviation one of the new districts was justified by legitimate, rational state interest. We conclude establishment the two districts does not constitute an equal protection violation. rely
Petitioners
on Karcher v.
for the
Daggett
proposition
that even the
minor
most
variance from equal population must
justified
be
legitimate
state policy. This
position
erro-
neous. Karcher considered the validity of a congressional redis-
statute,
tricting
and explicitly stated that
the absolute-
population-equality requirement
applied
apportionment of
congressional
only,
districts
not to state legislative districts.
(“we
Petitioners The Ver argument. without although supporting position, reapportion Legislature requires mont Constitution maintain equal so as “to Assembly of the General membership as nearly as among Const, respective ity representation II, Further, statu ch. 73. Vermont it is Vt. practicable.” mini to form “districts tory requires law apportionment from the mum deviation percentages *26 by dividing the total standard,” the number obtained which is representatives of or sen by of state the number the population 1903(b). 1902, re do not provisions §§ ators. 17 These V.S.A. than population requirements adherence to equal stricter quire nearly The “as as it is phrase prac federal law. that required construing from case law ticable,” adopted which was federal clause,17 consid contemplates the equal protection the federal Indeed, histori eration of other nonnumerical factors. Vermont of integrity on the individual cally placed great importance has criteria, towns and other nonnumerical while existence statutory equal and provisions requiring state constitutional can be traced to federal according population representation court the federal constitution. Senate construing decisions 83, 132 287-88, at no A.2d 160-61. We find Bills 177 & Vt. 318 law. statutory violation of the or Vermont Vermont Constitution E. The Petition Shrewsbury challenge Petitioners of the town Shrews- placement County, is in in a district bury, representative which Rutland Ludlow, in are Plymouth with the towns of and which Windsor 10%, justi- trolling. Requiring an overall more deviation of no than absent State, any particular insures that the deviation within fication will not exceed 10%. Sims, (1964), holding Reynolds As a result v. U.S. dealing apportion sections of the Vermont Constitution with former Assembly ment the General were held to be violation the United (D. 1964), 191, 198 Hoff, Supp. Buckley v. F. States Constitution. See Vt. (1965). Buckley, sub nom. Parsons 379 U.S. modified aff’d town, II, Chapter regardless popula § permitted 13 had each of its Former tion, representative Assembly. to elect one General Vermont Con apportioned requires that all so as “to stitution now districts be respective nearly equality representation among maintain districts as Const, II, § practicable.” as it eh. Vt. 73. County. argue Petitioners placing Shrewsbury the same district with Plymouth Ludlow and violates constitutional and require criteria that the join towns Const, II, (“General § with common ch. interests. See Vt. Assembly shall seek to maintain geographical compactness and to contiguity adhere boundaries counties other subdivisions.”); 1903(b) (insofar existing political 17 V.S.A. as practicable, representative existing districts should preserve lines, maintain political patterns of social geography, interac- tion, trade, ties, political interests, and common and consist of compact contiguous territory). petitioners Because failed to show that there was no rational basis for the creation district, of the challenged we dismiss petition.
For the most part, master’s findings undisputed. From 1982 to Shrewsbury placed had been in a district with the town of Sherburne. Both towns made known that the district was unworkable because of inaccessibility between the two towns and because of conflicting positions ski regarding de- velopment. census, the 1990 Following the Legislative Appor- tionment placed Board Shrewsbury a district with the towns of Tinmouth and Wallingford, and the Holly town Mount *27 Plymouth and Ludlow. Rejecting that proposal, the House Gov- ernment Operations Committee a plan, created eventually adopted by the Legislature, that contained districts in which Shrewsbury Mount and Holly were switched from the Board’s plan. Shrewsbury was joined with Plymouth Ludlow and to form district, Windsor-Rutland 1 while Mount Holly was re- aligned Tinmouth, with Wallingford, and Mt. Tabor to form Rutland 4 district.
