dissenting.
I concur in the dissenting opinion of Bakes, J., released concurrently with this opinion. His comments on the shabby treatment afforded the defendants and the denial of due process inherent therein, together with the majority’s stampede to judgment, need no reiteration here. Rather, I deal with the quantum leaps of the majority which are obviously designed to reach a foreordained result.
The history of legislative reapportionment in Idaho has been sufficiently set forth in Hellar v. Cenarrusa II, 106 Idaho 571, 682 P.2d 524 (Shepard, J., dissenting). It is sufficient at this juncture to point out two judicial milestones in the Idaho legislative reapportionment process. In the wake of and in response to Hearne v. Smylie, 378 U.S. 563, 84 S.Ct. 1917, 12 L.Ed.2d 1036 (1964), our legislature reapportioned and instituted legislative districts which divided certain counties. That apportionment scheme was tested in Summers v. Cenarrusa, 342 F.Supp. 288, 289 (1972). The Court said:
“It is our opinion that in order for the legislature to enact a practical reapportionment plan so as to comply with the requirements of the United States Constitution, it could not and was not required to comply with the Idaho Constitutional prohibition against dividing counties.” 342 F.Supp. at 290. (Emphasis supplied.)
That language is clear, concise and inescapable, and whether or not that holding is binding upon the Idaho state courts, it was relied upon by the Idaho legislature in continuing its legislative reapportionment scheme. Following the institution of the instant action, this Court in Hellar v. Cenarrusa I directed an evidentiary hearing on the constitutionality of the then existing reapportionment scheme (H.B. 830) and on the ability to devise a plan which satisfied the mandates of both the federal constitution, as to maximum deviation, and the state constitution, as to the splitting of counties. Upon review of the trial court’s decision, this Court in Hellar v. Cenarrusa II held that H.B. 830 was unconstitutional (which holding was in direct conflict with the previous federal court decision) and permitted the Idaho legislature the opportunity to enact a new scheme of legislative apportionment. In that decision this Court clearly stated:
“Nevertheless, supposing the proper statistical method yielded a population deviation of 41.3%, given Idaho’s state constitutional mandate, and its particular circumstances (geographic, economic, social and others), that percentage would still pass muster under federal constitutional standards in view of the decisions of the United States Supreme Court."
The 1984 session of the Idaho legislature clearly relied and acted upon that specific above quoted language of the Court as it struggled through the 1984 session. It enacted several different plans, none of which gained both legislative and executive approval. Finally, in what was obviously a bipartisan effort, H.B. 746 received overwhelming legislative approval and the approval of the Governor.
This Court, in its cavalier treatment of the legislative and executive branches of government, strikes down H.B. 746 on the basis that a deviation of some 32% is violative of the federal constitution and its explicit statements and implicit conclusions *614that the 1984 legislature engaged in “political gerrymandering” and “partisan gerrymandering.”
There is not a scintilla of evidence to support either the factual assertions of the majority or its inferred conclusions. This Court in Hellar v. Cenarrusa II told the legislature to come in with a reapportionment plan which had a population deviation of less than 41.3%, although the dissent thereto specifically pointed out the dangers of that language. The legislature did exactly as it was directed by this Court and, if fault there is, it should be shouldered by this Court rather than the Court being critical of the legislature.
The Court insults the legislature when the Court refuses to even mention the legislative statement of purpose for H.B. 746 which sets forth in detail the considerations given to the H.B. 746 reapportionment scheme which led to its enactment and presumably to the gubernatorial approval. Instead, like a flea on a hot griddle, it quantum leaps from one conclusion to another to reach its fore-ordained result.
