Twin Falls County v. Idaho Commission on Redistricting

ty, political of Thomason, subdivision State 149 Idaho ney Bagley v. fees. County Owyhee (2010). Idaho; of the Board 799, 804-05, 977-78 241 P.3d County, po Commissioners; Kootenai issue of attor take the trial court is to “The Idaho; of of the State litical subdivision appeal into consid for this ney and costs fees County Com of Kootenai and costs and the Board all fees it addresses eration when missioners, Petitioners, Fuller v. the ease.” conclusion of at the 848, 856, 252 P.3d Callister, 150 Idaho Dave v. (2011).5 1266, 1274 ON REDISTRICT- IDAHO COMMISSION Secretary Ysursa, ING, of and Ben CONCLUSION IV. Idaho, Respon- of the State of State dents. grant- court’s order the district We affirm No. 39373. partial sum- motion for

ing Asbury Park’s appeal arises mary Because this judgment. Idaho, Supreme Court 54(b) judgment, no certified from an I.R.C.P. Boise, January Term. judgment until attorney fees be awarded by the resolving each claim has been entered 18, 2012. Jan. Asbury Park. court. Costs district Justices BURDICK and Chief Justice

EISMANN, JONES con- J. JONES and W.

cur. P.3d COUNTY, political subdi-

TWIN FALLS Idaho; the Board vision of State Commissioners; County Twin Falls City Falls; City of Han- of Twin Filer; City Buhl; sen; City County, political subdivision Teton Idaho; of Teton the Board State Commissioners; Owyhee Coun- Estates, LLC, Huckleberry recognize 140 Idaho possibility that the district 5. We Esposito may ultimately and As- (quoting find that court Smith v. P.3d litiga- parties bury prevailing Union, in this Park are the 114 Idaho Fed. Credit State Univ. Esposito Although prefer we would tion. not be rewarded for his failure X, (1988)). Since article plainly provides for an award of fees section 6 City’s ap- statutory obligation to obtain the the proval litigation prevailing party, of this at the close pos- plat, ”[c]ourts of an amended do grant must such an award the district court roving power to rewrite contracts sess the prevailed. party it finds has equitable.” Shawver v. order to make them more 2, section of the Constitution of the State of Idaho to redistrieting remove legislature from the and to it transfer to a six-person, bipartisan reappor- commission legislature tion the to create new con- and/or gressional district boundaries. The leaders largest political of the two parties in each legislature house of the and the state chairs largest political the two parties person State each one appoint to the commis- 2(2). Ill, § sion. Idaho Const. Art. Secretary of State forms a commission when there is a new federal census or when neces- sary competent due to a of a decision court Id. jurisdiction. census,

As a result of 2010 federal Secretary of State formed a commission for 7, reapportionment on June 2011. That com- public hearings mission held fourteen around state, agree upon but unable to congressional for either or redistrieting the expiration before ninety-day limit time set Idaho Code sec- Therefore, tion 72-1508. Secretary

