Friday, August 12, 2011

Constitutionality of Redistricting

Editor's Note: The following Reader's Opinion was sent to me by members of the Idaho Redistricting Commission. Rather than being concerned with the politics of pitting incumbents against one another as the GOP members of the commission are, the Democratic members of the commission are looking at the constitutional factors involved in redistricting. As the authors of this opinion note, the members of the commission appear to be at an impasse.

Reader’s Opinion
Submitted 8/12/2011
Written by Co-Chair Allen Anderson of Pocatello, Commissioner Julie Kane of Lapwai, and George Moses of Boise.

As the constitutionally mandated deadline of September 4th looms, the press coverage of Idaho’s bi-partisan Redistricting Commission has increased. Two-thirds of the way through a 90-day timeline, the present Commission seems to be at an impasse. We believe that this impasse is rooted in differing interpretations of the legal guidelines. To resolve this apparent impasse, we believe it is imperative that the Commission adopt one consistent approach to redrawing the lines. Redistricting is done to protect individual voter rights, and we should approach redistricting in a way that best protects that Constitutional right. Such an approach is as follows: first determine if it meets US Constitutional requirements, then the Idaho constitution, and finally, state statutes.

Currently, Republican Commissioners bestow on statutory guidelines the same weight as constitutional requirements. We hold that statutes, which are passed by a simple majority of lawmakers, have less weight than constitutional requirements. To protect the rights that the constitution guarantees, any amendment to it requires a supermajority vote of the people in order to amend it. Simple legislative action is not enough. Considering all guidelines as equal permits more latitude in mapping than was ever intended and violates constitutional protections. Undermining the US and Idaho constitutions violates individual rights and permits the Commission a slippery slope to promote covert partisan goals.

Constitutions are designed to hamstring the power of government and protect individual rights. To ensure this Citizen’s Commission honors constitutional rights, we again assert that all plans should be approached by the following ranked standards:

First, uphold the US Constitution. The US Constitution requires that each legislative and congressional district must have equal population. Congressional districts must have exactly the same number of people. For state legislative districts, the Supreme Court determined that deviations of less than 10% presumptively honor the federal principle of one person, one vote. Interestingly, courts have not tossed out plans that meet the 10% threshold even if a lower deviation could have been attained. Courts have determined that changes below that threshold are simply political maneuvering.

Next, uphold the Idaho constitution. In Idaho, districts that join multiple counties must be contiguous, and a county may only be divided to comply with the standards of the US Constitution (Article III §5). The Idaho Supreme Court has rejected plans when it was shown that a county did not need to be divided. If any proposed plan divides fewer counties than the one adopted by the Commission, that adopted plan could be challenged as unconstitutional.

Finally, uphold Idaho Statutes. The Idaho Constitution grants the legislature authority to create guidelines for redistricting. Idaho Code lays out seven guidelines (72-15). However, in 2002 the Supreme Court held in Bingham v Idaho Commission for Reapportionment that while statues must be considered, “they are subordinate to the Constitutional standard of voter equality and the restrictions in the Idaho Constitution.” Constitutions always come first.

Idahoans should contact the Redistricting Commission and ask that they honor these requirements in their proper order of importance. Refusal to do so will create deadlock, waste taxpayers’ dollars, and erode the constitutional framework that protects individuals. As intended, a constitutional approach prevents the Commission from using its authority inappropriately. Idahoans should insist their Citizens’ Commission for Redistricting follow a mapping process that honors the US and Idaho constitutions first.

For those just tuning in, redistricting occurs every ten years after a U.S. census. It is designed to protect the voice of the voter and ensure our elected officials represent the same number of people. In 1993, a supermajority of Idahoans amended the state constitution to remove the redistricting process from the Legislature and incumbent influence. Idahoans instead implemented a six-member bipartisan commission of 3 Republican and 3 Democrats. Idahoans required that a final plan must have 4 votes out of 6 to pass. The Idaho legislature has passed a law requiring 5 votes to take certain actions, more than the constitution requires to adopt a plan.

The Commission began its work in June hosting public hearings all over the state to collect. July has been full of meetings and discussions on many proposed maps from both sides. Those who wish to follow archived meetings or future meetings and proposals may visit

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