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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket Nos. 49261, 49267, 49295 & 49353

BRANDEN JOHN DURST, a qualified elector 

of the State of Idaho,

 Petitioner,

and

CANYON COUNTY, a duly formed and 

existing county pursuant to the laws and 

Constitution of the State of Idaho,

 Intervenor-Petitioner,

v.

IDAHO COMMISSION FOR 

REAPPORTIONMENT, and LAWERENCE 

DENNEY, Secretary of State of the State of 

Idaho, in his official capacity,

 Respondents,

______________________________

ADA COUNTY, a duly formed and existing 

county pursuant to the laws and Constitution 

of the State of Idaho,

 Petitioner,

v.

IDAHO COMMISSION FOR 

REAPPORTIONMENT, and LAWERENCE 

DENNEY, Secretary of State of the State of 

Idaho, in his official capacity,

 Respondents.

______________________________

SPENCER STUCKI, registered voter pursuant 

to the laws and Constitution of the State of 

Idaho,

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Boise, January 2022 Term

Opinion Filed: March 1, 2022

Melanie Gagnepain, Clerk

SUBSTITUTE OPINION, THE 

COURT’S PRIOR OPINION 

DATED JANUARY 27, 2022, IS 

WITHDRAWN
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 Petitioner,

v.

IDAHO COMMISSION FOR 

REAPPORTIONMENT, and LAWERENCE 

DENNEY, Secretary of State of the State of 

Idaho, in his official capacity,

 Respondents.

_____________________________

CHIEF J. ALLAN, a registered voter of the 

State of Idaho and Chairman of the Coeur 

d'Alene, Tribe, and DEVON BOYER, a 

registered voter of the State of Idaho and 

Chairman of the Shoshone-Bannock Tribes,

 Petitioners,

v.

IDAHO COMMISSION FOR 

REAPPORTIONMENT, and LAWERENCE 

DENNEY, Secretary of State of the State of 

Idaho, in his official capacity,

 Respondents.

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Original proceeding before the Supreme Court of the State of Idaho.

The petitions are denied.

Bryan D. Smith, Smith Driscoll & Associates, PLLC, Boise, for petitioner, Branden 

Durst. Bryan D. Smith argued. 

Bryan F. Taylor, Canyon County Prosecuting Attorney, Caldwell, for intervenorpetitioner, Canyon County. Alexis Klempel argued. 

Jan M. Bennetts, Ada County Prosecuting Attorney, Boise, for petitioner, Ada 

County. Lorna Jorgensen argued. 

Spencer Stucki, petitioner pro se.

Deborah A. Ferguson and Craig Durham, Ferguson Durham, PLLC, Boise, for 

petitioners Chief J. Allan and Devon Boyer. Deborah A. Ferguson argued. 
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Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents, Idaho Commission 

for Reapportionment and Lawerence Denney. Megan A. Larrondo argued. 

_____________________

STEGNER, Justice.

This case arises out of multiple petitions challenging the constitutionality of Plan L03, the 

legislative redistricting plan adopted by the Idaho Commission for Reapportionment (“the 

Commission”) following the 2020 federal census. 

Under Article III, Section 2 of the Idaho Constitution, the six-member bipartisan

Commission is tasked with creating 35 new legislative districts after each decennial federal census. 

These districts, collectively referred to as a “plan,” must conform to the requirements set forth by 

the Federal Constitution, the Idaho Constitution, and statute. Petitioners generally argue that Plan 

L03 splits more counties than is required to comport with federal constitutional requirements, 

rendering Plan L03 unconstitutional under the Idaho Constitution. The petitions were filed before 

this Court, which has original jurisdiction over them pursuant to Article III, Section 2 of the Idaho 

Constitution. Petitioners request that this Court issue a writ of prohibition to restrain the Secretary 

of State from transmitting a copy of the Commission’s Final Report and Plan L03 to the President 

Pro Tempore of the Idaho Senate and the Speaker of the Idaho House of Representatives. For the 

reasons discussed below, we decline to issue such a writ.

I. FACTUAL AND PROCEDURAL BACKGROUND

Every ten years, the federal government conducts a national census. When the results of 

that census are available, Article III, Section 2 of the Idaho Constitution requires a six-member 

bipartisan commission be formed to draw new electoral district boundaries. IDAHO CONST. art. III, 

§ 2. Idaho received the results of the 2020 federal census on August 12, 2021. That same day, the

Secretary of State entered an order establishing the Idaho Commission for Reapportionment. The 

six members of the Commission convened on September 1, 2021. 

On November 5, 2021, after weeks of traveling around the state and holding public 

hearings seeking feedback from residents, the Commission unanimously voted to adopt Plan L03. 

On November 10, 2021, the Commission “reaffirmed its adoption” of Plan L03, adopted its “Final 

Report,” and adjourned. The Commission filed its Final Report with the Secretary of State’s office 

on November 12, 2021. 
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On November 10, 2021, Branden Durst filed a verified petition against the Commission 

and the Secretary of State (collectively “the Respondents”), urging this Court to review Plan L03,

conclude it violated Idaho’s Constitution because it divided more counties than necessary to 

comply with the Equal Protection Clause, and adopt his proposed plan (L084). A week later, on 

November 17, 2021, Ada County filed a similar petition alleging Plan L03 violated Idaho’s 

Constitution. On November 19, 2021, Respondents moved to consolidate the two cases. This Court 

granted Respondents’ motion.

Spencer Stucki filed a pro se petition challenging L03 on December 1, 2021, alleging 

different areas of the state were treated unequally and that the Commission should have adopted a 

plan which split nine counties instead of eight.

Next, Chief J. Allan and Devon Boyer, leaders of the Coeur d’Alene and ShoshoneBannock tribes respectively, filed a verified petition challenging Plan L03 on December 16, 2021, 

on the grounds it unconstitutionally divided more counties than necessary and failed to preserve, 

to the maximum extent possible, communities of interest as required by Idaho Code section 72-

1506. Petitioners Allan and Boyer moved to consolidate their case with Durst and Ada County’s. 

This Court granted the motion to consolidate, and additionally sua sponte consolidated Stucki’s 

case, as all four petitions challenge Plan L03. This Court designated Durst v. Idaho Commission 

for Reapportionment as the lead case.

Finally, Canyon County filed a verified petition to intervene in Durst’s case. This Court 

granted Canyon County’s petition to intervene. No other petitions challenging the legislative 

redistricting plan were filed. The time for filing a petition challenging the Commission’s legislative 

redistricting plan has now expired. The consolidated cases proceeded to argument before this 

Court.

II. STANDARDS OF REVIEW

“In accord with Article III, Section 2(5) of the Idaho Constitution, any registered voter, any 

incorporated city or any county in this state, may file an original action challenging a congressional 

or legislative redistricting plan adopted by the Commission on Reapportionment.” I.A.R. 5(b). 

This Court has “original jurisdiction over actions involving challenges to legislative 

apportionment.” IDAHO CONST. art. III, § 2.

There is a hierarchy of applicable law governing the development of a plan 

for apportioning the legislature: The United States Constitution is the paramount 

authority; the requirements of the Idaho Constitution rank second; and, if the 
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requirements of both the State and Federal Constitutions are satisfied, statutory 

provisions are to be considered.

Twin Falls Cnty. v. Idaho Comm’n on Redistricting, 152 Idaho 346, 348, 271 P.3d 1202, 1204 

(2012). 

The burden to prove a plan is unconstitutional lies with the challenger to the plan. See 

Bonneville Cnty. v. Ysursa, 142 Idaho 464, 468, 129 P.3d 1213, 1217 (2005) (stating that “the 

challenger holds the burden to prove that [] the deviation resulted from an unconstitutional or 

irrational state purpose or that the strength of voters’ votes has been diluted”). 

III. ANALYSIS

A. We first address whether Durst’s petition is timely.

Respondents argue that Durst’s petition was untimely because it was filed prematurely.