The majority condemns H.B. 746 as “tainted,” as not providing “coherent districts,” but rather providing “stretched districts.” I suggest that the myophic view of the majority ignores the factual existence of the State of Idaho. More than 70% of Idaho’s land area is owned by the federal or state governments. Those enormous land areas include national forests, national monuments, lands controlled by the Bureau of Land Management, wilderness areas, and others in which the population is negligible. Thus, most of our population is scattered throughout 30% of our land area. In some of the remaining land area, population is extremely sparse, with some of our counties having less than 1,000 people. Some of our counties contain land area large enough to accommodate several New England states and yet their population is relatively sparse. Given these factors alone, Idaho’s legislative apportionment will at times necessarily require districts of unusual shape and “stretching” if any consideration is to be given the mandate of one-man, one-vote. No comparison can be drawn to a small state with a uniform compact density of population which may allow legislative districts comprised of neat squares or rectangles. The wondrous diversity and perversity of Idaho allows no such comparison.
Even within a relatively compact area with substantial population such as Ada County, there is substantial agricultural property with relatively sparse population. People do not reside in public parks, governmental malls, business districts, streets and highways, airports, and other types of areas. District lines must accommodate the existence of pockets and distributions of population.
There is absolutely nothing alleged or in the record before us to suggest “gerrymandering” for the purpose of diluting the voting strength of a racial or otherwise suspect category. The majority further criticizes H.B. 746 as mixing urban and rural populations. No authority is cited therefor and I know of no decisions that condemn such a practice when it is necessary, as in the case of Idaho, to obtain the best possible accommodation to the principle of one-man, one-vote. The majority’s criticism of H.B. 746 for its “stretched” districting can only be considered ludicrous in light of the Court’s approved plan which contains a district “stretching” some 225 miles in length and 100 miles in width.
In short, there is simply no factual basis for the majority’s assertions that the legislature has acted in derogation of its duties. H.B. 746 is presumed constitutional. The only rebuttal to that presumption is so-called “evidence” presented by affidavit and adopted by the majority, since any contrary “evidence” was not permitted. It is unseemly that this Court should adopt such a paranoid attitude toward legislative attempts to reapportion and its own dogmatic and dictatorial adoption of Plan 14-B.
The majority doggedly insists that the 1984 legislative elections shall be conducted under Plan 14-B. Defendants in the action, four days ago, filed a motion for stay of the Court’s previous order pointing out *615by way of the chief election official for the State of Idaho the difficulties and perhaps impossibility of holding the elections as ordered under Plan 14-B. As of the time of the issuance of the majority opinion, the Court had not considered that motion for stay nor acted upon it. The motion for stay points out at least one overriding difficulty. As of 5:00 p.m. today, April 16, the date for filing candidacies for legislative office, is closed. The Secretary of State is required to certify to the legislative district central committee of each party those legislative positions for which a filing has been made. I.C. § 34-706. Thereafter, the legislative district central committee of each party may appoint and certify to the Secretary of State candidates for those positions which would otherwise remain vacant on the ballot. I.C. § 34-714. Clearly, there are no such legislative district committees for legislative districts formed by Plan 14-B, and hence there is no entity to which the Secretary of State can certify vacancies in accordance with the statute nor whom can appoint to fill those vacancies. See I.C. § 34-503.
This factor is only one which, in my opinion, makes an election conducted under Plan 14-B next to, if not totally, impossible. Nevertheless, the majority continues its headlong rush to the implementation of. Plan 14-B, which, in my opinion, will deprive a substantial number of people in the State of Idaho the opportunity to participate in a republican form of government as guaranteed by our constitution.
In my opinion, since this Court has exercised its naked power of judicial fiat, it should now halt and reconsider. It should halt the entire electoral process and, at worst, require the 1984 legislative electoral process be conducted in accordance with H.B. 746 and require the next 1985 legislature to reapportion itself. In the meantime, the Court should, by equal judicial fiat, establish a new date for the filing of candidacy, a new date for the closing of that filing, and a primary election to be held in the fall. Admittedly, such a procedure is neither the most desirable or best, but it has the virtue of providing for a republican form of government by meaningful elections and extracting the state from the imbroglio in which it now finds itself.