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IN THE MATTER OF THE PETITION CHALLENGING LEGISLATIVE REDIS-TRICTING, APPLICATION FOR INJUNCTIVE RELIEF AND APPLICATIONFOR WRIT OF PROHISITION. BINGHAM COUNTY, a political subdivision o fthe State of Idaho, the BOARD OF BINGHAM COUNTY COMMISSIONERS,DEVAUGHN SHIPLEY, WAYNE BROWER, CLEONE JOLLEY, Petitioners, v.IDAHO COMMISSION FOR REAPPORTIONMENT and PETE T. CENARRUSA,Secretary of State of the State of Ida ho, Respon dents. IN THE MATTER OF THEPETITION CHALLENGING REDISTRICTING PLAN L9 1 AND REQUEST FORPERMANENT INJUNCTION OF THE IMPLEMENTATION OF REDISTRICT-ING PLAN L9 1 . DIANE BILYEU, DONNA BOE, ROGER CHASE, LARRY W.GHAN, JONI SORENSEN a n d A. LIN WHITWORTH, Petitioners, v. IDAHO

COMMISSION FOR REAPPORTIONMENT and PETE T. CENARRUSA, Secre-tary of State of the State of Idaho , Res pond ent s.

Docket Nos. 28 1 53/28197, 2002 Opinion No. 30

SUPREME COURT OF IDAHO

137 Idaho 87 0 ; 55 P.3d 863 ; 2002 Ida . LEXIS 35

March 1, 2002, Filed

SUBSEQU ENT HISTORY: [* " *] ] Released forPublication March 2 5, 200 2. As Corrected March 5 ,2002.Judgment entered by Bia gham County v. Idaho CommSifor Reapao rtiomnent (In re Petition Challeneina Leigsla-tive Redi s tricting), 2002 Ida. LEXIS 138 (Idaho. Mar.25, 2002)Related proceeding at In to Alternative Writ of Prohibi-tion Challeneina the Idaho Lep islative ReapportionmentPlan of 2002 v. Ysurs a , 2005 Ida LEXIS 193 QdahoDec . 28 , 20051

PRIOR HISTORY: Original proceedings retained bythe Supreme Court of the State of Idaho .Sm i th v . Id aho Comm ' n on Rod ish'ictin¢ (In re PeYitionto Enjoin Implementation of the Refistric6ng Ptan} , 136Idaho 542 3 8 P 3d 1 2 1 2 001 Ida. LEXTS 140 (Idaho,2001)

DISPOSITION: Pet iti on challenging l eg i sl ativ e redis-tricting pl an granted; p la n found to vi o l ate state constitu-tion..

CASE SUMMARY:

PROCEDURAL POSTURE: The petitioners countiesfiled a petition opposing a redistricting plan created bythe respondent Idaho Commission for Reapportionment.

OVERVIEW: The count ies argued , inter alia, that theplan violated the state constitution . The supreme courtagreed. The plan contained a population deviat i on of11 .79 percent, well above a prima facie showin g of aviolation of equal protection standards . The commissionjustifi ed that deviation on the basi s that it occurred as theresult of an advancement of rational state polic ie s , par-ticularly maintenance oP the integrity of political subdivi-s ions . Idaho ConsY . art . III , � 5 prohibited the di vision ofcounties , except to meet the con st i tutional s tandards ofequal protection . The prohibition was honored by thecommis si on with respect to Madison and Fremont coun-ties, b ut was not honored as to Bingham and Bannockcounties . In those in st ance s, the id ea of join i ng commu-nities of interest prevailed ov er the requirement of main-taining county integrity. The bas i s for ju st ifyin g the

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137 Idaho 870 , '; 5 5 P .3 d 86 3,20 02 1d a. LEX I S 3 5 , ** "

populati on dev iation in the plan was not consistent withother decisions made by the commission that did nothonor the integrity of polit i cal subdivisions . Therefore,th e commis s ion was directed to reconvene to adopt are di s trict i ng plan that was consistent with constitutionalstandards .

tent ly . Th i s in e quality wi th o ut s u ffic i e n t ju stificat i ondoes not with s tan d s crut i ny .

Constitutional Law > Congress iona[ Duties & Po ivers >Elections > General Overview[HN4]See Idaho Code art. IIT, § 5.

OUTCOME: The petition was granted.

CORE TERMS: deviation , communities of interest ,redistricting, combined, legislative distri ct s, split, voterequirements , neighborhood, precinct, maximum ,shaped , contiguous, oddly, state pol i cy', equal protection ,practicable , res idents, composed, equal protection , self-contained, populated, splitting, prima facie, agricultural ,remainder , northern , census , divide , approved plan, rea-sons stated

LexisNexis(R) Headnotes

Constitutional Law > Congressional Duties & Powers >Elections > General Overview[HN S ]See Idaho Code § 72-1506 .

Constitutional Law > Supremacy Clause > GeneralOverview[I3N6]It is clear that if the state constitution and a statuteconflict, the state constitutional provision prevails. It isalso clear that if a state constitutional provision or statuteconflicts with the United States Constitution , the UnitedStates Constitutional provision prevails .

Constitutional Law > Congressional Duties & Powers >Elections > General OverviewConstitutional Law > Equal Protection > Scope of Pro-tection[I-INl ]The Equal Protection Clause requires states tomake an honest and good faith effort to construct dis-tricts as nearly of equal population as is practicable .

Constitutional Law > Congressional Duties & Powers >Census > General OverviewConstitutional Law > Congress ional Duties & Powers >Elections > General OverviewConstitutional Law > Equal Protection > Scope of Pro-tection[HN2]A redistricting plan that deviates more than 10percent in population among the districts is prima facieunconstitutional under the Equal Protection Clause . Theultimate inqui ry, after a prima facie case of discrimina-tion has been shown , is whether the legislature's planmay reasonably be said to advance a rational state policyand, if so , whether the population disparities among thedistricts that have resulted from the pursuit of this planexceed constitutional limits . A plan with larger dispari -tie s in population creates a prima facie cas e of discrimi-nation and therefore must be justified by the State .

Constitutional Law > Congressional Duties & Powers >Elections > General Overview[I-IN 3 ]Th e j u s ti fi cation for a greater than 10 percent de-viation in a redi st ri ctin g p l an is not s uffici e n t wh en it i sbased upon a policy th at h as not been appli e d consis-

Constitutional Law > Congressional Duties & Powers >Elections > General OverviewConstitutional Law > Equal Protection > Scope of Pro-tection[1IN7]A county may not be divided and parsed out toareas outside the county to ach ieve ideal district size, ifthat goal is attainable without extending the di strict out-s ide th e county . Similarly, the other considerations setfo rth in Idaho Code S 72-1506 are subordinate to thelimitations of Idaho Const . art . III , $ 5.

Constitutional Law > Congressional Duties & Powers >Elections > General Overview[HN8]ln the context of redistricting , to the extent possi-ble , counties should not be split , or the splits should bekept to the minimum possible while meeting equal pro-tection standards .