State formed a new commission. Septem- new commission convened 28, 2011, adopted

ber the record and proceedings prior commission. The new then held public hearings commission Falls, d’Alene, Coeur and Boise. On Loebs, Grant P. Twin Falls Prose- 2011, 14, unanimously October adopted Attorney, Falls, cuting argued peti- Twin for legislative redistrieting plan entitled “Plan L tioners. 87,” days adopted plan three later it Kane, Deputy Brian Assistant Chief Attor- congressional redraw boundaries entitled Boise, General, ney argued respondents. 16, 2011, “Plan C On 52.” November Peti- proceeding challenging tioners filed this Plan EISMANN, Justice. L 87. On November this Court petition challenging This is a the constitu- gave days Petitioners fourteen within which tionality L of Plan redis- brief, opening to file their Respondents four- tricting plan adopted by the commission for days teen thereafter within which to file a reapportionment. We hold that the brief, responding days seven Petitioners invalid because violates Article section reply thereafter which within to file a brief. dividing the Idaho Constitution argument We also oral scheduled for Janu- necessary more than ary Constitution the United States. The directed II. adopt plan. reconvene a revised Does L 87 Plan Violate Article I. 5, of Section the Idaho Constitution? Background Factual On November the electors of the When the Constitution of the State Ida- State ho of Idaho ratified an amendment was ratified in representa- being divided create senatorial county from divided prohibited a representative tive constitu- order create a senatorial ratified, originally the Constitu- After ratifi- district.1 As tion of the United States.”2 4, III, amendment, legislature in Article section the provided tion cation of 1986 also the 72-1506, be to one county shall entitled that “each which is enacted Idaho Code section 1911, the electors rati- representative.” In the referenced in that amend- now statute 2, Article section fied Ysursa, an amendment County v. 142 ment. Bonneville “The senate shall consist provided, (2005). so it 464, 1213, 473, 1222 129 P.3d county.” each one from of member hierarchy applicable gov- There is of law 1962, in was filed court In a lawsuit federal plan appor- for erning development the of a 2, 4, and 5 of Article III. challenging sections tioning legislature: the The United States (D.Idaho F.Supp. 225 645 Smylie, Hearne v. paramount authority; the Constitution is the 1964). three-judge court that was con The requirements the Idaho Constitution rank of dismissed it without vened hear that case second; and, of requirements if the both the Id. at addressing merits. 656. While the satisfied, are State and Federal Constitutions appeal, United States that ease was on statutory provisions to be A are considered. Supreme that wanted both Court decided hierarchy in ranking lower source of law this legislatures appor of bicameral state houses the extent that it is ineffective to conflicts Sims, Reynolds 377 by population. tioned v. superior Bingham with a source of law. 1362, 533, 12 506 U.S. L.Ed.2d 84 S.Ct. Reapportion- v. Idaho Comm’n for (1964). judgment in Heame It reversed 874, ment, 870, 863, P.3d 137 Idaho 867 proceed the case further remanded (2002). Thus, hierarchy requirements Reynolds. ings Hearne v. consistent governing plan apportioning legisla- 563, 1917, Smylie, 84 S.Ct. 378 U.S. ture is follows: (1964). Supreme The L.Ed.2d 1036 apportionment plan also that an has held First, plan must percent among than ten deviates more Supreme what United States Court has facie prima is unconstitu various districts requirements Equal of the stated be the Thomson, 835, tional. Brown v. U.S. Fourteenth Protection Clause of the Amend 2690, 2695-95, 842-43, S.Ct. 77 L.Ed.2d redistricting “A ment to the Constitution. (1983). 214, 221-22 popula more than 10% deviates among prima tion districts is facie uncon decision, Reynolds In response to Equal stitutional under Protection proposed, and on legislature Novem- County, 137 Bingham Clause.” Idaho at 1986, ratified, 4, ber the electors amend- (2002). “A 55 P.3d at 865 ments and 5 of to sections however, larger disparities population, cre the Idaho Constitution. 1986 amend- prima ates a case of provision stating facie discrimination section 5 included justified therefore be county may creating be divided must State.” that “a Brown, 842-43, 103 S.Ct. only reasonably extent it U.S. at at districts 77 L.Ed.2d If a deviation of more determined counties must be statute that counties be 1. Article section Constitution of determined must originally provided, representative State of Idaho "A senatorial divided senatorial and to create district, representative or county when more than one comply with the districts which constitution of same, constitute the shall be com- shall county may A be the United States. divided posed contiguous and no into when more than one district creating such shall be divided districts.” wholly single districts contained within are county. be No floterial district shall created. amendment, 2. As of the 1986 a result any be Multi-member districts created in the Constitution the State of composed one district of more than reads: Idaho now only representatives may that two the extent district, representative when A senatorial or from a district from which one elected county shall more than one same, constitute provisions senator is elected. this sec- composed contiguous coun- shall be any apportionment adopted apply tion shall ties, county may creating and a divided following census. the 1990 decennial reasonably to the extent Likewise, State, provision say “only justified is not does not percent ten than if .., Smith v. Idaho reasonably is unconstitutional. it is determined that counties Redistricting, 136 Idaho words, Comm’n on must be divided.” other it does (2001). The commis- prohibition dividing not state that required to draw dis- sion is not disappears once it is determined precisely popula- the same tricts that all that at least one must be divided to Some discretion is inherent in tion numbers. says “only with the Constitution. presump- of deviation that percentage ... the extent it is Supreme tively Court’s complies (Emphasis that counties must be divided.” requirements. added.) “only language The the extent” Second, meaningless comply with would be a limitation must unless it is Ar- requirements the Idaho Constitution. on the that total number of counties can be 5, county may “a ticle states that drawn, section divided. district lines When are only in creating districts be divided particular is county either or it is divided not. reasonably extent it determined statute ground. county There is no middle A cannot to create that counties must be divided sena- Looking be almost divided. division at the representative which com- torial and districts county one in isolation would not show the ply with constitution United (plural) extent to which counties must be provision interpreted States.” “We to comply Supreme divided order with the ‘prohibits to mean that constitution requirements. Court’s The extent which counties, except meet the division of con- (plural) counties must comply be divided to protection.’” equal standards of stitutional with the Federal Constitution can be deter- Yswrsa, 464, 142 v. Idaho only by counting mined the total number of (2005) 471, 1213, (quoting 1220 129 P.3d counties under If plan. divided one Bingham County Reappor- v. Comm’n for complies that with the Federal Constitution 878, 870, 863, tionment, Idaho 55 P.3d 137 eight divides counties and that another also (2002)). places provision This 871 limita- complies nine divides then the ex- total tion on the number of counties can tent that must counties be divided order to by legislative redistricting plan. be divided comply only with the Federal Constitution is “only” “solely.” means Carstens The word eight It could said counties. not be Comp. Packing Unemployment v. Div. Co. of dividing county necessary one more Bd., 65 Idaho 144 Indus. Accident comply with the Constitution. (1943). 203, P.2d 206 A can be divid- solely one the extent it is ed reason —“to Third, requirements of Idaho reasonably determined that coun- Code section 72-1506 “are subordinate to the comply divided ... with ties must be equality Constitutional of voter and standard of the United States.” Idaho constitution restrictions Idaho Constitution added). Ill, § (emphasis Const. 5 Di- Art. upon splitting except to achieve viding county per- for other is not reasons equality.” Bingham County, voter 137 Ida Compliance provision mitted. with this ho at P.3d 55 at 867. That statute be cannot determined mandatory provisions advisory contains division in looking each iso- provisions. The words “must” and “shall” provision state lation. The does not that “a mandatory, Long, are v. Idaho Rife only county may be divided ... to the extent (1995), the word reasonably that it determined ... not, Neighbors Healthy “should” is comply be divided ... must Valley County, Gold Fork v. the constitution of the United States.” Rath- (2007). 134, 176 P.3d The mandato er, county [singular] may that “a states ry provisions as are follows: it is divided ... to the extent (1) report- population state [plural] total statute that counties bureau, comply ed the U.S. census to ... must divided population of subunits determined there- constitution of the United States.” added). Ill, from, (emphases permissible data. Const. Art. shall be exclusive redistricting plan it shall (2) possible, sion extent the maximum To adopt. neigh- preserve traditional districts shall of interest. communities and local borhoods § 72-1506. are remaining provisions of the statute (3) substantially equal shall be Districts advisory.4 mandatory. They merely are not seek population and should Likewise, provides that subsec- the statute federal standards applicable all (9) mandatory if not five are tions statutes.[3] vote that members of the commission complete duties cannot fully complying with them. be avoided of counties shall Division possible....

