Durst v. ID Comm. for Reapportionment ( 2022 )

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket Nos. 49261, 49267, 49295 & 49353
BRANDEN JOHN DURST, a qualified elector )
of the State of Idaho, )
)
Petitioner, ) Boise, January 2022 Term
)
and ) Opinion Filed: March 1, 2022
)
CANYON COUNTY, a duly formed and ) Melanie Gagnepain, Clerk
existing county pursuant to the laws and )
Constitution of the State of Idaho, ) SUBSTITUTE OPINION, THE
) COURT’S PRIOR OPINION
Intervenor-Petitioner, ) DATED JANUARY 27, 2022, IS
) WITHDRAWN
v. )
)
IDAHO COMMISSION FOR )
REAPPORTIONMENT, and LAWERENCE )
DENNEY, Secretary of State of the State of )
Idaho, in his official capacity, )
)
Respondents, )
______________________________ )
)
ADA COUNTY, a duly formed and existing )
county pursuant to the laws and Constitution )
of the State of Idaho, )
)
Petitioner, )
)
v. )
)
IDAHO COMMISSION FOR )
REAPPORTIONMENT, and LAWERENCE )
DENNEY, Secretary of State of the State of )
Idaho, in his official capacity, )
)
Respondents. )
______________________________ )
)
SPENCER STUCKI, registered voter pursuant )
to the laws and Constitution of the State of )
Idaho, )
)
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Petitioner, )
)
v. )
)
IDAHO COMMISSION FOR )
REAPPORTIONMENT, and LAWERENCE )
DENNEY, Secretary of State of the State of )
Idaho, in his official capacity, )
)
Respondents. )
_____________________________ )
)
CHIEF J. ALLAN, a registered voter of the )
State of Idaho and Chairman of the Coeur )
d'Alene, Tribe, and DEVON BOYER, a )
registered voter of the State of Idaho and )
Chairman of the Shoshone-Bannock Tribes, )
)
Petitioners, )
)
v. )
)
IDAHO COMMISSION FOR )
REAPPORTIONMENT, and LAWERENCE )
DENNEY, Secretary of State of the State of )
Idaho, in his official capacity, )
)
Respondents. )
Original proceeding before the Supreme Court of the State of Idaho.
The petitions are denied.
Bryan D. Smith, Smith Driscoll & Associates, PLLC, Boise, for petitioner, Branden
Durst. Bryan D. Smith argued.
Bryan F. Taylor, Canyon County Prosecuting Attorney, Caldwell, for intervenor-
petitioner, Canyon County. Alexis Klempel argued.
Jan M. Bennetts, Ada County Prosecuting Attorney, Boise, for petitioner, Ada
County. Lorna Jorgensen argued.
Spencer Stucki, petitioner pro se.
Deborah A. Ferguson and Craig Durham, Ferguson Durham, PLLC, Boise, for
petitioners Chief J. Allan and Devon Boyer. Deborah A. Ferguson argued.
2
Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents, Idaho Commission
for Reapportionment and Lawerence Denney. Megan A. Larrondo argued.
_____________________
STEGNER, Justice.
This case arises out of multiple petitions challenging the constitutionality of Plan L03, the
legislative redistricting plan adopted by the Idaho Commission for Reapportionment (“the
Commission”) following the 2020 federal census.
Under Article III, Section 2 of the Idaho Constitution, the six-member bipartisan
Commission is tasked with creating 35 new legislative districts after each decennial federal census.
These districts, collectively referred to as a “plan,” must conform to the requirements set forth by
the Federal Constitution, the Idaho Constitution, and statute. Petitioners generally argue that Plan
L03 splits more counties than is required to comport with federal constitutional requirements,
rendering Plan L03 unconstitutional under the Idaho Constitution. The petitions were filed before
this Court, which has original jurisdiction over them pursuant to Article III, Section 2 of the Idaho
Constitution. Petitioners request that this Court issue a writ of prohibition to restrain the Secretary
of State from transmitting a copy of the Commission’s Final Report and Plan L03 to the President
Pro Tempore of the Idaho Senate and the Speaker of the Idaho House of Representatives. For the
reasons discussed below, we decline to issue such a writ.
I. FACTUAL AND PROCEDURAL BACKGROUND
Every ten years, the federal government conducts a national census. When the results of
that census are available, Article III, Section 2 of the Idaho Constitution requires a six-member
bipartisan commission be formed to draw new electoral district boundaries. IDAHO CONST. art. III,
§ 2. Idaho received the results of the 2020 federal census on August 12, 2021. That same day, the
Secretary of State entered an order establishing the Idaho Commission for Reapportionment. The
six members of the Commission convened on September 1, 2021.
On November 5, 2021, after weeks of traveling around the state and holding public
hearings seeking feedback from residents, the Commission unanimously voted to adopt Plan L03.
On November 10, 2021, the Commission “reaffirmed its adoption” of Plan L03, adopted its “Final
Report,” and adjourned. The Commission filed its Final Report with the Secretary of State’s office
on November 12, 2021.
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On November 10, 2021, Branden Durst filed a verified petition against the Commission
and the Secretary of State (collectively “the Respondents”), urging this Court to review Plan L03,
conclude it violated Idaho’s Constitution because it divided more counties than necessary to
comply with the Equal Protection Clause, and adopt his proposed plan (L084). A week later, on
November 17, 2021, Ada County filed a similar petition alleging Plan L03 violated Idaho’s
Constitution. On November 19, 2021, Respondents moved to consolidate the two cases. This Court
granted Respondents’ motion.
Spencer Stucki filed a pro se petition challenging L03 on December 1, 2021, alleging
different areas of the state were treated unequally and that the Commission should have adopted a
plan which split nine counties instead of eight.
Next, Chief J. Allan and Devon Boyer, leaders of the Coeur d’Alene and Shoshone-
Bannock tribes respectively, filed a verified petition challenging Plan L03 on December 16, 2021,
on the grounds it unconstitutionally divided more counties than necessary and failed to preserve,
to the maximum extent possible, communities of interest as required by Idaho Code section 72-
1506. Petitioners Allan and Boyer moved to consolidate their case with Durst and Ada County’s.
This Court granted the motion to consolidate, and additionally sua sponte consolidated Stucki’s
case, as all four petitions challenge Plan L03. This Court designated Durst v. Idaho Commission
for Reapportionment as the lead case.
Finally, Canyon County filed a verified petition to intervene in Durst’s case. This Court
granted Canyon County’s petition to intervene. No other petitions challenging the legislative
redistricting plan were filed. The time for filing a petition challenging the Commission’s legislative
redistricting plan has now expired. The consolidated cases proceeded to argument before this
Court.
II. STANDARDS OF REVIEW
“In accord with Article III, Section 2(5) of the Idaho Constitution, any registered voter, any
incorporated city or any county in this state, may file an original action challenging a congressional
or legislative redistricting plan adopted by the Commission on Reapportionment.” I.A.R. 5(b).
This Court has “original jurisdiction over actions involving challenges to legislative
apportionment.” IDAHO CONST. art. III, § 2.
There is a hierarchy of applicable law governing the development of a plan
for apportioning the legislature: The United States Constitution is the paramount
authority; the requirements of the Idaho Constitution rank second; and, if the
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requirements of both the State and Federal Constitutions are satisfied, statutory
provisions are to be considered.
Twin Falls Cnty. v. Idaho Comm’n on Redistricting, 152 Idaho 346, 348, 271 P.3d 1202, 1204
(2012).
The burden to prove a plan is unconstitutional lies with the challenger to the plan. See
Bonneville Cnty. v. Ysursa, 142 Idaho 464, 468, 129 P.3d 1213, 1217 (2005) (stating that “the
challenger holds the burden to prove that [] the deviation resulted from an unconstitutional or
irrational state purpose or that the strength of voters’ votes has been diluted”).