Durst filed his verified petition at 5:01 p.m. on November 10, 2021. Although the Commission 

voted to adopt Plan L03 on November 10, 2021, the Commission’s Final Report was not officially 

filed with the Secretary of State until November 12, 2021. 

On November 18, 2021, recognizing his petition may have been “ ‘premature’ because it 

was filed before the Final Report was filed with the Secretary of State,” Durst filed a “motion for 

clarification” requesting that this “Court enter an order clarifying the status of his Petition for 

Review so that Petitioner will know whether the current pleading is timely or whether Petitioner 

will need to refile his Petition for Review.” This Court denied Durst’s motion on November 22, 

2021, concluding that “the motion for clarification [was] an effort to obtain an advisory ruling 

from the Court. This Court decline[d] the invitation to provide an advisory opinion.” 

In their response brief, Respondents assert that Durst’s petition was untimely because it 

was filed “two days before the Commission’s Final Report was transmitted to the Idaho Secretary 

of State’s Office.” (Italics added.) In reply, Durst argues that his petition is timely because Idaho 

Appellate Rule 5(b) requires a petition be filed within thirty-five days of the filing of the Final 

Report but does not require that the petition be filed within the thirty-five days after the filing of 

the Final Report. Durst further contends that, even if his petition was filed early, pursuant to Idaho 

Appellate Rules 17 and 21 the Court should treat the petition “like a prematurely filed notice of 

appeal” which “became valid when the Final Report was filed with the Secretary of State.” 

Idaho Appellate Rule 21 states that 

the failure to physically file . . . a challenge to a final redistricting plan with the 

clerk of the Supreme Court . . . within the time limits prescribed by [the Idaho 
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Appellate Rules], shall be jurisdictional and shall cause automatic dismissal of such 

appeal or petition, upon the motion of any party, or upon the initiative of the 

Supreme Court.

I.A.R. 21. Idaho Appellate Rule 5(b) governs the time limit for filing a challenge to a redistricting 

plan: “Such challenges shall be filed within 35 days of the filing of the final report with the office 

of the Secretary of State by the Commission.” I.A.R. 5(b) (italics added).

While Durst’s reading of the Rule may appear meritorious on its face, he neglects to 

consider Idaho Appellate Rule 22, which governs the computation of time. Rule 22 provides in 

relevant part:

In computing the time period prescribed or allowed for the filing or service of any 

document in these rules, the day of the act or event after which the designated 

period of time begins to run is not to be included, but the last day of the period so 

computed is to be included . . . .

I.A.R. 22 (italics added). In a redistricting challenge, the time period “begins to run” after the 

Commission’s filing of its final report with the Secretary of State. I.A.R. 5(b). Rule 22 clearly does 

not contemplate a retrospective time period calculation.

Nevertheless, the fact that Durst filed his petition early is not fatal to his case. We have 

historically held that a notice of appeal filed prior to the entry of a written appealable judgment 

becomes valid once the written appealable judgment is entered. See, e.g., Spokane Structures, Inc. 

v. Equitable Inv., LLC, 148 Idaho 616, 621, 226 P.3d 1263, 1268 (2021). Based on the 

circumstances here—showing that the Final Report was completed the day Durst filed his petition, 

but not yet officially filed with the Secretary of State’s office until two days later—we see no 

reason to refrain from applying this principle here. I.A.R. 48 (“In cases where no provision is made 

by statute or by these rules, proceedings in the Supreme Court shall be in accordance with the 

practice usually followed in such or similar cases[.]”). Therefore, we hold Durst’s petition became 

valid on November 12, 2021, after the Commission filed its Final Report with the Secretary of 

State’s office. Accordingly, Durst’s petition is timely, and we will consider its merits.

B. Petitioners have failed to establish that the Commission “unreasonably 

determined” that Plan L03 comported with the federal and state constitutions.

1. The Federal Constitution

Before we address Petitioners’ arguments that the Plan violates Idaho’s Constitution, we 

must initially determine whether the Plan complies with the Equal Protection Clause of the Federal 

Constitution. Our reasons for doing so are twofold. First, the hierarchy of applicable law governing 
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redistricting provides that the Equal Protection Clause of the Federal Constitution is the paramount 

authority. Twin Falls Cnty., 152 Idaho at 348, 271 P.3d at 1204. Second, Idaho’s Constitution 

prohibits the division of counties, except to meet the constitutional standards of equal protection. 

Id. at 349, 271 P.3d at 1205.

The United States Supreme Court has held that the Equal Protection Clause of the Federal 

Constitution requires the seats in both houses of a bicameral state legislature be apportioned on a 

population basis. Reynolds v. Sims, 377 U.S. 533, 568 (1964). “[T]he Equal Protection Clause 

requires that a State make an honest and good faith effort to construct districts, in both houses of 

its legislature, as nearly of equal population as is practicable.” Id. at 578. While the Court 

recognized that a state may legitimately desire to maintain the integrity of various political 

subdivisions, “the overriding objective must be substantial equality of population among the

various districts, so that the vote of any citizen is approximately equal in weight to that of any 

other citizen in the State.” Id. at 578-79. The Court later held that an apportionment plan with a 

maximum population deviation1 under 10% was insufficient to make out a prima facie case of 

invidious discrimination under the Equal Protection Clause so as to require justification by the 

state. Brown v. Thompson, 462 U.S. 835, 842 (1983). A plan with larger disparities in population, 

however, creates a prima facie case of discrimination and therefore must be justified by the state. 

Id. at 842-43. 

Based on the data gathered during the 2020 federal census, the population of the state of 

Idaho is 1,839,106. Idaho has thirty-five legislative districts. If Idaho’s population was equally 

divided among the thirty-five districts, the “ideal district size” would be 52,546 people.2 The 

Commission found that Plan L03 had a maximum population deviation of 5.84%, which is 

presumptively constitutional from an equal protection standpoint and is, in fact, the lowest 

 1 “Maximum population deviation expresses the difference between the least populous district and most populous 

district in terms of the percentage those districts deviate from the ideal district size.” Bonneville Cnty., 142 Idaho at 

467 n.1, 129 P.3d at 1216 n.1. “For example, if among thirty-five districts, the least populous district is four percent 

below the ideal, and the most populous district is four percent above the ideal, the maximum population deviation 

would be 4-(-4), or eight percent.” Id. 2 1,839,106 divided by 35 is 52,545.89 people per district, rounded to two decimal places. See Bonneville Cnty., 142 

Idaho at 467 n.1, 129 P.3d at 1216 n.1 (“The ideal district size is calculated by dividing the total population by the 

number of districts.”). Because it is impossible to include 0.89 people in a district, the Commission rounded up to the 

nearest whole number.
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deviation for a plan ever adopted by a commission3 in discharging its constitutional obligation. 

None of the petitioners contend that Plan L03 violates the Equal Protection Clause of the Federal 

Constitution.4

2. The Idaho Constitution

We next turn to the determination of whether L03 violates Article III, section 5 of Idaho’s 

Constitution. Article III, section 5 of Idaho’s Constitution guides our review of Petitioners’ claims: 

A senatorial or representative district, when more than one county shall constitute 

the same, shall be composed of contiguous counties, and a county may be divided 

in creating districts only to the extent it is reasonably determined by statute that 

counties must be divided to create senatorial and representative districts which 

comply with the constitution of the United States. A county may be divided into 

more than one legislative district when districts are wholly contained within a single 

county. 

IDAHO CONST. art. III, § 5 (italics added). As written, the phrase “reasonably determined by statute” 

suggests we should review the reasonableness of a “statute” to determine whether Plan L03 is 

constitutional. The phrase, however, is ambiguous because it is unclear to which statute it refers. 

From the outset, we are skeptical of any effort to seemingly allow a “statute” to control our 

interpretation of the Constitution in any respect, given that a statute constitutes “[a] lower ranking 

source of law in this hierarchy [and] is ineffective to the extent that it conflicts with a superior 

source of law.” Twin Falls Cnty., 152 Idaho at 348, 271 P.3d at 1204. 