whenever adopted by L the commission Plan requirement. It devi complies the first must be that counties To the extent percent population than ten ates less districts, such divided to create However, among does the districts. contiguous counties. composed of shall be requirement. As with the second (7) shall retain District boundaries above, section of the stated boundary lines to the voting precinct local county provides that “a Constitution Idaho comply provi- with the extent those lines only creating divided in districts 34-306, Code. When of section Idaho sions extent it is determines, by an affirma- the commission divided to cre that counties must be (5) members re- vote of at least five tive representative districts ate senatorial and minutes, com- that it cannot corded of the comply which with the constitution legislative district plete its duties for a added.) That (Emphasis United States.” fully provisions with the of this complying emphasized in Idaho Code sec provision is subsection, apply subsection shall not this states, 72-1506(5), “Division of tion which legislative the commission or redistrict- possible.” counties shall be avoided whenever ing adopt. mandatory. provision shall As shown This history and its of Article section (8) pro- Counties shall not be divided only dividing wording, current reason particular political party partic- or a tect a comply is to with the decisions counties ular incumbent. If, for Supreme United States Court. legislative district contains example, only When a counties needed to be seven comply, then a that divided in order to portion than one or a more would violate these eight divides county, portion of a the counties or statutory provisions. constitutional and directly connected in the district shall be designat- highways which are roads and twelve counties. The Plan L 87 divides sys- highway part ed as of the interstate rejected other considered and commission tem, highway system or the United States plans comply with the Federal Constitu- system. the com- highway the state When Thus, Plan L and divide fewer counties. tion determines, by affirmative vote mission an the extent does not divide counties in its of at least five members recorded comply be divided to that counties must minutes, complete that it cannot its duties It likewise does the Federal Constitution. fully complying possible dividing for a district counties whenever not avoid 72-1506(5). subsection, Code provisions of this in violation of Idaho section with the 5, of violates Article section apply to the eommis- It therefore subsection shall not oddly shaped,” I.C. 72- Although that are uses "should” rather districts the last clause "must,” 1506(4), practical as a matter that a must be than "shall” or compliance and "In the event divisions, applicable divided, per federal standards coun- of such the number mandatory requirement. minimum," and statutes is a ty, kept I.C. 72- to a should 1506(5). advisory provisions maximum 4. The are: "To the drawing possible, avoid extent should by statute, Constitution and the statute. We tution or but it does not have the holding are not the commission must imposed discretion to exceed the limits adopt any particular plan. plans submit- either the Constitution or a statute. ted to that there are show provision requires That constitutional ways different to draw the total number divided counties in a State and comply both the Federal legislative redistricting plan shall be the min- certainly Constitutions. The commission has required imum number with the reject plans the discretion to that have been Federal Constitution. Plan L Because submitted and draw boundaries in another required divides more counties than is to do complies manner that with both Constitu- so, it violates Article tions. Idaho Constitution is therefore invalid. The commission must

Respondents argue that the Com- therefore reconvene “[o]nee discretion, 72-1501(2). adopt plan. in- mission has exercised this revised quiry split alleged limited to ‘the was We need not address the statutory whether improper violations in Plan L 87 purpose done to effectuate an because the commis- ” adopt right (Quot- sion will have to plan. whether it dilutes the vote.’ revised Ysursa, ing County v. from Bonneville “immediately Petitioners ask that we issue (2005)). appropriate prohibition an or appro- writ Respondents quotation take that out of con- priate injunction enjoining implementation addressing text. We were commission’s and adopted by enforcement of Plan L87 as deciding discretion in two counties on Reapportionment” Idaho Commission split order Federal “enter[ ] and that we an establishing order Constitution, not whether it has discre- districts state disregard requirements tion to of the comply will with Constitutional and Idaho Constitution. statutory requirements.” We decline at this point to do We duties, either. have no reason to performing its believe that perform the commission will not must exercise discretion in various matters. duty plan However, adopt complies its a with Respondents as admitted mandatory statutory provi- constitutional and during argument, oral Article section Accordingly, pursuant sions. to Idaho Code limits the does commission’s discretion. It 72-1501(2), section this Court orders that give not the commission unbridled discretion Plan L 87 be revised. in deciding many how counties to divide. Respondents argue

