Reapportionment Cases

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REAPPORTIONMENT_CASES.92-088; 160 Vt. 9; 624 A.2d 323


[Opinion Filed 27-Jan-1993]

[Motions for Reargument in Docket Nos. 92-261 and 92-291 Denied 24-Feb-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


            Nos. 92-088, 92-136, 92-230, 92-259, 92-261 & 92-291

                                Supreme Court
                            Original Jurisdiction


 In re Reapportionment of Towns of
 Hartland, Windsor and West Windsor           September Term, 1992


 In re Reapportionment of Town
 of Montgomery                                September Term, 1992


 In re Reapportionment of Town of
 Shrewsbury                                   September Term. 1992

 In re Reapportionment of Town of             October Term, 1992
 Berlin

 In re Reapportionment of Town of             October Term, 1992
 Springfield

 In re Reapportionment of Town of
 Richford                                     October Term, 1992


 Thomas O. Kenyon, et al., pro se, Brownsville, for petitioners (92-088)

 Douglas D. DeVries, Enosburg Falls, and Michael Rose (On the Brief),
   St. Albans, for petitioners (92-136 and 92-291)

 James M. Jeffords and Rebecca R. Osterhoudt, Shrewsbury, for petitioners
 (92-230)

 Robert Halpert, Montpelier, for petitioners (92-259)

 Stephen S. Ankuda and Patrick M. Ankuda, Law Clerk (On the Brief), of
   Parker & Ankuda, P.C., Springfield, for petitioners (92-261)

 Jeffrey L. Amestoy, Attorney General, William E. Griffin, Chief Assistant
   Attorney General, and Claudia Horack Bristow and William P. Russell,
   Legislative Council, for respondents


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

           Allen, C.J., Gibson, Dooley and Morse, JJ., and Maloney, Supr.
           J., Specially Assigned (92-230 only)