Constitutional Law > Congressional Duties & Powers >Elections > General Overview[HN9]ln the context of redistricting, shoestring connec-tions, odd-shaped narrow districts , dispersion of urbanpopulati on s into l arger rural areas and the unnecessarysplittin g o f e stabli shed areas can be evidence of gerry-mandering. In the racial g e rrym ander i n g context , theUn ited States Supreme Cou rt has identified several fac -tors that may lead a court to be li e ve a dis tr ict i s oddlyshap ed . The s e include the degree of a di s trict' s compac-tion; wh ether the vari ou s portion s o f the district are con-t i guous wi th one another; and th e ex tent to whi ch di s-

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tricts respect political subdivi s ion s. Distr i cts are oddlysh aped when th ey are " d isto rted" o r "elongated ."

Constitutional Law > Congressional Duties & Powers >Elections > General Overview[HNlO ] in th e context of what constitutes a "traditionalneighborhood" o r a'9oca! community o f interest" in aredistrictin g plan , the United S tates Supreme Court hasoffered the fo l lowing guidance which i ncludes con s id -eration of whether the re s idents in the di strict regardthemselves as a communi ty, whether the residents in th edistrict live in a urban or rural areas , and whether tenta-cles, appendages , or pa rt s of the district share commontransportation lines and media sources .

COUNSEL: J . Sco tt Andrew , Blackfoot , ProsecutingAttorney for appellant Bingham County.

Racine , Olson , Nye , Budge & Bailey , Pocatello , for ap-pe ll ant Bilyeu , et . al. W . Marcus W . Nye argued.

Hon . Alan G . Lance , A ttorn ey General , Boise , for re-spondent Pete T . Cenarrusa . Thorpe P . O rton argued .

Hopkins, Roden , Crockett, Hanson & Hoopes, IdahoFalls, for respondent Idaho Commission for Reappor-tionment. C . Timothv Hookins areued.

JUDGES: SCHROEDER , Justice. Chief JusticeTROUT, Justices KIDWELL and EISMANN , CON-CUR. Justice WALTERS , DISSENTING .

OPINION BY: SCHROEDER

OPINION

( * 871 1 [ " *864 ] SCHROEDER, Justice

This is the second challen ge to the Idaho Commis -sion on Reapport ionment's propos ed redistricting plan.This Court previously voided the first plan on the basisthat the 10 . 69% deviation in representation between dis-tricts , without justification , violated the Eaual ProCecYionClause of the Fourteenth Amendment to the UnitedStates Cons titution . Issues present in this case arewhether the plan submitted by the Commission [ * " *2]in respon s e i s unconstitutional under both state and fed-eral constitutions, as well as in violation of sev e ral Idahostatutes,

1.

FACTS AND PROCEDURAL HISTORY

In 1994 th e Id aho State Constitution was am ended tocre ate a bipartisan cit i ze n s' commi ssion that was as-

sign ed the task of redi s t ri ctin g. The Idaho Commiss ionon Reapport i orun enC (the Commiss i o n ) i s required to filea pl an approved by four of i t s s ix members with the Sec-retary o f State w i thi n at le as t nin ety d ays of organi zati on ,which is to remain in effect until a n e w p l an i s requiredo r amended by cou rt order . The Idaho le g i s lature enactedstatutes provi din g guid an c e to the Commiss i on in th etask oFred isYr ictin g. Idaho Code & 7§2- 1 5 0 1- 1508 .

On Augus t 28 , 2001 , the Commiss i o n file d Pl an L66with the Secretary o f State. According to the 2 000 Cen -sus , Idaho's popul ation is 1 , 293 , 95 3 people . With 35 leg-islative dis tr icts in the state, the ideal district populationis 36,970 people. In Plan L66, the least populated districtcontained 34,928 people , 5 . 52% below the ideal size .The largest district contained 38 , 881 people and was5.17% above the ideal size . The maximum populationdeviation [ *** 3] in that plan was , therefore , 10 . 69% ,which was presumptively discriminatory under U.S. Su-preme Court case law . The State did not advance a 'ra-tional state policy' necessary to justify a population de-viation of over 10% . The Court held the plan unconstitu-tional and ordered the Commission to reconvene andadopt a plan that met constitutional standards of equalprotection.

[ ** 865] [ * 872] On January 8 , 2002, the Commis-s ion adopted Plan L91, which contains a population de-viation even greater than that contained in the originalplan . The Commission prepared a Final Report , includ-ing Findings and Conclusions that explain the rationalebehind the adoption of that particular plan . The l argestdistrict is 6.26% above the ideal s ize with 39 ,286 people ,while the smallest district i s 5 . 53% be low the ideal sizewith 34 ,927 people. The maximum population deviationin Plan L91 is 11.79% , which , as noted, is greater thanthe population deviation in the plan that was previouslyvoided by this Court.

The Bingham County Board of County Commis-s i oners (Bingham County) filed a pet i tion chall engingPlan L91 . Subsequently, residents of Bannock Countyfiled a petition also challenging the Plan . Resident s ofMadison County, [* **41 the petitioners in the fi rst re -di snicting appeal, have filed an amicus brief urging theCourt to adopt a specific plan . The Cou rt has con s oli -dated these petitions for hearing .

H.

THE EOUAL PROTECTION CLAUSE OF THEUNITED STATES CONSTITUTION

The p l an i s presumptively unconstitutional becauseit s popul ation dev i ati o n is 11 .7 9%. Any re di str icting p l anthat contains a population deviat io n abov e 1 0% i s primafaci e discr i mi n ato ry. Thi s is in accordance with the con-

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stitutional goa l of one person, one vote ." According toth e Commi ss io n , P l an L91 i s the result of an attempt tokeep together tra diti o nal ne i ghborhoods and commun i-ti e s o f interest whi le a v oi din g oddly s hape d districts. Th edeviation i n populati on r e sult s from the de cision to main-tain th e inte gri ty o f Madi son and Fremont Countie s.

[HNI]"The Equal Protection Clau se re quires statesto ' make an h one s t and good faith effort to con struct d is-tricts ... as nearly of equal population as i s prac ticabl e. " 'Smith v. Idaho Commission on RedistrictinQ. Idaho38 P.3d 121 ( 2001)(quoYiug Reynolds v . Sims, 3 77 U.S .533, 577, 12 L . Ed . 2 d 506, 84 S . Ct . 1362 (1964)) .[FIN2]A redistr icting [***5] plan that deviates morethan 10% in population among the districts i s prima facieunconstitutional under the Equal Protection Clause.Brown v. Thomson 462 U.S.835 842 - 43 77 L Ed 2d214, 103 S. Ct. 2690 (1983). "The ultimate inquiry," aftera prima facie cas e of discrimination has been shown , is"whether the legislature's plan 'may reasonably be said toadvance a rational state policy' and , if so , 'whether thepopulation dispar i ties among the districts that have re-sulted from the purs uit of this plan exceed constitutionallimit s. '" Id at 84 3 (quoting Mahan v. Howell 410 U . S .315 , 328 , 35 L . Ed . 2d 320 , 93 S. Ct. 979 (1973)) .