The that the commission Conclusion dividing found that nec- twelve counties was However, essary. “this Court must observe We hold that Plan L 87 adopted duty fearlessly imperative interpret its commission for reapportionment violates Ar- made, law permit, as and never if it be in our ticle Idaho Constitution power prevent, any Con- infraction and must therefore be revised. sup- uphold, stitution which we are sworn to Williams, port and maintain.” v. 84 Jewett BURDICK, Chief Justice Justices W. 93, 106, (1962) (citing JONES and concur. HORTON Pyke Steunenberg, v. 5 Idaho P. JONES, J., dissenting. J. (1897)). county may “[A] be divided it creating respectfully to the extent I dissent from the Court’s coun- opinion §§ because I read Article and 5 grant ties must be divided to ... of the Idaho Constitution to the Com- good develop- constitution United States.” Idaho mission deal discretion in Ill, plan, provi- ing redistricting Const. Art. 5. This constitutional and I believe this should, sion dis- past, grant is a restriction on the commission’s as it has in the cretion, grant com- not of discretion. The substantial deference determinations made certainly view, In my mission can exercise discretion to the Commission. the Com- performed it exemplary the extent that is not limited mission in an Consti- fashion district, representative A senatorial or detailed Plan L87. made developing county fact, when shall consti- clearly explaining how more than one findings of steps same, composed contig- it took to developed, tute the shall be was counties, require- one-vote one-person, and no shall be divid- uous ments, dividing splitting its rationale districts. creating ed such applied and how prohibition dividing against This flat coun- guidelines § 72-1506. in I.C. impossible practically as ties rendered Petitioners, hand, al- On other Sims, Reynolds result of v. 377 U.S. with several of the coun- though disagreeing S.Ct. 12 L.Ed.2d 506 Commission, failed to ty splits by the made subsequent Supreme the U.S. deci- Court’s cast competent evidence to present any apportionment of state requiring sions validity of the Commission’s doubt upon legislatures emphasis equal give primary presented compe- no findings. Petitioners one-person, representation. Those one-vote showing that a number lesser tent evidence effectively appor- Idaho’s decisions rendered splits accomplished, while observ- could At that tionment scheme unconstitutional. ing of the federal and state requirements time, legislative apportionment was re- constitutions, Legislature’s as the as well Legislature, sponsibility of the Idaho based guidelines. do not refer in their Petitioners III, §§ 4 of the Idaho Con- any plan in the record that con- papers to of 1912 until stitution. From November splits than L87. tains a fewer number § 2 provid- November of they claim proffered Petitioners ed: just accomplish of one senate shall consist member but, when viewed based splits six legislature may county. from each fix upon in the record for determin- the criteria of members of the house of number ing splits, eight contains their representative at not more than three splits. compares with twelve That many representatives times as are there did not their Plan Petitioners submit L87. representa- senators. The senators Commission, proposed plan to the so is tives shall be chosen the electors of the part the Commission’s record. Petition- respective into counties or districts authenticated, plan is no ers’ is not there time, may, the state time to from be divid- it, prepared what criteria indication of who by ed law. considered, were or who determined where adopted until originally As and November of Therefore, and be made. why splits should 1986, III, provided: § 4 Article competent evidence before the Court. is legislature of the first shall members say tempted petition to Although I am the apportioned legislative be to the several present should for failure to be dismissed proportion in districts of the state case, legal pre- meritorious two issues are polled general number at the last of votes deserve a definitive answer. sented that delegate congress, election for to III, First, § 5 what does Article of the Idaho apportioned thereafter as be to be says county may mean when Constitution law; provided by provided, each reasonably “only to the extent it be divided representative. be shall entitled to one statute counties must comply to the U.S. divided” in order with Following the decennial census of Second, what role does the Constitution? Legislature to draw began efforts reapportion- Legislature equal representation provided districts that following process adoption required by Supreme Court deci- U.S. III, § 2 1994 to Article amendment sions, determining that apparently Article Constitution? III, § On third 5 had invalidated. been try, adopted, gover- and the Legislature § 5 to determine what Article order means, signed, Bill which was enact- in nor House it must be considered its historical of the 1982 Idaho adopted, provi- chapter ed into law as 182 originally context. As (Hellar Session Hellar v. Cenarrusa Laws. sion read:

353 I), quirements. P.2d 664 766 Id. at 682 P.2d at 104 Idaho 527. (1983). act 1 of that established The “thirty- Section district court established as, first, to policy forty-two state “adherence standards three with districts senate seats eighty-four representative deviance fed- population as established [with] seats law,” and, second, “preservation of eral case six multimember districts and seven floterial possible.” Section boundaries where districts.” Id. previous reapportionment repealed 2 Legislature, apparently The Idaho disen- adopted § plan contained 67-202 seeing chanted with floterial districts and reapportionment plan bearing a new prohibi- need to eliminate constitutional same code section number. counties, against dividing tion proposed a reapportionment plan The 1982 was chal- change constitutional to amendment I, lenged comply in Hellar for failure to reapportionment requirements. HJR III, § 5. The Court recited: Laws, p. No. Sess. 869. meas- ure, thirty-four undisputed approved by which was the Idaho thirty-five legislative election, general districts created electorate in the 1986 portion ... permit §§ House Bill 830 contain of a amended to and 4 county. Twenty-two thirty- divided thirty establish between join portion all or a thirty-five legislative five districts districts. The portions of one or prohibit of one more measure amended Article essence, apparent to, other direct violation floterial allow prohibition against of the constitutional di- counties to be divided but extent viding repre- duly adopted reapportionment form senatorial that a sentative districts. determined such division to be necessary order with the U.S. noted, P.2d at The Court Id. Constitution. appear “House Bill 830 does meet the equal representation requirement of the At the time the amendment Article Id. at United States Constitution.” approved 5 was the Idaho electorate at However, P.2d at 766. was not election, general legislative reappor- reapportionment satisfied that a could historically accomplished tionment had been both the not be devised feder- is, by duly Leg- statute. enacted That up- al and state and therefore constitutions islature fashion would declaratory held a order the district court plan, entirety incor- 3, § Const. Art. 5 is not “Idaho neces- porated replacement into a bill as a for the sarily equal protection invalidated 67-202, then-current version of Idaho Code clause of the fourteenth amendment the houses, passed by approved it would be both Constitution,” United States and remanded by governor placed the and into law. The 861, the further case for evidence. Id. 664 Legislature obviously pro- such intended that P.2d at 768. reapportionment cedure for would continue controversy very reap-