Further confusion exists because the phrase “by statute” has been previously interpreted by 

this Court in the following manner: 

[W]e believe I.C. § 72-1506 qualifies as the statute referenced in Idaho Const. art. 

III, § 5. That statute recognizes the Legislature’s authority to authorize splitting of 

counties under art. III, § 5 and simultaneously facilitates the people’s intent of 

 3 The 2001 Commission originally adopted Plan L66, which had a maximum population deviation of 10.69%; Plan 

L66 was struck down by this Court in Smith v. Idaho Commission for Reapportionment. 136 Idaho 542, 544, 38 P.3d 

121, 123 (2001). The 2001 Commission then adopted Plan L91, which had a maximum population deviation of 

11.79%; Plan L91 was also struck down by this Court. Bingham Cnty., 137 Idaho at 872, 55 P.3d at 865. The 2001 

Commission then adopted, and this Court upheld, Plan L97, which had a maximum population deviation of 9.71%. 

Bonneville Cnty., 142 Idaho at 468, 129 P.3d at 1217. Following the next census, the 2011 Commission adopted Plan 

L87, which had a maximum population deviation of 9.92%. Plan L87 was struck down by this Court in Twin Falls 

County. 152 Idaho 346, 271 P.3d 1202. The 2011 Commission subsequently adopted Plan L93, which had a maximum 

population deviation of 9.70% and remained in place until the current Commission adopted Plan L03. 4 Petitioner Stucki seemingly contends that, had the statutory criteria in Idaho Code section 72-1506 been applied in 

such a way as to effectuate nine county splits, equal protection could have been better promoted. However, he concedes 

that Plan L03 complies with the Federal Constitution: “By holding tightly to the requirement to make districts as 

nearly equal in size with low deviations they [the Commissioners] were meeting the provisions of the United States 

and Idaho constitutions.”
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removing the Legislature from the details of the district-drawing process as 

evidenced in art. III, § 2.

Bonneville Cnty., 142 Idaho at 473, 129 P.3d at 1222. As we are given the task of interpreting the 

phrase “reasonably determined by statute,” we disavow this Court’s prior interpretation of it in 

Bonneville County as an inaccurate statement of law.

In order to explain our disavowal, we need to delve into the history of article III, section 5. 

The Legislature, not the Commission, was responsible for redistricting in 1986. During the 

legislative session that year, the Legislature proposed amendments to article III, sections 2, 4, and 

5 of the Constitution to permit the Legislature to vary the number of districts from 30 to 35, to 

prohibit floterial districts, and to essentially eliminate the anachronistic constitutional provision 

prohibiting the division of counties. H.R.J. Res. No. 4, 1986 Idaho Sess. Laws 869–70. The three 

proposed amendments were approved by Idaho’s voters in the general election of 1986. The 

amendment of article III, section 5 allowed counties to be divided, but only to the extent that a 

duly adopted reapportionment statute reasonably determined county divisions to be necessary in 

order to comply with the Equal Protection Clause of the Federal Constitution.

At the time the amendment to article III, section 5 was approved by the voters in 1986, 

redistricting had been accomplished like any other legislation: by a legislatively passed and 

gubernatorially signed statute, which was codified in Idaho Code section 67-202. (Section 67-202, 

as it existed in 1986, was subsequently repealed in 2009 and is no longer in use today. Act effective 

July 1, 2009, ch. 52, § 1, 2009 Idaho Sess. Laws 135–36.) In other words, the legislature would 

create a redistricting plan, the entirety of which would be incorporated into a bill to amend Idaho 

Code section 67-202. If both houses passed the legislation and it was signed by the Governor, it 

would become law and define the boundaries of each legislative district until the next decennial 

census, unless it was established in court by an objecting party that the resulting districts were 

“unreasonably determined” by the Legislature.

Following the 1986 amendment to article III, section 5, the process by which the 

Legislature created legislative districts continued to utilize Idaho Code section 67-202. In 1992, 

the Legislature created a new redistricting plan and drafted a bill to amend the then-existing version 

of Idaho Code section 67-202. Both houses of the Legislature passed the bill, which was then 

signed by the Governor. Act of Mar. 2, 1992, ch. 13, § 2, 1992 Idaho Sess. Laws 32–38. Notably, 

the Legislature’s 1992 redistricting plan split seventeen counties, notwithstanding the fact that the 

Legislature had to be aware of the recently amended article III, section 5 of the Idaho Constitution 
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which stated “a county may be divided in creating districts only to the extent it is reasonably 

determined by statute that counties must be divided. . .”

Given this history, it is clear that at the time of the 1986 amendment of article III, section 

5, that the words “by statute” did not refer to Idaho Code section 72-1506 as we incorrectly 

concluded in Bonneville County, but instead referred to the then-existing Idaho Code section 67-

202. As previously explained, that latter statute authorized the Legislature to reapportion the state’s 

legislative districts. Accordingly, based on this analysis, we disavow the statement in Bonneville 

County which states the words “by statute” in article III, section 5 refer to Idaho Code section 72-

1506. They do not. 

Instead, the phrase “reasonably determined by statute” must now be interpreted in light of 

subsequent amendments to Idaho’s Constitution which transferred the responsibility to redistrict 

Idaho from the Legislature to a citizen’s commission. In 1993, the Legislature proposed 

amendments to article III, section 2 of Idaho’s Constitution. S.J. Res. No. 105, 1993 Idaho Sess. 

Laws 1530–31. The amendments, which were ratified in 1994, provided that a bipartisan citizens’ 

commission, rather than the Legislature, would be responsible for the legislative redistricting 

process. Subsequent legislation in 1996 created the eight statutes governing the commission that 

are still largely in effect today. Act of Mar. 12, 1996, ch. 175, § 1, 1996 Idaho Sess. Laws 561–64; 

see also I.C. §§ 72-1501–08. The Statement of Purpose accompanying the 1996 legislation 

indicates that “[t]he purpose of this legislation [wa]s to implement the provisions of Section 2, 

Article III, of the State Constitution.” No mention was made of implementing any of the provisions 

in article III, section 5. Article III, section 5 has not been amended since 1986, so the “reasonably 

determined by statute” phrasing remains.

In light of this history, the phrase “reasonably determined by statute” should be read as 

“reasonably determined.” The “by statute” language became inoperative in light of the 1994 

constitutional amendment because, unlike the Legislature, the Commission does not need to pass 

a statute to implement the redistricting plan it adopts. Further, given the 1994 constitutional 

amendment, the language “reasonably determined” now refers to the Commission’s 

determinations concerning how many counties must be divided to comply with the Federal 

Constitution. Article III, section 5 thus directs us that, when reviewing Petitioners’ claims, we 

must determine whether the Commission “reasonably determined” the number of counties that 

must be divided to comply with the Equal Protection Clause. This interpretation is consistent with 
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our prior holdings. See, e.g., Bonneville Cnty., 142 Idaho at 472 n.8, 129 P.3d at 1221 n.8 (“We 

believe the same discretion and judgment that was vested in the Legislature when it was drawing 

districts applies to the Commission, unless otherwise limited by statute or the constitution.”).

In its Final Report, the Commission explicitly found that Plan L03 had a maximum 

population deviation of 5.84% and divided eight counties: Ada, Bannock, Bonner, Bonneville, 

Canyon, Kootenai, Nez Perce, and Twin Falls. The Commission noted that there were five plans—

L071, L075, L076, L077, and L079—proposed by members of the public that divided only seven 

counties; however, in considering these other plans, the Commission determined that “each would 

likely violate the Equal Protection Clause and that they [were] also inconsistent with other 

principles applicable to the redistricting process.” 

Petitioners Durst, Ada County, Allan, Boyer, and Canyon County all assert that Plan L03 

is unconstitutional under Article III, section 5 of the Idaho Constitution because Plan L03 splits 

more counties than necessary to comply with the Federal Constitution’s Equal Protection Clause. 