The resulting Windsor-Rutland 1 district shaped is like an “L”, inverted with Shrewsbury Plymouth and top across the east, from west to and Ludlow south Plymouth. A graded road, gravel passable which is only six of the year, months pro- vides access over the mountain from to Shrewsbury Plymouth. Shrewsbury and Plymouth are largely undeveloped, rural towns that share the Calvin Coolidge State Forest and the Plymouth Area, Wildlife Management which residents of both use for towns recreational Access from purposes. Shrewsbury to Ludlow is via State Route a major east-west artery that passes through Mount Holly. Route 100 runs north from towns than the fact that three Plymouth. to Other
Ludlow
district,
was no evidence
there
transportation
in the same
are
Shrewsbury
interests between
concerning common
presented
Ludlow.
record,
conclude that petitioners
we
review of
Upon
constitutional
that the
violated
to show
failed
in
district.
the Windsor-Rutland
statutory
creating
or
criteria
to
are
plans
presumed
noted,
redistricting
the Legislature’s
As
654;
177,
Petitioners, course, may cast doubt on validity leg- islative demonstrating the Legislature failed to an adopt substantially alternative that on improves that plan, see In re Legislative Districting General Assembly, N.W.2d at they but have also failed to do that. The thrust of petitioners’ argument is that the failure of the House Govern- ment Operations to adopt Committee the Board’s proposal Mt. aligning Holly with Ludlow and Plymouth demonstrates the lack of a rational basis for placing Shrewsbury with those towns. We cannot agree. Because both Mt. Holly and Shrews- are in bury Rutland County, both alternatives involve crossing a line. county The degree of compactness is similar with respect to each alternative. interests, As for community there were various factors for the Committee to Both consider. Shrews- and Mt. bury Holly are connected Ludlow the same high- way, Mt. although Holly is closer to Ludlow and consequently has more trade with it. Unlike Shrewsbury, Mt. Holly is in the same school district as Ludlow; however, disproportionate tax burdens the two towns have led to conflicts over attempts to finance a union Further, district school. there is an dis- ongoing pute between Mt. Holly and Ludlow over the location of their border, common and the have conflicting towns views development Mt. Okemo ski area. Finally, there was testi- mony that Mt. Holly wanted to remain in the district which it had spent the last eighteen years and conflicting testimony that some residents of that town preferred the Board’s Al- plan. though petitioners have challenged significance the con- flicts between Mt. Holly Ludlow, we cannot conclude
44 to decision Legislature’s for the rational basis
there was no rather than Tinmouth Holly Wallingford Mt. with keep Keisling, Ater v. 819 P.2d 301 See plan. the Board’s adopt more than permit where “facts would upheld (redistricting plan conclusion”). rational one not a allowing po- master erred argue that the
Petitioners of the House ad- that the testify Speaker to tential candidate Mt. Holly switched with Shrewsbury him that was mitted to objected The State had representative. an incumbent protect testimony hearsay, agree. and we testimony was and noth- truth of the matter asserted prove was offered to 801(c), 802. more. See V.R.E. ing Peti- Further, testimony significant. was not proffered in redistricting that the emphasis themselves concede tioners intent, discriminatory a but not there was is whether challenges a or statu- there violation of constitutional rather whether was (“It v. at 752 Gaffney Cummings, U.S. criteria. See tory considera- idle, think, any we to contend that political be would is plan in fashioning reapportionment into account tion taken Village it.”); Arlington also sufficient to invalidate see Development Corp., Housing U.S. Heights Metropolitan (1977) leg- motive of ways determine (discussing 266-68 stand). As indi- decisionmaker on the islators without placing discussion, failed to show petitioners in our have prior cated Consequently, criteria. of constitutional or violation Leg- In re 1991 Pennsylvania issue of motive irrelevant. (be- Commission, A.2d at Reapportionment islative not had ruled that did already redistricting cause court constitution, evidence of motives any violate federal state irrelevant). Indeed, would be na- was we commission un- political if considerations acknowledge ive we did for many impermissible decisions. A search redistricting derlie wis- evaluating motives would embroil Court political decisions, inconsistent a function redistricting dom limited role. our challenged that creation of the allege Petitioners also I Vermont Chapter 7 and district violates Articles Const, I, Constitution. See Vt. ch. art. (government is insti- tuted the “common benefit” of the community not for particular (all within community); id. group I, ch. art. 8 freemen, having common interest with community, officers). right elect These arguments an appear at- tempt to bootstrap petitioners’ claims into a stricter level scrutiny than would normally be available in a redistricting pe- *30 tition. The constitutional provisions governing reapportion- self-contained; ment are there is no indication that additional limits legislative prerogatives were to intended be applied from other parts the constitution. arguments Petitioners’ are of, a restatement on, and are completely dependent the claims II, 1903(b). § regarding Chapter § and V.S.A. Petitioners that argue Article 7 applies because failed to match Shrewsbury with interests, towns similar and Ar- ticle 8 applies because a denying citizen the to right vote in a district with citizens that share common interests effectively denies that citizen the right to elect a representative. Because arguments these premised on the lack of common interests within Windsor-Rutland a claim that we rejected, have they must also fail.