In the 1980's , this Court held that a redistri cting planviolated the Equal Protection Clause, stating that "[a]plan with larger disparities in population ... creates aprima facie case of discrimination and therefore must bejusti fied by the State. " Hellar v. Cenarrusa, 106 Idaho586, 589, 682 P.2d 539, 542 (citin g Swann v. Adams, 385U . S . 440 , 444 , 17 L . Ed . 2d 501 , 87 S. Ct . 569 (1967)) .Unlike Plan L66, for which the state presented no evi-dence to justify the 10 . 69%, [***6] the Commissiondoes seek to justify the greater di sparity in L91 as theresult of an advancement of rational state policies.

The Commission asserts that L91 advances the pol-icy contained in A rt icle III . 6 5 of the Idaho Constitutionand Idaho Code § 72-1506(5) by not splitting Madisonand Fremont Countie s. The second policy advanced isthat the plan honors Idaho Code § 72-1506(2) by pre-serv i ng traditional nei ghborhoods and communities o fintere st .

Clearly th ere is a state intere st in keepin g counti eswhole . E.g., I . C . & 7 2 - 1506(5) . Keeping Madison andFremont Countie s whole is consistent with that pol icy.However, both B i ngham and Bannock counties havebeen split i nto thre e di strict s. The political integrity ofMadis on and Fremont Counti es has been addresse d . Thesame principle has not been app l i e d to Bingham andBannock Counties.

The second po li cy advan ced by the Comm issio n isthat Pla n L9 1 s ati s fies the goa l set [* *866 ] [*873]fo rth in I.C. 6 7 2- 1 5 0 6 ( 2 ) by preserv i n g tra d i ti on a l

n e igh borho ods and local communities of interest . TheComm i s si on admits that Pl an s L76 and L6 9 both con-tained [* **7] population deviation s of less than 10%,bu t that the se plan s wou l d have div i d e d Fremont Countyby placin g Island Park i n Di strict 3 5 , a geographicallylarge district th at s tretches from Chall is to near Is landParl< . The s e pl an s were propo sed , but the residents inMadison and Fremont C oun ty wi s h ed to retain I s landParl< within their di strict , and the Commiss ion felt thatth e 11 .7 9% population deviation was acceptable in lightof this deci s ion .

It is true that maintaining traditional nei ghborhoodsand local communities is a goal under I . C . § 72-1506(2).However, it appears that the communitie s of interest ofMadison County and Fremont County have been consid-ered over those of Bingham and Bannock County, whichargue that Plan L91 splits traditional neighborhoods andlocal communities within their districts. This is part icu -larly notable in light of the fact that the spl i t of Is landPark would have encompassed some 828 people,whereas the three -way spl its of Bingham and Bannockcounties involve substan tially more people .

This Court ordered the Commission to submit anyproposed plans that contained a population deviation ofless than 10% . The Commission attached [* *k 8J twenty -one such plans that were considered by the Commis s ion .The population disparity in these plans varies from as]ow as 4 . 54% (Plan L06) to as high as 9.98% (Plan L68) .The Commis sion sent out public notices regarding manyplans , including plans L59-66, L69 , and L76 . It appearsthat Plans L69 and L76 were th e two plans most se ri-ously considered by the Commission . The populationdeviation in these two plans was 9 . 98% and 9 . 71% , re-s pectively . These plans were not adopted, the Commis-sion argue s , because they would have split FremontCounty by placing Island Park in Distr ict 35 , and theresidents of Madison and Fremont County preferred notto split the counties.

Some redistricting plans that have been drafted tomaintain the integrity of political s ubdivision s have with -stood constitutional scrutiny de spite population devia -tions in excess of 1 0% . See, e. g., Mahan v . fiow ell, 410U S 315, 35 L. Ed. 2d 320 93 S . C t . 979 (1973) . InMahan, the United States Supreme Court upheld a redis-tricting sch eme with a population d eviation of 16 .4%becaus e it found that th e plan at i ss ue maintained thei nt egri ty o f po l i tical s ubdivi s i on s. In the pre s ent case ,however, it appe ars [***9] th at the integrity of somepolitica l s ubdivisi o ns ha s been ma i ntained , while thepolitical integr ity of others has no t b een maintained,[HN3]The justification for th e d ev i at i on i s n ot sufficientwhen it i s based upon a po lic y th at has not been appli edconsistently. Th i s inequ a l ity w ith out sufficient justifica-tion does n ot wi t h stand scrutiny eve n in light of Maharr .

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ITI.

THE RELATIONSHIP BETWEEN IDAFIOCODE $ 72-1506(5) AND ARTICLE III, 6 5 OP THEIDAHO STATE CONSTITUTION

comply with a ll applic ab l e fe dera l stan-dards and statutes.

(4) To the maximum exte nt poss ible ,the plan s hould avo i d drawing d istr i cts( * * *] 1 ] that are oddly shaped.

Bingham and Bannock County argue that the redis-trictin g statute, Idaho Code & 72- 1506(5) is unconstitu-tional, sp e cifica ll y that it violates the provi sion s o f ArC.III. 6 5 of the Idaho ConstSCUY i on , which provides thefollowin g:

[HN4]A senatorial or representative dis-trict, when more than one county shallconstitute the same , shall be composed o fcontiguous counties, and a county may bedivided in creating districts only to the ex -tent it is reasonably determined by statutethat counties must be divided to createsenatorial and representative distr ictswhich comply with the constitution of theUnited States . A county may be dividedinto more than [ *** 10] one legislativedistrict when d istricts are wholly con-tained within a single county . No floterialdistrict shall be created . Multi-memberdistr icts may be created in any d i strictcomposed of more than one county onlyto the extent that two representative s maybe elected from a district from which onesenator is elected . The provisions of thissection shall apply to any appo rtionmentadopted following the 1990 decennialcensus .

I . C . 72-1506 provides the following :[HN5]Criteria governing plans . --

Congressio n al and le gislative redistrictingplans considered [ ** 867 ] [ * 874] by thecommission, and plans adopted by thecommission , shall be governed by the fol-lowing criteria :

(1) The total state population as re-porte d by the U . S . census bureau , and thepopulation of s ubunit s determined there -from , shall be exclusiv e permi ss ibl e data .

(2 ) To the maximum extent possible ,districts s hall preserv e tradition a lneighborh ood s and l ocal commun itie s o fi nteres t .

(3) Districts shall be sub stantia l lyequa l i n popul at io n and s hould seek to

(5 ) D ivis ion of countie s should beavoided whenever poss ibl e. Countiesshould be divid ed into di str icts not whollycontained within that county on l y to th eextent reasonably necessary to meet therequirements of the equal population prin-ciple . In th e event that a county must bedivided, the number of such divisions, percounty, should be kept to a minimum .