Except for Durst, these Petitioners identify three of the publicly submitted plans, rejected by the 

Commission, which split only seven counties: Plans L075, L076, and L079. Because the total 

population deviation in each of these plans is at or just below 10%, rendering the plans 

presumptively constitutional under the Equal Protection Clause, Petitioners contend the existence 

of these plans demonstrate that the number of county divisions necessary to comply with the Equal 

Protection Clause is seven. Therefore, Petitioners argue that Plan L03 is unconstitutional under 

Article III, section 5 of the Idaho Constitution because it splits eight counties, one more than is 

necessary to comply with the Federal Constitution.

In addition, Durst contends that the Commission neglected to adequately consider his 

proposed plan, Plan L084, asserting that “[t]he Commission treated Plan L084 as if it had the same 

number of counties divided as Plan L03 because the Commission did not differentiate between 

internal and external divisions[.]” Durst argues internal divisions should be favored over external 

divisions and contends Plan L084 should have been considered along with the other five plans that 

only divided seven counties, because each divided county in those plans has an external division.

This Court has previously held, when assessing whether a redistricting plan violates the 

Idaho Constitution because it divides too many counties, that “[a] county can be divided solely for 

one reason—‘to the extent it is reasonably determined by [the Commission] that counties must be 

divided to . . . comply with the constitution of the United States.’ ” Twin Falls Cnty., 152 Idaho at
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349, 271 P.3d at 1205 (quoting IDAHO CONST. art. III, § 5) (italics and ellipsis in original). “The 

extent to which counties (plural) must be divided to comply with the Federal Constitution can be 

determined only by counting the total number of counties divided under the plan.” Id. “If one plan 

that complies with the Federal Constitution divides eight counties and another that also complies 

divides nine counties, then the extent that counties must be divided in order to comply with the 

Federal Constitution is only eight counties.” Id.

In Twin Falls County, this Court reviewed a challenge to a legislative redistricting plan 

adopted by the 2011 Commission. Id. at 347, 271 P.3d at 1203. In reviewing the plan adopted by 

the 2011 Commission, this Court concluded that the plan complied with the Equal Protection 

Clause because it had a maximum deviation less than 10%. Id. at 350, 271 P.3d at 1206. Without 

any further discussion or analysis, this Court then stated the plan did not comply with the Idaho 

Constitution because it divided 12 counties while “other plans that comply with the Federal 

Constitution . . . divide fewer counties.” Id. In so holding, this Court failed to consider the language 

in Article III, section 5 that indicates a county may be divided if the commission “reasonably 

determined” that twelve counties had to be divided to comply with the Equal Protection Clause. 

Further, the holding in Twin Falls County appears to imply that so long as a plan has a maximum 

deviation of less than 10%, the plan automatically satisfies the Equal Protection Clause. 

We now take this opportunity to disavow our decision in Twin Falls County to the extent 

it failed to give effect to the “reasonably determined” language contained in Article III, section 5. 

We also disavow the decision to the extent it suggested that a plan with a maximum deviation of 

less than 10% automatically satisfies the Equal Protection Clause because such a suggestion is not 

supported by the law. “[S]tate legislative plans with population deviations of less than 10% may 

be challenged based on alleged violation of the one person, one vote principle.” Larios v. Cox, 300 

F.Supp.2d 1320, 1340 (N.D.Ga. 2004) (three-judge panel), aff’d by Cox v. Larios, 542 U.S. 947 

(2004). “Indeed, the very fact that the Supreme Court has described the ten percent rule in terms 

of ‘prima facie constitutional validity’ unmistakably indicates that 10% is not a safe harbor.” Id.

at 1340–41 (quoting Connor v. Finch, 431 U.S. 407, 418 (1977)).

Regardless of whether we consider both the number of counties divided and the number of 

external divisions per county—a point of law we need not decide today—Petitioners’ 

constitutional challenge to Plan L03 still fails because Petitioners have not established that the 
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Commission erred in rejecting Plans L075, L076, and L079. Petitioners have failed to show the 

Commission unreasonably determined these plans did not comply with equal protection.

Plans L075 and L076 both have maximum population deviations of 9.97%. Plan L079 has 

a maximum population deviation of exactly 10%. Plan L084 has a maximum population deviation 

of 9.48%. Petitioners maintain that, because these plans have a maximum population deviation of 

10% or less, each plan is presumptively constitutional. However, presumptively constitutional does 

not mean constitutional. “[D]eviations from exact population equality may be allowed in some 

instances in order to further legitimate state interests such as making districts compact and 

contiguous, respecting political subdivisions, maintaining the cores of prior districts, and avoiding 

incumbent pairings.” Larios, 300 F.Supp.2d at 1337. “However, where population deviations are 

not supported by such legitimate interests but, rather, are tainted by arbitrariness or discrimination, 

they cannot withstand constitutional scrutiny.” Id. at 1338.

Members of the public submitted plans to the Commission for consideration. See I.C. § 72-

1505. Generally, the proposed plans were submitted through a website; the plans’ proponents were 

then able, but not required, to give testimony in front of the Commission regarding how and why 

the plans were drawn as they were. Importantly, this means that, absent a scenario where a map 

drafter articulates an arbitrary or discriminatory intent behind the plan, the Commission must 

evaluate each submitted plan for arbitrariness or discrimination based solely on the plan itself.

Using this limited information, the Commission specifically analyzed Plans L075, L076, 

and L079 regarding whether they conformed to the Equal Protection Clause of the Federal 

Constitution and found each lacking in that regard. The Commission’s Final Report includes an 

extensive and illuminating analysis of these three plans. The challengers are obliged to 

demonstrate that the Commission erred when it “reasonably determined” that splitting eight 

counties was necessary to comply with the Federal Constitution. As a result, we find it appropriate 

to quote the Commission’s report at length to illustrate the in-depth evidentiary analysis 

undertaken by the Commission.

While numeric equality between districts is not the only redistricting 

criterion the Commission is obliged to consider, it is the first and most important 

one. In creating legislative districts, the Commission must “make an honest and 

good faith effort to construct districts, in both houses of its legislature, as nearly of 

equal population as practicable.” This principle, known as the “one person, one 

vote” principle, allows small deviations from a strict population standard only if 
14

the deviations are based on “legitimate considerations incident to the effectuation 

of a rational state policy.”

Idaho’s total state population, as determined by the 2020 census, is 

1,839,106. The ideal district size — the quotient of the total state population divided 

by the total number of districts, 35 — is 52,546. That number — 52,546 — must 

serve as the Commission’s polestar, and each deviation in each district from that 

number must result from service to a rational state policy, legitimately applied.

As discussed above, plans with a maximum population deviation less than 

10% are generally constitutional but are unconstitutional if the deviation results 

from an irrational purpose or if the individual right to vote in some parts of the state 

is diluted as compared to others. Even a deviation meant to serve a rational state 

policy is impermissible if the application of the policy is inconsistent, arbitrary, or 

discriminatory. Nonpopulation criteria may justify deviation from the ideal district 

size only if they are applied consistently and neutrally.

The Commission determined that a good faith effort to achieve voter 

equality — the standard mandated by the United States Supreme Court in Reynolds 

— requires staying as close as possible to the ideal district size while still 

effectuating state policy. The Commissioners agreed that in no instance would they 

craft a district that deviated more than 5% over or under the ideal district size, unless 

the district was an outlier and there was an extraordinarily compelling reason for 

the larger deviation.

The Commission’s rationale here was threefold. First, any district deviation 

that was over or under 5% from the ideal district size would put pressure, perhaps 

significant, on other districts to have a minimal deviation. Otherwise, the plan might 

violate the 10% guideline for constitutionality. If, for example, one district was very 

underpopulated, with a deviation of -7.5%, then every other district in the state 

would require a deviation less than +2.5%. The Commission did not believe, absent 

an extraordinary reason, that the people in one district deserved such preferential 

treatment at the expense of the people in the rest of the state.

Second, the Commission believed that a lopsided deviation might well 

represent an arbitrary and inconsistent application of state policy, especially if an 

exception were made for multiple districts, instead of one outlier district with 

unique geographical challenges.