III. ANALYSIS
A. We first address whether Durst’s petition is timely.
Respondents argue that Durst’s petition was untimely because it was filed prematurely.
Durst filed his verified petition at 5:01 p.m. on November 10, 2021. Although the Commission
voted to adopt Plan L03 on November 10, 2021, the Commission’s Final Report was not officially
filed with the Secretary of State until November 12, 2021.
On November 18, 2021, recognizing his petition may have been “ ‘premature’ because it
was filed before the Final Report was filed with the Secretary of State,” Durst filed a “motion for
clarification” requesting that this “Court enter an order clarifying the status of his Petition for
Review so that Petitioner will know whether the current pleading is timely or whether Petitioner
will need to refile his Petition for Review.” This Court denied Durst’s motion on November 22,
2021, concluding that “the motion for clarification [was] an effort to obtain an advisory ruling
from the Court. This Court decline[d] the invitation to provide an advisory opinion.”
In their response brief, Respondents assert that Durst’s petition was untimely because it
was filed “two days before the Commission’s Final Report was transmitted to the Idaho Secretary
of State’s Office.” (Italics added.) In reply, Durst argues that his petition is timely because Idaho
Appellate Rule 5(b) requires a petition be filed within thirty-five days of the filing of the Final
Report but does not require that the petition be filed within the thirty-five days after the filing of
the Final Report. Durst further contends that, even if his petition was filed early, pursuant to Idaho
Appellate Rules 17 and 21 the Court should treat the petition “like a prematurely filed notice of
appeal” which “became valid when the Final Report was filed with the Secretary of State.”
Idaho Appellate Rule 21 states that
the failure to physically file . . . a challenge to a final redistricting plan with the
clerk of the Supreme Court . . . within the time limits prescribed by [the Idaho
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Appellate Rules], shall be jurisdictional and shall cause automatic dismissal of such
appeal or petition, upon the motion of any party, or upon the initiative of the
Supreme Court.
I.A.R. 21. Idaho Appellate Rule 5(b) governs the time limit for filing a challenge to a redistricting
plan: “Such challenges shall be filed within 35 days of the filing of the final report with the office
of the Secretary of State by the Commission.” I.A.R. 5(b) (italics added).
While Durst’s reading of the Rule may appear meritorious on its face, he neglects to
consider Idaho Appellate Rule 22, which governs the computation of time. Rule 22 provides in
relevant part:
In computing the time period prescribed or allowed for the filing or service of any
document in these rules, the day of the act or event after which the designated
period of time begins to run is not to be included, but the last day of the period so
computed is to be included . . . .
I.A.R. 22 (italics added). In a redistricting challenge, the time period “begins to run” after the
Commission’s filing of its final report with the Secretary of State. I.A.R. 5(b). Rule 22 clearly does
not contemplate a retrospective time period calculation.
Nevertheless, the fact that Durst filed his petition early is not fatal to his case. We have
historically held that a notice of appeal filed prior to the entry of a written appealable judgment
becomes valid once the written appealable judgment is entered. See, e.g., Spokane Structures, Inc.
v. Equitable Inv., LLC, 148 Idaho 616, 621, 226 P.3d 1263, 1268 (2021). Based on the
circumstances here—showing that the Final Report was completed the day Durst filed his petition,
but not yet officially filed with the Secretary of State’s office until two days later—we see no
reason to refrain from applying this principle here. I.A.R. 48 (“In cases where no provision is made
by statute or by these rules, proceedings in the Supreme Court shall be in accordance with the
practice usually followed in such or similar cases[.]”). Therefore, we hold Durst’s petition became
valid on November 12, 2021, after the Commission filed its Final Report with the Secretary of
State’s office. Accordingly, Durst’s petition is timely, and we will consider its merits.
B. Petitioners have failed to establish that the Commission “unreasonably
determined” that Plan L03 comported with the federal and state constitutions.
1. The Federal Constitution
Before we address Petitioners’ arguments that the Plan violates Idaho’s Constitution, we
must initially determine whether the Plan complies with the Equal Protection Clause of the Federal
Constitution. Our reasons for doing so are twofold. First, the hierarchy of applicable law governing
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redistricting provides that the Equal Protection Clause of the Federal Constitution is the paramount
authority. Twin Falls Cnty., 152 Idaho at 348, 271 P.3d at 1204. Second, Idaho’s Constitution
prohibits the division of counties, except to meet the constitutional standards of equal protection.
Id. at 349, 271 P.3d at 1205.
The United States Supreme Court has held that the Equal Protection Clause of the Federal
Constitution requires the seats in both houses of a bicameral state legislature be apportioned on a
population basis. Reynolds v. Sims, 377 U.S. 533, 568 (1964). “[T]he Equal Protection Clause
requires that a State make an honest and good faith effort to construct districts, in both houses of
its legislature, as nearly of equal population as is practicable.” Id. at 578. While the Court
recognized that a state may legitimately desire to maintain the integrity of various political
subdivisions, “the overriding objective must be substantial equality of population among the
various districts, so that the vote of any citizen is approximately equal in weight to that of any
other citizen in the State.” Id. at 578-79. The Court later held that an apportionment plan with a
maximum population deviation 1 under 10% was insufficient to make out a prima facie case of
invidious discrimination under the Equal Protection Clause so as to require justification by the
state. Brown v. Thompson, 462 U.S. 835, 842 (1983). A plan with larger disparities in population,
however, creates a prima facie case of discrimination and therefore must be justified by the state.
Id. at 842-43.
Based on the data gathered during the 2020 federal census, the population of the state of
Idaho is 1,839,106. Idaho has thirty-five legislative districts. If Idaho’s population was equally
divided among the thirty-five districts, the “ideal district size” would be 52,546 people. 2 The
Commission found that Plan L03 had a maximum population deviation of 5.84%, which is
presumptively constitutional from an equal protection standpoint and is, in fact, the lowest
1
“Maximum population deviation expresses the difference between the least populous district and most populous
district in terms of the percentage those districts deviate from the ideal district size.” Bonneville Cnty., 142 Idaho at467 n.1, 129 P.3d at 1216 n.1. “For example, if among thirty-five districts, the least populous district is four percent
below the ideal, and the most populous district is four percent above the ideal, the maximum population deviation
would be 4-(-4), or eight percent.” Id.2
1,839,106 divided by 35 is 52,545.89 people per district, rounded to two decimal places. See Bonneville Cnty., 142
Idaho at 467 n.1, 129 P.3d at 1216 n.1 (“The ideal district size is calculated by dividing the total population by the
number of districts.”). Because it is impossible to include 0.89 people in a district, the Commission rounded up to the
nearest whole number.
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deviation for a plan ever adopted by a commission 3 in discharging its constitutional obligation.
None of the petitioners contend that Plan L03 violates the Equal Protection Clause of the Federal
Constitution.4
2. The Idaho Constitution
We next turn to the determination of whether L03 violates Article III, section 5 of Idaho’s
Constitution. Article III, section 5 of Idaho’s Constitution guides our review of Petitioners’ claims:
A senatorial or representative district, when more than one county shall constitute
the same, shall be composed of contiguous counties, and 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.
IDAHO CONST. art. III, § 5 (italics added). As written, the phrase “reasonably determined by statute”
suggests we should review the reasonableness of a “statute” to determine whether Plan L03 is
constitutional. The phrase, however, is ambiguous because it is unclear to which statute it refers.
