Doing the splits, while drawing new legislative district lines …

As Idaho’s citizen redistricting commission started its task of drawing new legislative and congressional districts for the state recently, one confusing question loomed: What does it mean to split a county?

A decade ago, the Idaho Supreme Court invalidated a legislative district plan submitted by the second redistricting commission established that year, finding that it split too many Idaho counties. By the court majority’s count, that plan split 12 counties. The finally approved plan split seven.

But among the seven that were considered split were two, Ada and Kootenai, that were split only internally. That means those counties, which have far too many residents to be a single legislative district, were divided, with three districts fully contained within Kootenai County in North Idaho, and nine districts fully contained within Ada County in the Treasure Valley.

“I can’t currently fathom the argument of where it’s split within the county, why that would even matter,” commented Bart Davis, the co-chair of this year’s commission, as the commissioners discussed the issue last week.

The other counties in the list of seven were split both internally and externally, meaning a chunk of their residents were broken off and paired with folks from other counties to form a legislative district. That’s what most people, this reporter included, thought splitting a county meant.

Why it matters: Idaho used to elect legislators from each county. Because Idaho’s 44 counties vary wildly by population, that was ruled unconstitutional by the U.S. Supreme Court in the 1960s, because it violated the one-person, one-vote principle. All legislative districts, in all states, now must be apportioned by population, so roughly equal numbers of people are represented by each district.

In 2011, the citizen redistricting commission knew full well it was splitting more counties than was strictly required, but it had a good reason to do so: It drew its initial district plan to try to keep all of Idaho’s Native American reservations whole, rather than splitting them up among different districts. Reservation boundaries don’t necessarily track with county lines.

“We made a concerted effort to try to reach out to all of the Indian reservations and try to consolidate them,” 2011 Commissioner Randy Hansen told this year’s commissioners at their first meeting last week. “And we made a big mistake doing that.”

The Idaho Supreme Court’s majority ruled that not splitting counties mattered more than keeping together other communities of interest, though both of those are factors the commission must take into account in trying to ensure appropriate representation of all Idahoans.

“The Supreme Court said, ‘No, counties first,’ ” Davis said. “The assumption is there are implied communities of interest in every county.”

As to how to count up the splits, the majority of justices in 2012 didn’t directly address the question, but they clearly counted the number of counties that had any kind of split, either internal or external. The question hadn’t been directly presented to them for determination, noted Idaho Chief Deputy Attorney General Brian Kane.

The 2012 decision in Twin Falls County v. Idaho Commission on Redistricting was a 4-1 decision, with then-Justice Jim Jones dissenting. He contended the majority should have upheld the initial plan as constitutional, because all county splits were justified through undisputedly valid, legal findings.

Elizabeth Bowen, an attorney and legislative staffer for the redistricting commission, noted that the Idaho Constitution, in Article III, Section 5, specifically says, “A county may be divided into more than one legislative district when districts are wholly contained within a single county.”

“That sentence is in the Constitution, and it’s there for a reason,” she said.

Legislative staffer Keith Bybee said, “This is the court ruling now. … Practically, what they’re saying, is you’re adding splits if you have another county” that’s divided, beyond those that already need to be divided internally based on their population. Idaho currently has six of those counties, whose population exceeds the size of a single legislative district: Ada, Canyon, Bannock, Bonneville, Kootenai and Twin Falls.

So the standard for judging whether the commission is splitting too many counties would look at how many beyond six they have to split. Bybee noted at least one additional split will be required this time, due to population shifts.

That then raises the question of whether the court has incentivized doing external splits on counties that already have internal divisions, because that wouldn’t increase the overall tally.

Davis said his conclusion from Kane’s analysis was, “The court hasn’t spoken on that, because it hasn’t been presented yet.”

But it seems clear that the court wants county splits minimized overall. And that raises the question of why. Why are counties considered more important than other groupings within the state for representation in the Legislature?

It may be a relic of old language still present in the Constitution from the days when counties were the only determining factor for legislative districts. That was based on the now-invalidated “federal model,” in which the U.S. Senate is apportioned by state, but the U.S. House is apportioned by population. In the ’60s, the U.S. Supreme Court determined that counties aren’t “sovereign” like states, so the federal model doesn’t apply to state legislative redistricting.

Davis, a former U.S. Attorney for Idaho and former longtime Idaho Senate majority leader, said, “Are we still judicially living with the federal model that the U.S Supreme Court has rejected? That’s an intriguing question.”

For now, though, the court’s 2012 ruling is what guides the commission as it ponders how to divide up a changing Idaho into the legislative districts that will stand for the next 10 years.