The came back to the Court in into the because next future the (Hellar II), portionment adopted, Hellar v. the Cenarrusa Idaho statute after voters 571, (1984), amendment, approved P.2d 524 wherein the Court the 1986 was handled is, legislatively-enacted just H.B. in declared the 830 to that fashion. That in its 1992 III, 5, session, § Legislature reap- be in contravention of Article be- the new devised a county splits. portionment plan, placed cause of the numerous Id. at it in bill as a 573-74, replacement The ap- existing 682 P.2d at 526-27. for the version of 67-202, same, § proved reapportionment plan adopted by approved the and obtained court, holding complied governor’s signature. the it the district that 1992 Idaho Sess. Laws, p. clearly § with both federal and state constitutional re- eh. 32.5 This indi- passage the 5. Of considerable interest fact that the after the of the 1986 amendment to III, Legislature certainly § § of I.C. divided Article the 1992 version 67-202 seventeen would seventeen-split reapportion- requirements Since this have been familiar with its and counties. just years was enacted law six would have the to into fashioned jacket requiring possible the fewest contemplated in Article the statute cates that but, rather, provision giving reasonable containing a III, reappor- § a statute was Legislature’s to the decision-mak- by law deference and enacted into plan drawn tionment ing authority efforts. under Legislature, based on the III, §§ 2 4. The constitu- and Article approved the the Idaho electorate When not foresee that the tional amendment did III, § 2 amendment to Article constitutional an approve amend- electorate would election, removing general in the 1994 general at the the Idaho ment to Constitution Leg- reapportionment responsibility from the job reappor- giving election placing responsibility islature that Const., art. to a commission. tionment commission, the reapportionment hands of a 2(2). Ill, § reasonably determining the responsibility for that, necessity dividing to time counties switched at the It is obvious III, might advisable adopted, § was have been to Commission. amendment Article reasonably specifically change responsibil- state which deter- the statute would III, ity § that was not be Article but whether counties must divided mine necessarily essential. standards was the Subsection meet U.S. constitutional III, § 2 retained statutory plan 1994 amendment to Article reapportionment statute —the engrafted into by Legislature originally adopted Legislature. the third sentence statute,” provision represen- words “determined senators used the —“The statute, itself, of the make tatives be chosen the electors meaning that would shall any particular reappor- respective or into which counties the determination may cannot time to time be divided proceeding. This be con- state from tionment but, gave grant delegation power as a subsections strued law”— reappor- county-split- responsibility to a Legislature set additional and, thus, “by Arti- words those ting requirements. The statute” tionment subsections III, Legislature’s § which the obviously related to the author- cle 2 became “law” III, di- respective §§ 2 and 4 to counties or districts would be ity under devise applied also reapportionment and enact statute. vided. Those new subsections Leg- provided provision give did not free rein to the Article apportioned not less any islature into Legislature make determination but, rather, legisla- thirty thirty-five than nor more than required the deter- desired necessity provided by law.” dividing mination as to tive districts “as Again, in Article “only had to the “law” referred to be reasonable — 2(2) III, §§ § 4 reasonably it is determined” is the law stated extent (4). And, III, § 2 removed Legislature’s since Article reapportionment statute —indi- Legislature from the cating that such determination would be sub- respon- process, exception of limited ject appar- court It seems rather review. 2(3), contemplated set forth Article ent that amendment sibilities longer no to en- Legislature would a measure of authorized discre- “determined,” tion, whereby dividing of coun- because word act the both pursu- by vir- ties indicating process,6 a deliberative would be and, thus, although “reasonably” indicating an tue of the word ant Article statute, 2(2) III, discretionary judgment. technically §§ lan- and element of a Article clearly guage was intended to be a strait- became “the law” which the division not Thus, thought requirements. Legislature's and the re- a decision about after those apportionment reach reasonably upon investigation; statute or decide 4 to establish necessary of; nature, that seventeen were in order to quality fix 5 to the kind affect comply with the United States Constitution. exactly; precisely; find calculate ascertain out to; give shape 6 to direction or affect. The word is defined in 6. "determine” Webster’s a decision about The third definition—to reach Ed., (Third College p. Dictionary New World investigation; upon— thought decide after and 375) as: appears appropriate in the context be the most bound; to; (a limits define 2 1 to set to settle III, § of Article 5. etc.) conclusively; dispute, question, decide 3 reasonably determined. create districts that would be is, States; designation a by the different the Constitution of the United and That third, reapportionment plan entity developing for whether and the extent to which the amendment to Article pursuant legislative guid- to the 1994 has Commission observed III, § electorate intended to provided § ance I.C. 72-1506. making responsibility for change Ysursa, County In Bonneville v. 142 Idaho determination, placing county-splitting 464, 473, (2005), this with a commission. six-member § Court indicated that I.C. 72-1506 was the was to the The 1994 amendment submitted III, § in Article 5. referenced We Legislative Council’s state electorate wrote: purpose, meaning and which said ment of § qualifies believe I.C. 72-1506 as the [W]e part, ap pertinent “If amendment Const., statute referenced in Idaho art.

proved, Legislature longer no the state would Ill, recognizes Legis- § 5. That statute process.” role in have a authority lature’s to authorize splitting approved general The voters in 1994 election Ill, § of counties under art. 5 and simulta- description. the amendment based neously people’s facilitates the intent of amendment, approval After the of the removing from the details Legislature’s only reapportion role district-drawing process, of the as evi- process providing ment was to “enact laws Ill, § denced in art. implementation provisions for the apparent becomes conclusion stat- 2],” including “additional standards [section analysis ed in that case is at odds Ill, 2(3). § govern the commission.” Art. set Having person out above. been who v. Bingham County In Comm’n for conclusion, wrote that let me issue mea Reapportionment, P.3d 137 Idaho culpa course, explanation. some offer Of (2002), legislature we “[t]he noted I speak cannot for the other members providing guidance enacted statutes signed opinion, Court who onto I and do redistricting. the task of Ida profess currently not to do so. The issue (emphasis §§ ho Code 72-1501-1508.” add squarely before was not before the ed). County Court in Bonneville and the narrow Having Legislature from removed the question posed that was there had much to reapportionment process, the 1994 amend- do with how the errant conclusion was job to a granted commission on Furthermore, reached. it must be admitted reapportionment. The amended largely that the conclusionwas result upon places great responsibility superficial analysis. somewhat The ultimate (1), when read in Commission. Subsection correct, result in Bonneville was but (4), conjunction with subsections my unsupport- view was reached an grants well as Article the Commis- quoted able route. The two sentences above authority complete sion discretion to de- simply supportable proper are under thirty whether to establish between above, termine analysis. As set forth the statute that thirty-five legislative districts. Subsec- determine whether coun- (4) provides authority tion the Commis- split clearly ties to be needed contem- prepare file proposed sion to plated legislative reapportionment to be the apportioning upon two-thirds vote. Sub- Furthermore, statute. the Commission the Commission’s states that authority § 2 draws its from Article shall in effect for all held after it elections Constitution, any the Idaho not from statute. filed, unless court order. amended County, Court was not 72-1506(5) saying role of the Court under amended the first, III, § language §§ 2 5 Article 5 is to determine: whether in to further limit plan complies the with one- the in counties Commission’s circumstances which could be second, person, requirements; split, reapportionment plan a one-vote nor that could III, pass § whether the has de- not muster under Article un- possible termined that counties must divided to less it contained the fewest number Rather, III, speaking § Article the language we were of sets county splits. of determining by standard for whether counties the which the determination of mechanism may accomplished. be divided. What we said is: county splits was to be We of following argument responding to the were people to We do not believe the intended made in that ease: Legislature kind retain in the the of over- sight petitioners urge. the people the intended