From the outset, we are skeptical of any effort to seemingly allow a “statute” to control our
interpretation of the Constitution in any respect, given that a statute constitutes “[a] lower ranking
source of law in this hierarchy [and] is ineffective to the extent that it conflicts with a superior
source of law.” Twin Falls Cnty., 152 Idaho at 348, 271 P.3d at 1204.
Further confusion exists because the phrase “by statute” has been previously interpreted by
this Court in the following manner:
[W]e believe I.C. § 72-1506 qualifies as the statute referenced in Idaho Const. art.
III, § 5. That statute recognizes the Legislature’s authority to authorize splitting of
counties under art. III, § 5 and simultaneously facilitates the people’s intent of
3
The 2001 Commission originally adopted Plan L66, which had a maximum population deviation of 10.69%; Plan
L66 was struck down by this Court in Smith v. Idaho Commission for Reapportionment. 136 Idaho 542, 544, 38 P.3d
121, 123 (2001). The 2001 Commission then adopted Plan L91, which had a maximum population deviation of
11.79%; Plan L91 was also struck down by this Court. Bingham Cnty., 137 Idaho at 872, 55 P.3d at 865. The 2001
Commission then adopted, and this Court upheld, Plan L97, which had a maximum population deviation of 9.71%.
Bonneville Cnty., 142 Idaho at 468, 129 P.3d at 1217. Following the next census, the 2011 Commission adopted Plan
L87, which had a maximum population deviation of 9.92%. Plan L87 was struck down by this Court in Twin Falls
County. 152 Idaho 346, 271 P.3d 1202. The 2011 Commission subsequently adopted Plan L93, which had a maximum
population deviation of 9.70% and remained in place until the current Commission adopted Plan L03.
4
Petitioner Stucki seemingly contends that, had the statutory criteria in Idaho Code section 72-1506 been applied in
such a way as to effectuate nine county splits, equal protection could have been better promoted. However, he concedes
that Plan L03 complies with the Federal Constitution: “By holding tightly to the requirement to make districts as
nearly equal in size with low deviations they [the Commissioners] were meeting the provisions of the United States
and Idaho constitutions.”
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removing the Legislature from the details of the district-drawing process as
evidenced in art. III, § 2.
Bonneville Cnty., 142 Idaho at 473, 129 P.3d at 1222. As we are given the task of interpreting the
phrase “reasonably determined by statute,” we disavow this Court’s prior interpretation of it in
Bonneville County as an inaccurate statement of law.
In order to explain our disavowal, we need to delve into the history of article III, section 5.
The Legislature, not the Commission, was responsible for redistricting in 1986. During the
legislative session that year, the Legislature proposed amendments to article III, sections 2, 4, and
5 of the Constitution to permit the Legislature to vary the number of districts from 30 to 35, to
prohibit floterial districts, and to essentially eliminate the anachronistic constitutional provision
prohibiting the division of counties. H.R.J. Res. No. 4, 1986 Idaho Sess. Laws 869–70. The three
proposed amendments were approved by Idaho’s voters in the general election of 1986. The
amendment of article III, section 5 allowed counties to be divided, but only to the extent that a
duly adopted reapportionment statute reasonably determined county divisions to be necessary in
order to comply with the Equal Protection Clause of the Federal Constitution.
At the time the amendment to article III, section 5 was approved by the voters in 1986,
redistricting had been accomplished like any other legislation: by a legislatively passed and
gubernatorially signed statute, which was codified in Idaho Code section 67-202. (Section 67-202,
as it existed in 1986, was subsequently repealed in 2009 and is no longer in use today. Act effective
July 1, 2009, ch. 52, § 1, 2009 Idaho Sess. Laws 135–36.) In other words, the legislature would
create a redistricting plan, the entirety of which would be incorporated into a bill to amend Idaho
Code section 67-202. If both houses passed the legislation and it was signed by the Governor, it
would become law and define the boundaries of each legislative district until the next decennial
census, unless it was established in court by an objecting party that the resulting districts were
“unreasonably determined” by the Legislature.
Following the 1986 amendment to article III, section 5, the process by which the
Legislature created legislative districts continued to utilize Idaho Code section 67-202. In 1992,
the Legislature created a new redistricting plan and drafted a bill to amend the then-existing version
of Idaho Code section 67-202. Both houses of the Legislature passed the bill, which was then
signed by the Governor. Act of Mar. 2, 1992, ch. 13, § 2, 1992 Idaho Sess. Laws 32–38. Notably,
the Legislature’s 1992 redistricting plan split seventeen counties, notwithstanding the fact that the
Legislature had to be aware of the recently amended article III, section 5 of the Idaho Constitution
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which stated “a county may be divided in creating districts only to the extent it is reasonably
determined by statute that counties must be divided. . .”
Given this history, it is clear that at the time of the 1986 amendment of article III, section
5, that the words “by statute” did not refer to Idaho Code section 72-1506 as we incorrectly
concluded in Bonneville County, but instead referred to the then-existing Idaho Code section 67-
202. As previously explained, that latter statute authorized the Legislature to reapportion the state’s
legislative districts. Accordingly, based on this analysis, we disavow the statement in Bonneville
County which states the words “by statute” in article III, section 5 refer to Idaho Code section 72-
1506. They do not.
Instead, the phrase “reasonably determined by statute” must now be interpreted in light of
subsequent amendments to Idaho’s Constitution which transferred the responsibility to redistrict
Idaho from the Legislature to a citizen’s commission. In 1993, the Legislature proposed
amendments to article III, section 2 of Idaho’s Constitution. S.J. Res. No. 105, 1993 Idaho Sess.
Laws 1530–31. The amendments, which were ratified in 1994, provided that a bipartisan citizens’
commission, rather than the Legislature, would be responsible for the legislative redistricting
process. Subsequent legislation in 1996 created the eight statutes governing the commission that
are still largely in effect today. Act of Mar. 12, 1996, ch. 175, § 1, 1996 Idaho Sess. Laws 561–64;
see also I.C. §§ 72-1501–08. The Statement of Purpose accompanying the 1996 legislation
indicates that “[t]he purpose of this legislation [wa]s to implement the provisions of Section 2,
Article III, of the State Constitution.” No mention was made of implementing any of the provisions
in article III, section 5. Article III, section 5 has not been amended since 1986, so the “reasonably
determined by statute” phrasing remains.
In light of this history, the phrase “reasonably determined by statute” should be read as
“reasonably determined.” The “by statute” language became inoperative in light of the 1994
constitutional amendment because, unlike the Legislature, the Commission does not need to pass
a statute to implement the redistricting plan it adopts. Further, given the 1994 constitutional
amendment, the language “reasonably determined” now refers to the Commission’s
determinations concerning how many counties must be divided to comply with the Federal
Constitution. Article III, section 5 thus directs us that, when reviewing Petitioners’ claims, we
must determine whether the Commission “reasonably determined” the number of counties that
must be divided to comply with the Equal Protection Clause. This interpretation is consistent with
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our prior holdings. See, e.g., Bonneville Cnty., 142 Idaho at 472 n.8, 129 P.3d at 1221 n.8 (“We
believe the same discretion and judgment that was vested in the Legislature when it was drawing
districts applies to the Commission, unless otherwise limited by statute or the constitution.”).
In its Final Report, the Commission explicitly found that Plan L03 had a maximum
population deviation of 5.84% and divided eight counties: Ada, Bannock, Bonner, Bonneville,
Canyon, Kootenai, Nez Perce, and Twin Falls. The Commission noted that there were five plans—
L071, L075, L076, L077, and L079—proposed by members of the public that divided only seven
counties; however, in considering these other plans, the Commission determined that “each would
likely violate the Equal Protection Clause and that they [were] also inconsistent with other
principles applicable to the redistricting process.”