Finally, petitioners’argument
that the creation of the
Windsor-Rutland
district
denied certain would-be candidate
a fair chance elected
being
is without merit. Potential candi
dates are not guaranteed a
in,
favorable district to run
and citi
zens of
district do not
right
vote for a specific
candidate. In re 1991 Pennsylvania Legislative Reapportion
Commission,
ment
F. The Richford Petition Petitioners from challenge Richford the Legislature’s redis- Senate, tricting with respect to the Essex-Orleans dis- trict, which all includes of the towns within Essex and Orleans counties, and one Franklin, town each from Caledonia, and Lamoille counties. Richford is the lone Franklin County town in the district. Petitioners contend placing Richford in the stat- constitutional Vermont violates
Essex-Orleans interests. lines and common county concerning utory criteria Const, districts, (in II, § senatorial establishing ch. See Vt. boundaries); county to adhere Assembly shall seek General seats (board the senatorial shall apportion § 1907 17 V.S.A. counties”); 17 V.S.A. or combinations the counties “among 1903(b). petition. We dismiss all, some, respects but is similar here The situation its House district. challenging in Montgomery petition town County placed is a Franklin Richford Like Montgomery, the spine other side of with towns on the in a district major popu- from the is equidistant Richford Mountains. Green counties, St. Albans of Franklin Orleans lation centers to both access State Route and there direct Newport, through circuitous route centers, as as a more well population route over the Nevertheless, the direct to Newport. Canada winter, and, conse- during is difficult Newport mountains or Es- and towns Orleans between Richford the ties quently, noted, Further, weekly as are minimal. sex counties do counties generally of Franklin and Orleans daily newspapers county. their own local events outside not cover *31 contend, the Montgomery petitioners, first as did Petitioners if Rich- requirements protection it would not offend equal that district, County with the Franklin ford were placed an over- they as This would create were left are. other districts 21.8%, than the 16.3% deviation greater of 5.3% all deviation with It would leave Essex-Orleans plan. the current stand- apportionment 14.1% the Senate 32,228 below persons, between the plans that the difference acknowledge ard. We has but, Court noted, Supreme as the United States not great, toler- of 16.4% approaches that an overall deviation indicated Howell, rejected at 329. We able limits. Mahan U.S. re In Senate of for Senate districts. an overall deviation 25.3% 370, 177, important, A.2d at 659. More at Bill Vt. of “equality representation is to maintain Legislature’s burden Const, II, § An ch. 73. as it is Vt. nearly practicable.” ... as 21.8%, facing the circumstances deviation of under overall command. inconsistent with that was Legislature, the Essex-Orleans sen argue also Petitioners redistrict- violates constitutional atorial district criteria. ing Specifically, they out that our constitution re point counties, of quires Const, Legislature to adhere to boundaries Vt. II, § § ch. and that 17 V.S.A. requires Sen ate of districts be made “counties or combinations of coun up ties.” see in They provisions prohibition these against county already lines. We have this In crossing rejected position, 83, 132 re Senate 177 & at Bills Vt. A.2d and see must, no reason to our if change holding. County lines neces sary, give way higher priority equal representation by id. population. See
Second, they argue placing Richford towns current district requirements violates the nonnumerical II, § Chapter 18 (geographical compactness and contiguity) 1903(b)(2) 17 V.S.A. (recognition patterns so- geography, interaction, trade, interests). cial political ties and common De- the similarities spite petition between and the Montgomery petition, we are persuaded that the differences them between Here, warrant dismissal of this petition. we are with the dealing districts, which, creation Senate because proportion representatives, senators to necessarily five times the size of representative difficult, districts. Consequently, will be if not impossible, to achieve the same level common interests among individual towns within Senate districts that is attain- able among towns within House districts. Two-member sen- atorial districts contain 37,500 which, in approximately people, cases, most will involve many Indeed, towns in our rural state. the Essex-Orleans senatorial district is comprised forty-one from towns five different counties.