Petitioners contend [by pre- amendment] to Instead, virtue of the 1986 § quali- we believe I.C. 72-1506 integrity by serve boundaries the fies as the statute referenced in Idaho Const, requiring specific to ensure divi- Ill, statute recog- § art. 5. That statute necessary. They posit was sion of counties authority Legislature’s to nizes the author- merely that establishes Ill, section 72-1506 splitting ize the counties under art. provides no mechanism for criteria § simultaneously peo- facilitates the requisite determination that a making the ple’s removing Legislature the intent to be divided. county needs district-drawing details the from the Ill, § process, in art. 2. Peti- as evidenced III, § provides Id. Since Article argument tioners’ would us insert accomplished it only be where is “rea- district-drawing process a step into the statute,” sonably by became by people: the intended once Commis- identify necessary case to some stat- in that map sion based drew a tentative on all the ute. data, split and decided it needed to a few then, County, question The in Bonneville statutory have to obtain III, required § Article in was whether actually authorization do so.... It is county splits order for made Commis- amending therefore dear us that art. effect, they approved had to be sion take Ill, people § intended remove Legislature. enacted statute Legislature process. from details of the decision crux of Court’s § if interpreting way And not as it is § provided 72-1506 mechanism for oversight any we have eliminates over making the determination as to whether county-splitting. counties needed to be divided and that the at 1221. The Legislature from was to be removed that de- opinion in should have point At no termination. decision did stated that the Commission drew its authori- imply the Court that a would not be ac- III, ty § from Article the Com- ceptable § 5 if it under did not mission, through duly adopted plan, is the accomplish possible the fewest number Legislature intended mechanism county splits, Legislature or that the could make reasonable determination contem- establish stricter criteria statute than the plated § in Article criteria forth in There set the Constitution. III, § § language authorizing is no in Article if I.C. 72-1506 was the Even 5,§ Legislature to enact more restrictive re- referred to in Article the Commis- quirements dividing required by set than sion is not that statute to devise provision provision. forth in that allow- with the fewest number of ing Legislature set out duties of divisions. Code 72-1506 lists six mandatory reapportionment commission contained criteria for Commission to 2(3), criteria, “legis- plan. factor of those which states into its None however, providing specified being lature laws more shall enact the im- or less Thus, plementation provisions important any drawing than other. (1) plan, govern rely ... must: and additional standards the Commission added). data; (2) (emphasis preserve, to maxi- Idaho Code U.S. Census commission.” possible, neighbor- contains a list of what the mum extent “traditional 72-1506 wish interest”; hoods local communities of would like a substantially devising reapportion- equal popula- commission to do create districts tion; avoid, plan, provisions possible, dividing whenever but the that code counties; composed specific be read amend the create districts section cannot multiple counties; contiguous counties from performing high-wire act legis- that is (7) drawing refrain pro- Rather, from districts to lative drawing. district we must 72-1506(1)- political §§ tect interests. I.C. constrain our focus determining whether (8). (3), (5), (6), split If it was the intent of was done to improp- effectuate an purpose er Legislature requirements or whether to list these in right dilutes the to vote. priority, order of Neither has been should be observed that shown. There- fore, (5), preference our calling deferring subsection for county avoidance of to the compels splits, us to requirement is down the list from the resolve the is- sue in its favor. preserve local communities of interest in (2). mandatory subsection In addition to the Id. criteria, the Commission is also admonished Given setting in which Idaho voters (1) (2) districts; oddly to: avoid shaped limit adopted the language current of Article any county number of divisions of § 5 in it is clear that the “reasonably divided; must be voting precincts; retain statute” language was not an multi-county way draw in districts invitation to add statutory additional restric- that all counties in the district are connected upon but, tions the constitutional language by major 72-1506(4), (5), (7), §§ road. I.C. rather, designate mechanism which (9). the reasonable determination would be made. When the Idaho voters subsequently In County, approved we amend- ed the Constitution in place 1994 to discretionary Commission’s the re- call to make a sponsibility reapportionment the hands split, particularly in accordance Commission, of the language requirements of subsection III, § change, 5 did not 72-1506, language “by and the but, rather, § I.C. pursuant to sub- statute” still (2). referred to the mechanism We stated: which the reasonable determination was to make, The Commission had a choice to be made. justified by favoring statutory its choice preference keeping community intact a provided mechanism in the 1986 72-1506(2). § of interest. See I.C. In this amendment to determine whether counties instance, the choice of split had split to be order to with one- in a manner that results a district not person, one-vote was a legislative reappor- being wholly contained particu- within that tionment statute. That split meant that the judgment lar is a that must be accomplished had to be with the concurrence vested with the Commission. of both Legislature houses of the and the approval governor. That was obvious- 142 Idaho at 129 P.3d at 1221. The ly fairly high standard. When the voters Court deferred to the Commission’s determi- decided to Legislature remove the from the nation that the division of Kootenai reapportionment process in it was de- into districts compliance was in with Article termined that a III, § but, then, 5 of the Idaho Constitution authority wield that procedural under considering specifics when of one of the adopted by statutes Legislature. By vir- splits, applied statutory one of the require- Chapter tue particularly Title (2), § ments of I.C. 72-1506—subsection re- 72-1505(5), Legislature established a lating preservation of local communities of two-thirds vote of the Commission as the preference (5), interest —in to subsection call- approving threshold for plan, fairly also a avoidance, ing for possible, whenever case, high standard. the Commis- footnoted, county splits. We “We believe the sion’s decision was unanimous. judgment same discretion and that was vest- ed when it drawing proper way to read Article Commission, applies districts unless following the amendment of Article otherwise limited statute or the constitu- by the Idaho electorate in is that “a tion.” Id. We then stated: county may creating be divided in simply micromanage We cannot all the dif- to the extent that it is deter- steps ficult mechanism, Commission must take in mined the constitutional i.e. ever, possible, to the extent counties adopted pursuant to Article plan commission, split, be split not be or the should reapportionment should meet- kept possible create senatorial to the minimum while must be divided to counties comply which ing equal protection representative standards. United States.” constitution of the with the 874-75, 55 137 Idaho at P.3d at 867-68.7 holding in supported by our reading is That L87, findings regard In its with to Plan prac- County and dictated must Commission determined that counties reapportionment process. ticalities of U.S. divided in order with the be question whether Article The next is The Commission wrote: Constitution. requires county splits be considered counties, Although divided into 44 both splits whether all an individual basis or land counties population and area of the aggregated together determine must be disparate. example, For out of 44 are passes constitu- the total number whether counties, must in some be combined says that “a language The tional muster. or another to achieve a district fashion split only to the extent is county” constitutionally acceptable popula- awith “counties” must determined that Additionally, upon .... the lack tion based the U.S. Constitu- be divided to equal population of an distribution of language general deter- tion. The calls for state, throughout simple combi- often a county splitting must take mination that of counties district cannot nation into one plan in that will place order devise achieved, requires which therefore Constitution, leaving it comply with the U.S. county split satisfy to be in order to responsibility for entity statutory person-one requirement_ one vote carrying redistricting to make the out county split actually Each made this splits which reasonable determination of through- apportionment justified has been good sense,'given the odd make. This makes findings, acknowledge- out these many configuration of the Idaho and state of change ment that a determination of sparse large population of its county split only a requires state, that, with 44 areas of the and the fact competing but also justification, new and being dis- counties shoehorned into 30-35 ripple has a effect over all of the other tricts, accomplish impossible it would be multiple will districts as district boundaries splitting “counties.” without compliance shifted need to be to maintain Bingham County: As we stated in person-one with one vote. undisputed following It is that the counties findings specific then The Commission made split redistricting must be under a new supporting county split, each based on the Ada, Bannock, Bingham, Bonne- scheme: The one-person, requirement.8 one-vote ville, Canyon, Kootenai, Twin Falls. findings justifying Commission’s large population too for the Each has any regard in challenged not been also, apparent, ideal in a district. proceeding. state with 44 and 35 counties parts redistricting process dynamic one joining districts that counties or is a necessary. starting point counties with How- that must have a and an end- another is important justified by equal pro- part 7. It is to remember that the Court’s divisions must be analysis Bingham quite tection. Id. was tailored to facts case, different from those here. In that the Com- mission submitted with a deviation It should be noted even the 11.79%, presumptively which was unconstitu- guidance on in I.C. 72- divisions tional. 137 Idaho 55 P.3d at 865. 1506(5) appears contemplate consideration of justify tried to that unconstitutional case-by-case lan- division on a basis. The each by arguing keep split that it "to counties guage in that division of subsection indicates together neighborhoods traditional and commu- possible." shall be avoided "whenever avoiding oddly shaped of interest wording implies question nities while of wheth- This that the "laudable," any but possible particular districts.” Id. We said that was er it is to avoid n complying could not save the from is to be decided on an individual basis division during redistricting process. equal protection presumption encountered ing point, county splits of which will deter- appears the results be seven and it that one by progress purportedly to an the from one which accomplished mined extent could be is, configuration presented the other. That when the with six was the to to Commission determined, adopted, deter- just the first district is that and not we declare of the seven- split plan will the manner in which mination influence unconstitutional send the mat- determined, next and so on. ter back. It the district is becomes a race to the bottom. Here, begin likely the chose a certainty Commission to mathematical that tip at of Be- running work the northern the state. thousands of combinations per- had strip through sophisticated cause of the rather narrow to mutations a computer with, county plan whereby division neces- some percent work a became there is the ten sary right requirement the chute. division out of That deviation be could fulfilled and county followed splits was a multi-district division the lowest number of could be County, Kootenai like this likely much that which achieved. This would result the County. approved optimum plan in Bonneville As “optimum” equates to the —if made, subsequent county splits. each division was fewest number of The Commission carefully explained relegated its rea- job the Commission would be to of punching county soning. split, and, Each when dur- computer plans made buttons might while the ing ground, work course of its from the Canadian not make sense on the we would south to Nevada border and then have “optimum” border achieved the result split- of border, Wyoming ting However, appears west the fewest counties. this is reasonably way have been not the that reapportionment has ever supported by logical Idaho, Commission and find- been conducted the State of and it is, ings. individually, That when viewed is not the result dictated Idaho Con- requires, § split each makes stitution. good Only fulfilling require- sense. after The reason we have a Commission is to making county splits deter- when it bring equation— the human into the element necessary mined them to preserve neighborhoods traditional and lo- requirements, meet federal did constitutional interest, cal communities gerry- to avoid apply the Commission man- designated protect mandered districts par- 72-1506, way pur- dates enacted of I.C. incumbents, political parties ticular authority suant to the contained in Article might always up like. We not end 2(3). Again, appeal’s the Commis- very county least splits possi- number of applied legislative guidelines sion in a ble, nothing but there is in the Constitution reasonable fashion. requires that to be done. The all, place the Commission did a word play remarkable “minimum” comes into 72-1506(5), where, job. through One cannot read the Commis- after it is deter- findings concluding county divided, sion’s of fact without a mined that must reasonable, accomplished their task was number of divisions in that should In- kept conscientious and constitutional manner. then to a “be minimum.” Had the deed, voters, do not Petitioners contend that the when the amendment was made to 5,§ im- require Commission’s work influenced intended a mini- proper they factors or carried out for splits, nefarious mization could have purposes. They just employed contend that such language They that time. absolutely were neces- Had they give made where did not. intended sary produced many ability subsequently and that the too make requirement, them. they such a could have included language such in the amendment at that job If merely Court is to count They time. did not. We should not read into up county splits and consider whether provision language the constitutional that is some could been devised with few- have not there. them, regardless er of the rationale of job our plans, imposes requirement those alternate is rather sim- If this Court strict ple. approves plan adopt If the the Commission whatever above, As demonstrated representatives.” percent population deviation ten meets the recognized number of in Bonneville possible lowest this Court produces the discretion county splits, the Commission’s the 2002 gave that it will and we point good deal discretion limited had will be decisions, rigid rule ob- function. Such to a number of its realistic deference no judg- § 4 of the Con- nullify Article “the essentially serving that same discretion stitution, of apportionment authorizes in the vested ment Ar- thirty thirty-five districts. drawing applies between it was when authori- the Commission grants Commission, § 2 ticle limited unless otherwise It seems to make that call. ty and discretion 142 Idaho at or the Constitution.” the Com- fewer districts 8,129 that the apparent 472, P.3d at 1221. fn. upon, county splits the more decided mission pop- Supreme Court has allowed The U.S. necessary. If the Commission would be greater percent deviations than ten ulation circumstances, must, at the all arrive under justify proper exist to where circumstances county splits, it number possible of lowest Howell, greater Mahan v. such deviation. any impossibility to select a virtual