Petitioners Durst, Ada County, Allan, Boyer, and Canyon County all assert that Plan L03
is unconstitutional under Article III, section 5 of the Idaho Constitution because Plan L03 splits
more counties than necessary to comply with the Federal Constitution’s Equal Protection Clause.
Except for Durst, these Petitioners identify three of the publicly submitted plans, rejected by the
Commission, which split only seven counties: Plans L075, L076, and L079. Because the total
population deviation in each of these plans is at or just below 10%, rendering the plans
presumptively constitutional under the Equal Protection Clause, Petitioners contend the existence
of these plans demonstrate that the number of county divisions necessary to comply with the Equal
Protection Clause is seven. Therefore, Petitioners argue that Plan L03 is unconstitutional under
Article III, section 5 of the Idaho Constitution because it splits eight counties, one more than is
necessary to comply with the Federal Constitution.
In addition, Durst contends that the Commission neglected to adequately consider his
proposed plan, Plan L084, asserting that “[t]he Commission treated Plan L084 as if it had the same
number of counties divided as Plan L03 because the Commission did not differentiate between
internal and external divisions[.]” Durst argues internal divisions should be favored over external
divisions and contends Plan L084 should have been considered along with the other five plans that
only divided seven counties, because each divided county in those plans has an external division.
This Court has previously held, when assessing whether a redistricting plan violates the
Idaho Constitution because it divides too many counties, that “[a] county can be divided solely for
one reason—‘to the extent it is reasonably determined by [the Commission] that counties must be
divided to . . . comply with the constitution of the United States.’ ” Twin Falls Cnty., 152 Idaho at
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349, 271 P.3d at 1205 (quoting IDAHO CONST. art. III, § 5) (italics and ellipsis in original). “The
extent to which counties (plural) must be divided to comply with the Federal Constitution can be
determined only by counting the total number of counties divided under the plan.” Id. “If one plan
that complies with the Federal Constitution divides eight counties and another that also complies
divides nine counties, then the extent that counties must be divided in order to comply with the
Federal Constitution is only eight counties.” Id.
In Twin Falls County, this Court reviewed a challenge to a legislative redistricting plan
adopted by the 2011 Commission. Id. at 347, 271 P.3d at 1203. In reviewing the plan adopted by
the 2011 Commission, this Court concluded that the plan complied with the Equal Protection
Clause because it had a maximum deviation less than 10%. Id. at 350, 271 P.3d at 1206. Without
any further discussion or analysis, this Court then stated the plan did not comply with the Idaho
Constitution because it divided 12 counties while “other plans that comply with the Federal
Constitution . . . divide fewer counties.” Id. In so holding, this Court failed to consider the language
in Article III, section 5 that indicates a county may be divided if the commission “reasonably
determined” that twelve counties had to be divided to comply with the Equal Protection Clause.
Further, the holding in Twin Falls County appears to imply that so long as a plan has a maximum
deviation of less than 10%, the plan automatically satisfies the Equal Protection Clause.
We now take this opportunity to disavow our decision in Twin Falls County to the extent
it failed to give effect to the “reasonably determined” language contained in Article III, section 5.
We also disavow the decision to the extent it suggested that a plan with a maximum deviation of
less than 10% automatically satisfies the Equal Protection Clause because such a suggestion is not
supported by the law. “[S]tate legislative plans with population deviations of less than 10% may
be challenged based on alleged violation of the one person, one vote principle.” Larios v. Cox, 300
F.Supp.2d 1320, 1340 (N.D.Ga. 2004) (three-judge panel), aff’d by Cox v. Larios, 542 U.S. 947(2004). “Indeed, the very fact that the Supreme Court has described the ten percent rule in terms
of ‘prima facie constitutional validity’ unmistakably indicates that 10% is not a safe harbor.” Id.at 1340–41 (quoting Connor v. Finch, 431 U.S. 407, 418 (1977)).
Regardless of whether we consider both the number of counties divided and the number of
external divisions per county—a point of law we need not decide today—Petitioners’
constitutional challenge to Plan L03 still fails because Petitioners have not established that the
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Commission erred in rejecting Plans L075, L076, and L079. Petitioners have failed to show the
Commission unreasonably determined these plans did not comply with equal protection.
Plans L075 and L076 both have maximum population deviations of 9.97%. Plan L079 has
a maximum population deviation of exactly 10%. Plan L084 has a maximum population deviation
of 9.48%. Petitioners maintain that, because these plans have a maximum population deviation of
10% or less, each plan is presumptively constitutional. However, presumptively constitutional does
not mean constitutional. “[D]eviations from exact population equality may be allowed in some
instances in order to further legitimate state interests such as making districts compact and
contiguous, respecting political subdivisions, maintaining the cores of prior districts, and avoiding
incumbent pairings.” Larios, 300 F.Supp.2d at 1337. “However, where population deviations are
not supported by such legitimate interests but, rather, are tainted by arbitrariness or discrimination,
they cannot withstand constitutional scrutiny.” Id. at 1338.
Members of the public submitted plans to the Commission for consideration. See I.C. § 72-
1505. Generally, the proposed plans were submitted through a website; the plans’ proponents were
then able, but not required, to give testimony in front of the Commission regarding how and why
the plans were drawn as they were. Importantly, this means that, absent a scenario where a map
drafter articulates an arbitrary or discriminatory intent behind the plan, the Commission must
evaluate each submitted plan for arbitrariness or discrimination based solely on the plan itself.
Using this limited information, the Commission specifically analyzed Plans L075, L076,
and L079 regarding whether they conformed to the Equal Protection Clause of the Federal
Constitution and found each lacking in that regard. The Commission’s Final Report includes an
extensive and illuminating analysis of these three plans. The challengers are obliged to
demonstrate that the Commission erred when it “reasonably determined” that splitting eight
counties was necessary to comply with the Federal Constitution. As a result, we find it appropriate
to quote the Commission’s report at length to illustrate the in-depth evidentiary analysis
undertaken by the Commission.
While numeric equality between districts is not the only redistricting
criterion the Commission is obliged to consider, it is the first and most important
one. In creating legislative districts, the Commission must “make an honest and
good faith effort to construct districts, in both houses of its legislature, as nearly of
equal population as practicable.” This principle, known as the “one person, one
vote” principle, allows small deviations from a strict population standard only if
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the deviations are based on “legitimate considerations incident to the effectuation
of a rational state policy.”
Idaho’s total state population, as determined by the 2020 census, is
1,839,106. The ideal district size — the quotient of the total state population divided
by the total number of districts, 35 — is 52,546. That number — 52,546 — must
serve as the Commission’s polestar, and each deviation in each district from that
number must result from service to a rational state policy, legitimately applied.
As discussed above, plans with a maximum population deviation less than
10% are generally constitutional but are unconstitutional if the deviation results
from an irrational purpose or if the individual right to vote in some parts of the state
is diluted as compared to others. Even a deviation meant to serve a rational state
policy is impermissible if the application of the policy is inconsistent, arbitrary, or
discriminatory. Nonpopulation criteria may justify deviation from the ideal district
size only if they are applied consistently and neutrally.
The Commission determined that a good faith effort to achieve voter
equality — the standard mandated by the United States Supreme Court in Reynolds
— requires staying as close as possible to the ideal district size while still
effectuating state policy. The Commissioners agreed that in no instance would they
craft a district that deviated more than 5% over or under the ideal district size, unless
the district was an outlier and there was an extraordinarily compelling reason for
the larger deviation.
The Commission’s rationale here was threefold. First, any district deviation
that was over or under 5% from the ideal district size would put pressure, perhaps
significant, on other districts to have a minimal deviation. Otherwise, the plan might
violate the 10% guideline for constitutionality. If, for example, one district was very
underpopulated, with a deviation of -7.5%, then every other district in the state
would require a deviation less than +2.5%. The Commission did not believe, absent
an extraordinary reason, that the people in one district deserved such preferential
treatment at the expense of the people in the rest of the state.