Finally, the Commission suspected that a lopsided deviation, which would 

represent significant overpopulation or underpopulation of a district — a difference 

of thousands of people — could result in dilution of the individual right to vote and 

the diminishment of effective representation. Constituents in a heavily 

overpopulated district, for example, could not be said to enjoy approximately the 

same access to their legislators as constituents in more underpopulated districts.

The Commission’s approach ultimately yielded Plan L03, which has a 

5.84% maximum population deviation and divides eight counties. The 

Commission’s detailed rationale for dividing eight counties is explained in the 

General Legislative Plan Findings below. However, five proposed plans submitted 
15

by the public divided only seven counties. After closely analyzing the plans, the 

Commission finds that each would likely violate the Equal Protection Clause and 

that they are also inconsistent with other principles applicable to the redistricting 

process.

. . .

Two of the plans, L071 and L077, both have maximum population 

deviations of 12.72%, which means they are prima facie unconstitutional. Two 

more, L075 and L076, have a maximum population deviation of 9.97%, and the 

last one, L079, has a maximum population deviation of 10%. These last three plans 

have significant defects and stand on dubious equal protection grounds.

L075 and L076 are presumptively constitutional, if barely. But that is not 

the end of the analysis. As mentioned above, the 10% guideline is not a safe harbor; 

a plan with a presumptively constitutional deviation may still be found 

unconstitutional if the deviation results from an unconstitutional, irrational, 

inconsistent, or discriminatory state purpose.

The plain purpose of L075 is to achieve a seven-county-split plan. This is 

not a plan one would draw if equal protection were the primary purpose being 

served. The five northernmost districts in the state are all underpopulated to an 

extreme degree, with deviations of either -7.25% (Districts 1, 2, 3, and 4) or -7.24% 

(District 5). District 6 is also significantly underpopulated, with a -6.6% deviation. 

Outside of North Idaho, Districts 10 through 26, along with 28, 31, and 33, are all 

overpopulated, with ten districts — 11, 12, 14, 17, 18, 19, 20, 22, 23, and 33 — at 

the top end of the deviation range, +2.72%. Three more districts, 10, 15, and 16, 

have a deviation of +2.71%; one district, 24, has a deviation of +2.7%; two districts, 

13 and 21, have a deviation of +2.69%; and one district, 26, has a deviation of 

+2.68%. There is a difference of over 5,200 people between the least and most 

populated districts in L075. In legislative districts, that is a significant disparity.

If the Commission adopted L075 as its redistricting plan, the Commission 

could not sincerely claim that it attempted, in good faith, to achieve voter equality. 

This becomes obvious when the district boundary lines in some of the 

overpopulated district are examined. Consider the boundary line between Districts 

11 and 12 in Figure 4[.] The yellow line is the district boundary, while the straight 

horizontal line running above it is Ustick Road — a major thoroughfare and 

therefore an attractive prospect for a district boundary. One common theme that 

emerged in the public testimony and comments submitted to the Commission is that 

roads, especially major roads, make for good district boundaries. But the district 

boundary in Figure 4 does not follow the obvious straight line. Rather, the boundary 

meanders about on no set course, carving out census blocks here and there, 

following no logic or reason except this: to ensure that the people in the white, 

unshaded census blocks stay in District 11, so that District 12’s population does not 

increase. If the boundary were cleaned up even slightly, so that the 38 people in the 

census blocks marked by the red arrows were moved to District 12 instead of 

District 11, that would raise the deviation of District 12 to +2.79%, making the 
16

maximum population deviation of L075 10.04% and the plan prima facie

unconstitutional.

In the opinion of the Commission, a sincere commitment to equal protection

— a good faith commitment to equal protection — requires more than drawing an 

irregular line so that 38 people fall on one side of the line instead of the other. If a 

plan requires irrational boundary manipulation to fall just under the 10% guideline, 

then the plan is, at the very least, constitutionally suspect.

In making this analysis, the Commission does not mean to imply that 

anyone who submitted a seven-county-split plan did so for improper purposes. The 

Commission sincerely appreciates the efforts and participation of all the Idahoans 

who submitted maps and provided guidance to the Commission.

But if equal protection is to mean anything, it must mean more than drawing 

irregular lines to capture 38 people for one district instead of another. Commitment 

to equal protection requires aiming for 0% deviation, not 10%. Commitment to 

equal protection requires being able to justify deviations with a rational state policy, 

consistently and neutrally applied.

It is undoubtedly a rational state policy to preserve county integrity as much 

as possible. But that interest must be served consistently and in a way that complies 

with both the federal and state constitutions, and the Commission finds that L075 
17

does neither. In addition to the equal protection problems discussed above, the plan 

fails to preserve county integrity. Though it does indeed divide only seven counties, 

it does this by dividing Bonner County — population 47,110 — into three separate 

legislative districts. In District 1, part of Bonner is combined with Boundary 

County; in District 2, part of Bonner is combined with Shoshone County, and part 

of Kootenai County; and in District 3, part of Bonner is combined with Kootenai.

The reason this is problematic is that Article III, Section 5 of the Idaho 

Constitution provides that a county may be divided for only one reason: to comply 

with the United States Constitution. As the Idaho Supreme Court stated in Twin 

Falls County v. Idaho Commission on Redistricting, the word “only” means 

“solely.” “A county can be divided solely for one reason” — to comply with equal 

protection. Thus, a county cannot be divided, once or more than once, just to spare 

another county from being divided. The protection of counties is a provision of the 

Idaho Constitution, not the United States Constitution.

If a redistricting plan divides a county, such as Bonner, for a reason other 

than equal protection, then the plan is invalid under the Idaho Constitution. And 

there is no equal protection standard that justifies dividing Bonner County more 

than once. Mathematically, Bonner County is smaller than the ideal district size and 

should not be divided at all. As explained in General Legislative Plan Finding 4.A., 

the Commission found it necessary, due to the population distribution in North 

Idaho, to split Bonner once, but finds no equal protection justification for splitting 

Bonner twice. Indeed, the division of Bonner into three districts might not even be 

necessary to produce a map that divides only seven counties. Plan L079, another 

seven-county-split plan, divides Bonner in to two districts, not three.

Based on the analysis above — because Plan L075 significantly 

underpopulates one region of the state at the expense of other regions, thus making 

the weight of a citizen’s vote dependent on where in the state the citizen lives, and 

because Bonner County is divided for reasons unrelated to equal protection — the 

Commission finds that Plan L075 is constitutionally unviable and should not be 

adopted as Idaho’s legislative redistricting plan.

Plan L076 shares many of the same problems that L075 has. Six of the 

North Idaho districts are, again, significantly underpopulated. Bonner County is, 

again, unnecessarily divided into three districts. The systematic underpopulation of 

North Idaho puts so much pressure on the rest of the plan that 26 districts — almost 

75% of them — are overpopulated. Seven of them — 11, 12, 14, 17, 18, 19, 20, and 

33 — are at the top end of the maximum population deviation. Many district 

boundaries are similar to those in L075, and similarly arbitrary; again, these 

boundaries seem to have been manipulated specifically to keep the maximum 

population deviation just under 10%. The Commission therefore finds that Plan 

L076 is constitutionally unviable, for the same reason that L075 [sic] was.

Plan L079 is in some ways a more attractive plan than either L075 or L076. 

The district boundary lines seem cleaner and less arbitrary. Bonner County is 

divided into two districts, not three, but L079 has a maximum deviation of exactly 

10%. 
18

Courts have been somewhat imprecise in describing how a maximum 

population deviation of exactly 10% should be viewed. The United States Supreme 

Court observed in Brown v. Thomson, 462 U.S. 835, 843 (1983), that plans with a 

maximum population deviation under 10% generally fall within the category of 

permissible minor deviations, while “a plan with larger disparities in population... 

creates a prima facie case of discrimination and therefore must be justified by the 

state.” This would imply that a deviation of exactly 10% is prima facie 

unconstitutional. However, at other times, the United States Supreme Court has 

described plans with a maximum population deviation above 10% as being prima 

facie unconstitutional.