Considering common interests among the residents of towns within Senate districts will invariably diluted to extent, some the State’s limited of common showing interests within the current Essex-Orleans senatorial district carries more weight. The district is geographically compact contig- uous, but separated by a mountain range. There is road access between Richford and the rest of the district. Also important *32 the historical treatment of Richford Senate representation inasmuch as the legislative command is to and recognize main- tain existing patterns respect factors, to nonnumerical in- 1903(b)(2); cluding political § ties. 17 V.S.A. see also 17 V.S.A. 1903(b)(1) § (Legislature preserve should existing political sub- been a mem- Richford has practicable). as lines insofar
division twenty years, for senatorial district of the Essex-Orleans ber Richford residents have met with present and senators past and do not mean on a number of issues. We with them and worked when the of common interests is a presumption that there imply the out that master’s long standing. merely point We district is district interaction within the some recognize political findings fact consider this could Legislature and that the years, over the in a with towns with which Richford in deciding keep associated. been long has alternatives there is evidence consideration Finally, consid- committee The Senate request. Richford’s response into Essex-Orleans towns the moving County ered Caledonia Richford, ef- ripple for loss of but up district to make manageable. fects were considerations, we conclude on all of the
Based above or that there was no rational have failed to show petitioners in the Essex-Orleans placing for Richford legitimate reason senatorial district.
IV. Conclusion im- at least two these should reveal petitions Our review of statutory The is that the nonnumerical first portant points. 1903(b) an implementa- are contained V.S.A. guidelines achieve criteria that seek to tion extension constitutional and impor- those representation. Accordingly, policies effective must The be considered. redistricting process tant in the that, although emphasize requirement we second point statutory crite- Legislature consider nonnumerical ria, redistricting legisla- is a reiterate acknowledge we must have rational tive function. The based creation of legitimate reasons But criteria. of all constitutional and on consideration If Legislature’s plans we are not superlegislature. bases, merely them we will not disturb rational and legitimate alternative because plans there be better appear because entered into politics process. Springfield, Berlin, Hartland, Richford, Shrews-
bury petitions the town are dismissed. Because inclusion of ap- Montgomery does not the Orleans-Franklin district *33 pear comply statutory criteria, with constitutional and we Legislature plan return the House reconsideration. place plan The shall revise and correct the so as to Montgomery the town tory in district that with statu- of conforms requirements and constitutional and make other nec- essary changes, provide this Court with information indicating changes possible that it is to make such while satisfying respect all constitutional criteria with entirety. to the other districts and the in its Dooley, J., I, I in concurring dissenting. parts concur 111(B) III(C) 111(D) III(E) (Berlin), (Hartland), (Springfield), III(F) (Richford). (Shrewsbury), and I concur in part do not 111(A) and the (Montgomery) standard of review analysis II on part which that result I deny based. would the Mont- gomery petition with the others. In along my disposi- view the tion of the is an Montgomery petition unwarranted interference with the years function that will mire future Court reapportionment petitions for no legitimate purpose. entire put The case forward of Town con- Montgomery of facts, sisted a short stipulation essential five witnesses entire whose examination and cross-examination consists of (most thirty transcript a few pages, exhibits of which are maps) and an of Bryan affidavit Professor Frank of the University of Vermont. thrust of the town’s ease was that the mountains surrounding Montgomery meant that its economic and social County interactions were Franklin towns to the east. From evidence, that it built its case that Montgomery should be to the adjoining shifted the Franklin containing County towns, despite population disparities such a shift would cre- ate. There was no absolutely evidence of the feasibility re- opening the whole districting satisfy scheme to Montgomery. The only mention of an alternative solution awas statement by Bryan that, Professor he had although not “run the data” him- self, he would “bet house and the car” an alternative could found that met Montgomery’s demands “and even come closer to the one-person, was, one-vote criterion.” There course, no specification such an alternative. response
The State’s sparse. was also In addition to entering facts, into the it stipulation testimony offered the of Repre- Westman, sentative a member of the Opera- House Government ar- Montgomery’s Committee, receiving who testified tions stated that the them committee. He discussing guments of the need to afford left undisturbed because were ties to Montgomery’s because equality representation testimony maps, and the area. From the the Mountain ski Jay and that the Jay is in the Town area ski appears through the Town to the ski area and eastern access southern Further, some Montgomery it also appears Montgomery. *34 and that busi- Montgomery at the ski area residents work restaurants, have customers who come nesses, primarily area to ski. which is petition the of also Shrewsbury, the Town of Like — alternative one today, Montgomery presented