Second, the Commission believed that a lopsided deviation might well
represent an arbitrary and inconsistent application of state policy, especially if an
exception were made for multiple districts, instead of one outlier district with
unique geographical challenges.
Finally, the Commission suspected that a lopsided deviation, which would
represent significant overpopulation or underpopulation of a district — a difference
of thousands of people — could result in dilution of the individual right to vote and
the diminishment of effective representation. Constituents in a heavily
overpopulated district, for example, could not be said to enjoy approximately the
same access to their legislators as constituents in more underpopulated districts.
The Commission’s approach ultimately yielded Plan L03, which has a
5.84% maximum population deviation and divides eight counties. The
Commission’s detailed rationale for dividing eight counties is explained in the
General Legislative Plan Findings below. However, five proposed plans submitted
14
by the public divided only seven counties. After closely analyzing the plans, the
Commission finds that each would likely violate the Equal Protection Clause and
that they are also inconsistent with other principles applicable to the redistricting
process.
...
Two of the plans, L071 and L077, both have maximum population
deviations of 12.72%, which means they are prima facie unconstitutional. Two
more, L075 and L076, have a maximum population deviation of 9.97%, and the
last one, L079, has a maximum population deviation of 10%. These last three plans
have significant defects and stand on dubious equal protection grounds.
L075 and L076 are presumptively constitutional, if barely. But that is not
the end of the analysis. As mentioned above, the 10% guideline is not a safe harbor;
a plan with a presumptively constitutional deviation may still be found
unconstitutional if the deviation results from an unconstitutional, irrational,
inconsistent, or discriminatory state purpose.
The plain purpose of L075 is to achieve a seven-county-split plan. This is
not a plan one would draw if equal protection were the primary purpose being
served. The five northernmost districts in the state are all underpopulated to an
extreme degree, with deviations of either -7.25% (Districts 1, 2, 3, and 4) or -7.24%
(District 5). District 6 is also significantly underpopulated, with a -6.6% deviation.
Outside of North Idaho, Districts 10 through 26, along with 28, 31, and 33, are all
overpopulated, with ten districts — 11, 12, 14, 17, 18, 19, 20, 22, 23, and 33 — at
the top end of the deviation range, +2.72%. Three more districts, 10, 15, and 16,
have a deviation of +2.71%; one district, 24, has a deviation of +2.7%; two districts,
13 and 21, have a deviation of +2.69%; and one district, 26, has a deviation of
+2.68%. There is a difference of over 5,200 people between the least and most
populated districts in L075. In legislative districts, that is a significant disparity.
If the Commission adopted L075 as its redistricting plan, the Commission
could not sincerely claim that it attempted, in good faith, to achieve voter equality.
This becomes obvious when the district boundary lines in some of the
overpopulated district are examined. Consider the boundary line between Districts
11 and 12 in Figure 4[.] The yellow line is the district boundary, while the straight
horizontal line running above it is Ustick Road — a major thoroughfare and
therefore an attractive prospect for a district boundary. One common theme that
emerged in the public testimony and comments submitted to the Commission is that
roads, especially major roads, make for good district boundaries. But the district
boundary in Figure 4 does not follow the obvious straight line. Rather, the boundary
meanders about on no set course, carving out census blocks here and there,
following no logic or reason except this: to ensure that the people in the white,
unshaded census blocks stay in District 11, so that District 12’s population does not
increase. If the boundary were cleaned up even slightly, so that the 38 people in the
census blocks marked by the red arrows were moved to District 12 instead of
District 11, that would raise the deviation of District 12 to +2.79%, making the
15
maximum population deviation of L075 10.04% and the plan prima facie
unconstitutional.
In the opinion of the Commission, a sincere commitment to equal protection
— a good faith commitment to equal protection — requires more than drawing an
irregular line so that 38 people fall on one side of the line instead of the other. If a
plan requires irrational boundary manipulation to fall just under the 10% guideline,
then the plan is, at the very least, constitutionally suspect.
In making this analysis, the Commission does not mean to imply that
anyone who submitted a seven-county-split plan did so for improper purposes. The
Commission sincerely appreciates the efforts and participation of all the Idahoans
who submitted maps and provided guidance to the Commission.
But if equal protection is to mean anything, it must mean more than drawing
irregular lines to capture 38 people for one district instead of another. Commitment
to equal protection requires aiming for 0% deviation, not 10%. Commitment to
equal protection requires being able to justify deviations with a rational state policy,
consistently and neutrally applied.
It is undoubtedly a rational state policy to preserve county integrity as much
as possible. But that interest must be served consistently and in a way that complies
with both the federal and state constitutions, and the Commission finds that L075
16
does neither. In addition to the equal protection problems discussed above, the plan
fails to preserve county integrity. Though it does indeed divide only seven counties,
it does this by dividing Bonner County — population 47,110 — into three separate
legislative districts. In District 1, part of Bonner is combined with Boundary
County; in District 2, part of Bonner is combined with Shoshone County, and part
of Kootenai County; and in District 3, part of Bonner is combined with Kootenai.
The reason this is problematic is that Article III, Section 5 of the Idaho
Constitution provides that a county may be divided for only one reason: to comply
with the United States Constitution. As the Idaho Supreme Court stated in Twin
Falls County v. Idaho Commission on Redistricting, the word “only” means
“solely.” “A county can be divided solely for one reason” — to comply with equal
protection. Thus, a county cannot be divided, once or more than once, just to spare
another county from being divided. The protection of counties is a provision of the
Idaho Constitution, not the United States Constitution.
If a redistricting plan divides a county, such as Bonner, for a reason other
than equal protection, then the plan is invalid under the Idaho Constitution. And
there is no equal protection standard that justifies dividing Bonner County more
than once. Mathematically, Bonner County is smaller than the ideal district size and
should not be divided at all. As explained in General Legislative Plan Finding 4.A.,
the Commission found it necessary, due to the population distribution in North
Idaho, to split Bonner once, but finds no equal protection justification for splitting
Bonner twice. Indeed, the division of Bonner into three districts might not even be
necessary to produce a map that divides only seven counties. Plan L079, another
seven-county-split plan, divides Bonner in to two districts, not three.
Based on the analysis above — because Plan L075 significantly
underpopulates one region of the state at the expense of other regions, thus making
the weight of a citizen’s vote dependent on where in the state the citizen lives, and
because Bonner County is divided for reasons unrelated to equal protection — the
Commission finds that Plan L075 is constitutionally unviable and should not be
adopted as Idaho’s legislative redistricting plan.
Plan L076 shares many of the same problems that L075 has. Six of the
North Idaho districts are, again, significantly underpopulated. Bonner County is,
again, unnecessarily divided into three districts. The systematic underpopulation of
North Idaho puts so much pressure on the rest of the plan that 26 districts — almost
75% of them — are overpopulated. Seven of them — 11, 12, 14, 17, 18, 19, 20, and
33 — are at the top end of the maximum population deviation. Many district
boundaries are similar to those in L075, and similarly arbitrary; again, these
boundaries seem to have been manipulated specifically to keep the maximum
population deviation just under 10%. The Commission therefore finds that Plan
L076 is constitutionally unviable, for the same reason that L075 [sic] was.
Plan L079 is in some ways a more attractive plan than either L075 or L076.
The district boundary lines seem cleaner and less arbitrary. Bonner County is
divided into two districts, not three, but L079 has a maximum deviation of exactly
10%.