becomes 315, 319, 979, 982-83, 35 410 U.S. 93 S.Ct. thirty-five dis- the maximum of less than 320, (upholding a redis- 327 L.Ed.2d tricts, nullifying essentially therefore tricting plan with deviation because 16.4% 4, well as first sentence of as “policy furthered of main- plan the state 2(1). III, § integrity political subdivi- taining the of requirement achieve the abso- A strict sions.”). Bingham Court indicated in This county splits number would minimum of lute probably do likewise. County that would effectively nullify criteria also (implying 55 Idaho at P.3d at 866 137 rule in I.C. The strict out 72-1506. set might greater that a than-10% deviation strip any effectively of the Commission would scrutiny justifica- with “sufficient withstand reapportionment devising discretion Mahan.) However, tion,” citing to since, giving high priority plan, such willingness opinion here indicates no Court’s counties, any splitting other of of elimination adopt plan allow the Commission to considerations, neighbor- such traditional possible no more fewest would make than the interest, hoods, local communities county splits, considering without even out of reach. justification doing I find it odd that so. analyze the Commis- we would not least always recognized has that the This Court determinations, especially when sion’s there plan body fashioning has in the indicate that is no evidence record to In Hel amount of discretion. a substantial good reasonably exer- act in faith or did not (Hellar III), 106 Idaho lar v. Cenarrusa doing cise its discretion so. (1984), in the speaking P.2d 541 682 one-vote, one-person, we said: context of looking face merely Rather than at the is, legislature apportionment of the [T]he reapportionment plan determining instance, first a matter of in the many county splits, we that it has too should judgment. will The courts discretion type analysis we perform here the did enacted legislatively unless a not intervene County. Bingham pass muster. plan fails constitutional is, we should review and consider the That they challenged county splits if regard, worthy it is of note that the to see were In this Court, likewise, discretion. In Supreme has observed made within Commission’s U.S. County, legis- Bingham the Court considered the propriety according deference to Petitioners, one-person, by as well as claims made apportioning lative bodies Thomson, presented by reapportion- justifications 462 context. Brown v. one-vote 835, 847-48, Commission. 137 Idaho at P.3d S.Ct. U.S. (1983), recog- The Court considered whether the the Court at 865. L.Ed.2d complied one-person, one-vote is to be nized that “substantial deference Constitution, political peo- requirements the U.S. decisions of the accorded specified county splits were ade- acting through elected ple a State their whether quately supported by the Commission’s find- oddly

