In Re Reapportionment of the Colorado General Assembly

Justice VOLLACK

concurring in part and dissenting in part:

The majority approves the Final Plan submitted by the Colorado Reapportionment Commission but disapproves of that portion of the plan which divides Pitkin County and the City of Aspen into House Districts 57 and 61.1 In my opinion, the Commission has satisfied the requirements of sections 46 and 47 of Article V of the Colorado Constitution and the mandates of the Voting Rights Act of 1965 with respect to Pitkin County. Although the division may not be perfect, in my opinion it is an honest and good faith effort to apportion one hundred seats in the legislature. The division thus comports with United States and Colorado constitutional requirements, and affords fair representation to all Colorado citizens. Accordingly, I disagree with the majority’s rejection of Districts 57 and 61, and dissent to the remand of that part of the plan for revision, modification, and resubmission.

I.

The Pitkin County Board of County Commissioners objects to the division of Pitkin County into two House Districts, 57 and 61, on the grounds that the City of Aspen and Snowmass Village would be divided into two different house districts. The Commission found that Pitkin County, as with Montezuma County, is one of only six split counties with a population smaller than the ideal in the Final Plan for the House. The Commission determined that the split was necessary in order to achieve equality of population in House Districts 57 and 61. The only alternatives available to the Commission were to split either Summit County or Eagle County in District 61, in lieu of the Pitkin County split. The majority concludes that the Commission failed to adequately demonstrate why alternate plans could not have satisfied the equal population requirement of the Colorado Constitution. Maj. op. at 195. Absent resubmission of the present plan, the majority’s finding does not eliminate the need to split a county; it only shifts the split to a neighboring county.

As presented by the Commission, House Districts 57 and 61 meet the paramount constitutional criteria of equality of population. The Commission legitimately premised its plan on the mandate of equality of population. The Commission was not unaware of the goal of avoiding county or municipal splits under section 47 of Article V of the Colorado Constitution. Section 47(2), however, is expressly subordinated to the equality of population requirement set out in section 46. The Commission’s plan must be deemed constitutional.

II.

The role of this court in reapportionment proceedings is to measure the Commission’s proposed reapportionment plan against constitutional standards. In re Re*209apportionment of Colorado Gen. Assembly, 647 P.2d 191, 194 (Colo.1982). The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not this Court. Id. This court’s review is thus narrow and limited in scope. Id. This court’s prime consideration in reviewing the Commission’s plan is ascertaining whether the plan meets the equality of population test in the proposed senate and house districts as required by article V, section 46, of the Colorado Constitution:

Section 46. Senatorial and repre» sentative districts. The State shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.[2]

Article Y, section 47, of the Colorado Constitution supplies three additional criteria for evaluating legislative districts which are subordinate to the mandate of section 46. Pitkin County’s objections are based on the subordinate provisions of section 47(2), which provide in pertinent part: “Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.” Equality of population under section 46 is of paramount concern; division of counties under the additional criteria in section 47(2) is secondary. Apportioning legislative districts based on factors other than population equality violates the Fourteenth Amendment Equal Protection Clause. See Reynolds v. Sims, 317 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth Gen. Assembly of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964).

It is undisputed that, in order to achieve equality of population as to Districts 57 and 61, at least one county must be split. Whether Pitkin, Summit, or Eagle County is to be split is not a decision for this court to make. The majority states that the Commission does not suggest why Eagle or Summit County divisions “would be equally or less adequate constitutionally than the one adopted.” Maj. op. at 195. The majority’s concerns exceed the purview of this court’s review in a reapportionment proceeding. In re Reapportionment of Colorado Gen. Assembly, 647 P.2d 191, 194 (Colo.1982). Our narrow review limits us to measuring the proposed plan against constitutional requirements. Id.

HI.

The United States Supreme Court’s decisions in Reynolds and Lucas hold that “as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964). “[T]he constitutional test for the validity of congressional districting schemes [is] one of substantial equality of population among the various districts established....” Id. at 559, 84 S.Ct. at 1380. All that is required under “the Equal Protection Clause [is] 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 577, 84 S.Ct. at 1390.

The Commission’s proposed plan satisfies this constitutional test. The Commission applied two tests, the Schwartzberg and Reock, to all proposed districts. The Commission also evaluated the ethnic breakdown coupled with voting population of all proposed districts. The Commission subjected the range of district populations to statistical deviation tests. I am compelled to conclude that the Commission thus made *210an honest and good faith effort to construct districts with respect to the entire plan.

IV.

The Commission — comprised of five Democrats, five Republicans, and one Independent — submitted a plan to reapportion one hundred seats of the General Assembly. Of the one hundred seats reapportioned, the majority objects to one split: the Pitkin County split. Applying the constitutional requirements of section 46 (population), the Commission considered the alternative of splitting either or both Eagle and Summit County in lieu of Pitkin County. The Commission’s resolution of the problem is reflected in its plan, splitting Pitkin County, which meets the paramount criterion of equality of population among the districts. This court has previously recognized that “substantial equality of population and avoidance of splitting counties cannot always be met simultaneously. When they cannot, the avoidance of split counties must yield.” In re Reapportionment of Colorado Gen. Assembly, 647 P.2d at 197.

Since the Commission’s plan met the constitutional standards, we should not exceed our narrow role to ensure that the equal population mandate is not violated. In review of all the objections to the plan, I find that, while the plan is not perfect, it is the result of the Commission’s honest, good faith efforts, and should be approved by this court under our limited scope of review.

. The majority also remands the plan with directions to make technical corrections to the Larimer and Boulder County plans and to revise the Perry Park plan.

. The five percent deviation test means that the sum of the percent by which the largest district’s population exceeds that of the ideal district, and the percent by which the smallest district population falls short of the population of the ideal district, must be less than five percent. In re Reapportionment of Colorado Gen. Assembly, 647 P.2d 191, 193 n. 4 (Colo.1982).