17
Courts have been somewhat imprecise in describing how a maximum
population deviation of exactly 10% should be viewed. The United States Supreme
Court observed in Brown v. Thomson, 462 U.S. 835, 843 (1983), that plans with a
maximum population deviation under 10% generally fall within the category of
permissible minor deviations, while “a plan with larger disparities in population...
creates a prima facie case of discrimination and therefore must be justified by the
state.” This would imply that a deviation of exactly 10% is prima facie
unconstitutional. However, at other times, the United States Supreme Court has
described plans with a maximum population deviation above 10% as being prima
facie unconstitutional.
Assuming arguendo that no presumption applies to a plan with a maximum
population deviation of exactly 10%, or that a plan with a maximum population
deviation of exactly 10% is presumptively constitutional, the Commission
nevertheless finds that Plan L079 does not satisfy equal protection standards for
much the same reason that L075 and L076 did not: the significant underpopulation
of the North Idaho districts at the expense of much of the rest of the state does not
serve the cause of voter equality.
What all five seven-county-split plans demonstrated to the Commission is
this: in order for the Commission to adopt such a plan, it would have to significantly
underpopulate several North Idaho districts, and furthermore, it would have to draw
irregular district boundary lines to achieve a presumptively acceptable maximum
population deviation. Drawing more regular boundary lines to avoid voter
confusion would likely put the state in the position of having to justify a plan with
a maximum population deviation of more than 10%. In light of existing precedent
from both the United States Supreme Court and the Idaho Supreme Court, the
Commission did not believe it could justify a seven-county-split plan.
To the Commission’s knowledge, the Idaho Supreme Court has never
upheld a legislative redistricting plan with a maximum population deviation of 10%
or more. In three cases — Bingham County v. Idaho Commission for
Reapportionment, Smith v. Idaho Commission on Redistricting, and Hellar v.
Cenarrusa, 106 Idaho 586, 682 P.2d 539 (1984) — the Idaho Supreme Court
invalidated plans with deviations of, respectively, 11.79%, 10.69%, and 32.94%.
However rational Idaho’s policy of maintaining county integrity might be,
the Idaho Constitution itself makes clear that the policy is subordinate to the
requirements of equal protection, and the Commission is skeptical of its ability to
justify any plan that appears to systematically underpopulate, to a significant
degree, six districts in one region of the state. In coming to this conclusion, we have
found the case Larios v. Cox instructive. In that case, a federal court found
Georgia’s legislative redistricting plan unconstitutional. The plan had a maximum
population deviation of 9.98% but “intentionally and systematically”
underpopulated districts in certain parts of the state while overpopulating districts
in other parts of the state. The federal court took a dim view of how the plan
drafters, rather than making an effort to equalize districts throughout the state, only
shifted “as much population…as they thought necessary to stay within a total
population deviation of 10%.” The decision was affirmed without comment by the
18
United States Supreme Court, but in a concurring opinion, Justice Stevens remarked
that “regionalism is an impermissible basis for population deviations.”
Whether the underlying purpose of a seven-county-split map is a sincere
effort to effectuate Idaho’s policy against county division or a discriminatory effort
to give people in one region more voting power than people in the rest of the state,
the effect is the same: North Idaho voters are favored and voters in the other parts
of the state are disfavored. Either way, the Commission does not believe these maps
reflect the application of equal protection as the primary principle in redistricting.
Based on the analysis above, and for the reasons explicated in the General
Legislative Plan Findings below, the Commission finds that the minimum number
of counties that must be divided to comply with equal protection standards is eight.
(Italics and bolded emphases in original; footnotes, some figures, and some citations omitted.) The
Commission analyzed its responsibility to achieve the “one person, one vote” principle at length.
Further, it cogently explained why Plans L075, L076, and L079 were deficient in that regard. The
Commission rejected Plans L075, L076, and L079 for specific reasons related to equal protection:
the plans each underpopulate northern Idaho at the expense of the rest of the state and only achieve
a presumptively constitutional maximum population deviation using arbitrary boundary lines.
The Commission did not directly discuss Plan L084 in its Final Report; however, as noted
by Respondents in their briefing before this Court, Plan L084 overpopulates districts in Ada
County by dividing it into nine districts, each with a population exceeding the ideal district size by
between 4.12% and 4.94%. Respondents correctly point out that there are no other districts in Plan
L084 that are as overpopulated as those in Ada County. Because overpopulated districts dilute
voting power for citizens in those districts, Plan L084 would result in citizens in Idaho’s most
populous county—constituting more than one-quarter of the state’s population—being the most
underrepresented. Consequently, Plan L084 suffers from the same problem as Plans L075, L076,
and L079: it overpopulates one region of the state while underpopulating northern Idaho.
Petitioners argue that there is no evidence to show that any of their championed plans were
drawn to intentionally favor one region of the state over another. They point to this Court’s
decision in Bonneville County, which stated that “a regional deviation, by itself, is not enough to
overcome the presumption of constitutionality.” 142 Idaho at 470, 129 P.3d at 1219. However, we
can find no fault with the Commission’s determination that the Equal Protection Clause mandates
it cannot favor one region of the state over another. “Diluting the weight of votes because of place
of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as
invidious discrimination[] based upon factors such as race or economic status.” Reynolds, 377 U.S.
19at 566 (internal citations omitted). “The fact that an individual lives here or there is not a legitimate
reason for overweighting or diluting the efficacy of his vote.” Id. at 567. “Legislators represent
people, not trees or acres. Legislators are elected by voters, not farms or cities or economic
interests.” Id. at 562. “A citizen, a qualified voter, is no more nor no less so because he lives in the
city or on the farm.” Id. at 567. “[T]he weight of a citizen’s vote cannot be made to depend on
where he lives.” Id. “The Equal Protection Clause demands no less than substantially equal state
legislative representation for all citizens, of all places as well of all races.” Id. at 568. In keeping
with this restraint on regional favoritism, we have held “while the purpose of one person, one vote
is to protect voters, not regions, a plan will be held unconstitutional where the individual right to
vote in one part of a state ‘is in substantial fashion diluted when compared with votes of citizens
living in other parts of the State.’” Bonneville Cnty, 142 Idaho at 468, 129 P.3d at 1217 (citations
omitted).
Petitioners ask us to second-guess the Commission and decide that another plan is better.
The Constitution, however, directs us to review whether the Commission reasonably determined
eight counties must be split to satisfy equal protection. A necessary part of that inquiry is to review
whether the Commission reasonably determined that the other plans did not satisfy equal
protection. We hold that the Commission’s determination that plans put forth by Petitioners did
not satisfy equal protection was reasonable. Outside establishing their plans are at or below a 10%
maximum population deviation, Petitioners have not established any of their plans truly comply
with the one person, one vote principle. The Constitution does not allow us to pick another plan
just because the numbers are different.
Due to Idaho’s unique geography and the supremacy of federal law, there is unavoidable
tension between the Idaho Constitution’s restraint against splitting counties and the Federal
Constitution’s Equal Protection Clause. Navigating this tension is no easy feat. Effectuating a plan
that adheres to both federal and state constitutional mandates is a delicate balancing act, entrusted
to the Commission by the Idaho Constitution and the citizens of Idaho. IDAHO CONST. art. III, § 2.
To perform that balancing act as quickly and thoroughly as the Commission did, resulting in a
legislative plan with unanimous bipartisan support on behalf of all six commissioners, is certainly
laudable. We think it appropriate to acknowledge the challenges the Commission faced and to not
overstep our responsibility in acknowledging that it is the Commission that must make difficult
choices in trying to balance the various competing interests involved. See Bonneville Cnty., 142
20
Idaho at 472, 129 P.3d at 1221 (“We simply cannot micromanage all the difficult steps the
Commission must take in performing the high-wire act that is legislative redistricting.”). Our
review is constitutionally limited: pursuant to Article III, section 5, we must determine whether
the Commission “reasonably determined” the number of counties that must be divided to comply
with the Equal Protection Clause. IDAHO CONST. art. III, § 5. We conclude the Commission did so
here.