ings, whether contained districts, shaped whether lines, properly precinct boundary observed preserved and whether the traditional neighborhoods communities of in- and local County, the

terest. Id. In Bonneville limited, similar, performed analy- but more sis, one-vote, focusing one-person, division splitting precincts.

of certain See Idaho at P.3d at 1220.9 Here, carefully the Commission crafted its fact, findings of seems to me that it is incumbent on the Court to review them to

determine whether Commission carried statutory responsi- out its constitutional plan bilities. Commission files a When the facially comports equal protection, our review of that must be deferential.

I would hold Plan L87 constitutional and petition.

dismiss the

271 P.3d 1217 Idaho, Plaintiff-Respondent, STATE of

v. WHITE, Cary William Defendant- Appellant. 36765.

No. Appeals Court of Idaho. 14, 2011. Dec. March Review Denied seventy-eight precinct splits right 9. There are two additional items of interest in affected their First, County. although it does not to vote. 142 Idaho at P.3d at 1223. appear opinion, reported at issue appeared The Court noted that it the Petitioners' case, in contained in the record of keeping was more in with the intent of the case, county splits, this contained nine as calcu- statutory provision, it would and that have been pursuant lated criteria utilized in helpful explain why for the to better interest, matter. Also of County plan is that the Bonneville needed, concluded, many splits so were but "In seventy-eight precinct contained light degree deference we must afford splits, which the Petitioners claimed to Commission, and in the absence of evidence 72-1506(7). plan pre- violation of I.C. precinct right that the harmed the ferred the Petitioners that case contained vote, splits. Petitioners have failed show the Plan precinct thirteen The Court noted rejected.” explain failed that the Petitioners had how the must be Id.

Case Details

Case Name: Twin Falls County v. Idaho Commission on Redistricting

Court Name: Idaho Supreme Court

Date Published: Jan 18, 2012

Citation: 271 P.3d 1202

Docket Number: 39373

Court Abbreviation: Idaho