If redistricting fails, job could go to high court

BOISE – Idaho’s citizen redistricting commission appeared to move toward compromise last week, but after weeks of partisan impasse, it’s worth asking: What happens if the commission fails to agree by its September deadline?

“My personal opinion is the Supreme Court would recognize the constitutional duty of the commission to do reapportionment, and I personally believe would kick it back to them, and tell them to reconvene again,” Idaho Secretary of State Ben Ysursa said. Ten years ago, when the commission reached a plan that was challenged in court, the Supreme Court reconvened the commission to redraw it.

Other possibilities: The court could take over the job, or it could appoint a “special master” to work on the issues.

But any failure by the bipartisan commission could buoy opponents who’d like legislators to draw new legislative and congressional lines.

“I think either method has its strengths and weaknesses, but people have a short memory if they think the legislative process was cleaner,” Ysursa said.

Some lawmakers never have been happy with the commission system – especially now, when Republicans control more than 80 percent of the Legislature and all statewide elected offices but have only half the seats on the commission.

“Many have talked to me … about the fact that this was an absolute mistake to take the redistricting away from the Legislature and put it in the hands of a citizens commission,” said former Idaho Senate President Pro-Tem Bob Geddes, who addressed the commission last week. “I have mixed emotions on that.”

Geddes, now chairman of the state Tax Commission, said, “When this was in the hands of the legislators, they fully understood … the importance of protecting communities of interest.” He said the first commission-run redistricting effort a decade ago mangled his district in southeastern Idaho to the point that he had to travel through Wyoming to get to parts of it. People he used to represent kept calling him for years, thinking he was still their senator, he said.

But Boise State University political scientist Gary Moncrief said it’s instructive to “look at the woeful history of the Idaho Legislature doing the redistricting, and how many times they got sued and how many times the courts intervened in that process.” He added, “I don’t think that having the Legislature do it is ever a good idea.”

When lawmakers draw their own new district lines, the process can get personal, he noted, focusing on politicians’ political futures, not the public interest. “The old line is, why should the Legislature get to choose their constituents, rather than constituents choose their Legislature?” Moncrief said.

Geddes’ concerns about past redistricting prompted him to sponsor legislation in 2009, which passed with bipartisan support, to require legislative districts to have connecting roads and to forbid splitting voting precincts, unless five of the six commissioners vote to waive those rules.

Democratic commissioners have argued the legislation is unconstitutional, and GOP commissioners have insisted they must abide by the law until a court says otherwise.

Meanwhile, county clerks told the redistricting commission that current voting precinct lines are mostly outdated and will be redrawn after the redistricting process is done.

And Democratic commissioners say the connecting-road rule is impossible to meet with Idaho’s geography; they’ve focused instead on the constitutional requirement to split as few counties as possible.

That created a standoff for weeks as debate degenerated into bickering and 3-3 votes. Now each side is looking at ways to accommodate the other’s position. There is no tie-breaker, which Democratic Commissioner George Moses considers “the most serious flaw in this whole construction.”

Fifteen states have citizen redistricting commissions. Only Idaho, Missouri and Washington have them evenly split between the two major parties with no tie-breaker. Washington’s five-member commission has two members from each party, who together select the fifth member, a nonvoting chairman.

“She does not have a tie-breaking role,” said Washington Redistricting Commission Communications Director Cathy Cochrane. “The commission is set up purposely that way so that the Republicans and the Democrats have to hash it out, come to a compromise – they tell me that it works very well.”

Washington has had its commission system since voters approved it in 1983. It’s always met its deadline, and its plans have never been challenged in court.

Lou Esposito, a Republican on Idaho’s redistricting commission, said, “I don’t think failure is an option, actually. We’ve been empowered to do a job, and we’re going to figure out how to get the job done. … It’s been a little frustrating, but I think we can work through it.”