      GIBSON, J.    Six groups of petitioners from various towns in the state
 challenge the reapportionment of legislative districts by the General
 Assembly during the 1992 legislative session.  Five of the groups contest
 various House districts, and the other group challenges a Senate district.
 We dismiss five of the petitions, and, with respect to the other petition,
 remand the House plan to the Legislature for revision and correction, if
 possible.
                        I.  Legislative Redistricting
      To comply with federal and state constitutional requirements that state
 legislatures afford substantially equal weight to citizens' votes, the
 General Assembly is required to redraw legislative voting districts after
 each federal decennial census or after a state census taken for the purpose
 of redistricting.  Vt. Const. ch. II, { 73; 17 V.S.A. { 1903(a).  In
 forming representative and senatorial districts "which shall afford equality
 of representation, the General Assembly shall seek to maintain geographical
 compactness and contiguity and to adhere to boundaries of counties and other
 existing political subdivisions."  Vt. Const. ch. II, {{ 13, 18.  Statutory
 criteria also require, "insofar as practicable," that the districts be drawn
 consistent with the following policies: "(1) preservation of existing
 political subdivision lines; (2) recognition and maintenance of patterns of
 geography, social interaction, trade, political ties and common interests;
 [and] (3) use of compact and contiguous territory."  17 V.S.A. { 1903(b).
      Following the 1990 census, the Legislature reapportioned the House and
 Senate.  See 1991, No. 116 (Adj. Sess.) (initial House districts); 1991, No.
 147 (Adj. Sess.) (subdivided House districts and established Senate
 districts).  The Legislature also amended the statutory procedures for
 redistricting the House in the same bill that redrew the initial House
 districts.  1991, No. 116 (Adj. Sess.), {{ 7-12.  Under the new law, the
 bipartisan Legislative Apportionment Board, whose members do not serve in
 the General Assembly, must prepare a tentative redistricting proposal,
 consider the responsive recommendations of the municipal boards of civil
 authority, and then prepare a final proposal for dividing the state into
 initial districts for the election of the 150 representatives.  17 V.S.A. {{
 1905-1906.  The final proposal is referred to the appropriate legislative
 committee, and eventually the General Assembly, which may accept or amend
 the proposal, or substitute another plan.  Id. { 1906.
      House districts may have no more than two members, Vt. Const. ch. II, {
 13, but larger districts may be approved preliminarily subject to further
 subdivision.  See 17 V.S.A. { 1906a(c).  Similarly, two-member districts may
 be subdivided at that time.  Id. { 1906a(b).  The boards of civil authority
 within districts that are subdivided must prepare a proposal for drawing the
 internal lines within the districts, based on considerations of
 "incumbencies" in addition to the statutory criteria specified above.  Id.
 {{ 1906b(b), (c) and 1906c(b), (c).  The proposal is referred to the
 appropriate legislative committee, and eventually the General Assembly,
 which "shall" approve the House districts proposed by the town boards "if
 they are consistent with the standards set forth" in the statutes.  Id. {{
 1906b(e), (f) and 1906c(e), (f).  If a majority of the town boards fail to
 agree to a subdivision proposal for a two-member House district, the
 Legislature "may divide the initial district into single-member repre-
 sentative districts."  Id. { 1906b(e).  If a majority of the town boards
 fail to agree to a subdivision proposal for a House district with three or
 more representatives, the Legislature "shall divide the initial district
 into representative districts."  Id. { 1906c(e). (FN1)
      Any five citizens may petition this Court, which has original and
 exclusive jurisdiction, for review of a final House or Senate plan.  See id.
 { 1909(a).  If this Court finds the plan in violation of constitutional or
 statutory requirements, it must forward its decision to the General Assembly
 and retain jurisdiction until the Legislature has approved a plan conforming
 to those requirements.  Id. { 1909(e); see Vt. Const. ch. II, { 73 (autho-
 rizing Supreme Court to order reapportionment of legislative districts if
 Legislature fails to revise the districts as required).
      In the present case, the Legislative Apportionment Board proposed a
 Senate and a House plan, neither of which was accepted by the Legislature.
 The legislative committees devised their own plans, which were adopted by
 the Legislature in most respects.  The initial multimember districts created
 by Act 116 were subdivided by Act 147, resulting in a final House plan with
 an overall deviation of 17.6%. (FN2) The Legislature approved a final Senate
 plan with an overall deviation of 16.4%.  Five petitions challenged specific
 districts within the House plan, and one petition challenged the Senate
 plan.  In all but one of the petitions, hearings were held before masters,
 who took testimony and made findings of fact.  See 17 V.S.A. { 1909(d).  We
 declined to order any interim relief, pending resolution of the petition,
 and elections have proceeded under the new redistricting plans.
                         II.  The Standard of Review
      Redistricting is "primarily a matter for legislative consideration and
 determination."  In re Senate Bill 177, 130 Vt. 365, 371, 294 A.2d 657, 660
 (1972).  Accordingly, the redistricting plans approved by the General
 Assembly are presumed to be valid,  In re Senate Bill 177, 130 Vt. 358, 361,
 294 A.2d 653, 654 (1972), and there is "a heavy burden of proof on those who
 allege that a redistricting plan violates the Constitution."  Davis v.
 Bandemer, 478 U.S. 109, 185 (1986) (Powell, J., concurring in part and
 dissenting in part).  Further, it is primarily the Legislature, not this
 Court, that must make the necessary compromises to effectuate state con-
 stitutional goals and statutory policies within the limitations imposed by