(6) To the extent that counties mustbe divided to create districts , such distri ctsshall be composed of conti guous counties .

(7) District boundaries should retain ,as far as practicable , the local voting pre-cinct boundary lines to the extent thoselines comply with th e provi s ions ofs ection 34-306 . Idaho Code.

(8) Counties shall not be divided Coprotect a particular political party or a par-ticular incumbent

[FIN6 1 Ct is clear that if the State Constitution and astatute con fl ict , the State Constitutional provision pre-vails . It is also clear that if a State Constitutional provi-s ion or statute conflicts with the United States Constitu -tion, the United States Constitutional provision prevails .

A rticle III § 5 of the Idaho Constitution limits thedivi s ion of counties to create legislative [***12] districtsto those s ituations in which spli tt ing the coun ty is neces-s ary to meet standard s of equal protection; that is , oneperson, one vote. Obviously , to the extent that a coun tyconta i ns more people than allowed in a leg islative dis-trict , the county must be split . However, th is does notmean that a county may be divided and aligned withother counties to achieve ideal district size if that idealdi str i ct s i ze may be achieved by internal divi sion of thecounty. Whether des irable or not, that is the meaning ofArticle III , § 5. [] -IN7 ]A county may not be divid ed andparsed out to are as o ut si d e th e county to achieve idealdistrict size, i f that goal i s att ainable without extendingthe district outs ide th e county. S i milarly, the other con-s id eration s set forth in 72- 1506 are subord i nate to thelimitations o f Art i c le 111, § 5.

In s um , th e n eed to comply with the s tand ard s ofequal protect i o n i n t h e Un i te d St ates Constitution i s

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paramount. In approaching th at goal, Art icle III, & 5 of the county was combined i n District 29the Idaho Constitution is the beg innin g point . A plan with the Fo rt Hall precinct in B inghammust begin with the premise that the countie s wi ll not be County and th e no rthern portions of Ban-s plit unl es s i t i s n ecessary to m eet sta ndard s o f equ a l nock County . A lth ough th e Commi ssi onprotection . If it is ne ce ssary Co go [ *'"* 1 3 ] o uts id e cons idered many plan s that did not dividecounty boundar ies to fonn a district, considerations in § [***15] Power County , this approach72 - 1506 come into play, s uch as joining commun i tie s of wa s nece ss ary to accommodate the re -interest and avoid ance of oddly shaped di strict s. Those maind er o f Bannock County' s populati onare factor s to be considered, but th ey are s ubordinate to after Distri ct 30 was created out of thethe Constitut i onal standard of voter equal i ty and the re- Pocate ll o are a and southern Bannockstrict i ons in the Idaho Constitution upon splitting coun- County was placed in Di strict 28 withties except to achieve that voter equality. Oneida, Franklin , Bear Lake and Caribou

Counties to create a more compact dis -IV. trict . The remainder of Power County was

combined with Cassia and port ions ofTHE DIVISIONS IN L91 Bingham County to satisfy the contiguous

requirementpetitioners argue that L91 violates Article III, rement of the Idaho Constitution and

5 of the Idaho Constitution. It is clear that splitt ing some to provide additional population to satisfy

counties is necessary to create dis tricts that comply with the one person /one vote requirement ofdivi-

equal protection principles in the U . S . Constitution. The the United States Constitution . This divi-

next issue is whether there are divi sions within L91 that s ion of Power County also kept all popu-next

not necessary to meet equal protection s tandards in lated portions of the Fo rt Hall Indian Res-are

of the Art icle III, § 5 restraint upon di viding ervation in one legislative district in fur-violation of the "communities of interest"counties. provision of Idaho Code & 72- 1506(2) .

It is undisputed that the followin g counties must besplit under a new redistr i cting scheme: Ada , Bannock,Bingham, Bonneville, Canyon , Kootenai, and TwinFalls . Each has too large a population for the ideal dis-trict . [* * 868] ( * 875] It is apparent, also , in a state w i th44 counties and 35 legislative districts that joining coun -ties or paits of counties with one another [ * * * 14] i s nec -essary. However, [HN8]to the extent possibl e, countiesshould not be split, or the splits should be kept to theminimum possible while meeting equal protection stan -dards . Analys i s of L91 yields interesting information.

Plan L91 divides Power County into two legislativedistricts - Districts 27 and 29 . The Commiss ion foundthat Power County's population was insufficient to con-stitute a single district. Therefore , i t could have beencombined with another county or counties and not havebeen divided .

However , in order to addres s the popu-lations of Power, Cassia , Oneida , Frank-l in, Bear Lake , Caribou, B ingham andBannock Countie s in a way that meet boththe one person/one vote requiremen ts o fthe United States Constitution and th ecommunity of i nteres t provi s ion o f ldahoCode & 72-1506 the Comm iss ion d i -vid e d th e populat i o n of Powe r County be -twee n two districts in the propose d pl a n .Th e Powe r Co unty population i n Am er i-c an F alls and the north ea stern porti o n of

Plan L91 divides Bannock County into three legisla-tive districts - Districts 28 , 29 , and 30 . Bannock County' spopulation requires that it be split . I-Iowever, the Com-mission made the following findings regarding BannockCounty :

Bannock County has s u fficien t popu-lation for two di stricts wholly containedwithin th e county w i th no rema inder tobe combined with another county or[***16] counties. The approved plancreates one district wholly containedwithin the county. This is District 30which is most of Pocatello. Instead of cre-ating a second district from the remainingBannock County population, as was con-sidered by the Commission, the adoptedplan divided that remaining BannockCounty population between two other dis-tricts. Southern Bannock County wascombined in District 28 with Oneida,Franklin, Bear Lake and Caribou Countiesto create a more compact district with agreater common community of interestthan in many other plans considered bythe Commission ( Idaho Code 6 72-1506 2). The northern portion of Ban-nock County not in District 30 was com-

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bine d w ith the Fort Hall precinct in B ing-ham County and w ith n ortheastern PowerCounty for the reas on s s tated in the PowerCounty finding. Thi s allocation o f B an -nock County between Distr i cts 2 8 , 2 9 an d3 0 creates districts wh ich s atisfy the oneperson/one vote requ irement of the UnitedState s Constitution. Other plans were notadopted by the Commission because somefelt th at District 2 8 in those p l aces, whichcombined Oneida , Franl< lin , Bear Lake ,Caribou , eastern Bonneville and TetonCounties, [ *** 17] violated Idaho Code 672-1506 because it was too oddly shapedand did not constitute a local communityof intere st . (emphasis added) .

In Plan L91 Bingham County i s divided into threedistricts - Districts 27 , 29, and 31 . Bingham County 'spopulati on requires that it be split . The Comm issionmade the following findings regarding Bingham County :

Blackfoot and the remainer of Bingham isplaced in District 3 1 with tho se po rt ionsof Bonneville which surround Idaho Fa ll sto th e west and south . Th ese are as havecommon agricultural and other communi-ties of interest alon g with the Interstate 15corridor between Blackfoo t and IdahoFalls . (emphasis added) .