addressed County Franklin district. the town to the moving adjoining as with this alternative inconsistent correctly rejects Court matter, That should end the Equal requirements. Protection however, a request, should denied. Without petition and the be action, its this ripple and no effects of understanding with the whole reap- requires the to reconsider Court Montgomery, in an to with portionment plan attempt satisfy to convince this Court that being the solution Legislature’s only I cannot agree to demand. Montgomery’s it is meet impossible and thus dissent. process of the proper distortion the major In three errors in underlie my opinion, analysis the taken The first error deals with approach Court. with the general, of review the second standard standard issues, analysis. the third factual with the Montgomery is first, redistricting primarily recognizes On the Court challengers heavy and that have a burden legislative a function omits, It redistricting that a invalid. proof showing however, statute, of districts is done by establishment justification “entitled presumptions regu- which is In re Senate Bill enactment.” larity regular statutory accorded 177, re also In 358, 361, 653, (1972); 654 see Vt. 294 A.2d 130 House, Senate, Congres- & Legislative Apportionment 1983 (Me. 1983) Districts, 819, sional (apportionment 469 A.2d 827 as other validity law entitled to the same presumption enactment). legislative validity of a statute must based on “clear
Attacks on the be that it law.” infringes paramount evidence irrefragable
51 Child, Neglected 234, 14, (1971). 241, 129 Vt. 276 A.2d 18 In protection equal challenges, analogous which are the chal- here, the Court lenge normally considers we as uphold statute long as the classification “is not arbitrary has reasonable connection with a permissible or pur- administrative v. 39, Springer, Veilleux pose.” 33, 620, Vt. 624 131 300 A.2d (1973). Thus, a reapportionment should if challenge prevail only “‘cannot redistricting possibly justified the exercise v. Doherty, Preisler any judgment discretion.’” 284 (Mo. 1955) 427, (quoting State ex rel. Lamb v. Cun- S.W.2d (Wis. ningham, 35, 1894)); see also Merriam v. Sec- N.W. Commonwealth, (Mass. retary 1978) 376 N.E.2d (petitioners beyond must show im- reasonable doubt it is possible interpret reapportionment statute as in har- constitution). review, with the mony Under these standards is irrelevant whether the all Legislature considered relevant constitutional and statutory criteria with its respect to action. A legislature acts, is judged by its not its processes. See Harrison Industries, v. Inc., PPG (1980) (in 446 U.S. construing statute, “in Holmes, Court does not the manner Sherlock pursue theory bark”); of the dog that did not Townsend Yeomans, (1937) (legislature U.S. presumed *35 know the needs of the people; whether special inquiries should be is entirely discretion); made a matter of legislative Wall Dis- tributors, News, Inc. v. City Newport 1165, 782 F.2d 1169 of (4th 1986) (legislature Cir. not required to an “create evidenti- ary record that would on pass plenary judicial muster of review legislation’s necessity and to results”); fitness achieve desired Review, 973, (1957) see also Book 66 Yale (legislator’s L.J. record”). factual assumptions “need be on of based no evidence In hindsight, problem part this case is that the State offered the evidence of a to legislator defend against the Mont- gomery him, The has challenge. majority now treated the and House Operations sits, Government Committee which he like a trial which court must explain and defend its actions. Andreson, Andreson 634, Compare 371, 145 Vt. 497 A.2d (1985) (findings must be explain to court’s adequate action if and evidence is “the trial court must inadequate, inquire”). Thus, the legislator was faulted because he “was unable to pro- vide details or support connection between the two com- the Committee never indicated that
munities” and because “he to come up criteria but was unable nonnumerical considered determine the It to plan.” dangerous precedent with a sets com- statute based on what evidence its validity of mittee heard or considered. analysis the Court’s lies its underpinning
The second error to applicable Montgomery the evaluation the standards set statutory provisions claim. relevant constitutional the must forth three of standards reapportionment types order, these are: Placed in hierarchical meet. — II, to Chapter Equality Representation According 1. Constitution,
§ the plan provide “equal- of the Vermont must as nearly ity among respective districts representation as it is crite- practicable.” importance Because rion, requires the statute further and that districts be goes “with minimum deviation percentages ap- formed from 1903(b). portionment standard.” 17 V.S.A § — According 2. Nonnumerical Constitutional Standards “shall Constitution, II, § 13 of Chapter Legislature seek to maintain compactness contiguity geographical existing political and other adhere boundaries of counties These the stat- recognized subdivisions.” standards are also “consistent that districts be formed requirement ute with as policies practicable.” [these] V.S.A. insofar 1903(b)(1), (3). § — Statutory Standards requirement 3. Under “consistent with the following poli- form cies as practicable,” statute includes “recognition insofar interaction, maintenance of patterns geography, social trade, ties political and common interests.” V.S.A. 1903(b)(2). these requirements
That should be viewed hierarchical Senate shown their clearly placement. fashion Cf. (1972) Bill 177, 130 371, 294 A.2d (preeminence Vt. Further, attached requirements). provisos constitutional that may these standards to meet recognize impossible *36 case, all any given balancing of them in of factors is I am not I have with ma any disagreement inevitable. sure I in on these have differences jority general points. spe cifics.
