(concurring specially).
[¶ 23.] Five years ago, we held that the Legislature could not, on its own initiative, reapportion legislative districts other than at the times permitted by the South Dakota Constitution. Emery v. Hunt, 2000 SD 97, 615 N.W.2d 590. Like the case before us today, Emery answered a certified question put to us by the federal district court. We ruled that in enacting its 1996 redistricting plan “the Legislature acted beyond its constitutional limits.” Id. at ¶ 18, 615 N.W.2d at 597. We voided the 1996 plan, thus reinstating the preexisting 1991 plan.
[¶ 24.] Despite the decennial redistricting limitation in South Dakota’s Constitution, the co-authors of today’s lead opinion would permit the Legislature to reapportion voting districts at any time the Legislature deems another apportionment desirable. See their separate dissents in Emery, 2000 SD 97, ¶¶ 21-38, 615 N.W.2d at 597-604. This proposition is precisely what our ruling in Emery would not permit. In my view, however, our decision today does not alter our holding in Emery. Now the question before us is different.
*756[¶ 25.] We must decide whether the Legislature may reapportion in response to a court judgment that the existing apportionment is illegal. There is ample reason to conclude that once a redistricting plan is declared unlawful or unconstitutional, the Legislature can be required to forthwith enact a new plan in compliance with the law. This is true even if the reapportionment would take place outside the ten-year cycle dictated by our Constitution.
[¶ 26.] The danger that the Legislature could reapportion every few years for partisan motives is the reason the framers of our Constitution prohibited reapportionment more frequently than every ten years. That is why the redundant “at no other time” language was inserted in the original text. The framers feared that a politically dominant party could redistrict at will to suit its own self-serving ends. South Dakota Constitutional Convention Debates of 1885, vol 1, at 207. For similar reasons, most states operate on this same ten-year timetable. The United States Supreme Court has acknowledged that “[l]imitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system.... ” Reynolds v. Sims, 377 U.S. 533, 583, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964).
[¶ 27.] On the other hand, once it is determined by a court that a legislative redistricting plan is invalid, equal protection demands a remedy. The preferred forum for a solution is usually the state. “[T]he Constitution leaves with the States primary responsibility for apportionment of their federal congressional and state legislative districts.” Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 1081, 122 L.Ed.2d 388 (1993) (citing US Const art I, § 2). The Supreme Court recognized that “[t]he power of the judiciary of a State to require valid reapportionment or to formulate a valid redistricting plan has not only been recognized by this Court but appropriate action by the States in such cases has been specifically encouraged.” Scott v. Germano, 381 U.S. 407, 409, 85 S.Ct. 1525, 1527, 14 L.Ed.2d 477 (1965) (citations omitted). Indeed, both “[r]eason and experience argue that courts empowered to invalidate an apportionment statute which transgresses constitutional mandates cannot be left without the means to order appropriate relief.” Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex.1991).
[¶ 28.] The fact that the voters rejected an amendment in 2002 to empower the Legislature to reapportion if a state or federal court invalidated an apportionment is of no consequence. The courts always had the power to require such a reapportionment. Therefore, I would answer the district court’s question in the affirmative: the Legislature can reapportion Districts 26 and 27 under Article III, Section 5 of the South Dakota Constitution, but only because there is a court judgment finding the existing apportionment invalid.