Assuming arguendo that no presumption applies to a plan with a maximum 

population deviation of exactly 10%, or that a plan with a maximum population 

deviation of exactly 10% is presumptively constitutional, the Commission 

nevertheless finds that Plan L079 does not satisfy equal protection standards for 

much the same reason that L075 and L076 did not: the significant underpopulation 

of the North Idaho districts at the expense of much of the rest of the state does not 

serve the cause of voter equality.

What all five seven-county-split plans demonstrated to the Commission is 

this: in order for the Commission to adopt such a plan, it would have to significantly 

underpopulate several North Idaho districts, and furthermore, it would have to draw 

irregular district boundary lines to achieve a presumptively acceptable maximum 

population deviation. Drawing more regular boundary lines to avoid voter 

confusion would likely put the state in the position of having to justify a plan with 

a maximum population deviation of more than 10%. In light of existing precedent 

from both the United States Supreme Court and the Idaho Supreme Court, the 

Commission did not believe it could justify a seven-county-split plan.

To the Commission’s knowledge, the Idaho Supreme Court has never 

upheld a legislative redistricting plan with a maximum population deviation of 10% 

or more. In three cases — Bingham County v. Idaho Commission for 

Reapportionment, Smith v. Idaho Commission on Redistricting, and Hellar v. 

Cenarrusa, 106 Idaho 586, 682 P.2d 539 (1984) — the Idaho Supreme Court 

invalidated plans with deviations of, respectively, 11.79%, 10.69%, and 32.94%.

However rational Idaho’s policy of maintaining county integrity might be, 

the Idaho Constitution itself makes clear that the policy is subordinate to the 

requirements of equal protection, and the Commission is skeptical of its ability to 

justify any plan that appears to systematically underpopulate, to a significant 

degree, six districts in one region of the state. In coming to this conclusion, we have 

found the case Larios v. Cox instructive. In that case, a federal court found 

Georgia’s legislative redistricting plan unconstitutional. The plan had a maximum 

population deviation of 9.98% but “intentionally and systematically” 

underpopulated districts in certain parts of the state while overpopulating districts 

in other parts of the state. The federal court took a dim view of how the plan 

drafters, rather than making an effort to equalize districts throughout the state, only 

shifted “as much population...as they thought necessary to stay within a total 

population deviation of 10%.” The decision was affirmed without comment by the 
19

United States Supreme Court, but in a concurring opinion, Justice Stevens remarked 

that “regionalism is an impermissible basis for population deviations.”

Whether the underlying purpose of a seven-county-split map is a sincere 

effort to effectuate Idaho’s policy against county division or a discriminatory effort 

to give people in one region more voting power than people in the rest of the state, 

the effect is the same: North Idaho voters are favored and voters in the other parts 

of the state are disfavored. Either way, the Commission does not believe these maps 

reflect the application of equal protection as the primary principle in redistricting.

Based on the analysis above, and for the reasons explicated in the General 

Legislative Plan Findings below, the Commission finds that the minimum number 

of counties that must be divided to comply with equal protection standards is eight.

(Italics and bolded emphases in original; footnotes, some figures, and some citations omitted.) The 

Commission analyzed its responsibility to achieve the “one person, one vote” principle at length. 

Further, it cogently explained why Plans L075, L076, and L079 were deficient in that regard. The 

Commission rejected Plans L075, L076, and L079 for specific reasons related to equal protection: 

the plans each underpopulate northern Idaho at the expense of the rest of the state and only achieve 

a presumptively constitutional maximum population deviation using arbitrary boundary lines. 

The Commission did not directly discuss Plan L084 in its Final Report; however, as noted 

by Respondents in their briefing before this Court, Plan L084 overpopulates districts in Ada 

County by dividing it into nine districts, each with a population exceeding the ideal district size by

between 4.12% and 4.94%. Respondents correctly point out that there are no other districts in Plan 

L084 that are as overpopulated as those in Ada County. Because overpopulated districts dilute 

voting power for citizens in those districts, Plan L084 would result in citizens in Idaho’s most 

populous county—constituting more than one-quarter of the state’s population—being the most 

underrepresented. Consequently, Plan L084 suffers from the same problem as Plans L075, L076, 

and L079: it overpopulates one region of the state while underpopulating northern Idaho.

Petitioners argue that there is no evidence to show that any of their championed plans were 

drawn to intentionally favor one region of the state over another. They point to this Court’s 

decision in Bonneville County, which stated that “a regional deviation, by itself, is not enough to 

overcome the presumption of constitutionality.” 142 Idaho at 470, 129 P.3d at 1219. However, we

can find no fault with the Commission’s determination that the Equal Protection Clause mandates 

it cannot favor one region of the state over another. “Diluting the weight of votes because of place 

of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as 

invidious discrimination[] based upon factors such as race or economic status.” Reynolds, 377 U.S. 
20

at 566 (internal citations omitted). “The fact that an individual lives here or there is not a legitimate 

reason for overweighting or diluting the efficacy of his vote.” Id. at 567. “Legislators represent 

people, not trees or acres. Legislators are elected by voters, not farms or cities or economic 

interests.” Id. at 562. “A citizen, a qualified voter, is no more nor no less so because he lives in the 

city or on the farm.” Id. at 567. “[T]he weight of a citizen’s vote cannot be made to depend on 

where he lives.” Id. “The Equal Protection Clause demands no less than substantially equal state 

legislative representation for all citizens, of all places as well of all races.” Id. at 568. In keeping 

with this restraint on regional favoritism, we have held “while the purpose of one person, one vote 

is to protect voters, not regions, a plan will be held unconstitutional where the individual right to 

vote in one part of a state ‘is in substantial fashion diluted when compared with votes of citizens 

living in other parts of the State.’” Bonneville Cnty, 142 Idaho at 468, 129 P.3d at 1217 (citations 

omitted).

Petitioners ask us to second-guess the Commission and decide that another plan is better. 

The Constitution, however, directs us to review whether the Commission reasonably determined 

eight counties must be split to satisfy equal protection. A necessary part of that inquiry is to review 

whether the Commission reasonably determined that the other plans did not satisfy equal 

protection. We hold that the Commission’s determination that plans put forth by Petitioners did 

not satisfy equal protection was reasonable. Outside establishing their plans are at or below a 10% 

maximum population deviation, Petitioners have not established any of their plans truly comply 

with the one person, one vote principle. The Constitution does not allow us to pick another plan 

just because the numbers are different.

Due to Idaho’s unique geography and the supremacy of federal law, there is unavoidable 

tension between the Idaho Constitution’s restraint against splitting counties and the Federal 

Constitution’s Equal Protection Clause. Navigating this tension is no easy feat. Effectuating a plan 

that adheres to both federal and state constitutional mandates is a delicate balancing act, entrusted 

to the Commission by the Idaho Constitution and the citizens of Idaho. IDAHO CONST. art. III, § 2. 

To perform that balancing act as quickly and thoroughly as the Commission did, resulting in a 

legislative plan with unanimous bipartisan support on behalf of all six commissioners, is certainly 

laudable. We think it appropriate to acknowledge the challenges the Commission faced and to not 

overstep our responsibility in acknowledging that it is the Commission that must make difficult 

choices in trying to balance the various competing interests involved. See Bonneville Cnty., 142 
21

Idaho at 472, 129 P.3d at 1221 (“We simply cannot micromanage all the difficult steps the 

Commission must take in performing the high-wire act that is legislative redistricting.”). Our 

review is constitutionally limited: pursuant to Article III, section 5, we must determine whether 

the Commission “reasonably determined” the number of counties that must be divided to comply 

with the Equal Protection Clause. IDAHO CONST. art. III, § 5. We conclude the Commission did so 

here.