It appears that the Commission's focus in spli tt ingthese counties i s to maintain traditional neighborhoodsand communities of i ntere s t while avoiding oddly shapeddistricts and still maintaining the one person/one votestandard . Those are laudable statutory goals, but they aresubordinate to the threshold standard of Art icle III, § 5that counties may not be divided unnecessarily . That isthe baseline for consideration within the state system--trumped only [* ** 19] by the Constitutional need forequal protection.

V.

Bingham County's population is too OTHER ISSUESgreat for one self- contained district and The petitioners have raised other issues concerningtoo li tt le for two self-contained districts . the validity of L91 . The Court wi ll address these i s suesTherefore , Bingham has to be divided to for to the Commission in further

with [**8691 [ * 876] the United possible guidance plan-complyStates Constitution . The ideal would be to ning.

create one who ll y self-contained district A. Idaho Code & 72-1506(4)in Bingham County and combine the por- Section 1506(4) states that " to the maximum extenttions of the county with another county orcounties in another di s trict. The approved possible, the plan should avo i d drawing districts that are

plan does not do this . Rather, Bingham oddly shaped." The petitioners argue that District 27 is

County is divided among three dis- an odd "C" shape . Because there were other proposed

tricts, each combining other counties or plans that did not create an oddly shaped District 27 , the

portions of counties . Most of western petitioners argue, Plan 91 violates this statute .

Bingham County west of the Snake River The statute does not define the term "oddly shaped . "i s combined with Cassia and a portion of In Hellar v. Cenarrusa 106 Idaho at 591 682 P2d atPower County in District 27. These areas 544 , this Court stated that [HN9 ] " shoestring connections ,have a common agricultural community odd -shaped narrow district s, dispers ion of urban popula-of interest , although the Bingham County tions into larger rural areas and the unnecessary splittingCommission s made clear in their desire of established areas" could be evidence of gerrymander-th at most of this area would [*** 18] be ing . In the racial gerrymander ing context, the Unitedkept with the Blackfoot area- The Com - States Supreme Court has identified several factors thatmis s ion found no reasonable way to ac- may lead a court to believe a district is oddly shaped .commodate this request and still comply These include the degree of a district' s compaction;with the one person/one vote re quirement [ * **20] whether the various portions of the district areof the United States Constitution . The contiguous with one another ; and the extent to whichFort Ha ll Precinct in southern Bingham distr i cts respect political subdivision s. Shaw v. RenoCounty is plac ed with the other populate d 509 U . S . 630 647 1 2 5 L. Ed. 2d 511 113 S . Ct . 2816porti o n of the Fo rt Hall Indian Reserva- 1993 . Federal courts have held th at d istrict s are oddlyti o n in north ern Bannock County and shaped when they are "di storted " or "elongated ." Diaz v.e aste rn Power County for the reason s Silver, 9 7 8 F. Supp. 96 118 (E . D N Y 1997).s t a te d i n the Power C ounty fi ndin g.

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137 Idaho 8 70 , *; 5 5 P.3d 863 ,2002 Ida . LEXIS 3 5, M*

The Commission correctly argues that the districtdoes not h ave a "shoes tring sect i on" or a narrow shape . Itcontains mostly rural areas . It is a fairly large d i str ict butnot very far out of the ordinary when compare d to otherdi stricts. It is not very "elongated . " The district does,however , conta i n a "C" shape at one end that gives itsomewhat of a different shape . The question then iswhether this by itself creates an oddly shaped district .There is no evidence that residents of the commun itieswithin the district contain different interests or that thedistrict was drawn in order to discriminate . Further, thestatute does not forbid the creation of an " oddly shaped"district, it merely states that this should be avoided whenpossible . Looking [ ** 870] [ * 877] at the other pro -posed plans in the [ *** 21] record, District 27 looksmore or less the same . District 27 does not violate thisstatute .

B. Idaho Code § 72- 1 506(7)

Section 72-1506(7) states that "district boundariesshould remain, as far as practicable, the local voting pre -c inct boundary lines to the extent those lines complywith the provisions of section 34-306, Idaho Code . " Thepetitioners argue that Plan 91 div ides two precincts inBingham County and place s one in District 27 and one inD i strict 29 . Because there were other proposed plans thatd id not split the precinct, the petiti oners argue that Plan91 v i olates this statute.

The Commission admits that some prec incts havebeen divided , but that some precincts must be div idedunder any new redistricting scheme. This is cert ainlytrue . The fact that a plan splits one precinct is not fatalunder this statute. Some precincts are going to have to bespl i t, and the statute only requires that this be avoided" as far as practicable."

lowing guidance ; includin g whether th e residents in thedi str ict regard them se lve s as a community ; whether theresidents in the district l i ve i n a urban or rural areas ; andwh eth er te ntacl es, appendages, o r p arts o f the di s trictshare common tran spo rtati on line s and media sources.See, e.g., l,awevr v. Dep 't ofJustice, 521 U.S. 567 , 581 -82 , 138 L . Ed . 2 d 669, 117 S . Ct . 2186 (1997) ; Bush v.Vera, 517 U S 952, 966 13 5 L. Ed. 2d 248, 116 S Ct.1941 (1996) . [ ***2 3 )

the Commission argues that it worked to satisfy theconcerns addre ssed in th e ch allenge Co the first redistrict-ing plan in creating the current plan. For example , theCommission argues that the communities of Fi rt h , Shel-ley, and Basalt, which were previously divided, are nowplaced in a single district, and that the Fort Hall IndianReservation has been maintained as a single district . TheCommission also argues that Riverside , Thomas , More-land, Pingree and Rockford have been kept together . It isclear that the closest major population area to these smallcommunities is Blackfoot an d that Blackfoot has beenplaced in a different district than the s e communities.

When considering the B annock County petition , it isimportant to note that the areas in dispute share a com-mon media, they are all in the Sixth Judicial District, andthey are connected by Interstate 84 . The Commissionalso argues that from 1966 through 1992 that BannockCounty had at all times been joined with one or more,and currently all , of the counties of Oneida, Frankl in ,Bear Lake and Caribou . The plan appears to honor tradi-tional neighborhoods. However, any decision on the va-lidity of these alignments is moot in light [ *** 24] of theCourt 's decision concerning the effect on Article III. § 5of the Idaho Constitution .

VI.C . Idaho Code § 72 - 1506(2)

Section 72-1506(2) states that to the maximum ex-tent possible, districts shall preserve traditionalneighborhoods and local [***22] communities of i nter-est . " The Bingham County petitioners argue that thecommunities of Riverside, Moreland , Rockford , Thomas ,and Pingree , which are located near Blackfoot , will be-come part of Di s trict 27 with Cassia County , whileBlackfoot will become part of District 31 . Because therewere other proposed plans that did not s plit these com-munities , the Bingham County petitioner s argue that theplan violates the statute. The Bannock County petition ersargue that the co mmunitie s of Pocatello , Inkom,McCammon , and Lava Hot Springs should have beenkepttogeth e r .