The majority concludes that shown that “petitioners none of the nonnumerical statutory constitutional criteria with were adhered to to the Town It regard Montgomery.” of conclusion, infer, I reaches that by reasoning that the “com pactness contiguity” means requirement really community of or creation of interest “effective as a representation,” — result there are two requirements nonnumerical community representation and adherence to political interest/effective — boundaries and that the placement Montgomery with the county Orleans towns meets neither these standards.* The is reasoning clearly flawed.
I can agree that one purposes compactness contiguity is to requirements create a commonality interests See, e:g., districts. Karcher v. 462 U.S. Daggett, 725, (1983) (Stevens, (“To J., extent, concurring) geo some graphical compactness values; serves it independent facilitates political organization, electoral campaigning, and constituent representation.”). has, however, The majority pur confused a pose requirement. Compactness and contiguity are clearly geographic requirements. Hammond, See Carpenter (Alaska 1983) 1204, J., P.2d (Matthews, 1218-19 concur (Colo. Love, Acker v. ring); 1972); 496 P.2d Schrage v. Elections, 486 (Ill. 1981). State Board 430 N.E.2d That is clearly so Vermont because the requires constitution “geo graphical compactness and contiguity” (emphasis supplied). Const, II, § Vermont ch. 13. There nothing requirement suggests district is not compact or contiguous because it has mountain in it.
If we are to examine the purposes of the compactness contiguity requirement, important to recognize that the dominant purpose is to prevent See, gerrymandering. e.g., (R.I. Farmer, Holmes v. 1984); 475 A.2d see generally J. Schwartzberg, Reapporbionment, Gerrymanders, and the Notion (1966). “Compactness,” 50 Minn. L. Rev. 443 To the extent compactness has a nongeographic component, it lies in prevention of “districts solely political considerations, * Although majority, dissent, response to this now denies that it relies logic, only way on this it is the reach the conclusion that the adhered to none oí the nonnumerical or constitutional criteria. *37 Holmes, 475 A.2d 986. policies.” to other
without reference contiguity is compactness and Legislature recognized The it set them out of interest community because different from 1903(b)(2), (3). § 17 V.S.A. See separately. to equate the relies majority on which
The California case Wilson interest, community to contiguity and compactness (1992), demon- Eu, 545, 553, 4 2d Rptr. Cal. 823 P.2d cases legislative apportionment in danger relying strates the examination. California has without careful from other states districts com- requirement no constitutional Const, Further, § 1. the reapportionment art. pact. See Cal. the where redis- point in had broken down to process California Thus, quoted the by done the courts. tricting phrases had to be judicial for judicial standards created majority refer by to judge not constitutional standards reapportionment and Any scheme. districting of a validity legislatively-created of interest in would be wise consider communities legislature say that the quite thing It is a different drawing districts. in a case makes a district unconstitu- failure to do so particular tional. District is con- challenged
Each town in the Orleans-Franklin is Montgomery contiguous at least one other town. tiguous with Lowell. The district is as com- with the towns of Westfield and No has as other multi-town district in the state. one pact any as challenged lacking compactness contiguity. the district it violates either requirement. There is no serious claim that reliance on significant, majority’s pur- Also in view the is the lack of pose compactness requirements, contiguity even that this district was hinting gerrymandered evidence Montgomery Town of does not so political purposes, Thus, the district the letter of the compact- claim. meets both primary and their contiguity requirements purpose. ness in that county boundary, district does cross the sense II, § It chapter with the 13. shares that “goal” is inconsistent twenty multi-county other characteristic note, little state. as is made the breach of Except passing county majority petitioners. County line either the or the lines are of limited to house districts because of the significance county county limited Vermont. Where very government boundary, county breach of the line follows a geographical line is significant because of the geographical boundary, necessarily because of the line. county lines,
More are town significant and this district crosses none It these. in a rural impossible state with a number of large towns to Thus, follow town lines without crossing county lines. the district here is consistent with the important boundary re- quirement of 13.