We hold that Petitioners have failed to meet their burden of showing that the Commission 

unreasonably determined that eight county splits were necessary to afford Idaho’s citizens equal 

protection of the law. Therefore, Petitioners have failed to demonstrate that Plan L03 violates 

either the state or federal constitutions. 

C. Plan L03 does not violate Idaho Code section 72-1506.

Petitioners Ada County, Allan, Boyer, and Stucki contend that Plan L03 violates Idaho 

Code section 72-1506. Idaho Code section 72-1506 provides in full:

Congressional and legislative redistricting plans considered by the commission, and 

plans adopted by the commission, shall be governed by the following criteria:

(1) The total state population as reported by the U.S. census bureau, and the 

population of subunits determined therefrom, shall be exclusive permissible data.

(2) To the maximum extent possible, districts shall preserve traditional 

neighborhoods and local communities of interest.

(3) Districts shall be substantially equal in population and should seek to comply 

with all applicable federal standards and statutes.

(4) To the maximum extent possible, the plan should avoid drawing districts that 

are oddly shaped.

(5) Division of counties shall be avoided whenever possible. In the event that a 

county must be divided, the number of such divisions, per county, should be kept 

to a minimum.

(6) To the extent that counties must be divided to create districts, such districts shall 

be composed of contiguous counties.

(7) District boundaries shall retain the local voting precinct boundary lines to the 

extent those lines comply with the provisions of section 34-306, Idaho Code. When 

the commission determines, by an affirmative vote of at least five (5) members 

recorded in its minutes, that it cannot complete its duties for a legislative district by 

fully complying with the provisions of this subsection, this subsection shall not 

apply to the commission or legislative redistricting plan it shall adopt.

(8) Counties shall not be divided to protect a particular political party or a particular 

incumbent.
22

(9) When a legislative district contains more than one (1) county or a portion of a 

county, the counties or portion of a county in the district shall be directly connected 

by roads and highways which are designated as part of the interstate highway 

system, the United States highway system or the state highway system. When the 

commission determines, by an affirmative vote of at least five (5) members 

recorded in its minutes, that it cannot complete its duties for a legislative district by 

fully complying with the provisions of this subsection, this subsection shall not 

apply to the commission or legislative redistricting plan it shall adopt.

I.C. § 72-1506. It is well established that “the requirements of Idaho Code section 72–1506 ‘are 

subordinate to the Constitutional standard of voter equality and the restrictions in the Idaho 

Constitution upon splitting counties except to achieve that voter equality.’ ” Twin Falls Cnty., 152 

Idaho at 349, 271 P.3d at 1205. As this Court explained in Twin Falls County,

[t]here is a hierarchy of applicable law governing the development of a plan for 

apportioning the legislature: The United States Constitution is the paramount 

authority; the requirements of the Idaho Constitution rank second; and, if the 

requirements of both the State and Federal Constitutions are satisfied, statutory 

provisions are to be considered.

Id. at 348, 271 P.3d at 1204 (italics added).

Ada County argues that Plan L03 violates Idaho Code section 72-1506 because it 

unnecessarily divides Ada and Canyon Counties and fails to keep communities of interest intact 

by placing rural and urban populations within the same district. The requirements of Idaho Code 

section 72-1506 are subservient to the requirements of both the federal and state constitutions, and 

Ada County has not established that the Commission unreasonably determined that the plans Ada 

County puts forth—L075, L076, and L079—violate equal protection.

Stucki faults Plan L03 for having “oddly shaped districts,” not retaining local precinct 

boundary lines, unnecessarily splitting communities of interest, and having districts that are not 

directly connected by roadways, all in violation of Idaho Code section 72-1506. Stucki contends 

the Commission should have split nine counties in order to better comply with the requirements of 

the statute. The Commission, however, could not do so and at the same time comply with the Idaho 

Constitution: “a county may be divided in creating districts only to the extent it is reasonably 

determined by statute that counties must be divided to . . . comply with the constitution of the 

United States.” IDAHO CONST. art. III, § 5. Because of this constitutional restraint, the Commission 

concluded it was unable to split counties to comply with the statute. Had the Commission followed 

the reasoning that Stucki now lays out, the plan it adopted would be unconstitutional under Article 

III, section 5.
23

Allan and Boyer assert that Plan L03 violates Idaho Code section 72-1506(2) because the 

Plan does not adequately preserve the Shoshone-Bannock and Coeur d’Alene tribes as 

communities of interest. Specifically, they argue that Plan L03 splits the Shoshone-Bannock tribe 

into three separate districts and splits the Coeur d’Alene tribe into two districts. Allan and Boyer 

point to Plan L078, a plan that splits the same eight counties as Plan L03. Plan L078 also splits the 

Shoshone-Bannock tribe, but places “the bulk” of its population into a single district, rather than 

“split[ting] the Reservation’s primary hub and population in half,” as Plan L03 does. Additionally, 

Plan L078 leaves the Coeur-d’Alene tribe intact and in a single district.

From the outset, even though the Commission did not specifically analyze Plan L078 in its 

Final Report, we note that Allan and Boyer’s championed plan suffers from a similar issue as the 

plans discussed above. Plan L078 has a maximum population deviation of 9.83%, rendering it 

presumptively constitutional. However, like the plans discussed above, Plan L078 suffers from 

regional favoritism: Plan L078 underpopulates southeastern Idaho at the expense of voters in Ada, 

Canyon, and Gem Counties. Fifteen of the 35 districts are underpopulated; of those, nine are in

southeastern Idaho and, on average, are underpopulated by -4.43%. In contrast, Ada, Canyon, and 

Gem Counties are comprised of 14 districts, all of which are overpopulated, on average, by 2.92%.

Given the level of regional favoritism displayed in Plan L078, we cannot fault the Commission for 

choosing a different plan in order to comply with the Equal Protection Clause.

Additionally, like the tension between the Idaho Constitution’s restraint against splitting

counties and the Federal Constitution’s Equal Protection Clause, the tension between the 

subsections in Idaho Code section 72-1506 requires that the Commission perform a delicate 

balancing act. For example, Plan L078 preserves the Tribes as communities of interest pursuant to 

Idaho Code section 72-1506(2) but does not contain districts which are “substantially equal in 

population,” as is required by Idaho Code section 72-1506(3). Compared to Plan L078, Plan L03 

does a worse job at preserving the Tribes but a better job at achieving districts which are 

“substantially equal in population,” given that Plan L03 has a maximum deviation of only 5.84%.

When competing interests are at stake, it is the Commission’s responsibility—entrusted to it by 

the people of Idaho—to determine how best to balance those interests, and we will not substitute 

our own views for the Commission’s. See Bonneville Cnty., 142 Idaho at 472, 129 P.3d at 1221.

Though Allan and Boyer contend “[i]t is self-evident that the Tribes’ interests in unity and 

maintaining their voting power should receive the same respect, if not more, than Idaho’s counties 
24

or cities do during the redistricting process,” that is not how the law is written. We are unable to

raise community interests, such as the Tribes’, above the counties’ interests, which are protected 

to a greater degree by the Idaho Constitution. To afford the Tribes the heightened status they seek, 

an amendment to the state constitution would be required. Likewise, Idaho Code section 72-

1506(2) only requires that, “[t]o the maximum extent possible, districts shall preserve traditional 

neighborhoods and local communities of interest.” I.C. § 72-1506(2). The statute does not elevate 

a particular type of community of interest above another: cities, neighborhoods, and tribal 

reservations are all treated the same under the statute. 

Based on the foregoing analysis, we hold that Plan L03 does not violate Idaho Code section 

72-1506.

IV. CONCLUSION

For the reasons stated above, we deny Petitioners’ requests to issue a writ of prohibition

barring implementation of the Commission’s final plan, L03. We award costs to Respondents as 

allowed by Idaho Appellate Rule 40.

Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.

ON DENIAL OF PETITION FOR REHEARING

STEGNER, Justice.