The s tatute does no t de fine [HMO ] what a "tradi-tional neig hborhood " o r a "local community o f interes t"is. The United States Suprem e Court has offered th e fol-

CONCLUSION

Plan L91 contain s a population deviation of 11.79%,well above a prima facie showing of a violation of equalprotection standards, The Commission justi fi es this de-viation on the basis that it occurs as the result of an ad -vancement of rational state policies, particularly mainte-nance of the integrity of political subdivisions-Madisonand Fremont Counties. [ * "871] [ * 878) Artieie III , & 5of the Idaho Constitution prohibits the divis i on of coun-tie s, except to me et the constitutional standards of equalprotection . The prohi bi ti o n was honored by the Commis -s ion with re spe ct to Madison and Fremont Counties , butArticle III , § 5 was not honored as to Bingham and Ban-nock Count ies. In those instanc es, th e i de a of joinin gcommuniti es o f i ntere st has prev a il e d o ver the re quire -ment of maintainin g county inte gr i ty exc ep t to ach ie veequal pro tecti on . The basis for justifying the popu lationdeviati on i n L91 i s not consistent with other dec i s i o n s

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1 37 Id ah o 870 , '; 55 P .3 d 863 ,2002 Ida . LEXIS 35 , ^` " "

made by the Comm ission which did not honor the inte g- ment . Mahan v. Howell, 4 1 0 U.S. 315, 3 5rity of political subdivi sions . L. Ed 2d 320, 93 S C t. 9 79 (197 3 ). Re-

di strict i ng pl an s withCommiss ion i s di r e cte d to reconvene to adopt a

l� greater th an 10%

re disuictin " **25 consis tent with constitutionalpopoulation deviation can be j u stified

g � � plan [***27] only if s uch additional d ev i a ti onstandards of equal protection and to the extent pos sible i s required to fu rther a " raCi onal st ate pol-the dictate s of Art icle III � 5 of the Idaho Constitution i cy . " Id at 3 28 -329 . In Mahan th e Un i t e dIn the event th e delay occasioned by this d irect i ve inter- State s Supreme Court upheld a le g i s lativeferes with the time limits for candidate fi lin g, the Court redistricting plan w ith a 16 . 4% deviationw il l consider any requests for remed i al order . The peti - because it furthered the state " p ol icy oftioners are awarded costs . No attorney fee s are allowed. maintaining the integrity of po l i tic a l sub -

DiSSENT BY: WALTERSdivisions. " 4 1 0 U . S . at 319 , 329 .

DISSENT

Justice WALTERS, DISSENTING.

In Smith v . Idaho Commission on Redistricting,Idaho 38 P.3d 121, 125 (2001) , we held that theredistricting plan proposed at that time by the Commis-sion, L66 , "biolated the Equal Protection Clause of theFourteenth Amendment To the United States Constitutionbecause the population of its districts var ies more than10% constituting a prima facie case of discriminationand the State has offered no evidence of legitimate rea-sons for the deviation . " The key to this determinationwas the lack of any explanation by the Commission thatset forth a rational basis for the population variance inthe proposed redistricting plan .

Following the decision in Smith, the Commission re -convened and thereafter [ M* "26] proposed a new plan,L91 . The petitioners have now challenged that plan, ar-guing that i t too violates the equal protection provision ofthe United States Constitution, as we ll as A rticle TII, 6 5of the Idaho Constitution and pe rtinent statutory provi-sions . A majority of this Court agrees with those chal-lenges. I disagree .

The Commission, in my opinion, corrected the defi -ciency found by this Court in Smith , and did not createanother plan subject to constitutional or statutory imper-fections .

The rationale for the new plan was expressed by theCommission in its fi ndings and conclusions as follow s:

The United States Constitution ha s beeninterpreted by the United States SupremeCourt to re quire that legislative districtsbe formed after each census with substan -tially equal population to satisfy the oneperson/one vote requirement. State legis-l ative redistricting plans of less than 1 0%deviation between the most populou s andl eas t popul ou s districts are pre sumed tosati sfy the federa l constitution al require -

With this premise stated , the Commission next re -viewed the provisions of Article IlI, S 5 of the IdahoConstitution and the statutory provisions set forth inIdaho Code 72-1506 relating to the creation o f a redis-tricting plan. The Commission stated :

The Commission believes that the IdahoConstitut ion 's provision s regarding the di -vision of counties in the formation of leg-islative districts constitutes a rational state" policy of maintainin g the integri ty of po-litical subdivisions" within the meaning ofMahan that justifies a deviation betweendistricts of up to 16.4% . The deviation inthe redistrict i ng plan adopted by theCommission is justified by this rationalstate policy of maintaining the integrity ofcounty [ ** 872 ] [ * 879] boundarie s con-tained in Art . III & 5 of the Idaho Consti -tution.

Some [ * * *28] members of theCommiss i on believe that Article III 6 5 ofthe Idaho Constitution prohibits the div i-sion of counties unle s s absolutely neces-sary to satisfy the one person /one vote re-quirement of the United States Constitu-tion. Additionally they believe that theIdaho Constitution requires that th emaximum number of districts be whollycreated within any coun ty whose popula-t i on suppo rts th em ., e.g.s, a county couldnot be div i d ed at all if its p opulationequa le d two ideal district s, or if its popu-lati o n equa led two ideal di str i c ts plu s8 , 000 persons , th e county mu s t have twose lf contained di str i cts with onl y thi s sur-plus being subject to divi s i on . Oth e rmembers o f the Commi ss i o n bel i e v e thatth e Idaho Con st i tu tio na l p r o vi sion s are to

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b e read together with the statutory provi -s i o n s of Idaho Code & 72- 1506 in a waythat respect s a s may be reasonab l y pos s i-ble the limitati on s on d i vi s ion of c ounti eswhile at the same t ime honoring the pr in -ciple of one person one vote, and Co themaximum extent pos sible , endeavoring topreserve traditional neighborhoods andlocal communitie s of interest and to avo idodd shapes . Plan L91, the redistrictingplan adopted by the Commission ,[***29] is justified by thi s latt er view ofthe constitutional and statutory require-ments .