We hold that Petitioners have failed to meet their burden of showing that the Commission
unreasonably determined that eight county splits were necessary to afford Idaho’s citizens equal
protection of the law. Therefore, Petitioners have failed to demonstrate that Plan L03 violates
either the state or federal constitutions.
C. Plan L03 does not violate Idaho Code section 72-1506.
Petitioners Ada County, Allan, Boyer, and Stucki contend that Plan L03 violates Idaho
Code section 72-1506. Idaho Code section 72-1506 provides in full:
Congressional and legislative redistricting plans considered by the commission, and
plans adopted by the commission, shall be governed by the following criteria:
(1) The total state population as reported by the U.S. census bureau, and the
population of subunits determined therefrom, shall be exclusive permissible data.
(2) To the maximum extent possible, districts shall preserve traditional
neighborhoods and local communities of interest.
(3) Districts shall be substantially equal in population and should seek to comply
with all applicable federal standards and statutes.
(4) To the maximum extent possible, the plan should avoid drawing districts that
are oddly shaped.
(5) Division of counties shall be avoided whenever possible. In the event that a
county must be divided, the number of such divisions, per county, should be kept
to a minimum.
(6) To the extent that counties must be divided to create districts, such districts shall
be composed of contiguous counties.
(7) District boundaries shall retain the local voting precinct boundary lines to the
extent those lines comply with the provisions of section 34-306, Idaho Code. When
the commission determines, by an affirmative vote of at least five (5) members
recorded in its minutes, that it cannot complete its duties for a legislative district by
fully complying with the provisions of this subsection, this subsection shall not
apply to the commission or legislative redistricting plan it shall adopt.
(8) Counties shall not be divided to protect a particular political party or a particular
incumbent.
21
(9) When a legislative district contains more than one (1) county or a portion of a
county, the counties or portion of a county in the district shall be directly connected
by roads and highways which are designated as part of the interstate highway
system, the United States highway system or the state highway system. When the
commission determines, by an affirmative vote of at least five (5) members
recorded in its minutes, that it cannot complete its duties for a legislative district by
fully complying with the provisions of this subsection, this subsection shall not
apply to the commission or legislative redistricting plan it shall adopt.
I.C. § 72-1506. It is well established that “the requirements of Idaho Code section 72–1506 ‘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.’ ” Twin Falls Cnty., 152
Idaho at 349, 271 P.3d at 1205. As this Court explained in Twin Falls County,
[t]here is a hierarchy of applicable law governing the development of a plan for
apportioning the legislature: The United States Constitution is the paramount
authority; the requirements of the Idaho Constitution rank second; and, if the
requirements of both the State and Federal Constitutions are satisfied, statutory
provisions are to be considered.
Id. at 348, 271 P.3d at 1204 (italics added).
Ada County argues that Plan L03 violates Idaho Code section 72-1506 because it
unnecessarily divides Ada and Canyon Counties and fails to keep communities of interest intact
by placing rural and urban populations within the same district. The requirements of Idaho Code
section 72-1506 are subservient to the requirements of both the federal and state constitutions, and
Ada County has not established that the Commission unreasonably determined that the plans Ada
County puts forth—L075, L076, and L079—violate equal protection.
Stucki faults Plan L03 for having “oddly shaped districts,” not retaining local precinct
boundary lines, unnecessarily splitting communities of interest, and having districts that are not
directly connected by roadways, all in violation of Idaho Code section 72-1506. Stucki contends
the Commission should have split nine counties in order to better comply with the requirements of
the statute. The Commission, however, could not do so and at the same time comply with the Idaho
Constitution: “a county may be divided in creating districts only to the extent it is reasonably
determined by statute that counties must be divided to . . . comply with the constitution of the
United States.” IDAHO CONST. art. III, § 5. Because of this constitutional restraint, the Commission
concluded it was unable to split counties to comply with the statute. Had the Commission followed
the reasoning that Stucki now lays out, the plan it adopted would be unconstitutional under Article
III, section 5.
22
Allan and Boyer assert that Plan L03 violates Idaho Code section 72-1506(2) because the
Plan does not adequately preserve the Shoshone-Bannock and Coeur d’Alene tribes as
communities of interest. Specifically, they argue that Plan L03 splits the Shoshone-Bannock tribe
into three separate districts and splits the Coeur d’Alene tribe into two districts. Allan and Boyer
point to Plan L078, a plan that splits the same eight counties as Plan L03. Plan L078 also splits the
Shoshone-Bannock tribe, but places “the bulk” of its population into a single district, rather than
“split[ting] the Reservation’s primary hub and population in half,” as Plan L03 does. Additionally,
Plan L078 leaves the Coeur-d’Alene tribe intact and in a single district.
From the outset, even though the Commission did not specifically analyze Plan L078 in its
Final Report, we note that Allan and Boyer’s championed plan suffers from a similar issue as the
plans discussed above. Plan L078 has a maximum population deviation of 9.83%, rendering it
presumptively constitutional. However, like the plans discussed above, Plan L078 suffers from
regional favoritism: Plan L078 underpopulates southeastern Idaho at the expense of voters in Ada,
Canyon, and Gem Counties. Fifteen of the 35 districts are underpopulated; of those, nine are in
southeastern Idaho and, on average, are underpopulated by -4.43%. In contrast, Ada, Canyon, and
Gem Counties are comprised of 14 districts, all of which are overpopulated, on average, by 2.92%.
Given the level of regional favoritism displayed in Plan L078, we cannot fault the Commission for
choosing a different plan in order to comply with the Equal Protection Clause.
Additionally, like the tension between the Idaho Constitution’s restraint against splitting
counties and the Federal Constitution’s Equal Protection Clause, the tension between the
subsections in Idaho Code section 72-1506 requires that the Commission perform a delicate
balancing act. For example, Plan L078 preserves the Tribes as communities of interest pursuant to
Idaho Code section 72-1506(2) but does not contain districts which are “substantially equal in
population,” as is required by Idaho Code section 72-1506(3). Compared to Plan L078, Plan L03
does a worse job at preserving the Tribes but a better job at achieving districts which are
“substantially equal in population,” given that Plan L03 has a maximum deviation of only 5.84%.
When competing interests are at stake, it is the Commission’s responsibility—entrusted to it by
the people of Idaho—to determine how best to balance those interests, and we will not substitute
our own views for the Commission’s. See Bonneville Cnty., 142 Idaho at 472, 129 P.3d at 1221.
Though Allan and Boyer contend “[i]t is self-evident that the Tribes’ interests in unity and
maintaining their voting power should receive the same respect, if not more, than Idaho’s counties
23
or cities do during the redistricting process,” that is not how the law is written. We are unable to
raise community interests, such as the Tribes’, above the counties’ interests, which are protected
to a greater degree by the Idaho Constitution. To afford the Tribes the heightened status they seek,
an amendment to the state constitution would be required. Likewise, Idaho Code section 72-
1506(2) only requires that, “[t]o the maximum extent possible, districts shall preserve traditional
neighborhoods and local communities of interest.” I.C. § 72-1506(2). The statute does not elevate
a particular type of community of interest above another: cities, neighborhoods, and tribal
reservations are all treated the same under the statute.
Based on the foregoing analysis, we hold that Plan L03 does not violate Idaho Code section
72-1506.
IV. CONCLUSION
For the reasons stated above, we deny Petitioners’ requests to issue a writ of prohibition
barring implementation of the Commission’s final plan, L03. We award costs to Respondents as
allowed by Idaho Appellate Rule 40.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
ON DENIAL OF PETITION FOR REHEARING
STEGNER, Justice.