Instead of the total violation nonnumerical requirements claimed majority, the reality ques *38 tion complies with the significant, nonnumerical constitu fully tional Thus, requirements. the real is that complaint failed abide a As by requirement. dis below, cussed I find the evidence of that failure shallow and in review, For our complete. purposes of it approach important to state how vague and tentative this statutory re quirement It is. that districts be requires formed “consistent with the insofar following policies practicable” as and details one of those as policies “recognition and maintenance of pat of interaction, terns geography, trade, social political ties and 1903(b)(2). § common interests.” V.S.A. Given the breadth imprecision and and requirement, placement its at the bottom of of hierarchy requirements, we should saying be only the clearest and most extreme breaches of the man date are by cognizable this Court in a reviewing reapportion v. Reapportionment Commission, ment plan. See Fonfara (Conn. 1992). 153, 163 A.2d failure to Our do so that this means will Court make the choices that determine district boundaries than rather those leaving choices to the appropriate body, the Legislature. majority has avoided the most confronting difficult prob-
lem caused its analysis. If the real only deviation from appli- cable standards is in compliance 1903(b)(2), with 17 V.S.A. Ias be, believe it to then why cannot the Legislature react sim- ply repealing statute? We should careful a very be to adopt mandate to that subject kind of evasion. We have not been care- ful here.
Finally, I think majority has accepted shallow and in- complete notion of community ignores interest the real- ity the tasks facing legislators represent who these districts. opinion This issued the start of legislative ses- taxation the level of state major concerns are
sion in which the and taxes, spending those level state- the nature of occurs, in- jobs creating the spending the areas which recession, regu- the effect of the counteract come growth in the sparse absolutely nothing reform. There is latory to show residents by Montgomery produced evidence these issues are interest how town have common in the County the Franklin towns with the residents of resolved adjoining district. issues in depth have to
One does not consider com- exists that real significant possibility that a realize is, -That “mountain” towns. here are between the mon interests dependent jobs Montgomery if a significant portion Peak, may its citizens see eco- Jay who come to ski at tourists tourism, as state through nomic development promotion make as well as reform to spending policy, regulatory tax easier. This interest is shared residents development such like with the towns Franklin Jay necessarily but not towns economy. on an County, depend agricultural which speculative, considered might this evaluation Although similarity in the facts of significant is useful to note joined in a Shrewsbury had been Shrewsbury appeal. *39 Sherburne, it the with the Town with which shared kind in the evidence social and economic interaction demonstrated failed, however, That be- Montgomery. joinder forward put the towns on ski area and related disagreed development cause Social, and educational ties political environmental issues. ties they but do not mean that citizens with these important, policy and interest the issues perspective common difficulty the of trans- legislature example, must resolve. For over the mountain a com- portation and communication raises abutting issue for legislative Montgomery mon its Orleans little County towns. evidence showed about Montgomery in the It is commonality legislative day. of interests issues at incomplete. best the evi- particularly majority ignores
I find ironic the community most inter- dence that the represents significant Representa- Although majority recognizes est factor. the reliance, in the part, indicated a on testimony tive Westman’s connection, it say only on to reason Jay goes Peak the district formation was avoidance of equal protection “an problem.” That is a misstatement the evidence. Significantly, Peak Jay connection be the most may important element interaction, “patterns geography, trade, social political 1903(b)(2). ties and common present. interests” See 17 V.S.A. Certainly, Legislature is draw that conclusion entitled being without second-guessed by judiciary.
These major three points disagreement with the reasoning of the Court lead to my disagreement with its conclusion both process and result. Ultimately, the Court derives from its analysis burden-shifting rule under the showing which of lack community interest by petitioner shifts to the Legislature the burden of an showing plan “that alternative satisfying the various constitutional and statutory criteria could pro- duced.” Failing burden, this is directed to place the Town of in a Montgomery new district “that conforms with statutory and constitutional requirements make other necessary changes” or to show that such a change possi- “not ble.” In process, petitioners are not required to demon- strate that there exists least one alternative districting plan that meets the constitutional and statutory mandates and places in a Montgomery district with Franklin County towns.
I find the totally rule burden-shifting inconsistent with our limited standard of review. I would follow the recent and thor- oughly-reasoned opinion of the Connecticut Court in Supreme v. Reapportionment Commission, 610 A.2d at Fonfara that a mere of a showing violation of a nonnumerical require- case, ment —in that a state constitutional prohibition on cross- town ing lines —does not proof shift burden of to the apportionment body prove valid. If anything, this case is easier than requirement because the here is Fonfara statutory rather than constitutional, specific, less peti- tioners have presented no alternative plans.