The Petitioner, Ada County, has filed a petition and brief seeking rehearing of this Court’s 

opinion in this case which was released January 27, 2022. Having now had the opportunity to 

review Ada County’s petition and brief in support of its petition, we deny the Petition for 

Rehearing of our decision in Durst v. Idaho Commission for Reapportionment. 

Ada County raises four arguments in support of its Petition for Rehearing. However, before 

we address the specific arguments raised by Ada County, we initially address two premises that 

appear to underlie its Petition. First, the arguments assume that Petitioners’ claims required this 

Court to decide whether Plans L075, L076, L079, and L084 violated the Equal Protection Clause 

of the United States Constitution. However, the Petitioners did not raise an equal protection

challenge. Instead, they claimed that Plan L03 violated Article III, Section 5 of the Idaho 

Constitution and Idaho Code section 72-1506. 
25

The relevant language from Article III, Section 5 does not require this Court to determine 

whether the other plans referenced by Petitioners violate the Equal Protection Clause of the United 

States Constitution:

A senatorial or representative district, when more than one county shall constitute 

the same, shall be composed of contiguous counties, and a county may be divided 

in creating districts only to the extent it is reasonably determined by statute that 

counties must be divided to create senatorial and representative districts which 

comply with the constitution of the United States.

IDAHO CONST. art. III, § 5 (italics added). As we explained in Durst, this constitutional language 

allows a county to be divided when it is reasonably determined by the Commission that a county 

must be divided to comply with the United States Constitution. The wording of Idaho’s 

Constitution thus requires this Court to determine whether the Commission reasonably determined

the number of counties that must be split to comply with equal protection. Ada County seems to 

contend that our review should begin and end with an equal protection analysis of any other plans 

that split fewer counties. However, had the drafters of this provision and Idaho’s citizens intended 

this Court to make its own determination of how many counties needed to be divided to comply 

with equal protection, there would be no need for the “reasonably determined” language. Rather, 

the provision would direct this Court to determine whether the number of counties divided was 

necessary to comply with equal protection. As a result, Idaho’s Constitution does not require this 

Court to determine whether any other plans splitting fewer counties violated the Equal Protection 

Clause but instead directs us to review whether the Commission reasonably determined eight 

counties needed to be split to comply with equal protection.

The second premise that appears to underlie Ada County’s arguments is that this Court’s 

decision in Durst constituted a “dramatic change to reapportionment law in Idaho.” We construe 

Ada County’s argument as taking issue with our statements disavowing portions of this Court’s 

prior decisions in Twin Falls County and Bonneville County. “In Idaho, ‘the rule of stare decisis 

dictates that we follow [controlling precedent] unless it is manifestly wrong, unless it has proven 

over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious 

principles of law and remedy continued injustice.’” Farm Bureau Mutual Ins. Co. of Idaho v. Cook, 

163 Idaho 455, 459–60, 414 P.3d 1194, 1198–99 (2018) (quoting Houghland Farms, Inc. v. 

Johnson, 119 Idaho 72, 77, 803 P.2d 978, 983 (1990)). In Durst, we explained we abrogated 

portions of our prior decisions only to the extent they were manifestly wrong. Bonneville County

incorrectly stated that Idaho Code section “72-1506 qualifies as the statute referenced in Idaho 
26

Const. art. III, § 5.” 142 Idaho 464, 473, 129 P.3d 1213, 1222 (2005). We are not alone in this 

line of thought: the author of the majority decision in Bonneville County has since recognized that 

decision was premised on an erroneous interpretation of the “reasonably determined by statute” 

phrase in article III, section 5 of the Idaho Constitution. Twin Falls Cnty. v. Idaho Comm’n on 

Redistricting, 152 Idaho 346, 356, 271 P.3d 1202, 1212 (J. Jones, J., dissenting) (“The opinion in 

Bonneville County should have stated that the Commission drew its authority from Article III, § 

2, and that the Commission, through its duly adopted plan, is the mechanism intended by the 

Legislature to make the reasonable determination contemplated in Article III, § 5.”). 

In Durst, we maintained and followed the holding of Bonneville County, “that by amending 

art. III, § 2, the people intended to remove the Legislature from the details of the [redistricting] 

process.” 142 Idaho at 473, 129 P.3d at 1222. Bonneville County is thus consistent with our holding 

in Durst that the Commission is the entity with the discretion to determine—subject to this Court’s 

oversight—whether and how to split counties. See id. Twin Falls County, on the other hand, 

contravened the principles set forth in Bonneville County and our prior case law. 152 Idaho at 350–

51, 271 P.3d at 1206–07. The analysis in Twin Falls County as to whether a county split was 

necessary to comply with the Equal Protection Clause was erroneously focused only on whether a 

plan’s maximum population deviation was below 10%. Id. That analysis misapplied equal 

protection precedent and failed to give proper acknowledgement to the Commission’s decision 

making that county splits were necessary to comply with equal protection, as is required under 

article III, section 5 of the Idaho Constitution and our prior case law. Id. Thus, it was this Court’s 

decision in Twin Falls County, not Durst, which was the “dramatic change to reapportionment law 

in Idaho.” Our decision in Durst was simply a return to this Court’s correctly decided precedent.

Turning to the specific arguments Ada County raises in its Petition for Rehearing, Ada 

County first argues that we unconstitutionally delegated our responsibility for interpreting the 

Equal Protection Clause to the Commission because we did not independently review Plans L075, 

L076, L079, and L084 to determine whether the plans complied with equal protection. However, 

Petitioners never alleged that Plan L03 violated the Equal Protection Clause. As a result, we did 

not hold that any other plans were unconstitutional. We simply addressed the Petitioners arguments 

and held that, under the Idaho Constitution, the Commission reasonably determined eight county 

splits were necessary to comply with equal protection. 
27

Second, Ada County contends that we have imposed “stricter requirements in determining 

compliance with the Equal Protection Clause” “than is required under federal law” because we 

“include[d] an intermediate step where an unelected, unaccountable state body makes a reasonable 

determination that its decisions have complied with federal law.” As explained above, we did not 

render any holdings concerning whether the other plans complied with the Equal Protection Clause 

and therefore did not impose any additional requirements to an equal protection analysis. Ada 

County seeks to recast our decision in terms of federal constitutional law when our decision was 

clearly decided on state constitutional grounds.

Third, Ada County asserts that this Court judicially amended Article III, Section 5 of the 

Idaho Constitution through our interpretation of the phrase “reasonably determined by statute.” 

While Ada County discusses Idaho Code section 72-1506 concerning county splits, it fails to 

explain how that statute can be read to somehow supersede the Equal Protection Clause. The 

legislative history of the statute not only fails to mention Article III, Section 5 of the Idaho 

Constitution, but the statute itself provides no guidance on how to draw districts that comply with 

the “one person, one vote” principle of the United States Constitution. Rather, the statute simply 

requires that “[d]istricts shall be substantially equal in population and should seek to comply with 

all applicable federal standards and statutes.” I.C. § 72-1506(3). Additionally, while Ada County 

stresses that the Legislature must have known the meaning of the word “statute” when it put forth 

Article III, Section 5 for the citizens of Idaho to ratify in 1986, Ada County ignores the subsequent 

ratification of the 1994 constitutional amendment of Article III, Section 2, which established that 

a commission for reapportionment would be responsible for redistricting. Ada County’s 

interpretation fails to give effect to the 1994 amendment of our constitution by which the 

responsibility for redistricting was transferred from the Legislature to the Commission. 

Finally, Ada County argues that it “met its burden demonstrating that Plan L03” violated 

the Equal Protection Clause. However, on page four of its opening brief, Ada County expressly 

conceded that Plan L03 “meet[s] the equal protection standard.” It is therefore not possible for Ada 

County to have “met its burden demonstrating that Plan L03 was unconstitutional under the Equal 

Protection Clause” given it took the opposite position when it explicitly denied that it was 

challenging Plan L03 on federal equal protection grounds. 

For the foregoing reasons, Ada County’s Petition for Rehearing is DENIED.

Chief Justice BEVAN, Justices BRODY, MOELLER and ZAHN CONCUR.