The Commission considered the unique physical featuresof our State that bore upon the daunting task of creatinglegislative dist rict that would pass constitutional andstatutory muster . The Commission wrote :

There are several physical factors whichcomplicate redistricting in Idaho . Theunique shape of the state limits the com-binations of conti guous countie s that canbe combined to create legislative district,The geography of Idaho (wilderness ar-eas , mountain ranges , deserts and rivers)in some cases limit th e ideal combinationof certain counties in the creation of legis-lative districts . The low populati on den -si ty of many counties limits the idealcombination of ce rt ain counties in thecreation of le g islative districts. The factthat most of the external boundaries ofIdaho (with the exc eption of certain areason the western border) run through veryspars ely populated areas limits the idealcombination of counties in the creation oflegislative districts . For redi stricting pur-poses, Idaho is th e exact oppos ite of therectangular shaped state whose populationis evenly distributed over ( *" *30] flatfarmland. The federal one person/one voterequirement, the Idaho Constitution' s limi-tation on the number of district s, theIdaho Constitution's limitation on th e di-vision of counties in the form at i on of le g-i s lative districts , and thes e unique physi-cal features necessarily result in the crea-tion of a few le gis lative di strict s th at arenot ideal under any red i strictin g plan.

After c o n c ludin g t h at a plan conta inin g thirty-fivel eg i s l at i v e d i s trict s, as pennitted by Art . ]I7 & 2 of the

Id aho Constitution, would be the mos t reas onable,Commissio n n e xt addresse d the divi s ion o f countiesorder to arriv e at th e bes t plan . Th e C ommis sionported:

In a thi r ty- fiv e d istr ict plan two countieshave such popu l ation s that they can con-stitute s ing le di stri cts by themse lves with-out combination with any other county orportion of anoth e r c ounty . They are Latahand Nez Perce Count i e s. Three counti escould be divided into districts whollywithin that county that meet the one per-son/one vote requirement without havingto combine any portion of that countywith any other county or portion of an-other county . They are Ada (8 districts),Bannock (2 dis tricts) and Kootenai (3 dis -tr icts). [ * * * 31) Four counties are of suchpopulation that one or more dis tr icts canbe created s olely within the county, but aportion of the county must be combinedwith other counti es to meet the one per-son /one vote requirements. They areBingham (I whole , I partial), Bonneville(2 whole, 1 partial), Canyon (3 whol e, Ipa rt ial) , and Twin Falls (i whole , I par-tial) . The remaining th irty- five countiesare so sparsely populated that they mustbe combined with other countie s to createdi s trict s of sufScienC population to com-ply with the federal con s titutional re-quirement of one person/one vote . One ofthose counties (Bonner) must be divided[**873] [ * 880 ] and combined with con-ti guous counties because one neighboringcounty (Boundary) is not contiguous toany other county . Boundary County is sosmall that it cannot constitute a d i strict byi tself which sati sfies the one person/onevote requirement and when B oundary andBonner Counties are combined undividedthey are too large to constitute a districtwhich complies with the one person/onevote requirement .

th ein

re-

The Commission then made s pec i fic find ings re -gard ing those count ie s whi ch the Commi ss ion deter -mined shou l d b e divided in ord e r t o arrive at a plan thatwould ( ***32) comply with the constitutional require-ments. With resp e ct to the two co unties wh o fil e d thi sact i on to ch allen ge the pl a n adopted by the Commissi on --Bingham and Bannock-th e Comm i ssion exp l a in ed :

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] 37 I daho 870 , * ; SS P.3d 863 ,2 002 1da . LEXIS 3 5 , ***

Ban n ock County. Bannock County hass uffici e nt popula tion fo r two di s tr i ctswholly contained within the county withn o rema ind e r to be co mbined with anoth ercounty o r co untie s . The ap pro v ed pl ancreates one d is tr i c t wholly conta i nedwithin the county . Thi s i s District 2 0which is most of Pocatello. I ns te ad of cre-ating a second di strict from the remainingBannock County population , as was con-sidered by the Commis s ion , the adoptedplan divided that remainin g BannockCounty population between two other dis-tricts . Southern Bannock County wascombined in District 28 with Oneida ,Franklin, Bear Lake and Caribou Countiesto create a more compact district with agreater common community of interestthan in many other plans considered bythe Commission ( Tdaho Code § 72-1506 2) . The northern po rt ion of Ban-nock County not in District 30 was com-bined with the Fo rt Hall precinct in Bing-ham County and with no rtheastern PowerCounty for the reasons stated in the Power[***33] County finding . (In the PowerCounty finding, the Commission con-cluded that Power County had insu ffi cientpopulation to con st itute a s ingle districtand it would be in furtherance of the"communiti es of interest" provision ofIdaho Code § 72-1506(2) to combine aport ions of Power County with port io n s ofBingham and Bannock Counties in creat-ing Districts 29 and 30 . ] This all ocation ofBannock County between Districts 28 , 29and 30 creates di s tricts which satisfy theone person /one vote requirement of theUnited States Constitution. Other planswere not adopted by the Commission be -cause some felt that District 28 in thoseplaces , which combined Oneida, Franklin,Bear Lake, Caribou , eastern Bonnevilleand Teton Counties , violated Idaho Code§ 72 - 1506 becaus e it wa s too oddlyshaped and did not constitute a l o calcommunity of inte rest .

The Commission's determination with regard to BinghamCounty was al s o e xplained . The Commi ssi on s aid :

Bingham County. Bin gham County'spopulation is too gre at for one se lf-c on tai ned district and too l i ttle for twose lf-conta i ned di st r i ct s. Therefo re, B ing-

ham has to b e div i ded to [***34] complywith th e Uni ted States Con stitution . Theideal would be to cre ate one wholly self-co nta i n e d district i n Bingh am County andcombine the portion s o£th e county withanother county or countie s in another dis-trict. The approved plan does not do this .Rather, B i ngham County is dividedamong thre e di strict s, each combiningoth er c ounti es or portions of counties .Most of western Bingham County west ofthe Snake River is combined with Cassia[County] and a po rt ion of Power Countyin District 27. These areas have a com-mon agricultural community of interest ,although the Bingham County Commis-sioners made clear in their desire thatmost of this area be kept with the Black-foot area . The Commission found no rea-sonable way to accommodate this requestand still comply with the one person/onevote requirement of the United State sConstitution . The Fort Hall precinct insouthern Bingham County is placed withthe other populated po rt ion of the FortHall Indian Reservation in northern Ban-nock County and eastern Power Countyfor the reaso n s stated in the Power Countyfinding. Blackfoot and the remainder ofBingham is placed in District 31 withthose portions of Bonnev i lle [County]which surround [***35] Idaho Falls tothe west and south . These areas havecommon agricultural and other communi-ties of interest [ ** 874] [*881] alongwith the I n terstate 15 corridor betweenBlackfoot and Idaho Falls .

Havin g determined which counties shou l d be divided asallowed by the ]daho Constitution , the Commiss ion nextexplained it s decision for the composition of each of thethirty - five di stricts . The districts containing port ions ofBingham and Bannock Count i es , which are now com-plained of by the petitioners, are districts 27 , 28, 29 , 30and 31 .