The Petitioner, Ada County, has filed a petition and brief seeking rehearing of this Court’s
opinion in this case which was released January 27, 2022. Having now had the opportunity to
review Ada County’s petition and brief in support of its petition, we deny the Petition for
Rehearing of our decision in Durst v. Idaho Commission for Reapportionment.
Ada County raises four arguments in support of its Petition for Rehearing. However, before
we address the specific arguments raised by Ada County, we initially address two premises that
appear to underlie its Petition. First, the arguments assume that Petitioners’ claims required this
Court to decide whether Plans L075, L076, L079, and L084 violated the Equal Protection Clause
of the United States Constitution. However, the Petitioners did not raise an equal protection
challenge. Instead, they claimed that Plan L03 violated Article III, Section 5 of the Idaho
Constitution and Idaho Code section 72-1506.
24
The relevant language from Article III, Section 5 does not require this Court to determine
whether the other plans referenced by Petitioners violate the Equal Protection Clause of the United
States Constitution:
A senatorial or representative district, when more than one county shall constitute
the same, shall be composed of contiguous counties, and 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.
IDAHO CONST. art. III, § 5 (italics added). As we explained in Durst, this constitutional language
allows a county to be divided when it is reasonably determined by the Commission that a county
must be divided to comply with the United States Constitution. The wording of Idaho’s
Constitution thus requires this Court to determine whether the Commission reasonably determined
the number of counties that must be split to comply with equal protection. Ada County seems to
contend that our review should begin and end with an equal protection analysis of any other plans
that split fewer counties. However, had the drafters of this provision and Idaho’s citizens intended
this Court to make its own determination of how many counties needed to be divided to comply
with equal protection, there would be no need for the “reasonably determined” language. Rather,
the provision would direct this Court to determine whether the number of counties divided was
necessary to comply with equal protection. As a result, Idaho’s Constitution does not require this
Court to determine whether any other plans splitting fewer counties violated the Equal Protection
Clause but instead directs us to review whether the Commission reasonably determined eight
counties needed to be split to comply with equal protection.
The second premise that appears to underlie Ada County’s arguments is that this Court’s
decision in Durst constituted a “dramatic change to reapportionment law in Idaho.” We construe
Ada County’s argument as taking issue with our statements disavowing portions of this Court’s
prior decisions in Twin Falls County and Bonneville County. “In Idaho, ‘the rule of stare decisis
dictates that we follow [controlling precedent] unless it is manifestly wrong, unless it has proven
over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious
principles of law and remedy continued injustice.’” Farm Bureau Mutual Ins. Co. of Idaho v. Cook,
163 Idaho 455, 459–60, 414 P.3d 1194, 1198–99 (2018) (quoting Houghland Farms, Inc. v.
Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983 (1990)). In Durst, we explained we abrogated
portions of our prior decisions only to the extent they were manifestly wrong. Bonneville County
incorrectly stated that Idaho Code section “72-1506 qualifies as the statute referenced in Idaho
25
Const. art. III, § 5.” 142 Idaho 464, 473, 129 P.3d 1213, 1222 (2005). We are not alone in this
line of thought: the author of the majority decision in Bonneville County has since recognized that
decision was premised on an erroneous interpretation of the “reasonably determined by statute”
phrase in article III, section 5 of the Idaho Constitution. Twin Falls Cnty. v. Idaho Comm’n on
Redistricting, 152 Idaho 346, 356, 271 P.3d 1202, 1212 (J. Jones, J., dissenting) (“The opinion in
Bonneville County should have stated that the Commission drew its authority from Article III, §
2, and that the Commission, through its duly adopted plan, is the mechanism intended by the
Legislature to make the reasonable determination contemplated in Article III, § 5.”).
In Durst, we maintained and followed the holding of Bonneville County, “that by amending
art. III, § 2, the people intended to remove the Legislature from the details of the [redistricting]
process.” 142 Idaho at 473, 129 P.3d at 1222. Bonneville County is thus consistent with our holding
in Durst that the Commission is the entity with the discretion to determine—subject to this Court’s
oversight—whether and how to split counties. See id. Twin Falls County, on the other hand,
contravened the principles set forth in Bonneville County and our prior case law. 152 Idaho at 350–
51, 271 P.3d at 1206–07. The analysis in Twin Falls County as to whether a county split was
necessary to comply with the Equal Protection Clause was erroneously focused only on whether a
plan’s maximum population deviation was below 10%. Id. That analysis misapplied equal
protection precedent and failed to give proper acknowledgement to the Commission’s decision
making that county splits were necessary to comply with equal protection, as is required under
article III, section 5 of the Idaho Constitution and our prior case law. Id. Thus, it was this Court’s
decision in Twin Falls County, not Durst, which was the “dramatic change to reapportionment law
in Idaho.” Our decision in Durst was simply a return to this Court’s correctly decided precedent.
Turning to the specific arguments Ada County raises in its Petition for Rehearing, Ada
County first argues that we unconstitutionally delegated our responsibility for interpreting the
Equal Protection Clause to the Commission because we did not independently review Plans L075,
L076, L079, and L084 to determine whether the plans complied with equal protection. However,
Petitioners never alleged that Plan L03 violated the Equal Protection Clause. As a result, we did
not hold that any other plans were unconstitutional. We simply addressed the Petitioners arguments
and held that, under the Idaho Constitution, the Commission reasonably determined eight county
splits were necessary to comply with equal protection.
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Second, Ada County contends that we have imposed “stricter requirements in determining
compliance with the Equal Protection Clause” “than is required under federal law” because we
“include[d] an intermediate step where an unelected, unaccountable state body makes a reasonable
determination that its decisions have complied with federal law.” As explained above, we did not
render any holdings concerning whether the other plans complied with the Equal Protection Clause
and therefore did not impose any additional requirements to an equal protection analysis. Ada
County seeks to recast our decision in terms of federal constitutional law when our decision was
clearly decided on state constitutional grounds.
Third, Ada County asserts that this Court judicially amended Article III, Section 5 of the
Idaho Constitution through our interpretation of the phrase “reasonably determined by statute.”
While Ada County discusses Idaho Code section 72-1506 concerning county splits, it fails to
explain how that statute can be read to somehow supersede the Equal Protection Clause. The
legislative history of the statute not only fails to mention Article III, Section 5 of the Idaho
Constitution, but the statute itself provides no guidance on how to draw districts that comply with
the “one person, one vote” principle of the United States Constitution. Rather, the statute simply
requires that “[d]istricts shall be substantially equal in population and should seek to comply with
all applicable federal standards and statutes.” I.C. § 72-1506(3). Additionally, while Ada County
stresses that the Legislature must have known the meaning of the word “statute” when it put forth
Article III, Section 5 for the citizens of Idaho to ratify in 1986, Ada County ignores the subsequent
ratification of the 1994 constitutional amendment of Article III, Section 2, which established that
a commission for reapportionment would be responsible for redistricting. Ada County’s
interpretation fails to give effect to the 1994 amendment of our constitution by which the
responsibility for redistricting was transferred from the Legislature to the Commission.
Finally, Ada County argues that it “met its burden demonstrating that Plan L03” violated
the Equal Protection Clause. However, on page four of its opening brief, Ada County expressly
conceded that Plan L03 “meet[s] the equal protection standard.” It is therefore not possible for Ada
County to have “met its burden demonstrating that Plan L03 was unconstitutional under the Equal
Protection Clause” given it took the opposite position when it explicitly denied that it was
challenging Plan L03 on federal equal protection grounds.
For the foregoing reasons, Ada County’s Petition for Rehearing is DENIED.
Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.
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