Idaho's legislative apportionment system ain't broke, it doesn't need fixin'

After much partisan wrangling in the Legislature and lengthy fighting through the courts, Idahoans voted to fix Idaho’s legislative redistricting system by removing it from raw politics. In 1994, the people approved an amendment to the Idaho Constitution empowering an independent panel to divide the State into legislative districts. The two major parties were each to appoint three members to the six-person panel.

The system has performed its work in two reapportionments--following the 2000 census and after the 2010 census. It has not been perfect, but it has reduced the partisan rancor and endless litigation that caused the voters to approve it. Plus, it has reduced the possibility of pernicious gerrymandering that can dilute the votes of city-dwellers in Idaho’s more-populous counties.

What brought the people to demand that partisanship be kept out of redistricting? It was an ugly situation and I had a front-row seat as Idaho Attorney General. In 1981, the Republican-dominated Legislature passed a reapportionment bill which Governor Evans vetoed. The next year, the Legislature passed a bill that was signed by the Governor. It was challenged in court and found unconstitutional by a district judge in Sandpoint.

The Idaho Supreme Court upheld the judge’s ruling in June of 1983 and sent the case back so he could adopt a new apportionment plan. That court approved a plan devised by a North Idaho College professor. The plan called for 21 additional legislators and established seven large, overlying districts called floterial districts, as well as six multi-member districts.

In January of 1983, as I was stepping into the AG office, the Supreme Court ruled that the plan would go into effect, unless the Legislature adopted a constitutional alternative. The Legislature approved a plan that the Governor signed, but the Court found it inadequate.

I asked the U.S. Supreme Court to intervene but it declined. The Republican legislative leadership sought help in federal court but was rebuffed. They then drafted a revised plan, but the Governor refused to call a special session to consider it. So, the odd plan drafted by the professor went into effect.

The lawyer representing those who challenged the Legislature’s plans throughout the lengthy litigation collected $145,000 from the State for his work. It would have been north of a million dollars at today’s rates.

These things can produce unexpected results. The Democrats thought the professor’s plan would benefit them, while my fellow Republicans were scared to death of it. It turned out they were both wrong because the plan slightly favored Republicans--the law of unintended consequences. And, the majority party does not always remain in the majority—what comes around can often go around, as they say.

Now, there is a move afoot to re-inject partisan gerrymandering into the redistricting process. It is proposed that the majority party in Idaho have an extra vote on the panel and that decisions be made by a simple majority vote rather than the currently-required two-thirds vote. That would return us to the pre-reform system where raw politics would give an unfair advantage to the party then in the majority. The proposal, House Joint Resolution No. 2 (HJR 2), would be an invitation to more litigation, with the risk of court-imposed reapportionment plans.

There is one other fact to consider. The U.S. Supreme Court will likely issue a major ruling this year on the permissibility of partisan gerrymandering. It has two cases currently before it--one from Maryland where the Democrats gerrymandered and one from North Carolina where Republicans benefitted. Why not wait to squabble over the issue until there is guidance from that court?

As we commemorate George Washington’s birthday on Presidents Day, let’s remember and heed his prescient warnings against political partisanship. I suspect that Abraham Lincoln would also disapprove of partisan gerrymandering. Historian Allen Guelzo has observed that Lincoln may have lost his 1858 Senate race because of gerrymandering. At that time, Senators were selected by state legislatures. The majority Democrats in the Illinois legislature selected Lincoln’s rival for the Senate seat, even though Republican candidates had received more votes in the legislative election.

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Jim Jones is former Chief Justice of the Idaho Supreme Court. His columns can be found at www.JJCommonTater.com.