With respect to Di stri ct 27 composed of CassiaCounty and po rt ion s of Power and Bingham Counties ,the Commis si on no te d that the port ions were contiguous ,were n e cessar il y combined to s ati s fy th e one pers on/onevote requirem ent a lt h ough vary in g from the ideal districtpopul ati o n by a minu s 5. 0%, but com bined a communityof interes t with its p o pul a t io n c enters n ear the princ i p a lhi ghway s, i r r igated agri c ult u ra l and commerci a l area s. '

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1 37 Id ah o 870 , *; 55 P.3d 863,2002 Ida . LEXIS 35, * **

I The ide a l di str ict , b ased on the total popula-t i on reported i n the 2 000 censu s, would consist of36 , 970 peopl e. Under P l an L91 , each of th e leg is-l ato rs in District 27 would represent 35,132 p e o-ple , or 1838 less th an the ideal di str i c t.

[* ** 36 ] As to District 28, compos ed of Oneida,Franklin, Bear Lake , Caribou Counties and a c ontiguou sport ion of Bannock County , th e C ommiss i o n found thatthis combination provided a pop ul at i on that varied only0 .4% from the ideal district . ' Th e Comm iss ion deter-mined that although it may have been d es irable not todivide Bannock County, the propos ed confi guration

brings together a compact and contigu -ous collection of counties and a commu -n i ty of interest in matters of services,transportation and commerce while at thesame time satisfying the requirements ofone person , one vote . Thi s confi gurationcomplies with Idaho Code Section 72 -1506 2, and enjoyed support from somepublic officials and some citi zens fromwithin the district.

2 Compared with an ideal di strict of 36 ,970 ,each legislator in District 28 would represent37 , 114 people, or 144 more people than the idealdistrict .

Similarly , with regard to Di strict 29 , which is com-posed of port ions of Bannock, Bingham and Power[ *** 37] Counties , i ncluding the bulk of the NativeAmerican population on the Fort Hall Indian Reserva-tion , the Commission determined that the areas werecontiguous, were a traditional nei ghborhood and con -tained a community of interest in culture and commerce .The Commission found that this combination of countiesand communities of interest has a population which var-ies from the ideal dis tr ict by 2. 7 °/o. '

3 Compared with an idea l district of 36,970,each le g islato r in District 29 would represent37 , 954 people , or 984 more than the idea l dis tr ict .

District 30 is largely c o mposed of th e C ity of Poca-te l l o . The Commission determined th at thi s area had anobv ious community of interest, was a traditionalne i ghborhood and had a po pulati on vari ance of 3 .2%from the ideal district . '

4 Comp ared w i th the ide a l district o f 3 6 , 970 ,e ac h l egis l a t or i n Di s tr i ct 3 0 woul d rep re sent

38 , 158 peop l e , or 1188 more than the ideal dis-trict,

[* " * 38] Fina lly , with respect to propo sed District31 , which combined a port ion of Bingham County withsouthern Bonnevill e County , the Commission stated thati t was a con tiguous area , repre sented a communi ty ofintere s t and traditional ne ighborhood with populationcenters l ocated at Blackfoot , Firth , Shelley and a con-ti guous part of Bonneville County near Idaho Falls . TheCommission noted that "with portions of BinghamCounty having been used to balance the population inDistricts 27 and 29 , the remaining population , while sub -stantial, still needed a port ion of Bonneville County tocreate a dis trict population which varies from the idealby 3 .9% to satlsfy the one person, one vote require-ments." I

5 Compared with the ideal district of 36 , 970 ,each legislator in Distr ict 31 would represent38,411 people , or I 441 more than the ideal dis-trict .

In accomplishing its task, the Commission noted , itendeavored throughout to retain as far as practicable thelocal voting precinct boundary lines.

[ '`* 875 ) [ * 882] The United States Supreme Cou rt["* 39] has concluded that "the Equal Protection Clauserequires that a State make an honest and good faith effortto construct districts , in both houses of the legislature , asnearly of equal population as is practicable . " Revnolds v.Sims 377 U.S. 533 577 12 L. Ed. 2d 506, 84 S. Ct.1362 (1964) . "So long as the divergences from a strictpopulation standard are based on legitimate considera-t i ons incident to the effectuation of a rational state pol-icy, some deviations from the equal protection principleare constitutionally permissible in either or both of thetwo houses of a bicameral state legislature." Id. at 579 ."It is neither practicable nor desirable to establish rig i dmathematical standards for evaluating the constitutionalvalidity of a state legislative apportionment scheme un-der the Equal Protection Clau s e . Rather, the proper judi-cial approach is to ascertain whether, under the part icularcircumstances existing in the individual State whose leg-islative appo rt ionment is at issue, there has been a faith-fu l adherence to a plan of population-based representa-tion , with such minor deviations only as may occur inrecogniz i ng cert ain factors that are ( *** 40] free fromany taint of arbitrariness or discrimination." Roman v.Sincock 377 U S 695 at 696 12 L . Ed. 2d 62 0 84 S. Ct.1449 (1964) .

Here, I s ubmit , there was a go od faith and hone st ef-fort by the Commis sion to propo s e a legislative redis-tricting p lan free from the ta int of arbitrarine ss or dis -c rimi nation . Th e Comm issio n fully and fairly explained

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the cons id eration s that went into Plan L91. The Commis-s ion articulated a rational basi s for its decision . The re-sult is entitled to substanti a l deference by the court s uponrevi ew . Brown v . Thomson 462 U S 835, 847-48, 77 L .E d . 2d 2 1 4 , 10 3 S . Ct . 2690 (1 9 83) .

Fu rt hermore , gi ven the detail ed explanations pre-s ented by the Comm ission to suppo rt their decision forthe acceptance of Pl an L9 1, I do not find the populationdev iation repre sented by the plan to be violative either ofthe constitution s or the statutes. As pointed out inMcBride v . Mahoney, 573 F. Supp . 913 , 915 n . 6(DMont.19831 , apportionment plans where there have beendeviations in excess of 10% have been approved in manyrecent cases , including Brown v. Thomson, supra,(Wyoming House of Representatives , [ ***41] maxi-

mum deviation 89%) , Mahan v. Howell, 410 U S 3 1535 L . Ed . 2d 320 93 S . Ct . 979 (1973 (Virginia House ofRepresentatives , max imum dev i ation 16 .4%) ; Abate v .Mundt . 403 U . S . 182, 29 L. Ed. 2d 3 99 91 S. Ct.1 904(1971) (Rockland County , New York, maximumdeviation 11 . 9%) ; Wold .v A nderson 33 5 P . Supp. 952(D . Mont . 197 1 (Montana S enate, maximum deviation10,95%); L¢aeue o(Nebraska Municipaliiies v. Marsh.253 F . Supp. 27 (D . Neb, 1966) (N ebraska Hous e ofRepresentatives, maximum deviati on 19 . 65%); Sims v.Baqpett , 247 F . Supp . 96 (M . D . Ala . 1965) (AlabamaSenate, maximum dev i ation 2 5 . 7%) .

I conclude that that the challenges raised by the peti-tioners should be denied and that Plan L91 as submittedby the Commission should be permitted to go into effect .

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