by Daniel Page
Idaho’s redistricting problems seem far from over. Several localities are less than pleased with the second redistricting commission’s adopted plan. Several Counties, county commissioners, and cities, including Twin Falls County, Teton County, and Owyhee County have collectively sued the redistricting commission and the Secretary of State. The plaintiffs are complaining because of map L87, which divides the state into 35 districts, each of which may elect two representatives and one senator. Each of these localities dislikes the way the lines were drawn because it divides the localities and combines them with other localities, diluting the plaintiffs’ votes.
In a 2002 case called Bingham County v. Idaho Commission for Reapportionment, Idaho recognized that under Brown v. Thomson, any redistricting plan with a deviation of more than 10% was prima facie violative of the U.S. Constitution’s equal protection clause. In that case, the Idaho Supreme Court stated:
“[T]he need to comply with the standards of equal protection in the United States Constitution is paramount. In approaching that goal, Article III, § 5 of the Idaho Constitution is the beginning point. A plan must begin with the premise that the counties will not be split unless it is necessary to meet standards of equal protection. If it is necessary to go outside county boundaries to form a district, considerations in § 72-1506 come into play, such as joining communities of interest and avoidance of oddly shaped districts. Those are factors to be considered, but they are subordinate to the Constitutional standard of voter equality and the restrictions in the Idaho Constitution upon splitting counties except to achieve that voter equality.”
Article III § of the Idaho Constitution states in part that “a county may be divided in creating districts only to the extent it is reasonably determined by statute that counties must be divided to create senatorial and representative districts which comply with the constitution of the United States. A county may be divided into more than one legislative district when districts are wholly contained within a single county.”
In applying the Bingham case, the Idaho Supreme Court will need to decide whether it is necessary to meet the standards of equal protection to split the counties. If the Supreme Court finds a plan where it is unnecessary to split the counties in order to satisfy equal protection, then the court should strike down the reapportionment plan because it violates the Idaho Constitution under Bingham. The plaintiffs, helpfully, have supplied a plan with a lower deviation that doesn’t split the counties into as many pieces as the redistricting commission’s plan does.
It does, however, still split the counties. Ada County, for example, contains more than a quarter of the state’s population, making it impossible to create thirty-five districts with roughly equal populations without splitting the counties.
While the defendants may have a better imagination than I, the only way I see the defendants winning in this case is if the court decides as follows: First, §72-1506 is implicated because both plans split counties. Second, it is ok to further split counties to avoid violations of §72-1506. The court could then dismiss the second and third claims, stating that it will not engage in the legislative task of deciding which parts of §72-1506 are more important than others, or that it will not engage in the legislative task of deciding which communities of interest are best kept within the same voting district.
This outcome, however, seems to take the view that the Idaho constitution is a porcelain vase, and that once broken, it should not matter into how many pieces it breaks. The plaintiffs would rather, I’m sure, that the court view the constitution as Idaho’s skeletal system where each fracture weakens and damages the body of the state. If the court took this view, it could simply state that regardless of whether the plaintiffs’ plan violates different parts of the state law or more of the state law, it is preferable because it is less violative of the state constitution.
Daniel Page is a third-year law student at William & Mary.