I no find our parallels any of judicial standards of review of action burden-shifting “remand” pro- cedure created by majority. The “heavy burden of proof” *40 imposed by majority petitioners miraculously disap- pears. Nor are any precedents there a for such “remand” to the Legislature in opinions from other states. Whenever a “re- used, mand” has commission, been it has to a been redistricting has a form which court administrative over type agency a of Assembly, In re Colorado General judicial review. See (under (Colo. 1992) specific a constitutional P.2d 195-96 . preserved” of interest. . shall be that “communities mandate a reappor- that requires procedure constitutional specific a Supreme a to the Colorado plan commission submit tionment it com- review,” explain why failure of commission “for Court the conti- counties across county one with other bined parts showing that less factual required nental divide remand Davenport Apportion- unavailable); alternatives were drastic (re- 1973) (N. Commission, ment J. Super. A.2d 746-47 commission reapportionment districting remanded plan Supreme sug- States Court recent decision United because county respecting could be done while gested reapportionment Constitution; Jersey commission di- required lines as New state constitution on whether with compliance rected to report to an administrative relationship “is The court’s possible”). its relationship legislature. is far different from agency from the bur- petitioners Nor have other courts relieved alternative valid exists. den that at least one showing that such a does majority showing The hold cases cited automatically prevail. will one not mean the petitioner has that a of a valid showing court to the issue held analyze in a situation to that required present alternative is similar House, Sen- In In re 1988 Legislative Apportionment here. ate, Districts, at at- Congressional & petitioners 469 A.2d meeting compact a house district as tacked The court of Maine Constitution. contiguous requirement in the district changes the attack unsuccessful because ruled challenger and “a would effect” elsewhere produce “ripple . . . . show that . . could be very least must [the] without constitutional viola- substantially improved creating Id. This the burden the exactly tions the state.” elsewhere failed meet here. petitioners contrary allocation is rules under directly
The burden
As
proof.
which we
allocate burdens of
discussed
normally
above,
of interest must
community
mandate
statutory
1903(b). The majority
met
as
practicable.”
“insofar
V.S.A.
with con-
proof
noncompliance
has stated
burden
lies on
and that
petitioners
stitutional or
mandates
*41
14,
is a
burden.
at
heavy
majority opinion
See
The rationale given for the rule burden-shifting “basic notions of fairness” the require burden be on the placed State because the can better devise alternative plans and because other towns will be affected. The effect on other towns is the exactly point. They should have an oppor- tunity this Court to respond to any proposed change their circumstances rather than being blind-sided an unpredict- able direction to the Legislature. Nor do I believe that the bur- den an develop alternative small plan heavy state. Indeed, alternatives have routinely been presented by peti- Cenarrusa, See, tioners in Hellar v. other cases. e.g., 664 P.2d (Idaho 1983); In re Legislative Districting General of (Iowa Assembly, Valles, Clements v. 1972); 193 N.W.2d 1981). (Tex. 620 S.W.2d In Davenport Apportion- Commission, ment the New Jersey Superior Court was struck of “one on parties, short notice and without very the aid services, computer which, face, produced least on its represents greater far with the compliance requirement compactness while still complying substantially equal with the population imperative.” A.2d at 743-44. I cannot believe what can be done “on very short notice” New is an Jersey burden unacceptable here. I can
Finally, precedent find no in which a legislative appor- tionment broad, scheme was under the upset type standard involved here and where such weak evidence of non- compliance with a determinative standard presented. was It is inescapable that, when we begin judge legislative action by whether it respects community proper interest creates effective representation, we have taken on ourselves the reap- portionment policy decisions even while representing that we are leaving legislative I role intact. think we will come to regret day we took this superlegislative responsibility. The towns of Vermont who are presently before this Court will be surprised learn that the redistricting plan that cope reopened has now been just accepted
they placement resulting “repair” from effect ripple placement District As with Senate Town of Montgomery. alternatives Richford, possible turn well out may Unfortunately, original plan. than the far less desirable desirability. judgments mandate overrides Court’s unwise, inad- that result is ruling that reaches analysis on a legisla- intrudes and inappropriately equately supported I dissent. tive function. *42 dis- joins to state that Justice Morse
I am authorized sent. and Rehabilitation LaShay Department
David Social Reha- Services; Young, William Commissioner Social Ricky Services; Lee Rice P. Lawrence Belove and bilitation A.2d 224] [625 No. 92-118 J., Allen, Gibson, Johnson, JJ., Bryan, Supr. C.J., Dooley and Present: Specially Assigned January Opinion Filed February Reargument Denied Motion