 federal law.  See In re 1983 Legislative Apportionment of House, Senate and
 Congressional Districts, 469 A.2d 819, 827 (Me. 1983) (hereinafter In re
 1983 Legislative Apportionment).  Accordingly, the Legislature must resolve
 the tension that exists between the one-person, one-vote requirement and
 state laws concerning the maintenance of compact and contiguous districts
 made up of communities with common interests.  If a plan is consistent with
 the fundamental constitutional requirement that districts be drawn to afford
 equality of representation, we will return it to the Legislature only when
 there is no rational or legitimate basis for any deviations from other
 constitutional or statutory criteria.  See Holmes v. Farmer, 475 A.2d 976,
 986 (R.I. 1984).
      We will not reject a redistricting plan simply because the petitioners
 have devised one that appears to satisfy constitutional and statutory
 requirements to a greater degree than the plan approved by the Legislature.
 See Gaffney v. Cummings, 412 U.S. 735, 750-51 (1973) (redistricting plan is
 not rendered unconstitutional simply because some "resourceful mind" has
 come up with a better one).  Of course, the presentation of a plan that
 substantially improves on the one proposed by the Legislature may cast doubt
 on the legality of the Legislature's plan.  In re 1983 Legislative
 Apportionment, 469 A.2d  at 828.  The petitioners' burden, however, is not to
 establish that some other preferable plan exists, but to demonstrate the
 absence of a rational or legitimate basis for the challenged plan's failure
 to satisfy constitutional or statutory criteria.  In re 1991 Pennsylvania
 Legislative Reapportionment Commission, 609 A.2d 132, 136-37 (Pa. 1992); see
 In re Senate Bills 177 and 83, 132 Vt. 282, 290, 318 A.2d 157, 162 (1974)
 ("Whatever this Court may believe about the wisdom of an alternative
 solution, our testing of this legislative function must be confined to its
 constitutional and statutory propriety . . . ."); In re Reapportionment of
 the Colorado General Assembly, 828 P.2d 185, 189 (Colo. 1992) (court's role
 is to measure the redistricting plan against constitutional standards; the
 choice among alternative plans is for the redistricting commission, not the
 court).
      In reviewing the petitions, we must consider not only the specific
 violations claimed, but also those claims within the context of the entire
 plan, keeping in mind the difficulties in satisfying the various legal
 requirements statewide.  In re Senate Bills 177 and 83, 132 Vt. at 289, 318 A.2d  at 162; see In re Reapportionment Plan for Pennsylvania General
 Assembly, 442 A.2d 661, 668 (Pa. 1981).  Nevertheless, once petitioners
 have shown that the State has failed to meet constitutional or statutory
 standards or policies with regard to a specific part of the plan, the State
 then has the burden to show that satisfying those requirements was
 impossible because of the impermissible effect it would have had on other
 districts. (FN4) See, e.g., In re Reapportionment of the Colorado General
 Assembly, 828 P.2d  at 195-96 (redistricting commission's statement that
 substantial equality of populations among districts required dividing a
 county did not "rise to the level of an adequate factual showing that less
 drastic alternatives could not have satisfied the equal population
 requirement of the Colorado Constitution"); In re Legislative Districting of
 General Assembly, 193 N.W.2d 784, 791 (Iowa 1972) (state failed to sustain
 its burden to show why Legislature could not comply with constitution's
 compactness requirement).
      We recognize that at least one jurisdiction has required petitioners to
 submit an alternative plan that demonstrates that a challenged district
 could be reformed to meet constitutional or statutory criteria more
 effectively without contravening those requirements elsewhere in the state.
 In re 1983 Legislative Apportionment, 469 A.2d  at 831.  But considering that
 the Legislature, not the petitioners, is responsible for producing a valid
 plan, and that the Legislature and its staff are better equipped to devise
 alternative plans, we believe that basic notions of fairness require that
 the State show that a constitutionally or statutorily deficient plan cannot
 be improved without violating the same or other requirements elsewhere.
 Further, any alternative plan presented by petitioners would not be what it
 purported to be.  It might serve to build petitioners' case that the
 Legislature's plan violated constitutional or statutory criteria, but, as a
 practical matter, it could not serve as a truly viable alternative plan.
 Petitioners' alternative plan would invariably affect unchallenged
 districts and could not be adopted without further review and consideration
 by the Legislature.
                             III.  The Petitions
                         A.  The Montgomery Petition
      Petitioners from Montgomery challenge the Legislature's establishment
 of a new House district composed of the town of Montgomery, which is in
 Franklin County, and four towns from Orleans County.  Petitioners argue that
 the Legislature ignored Vermont constitutional and statutory law by joining
 the town of Montgomery in a district with four Orleans County towns with
 which it has little in common.  According to petitioners, the Legislature
 gave no consideration to any constitutional or statutory criteria, aside
 from equality of population among districts.  We agree that there is no
 indication that the Legislature considered all relevant constitutional and
 statutory criteria with respect to the establishment of this district.
 Accordingly, we send this matter back to the Legislature for further
 consideration. (FN4)  There is no doubt that the overriding duty of the legi-
 slature in establishing a redistricting plan is to assure substantial 
 equality of population among districts.  Reynolds v. Sims, 
 377 U.S. 533, 568 (1964)
 ("the Equal Protection Clause requires that the seats in both houses of a
 bicameral state legislature must be apportioned on a population basis");
 see In re Senate Bills 177 and 83, 132 Vt. at 286, 318 A.2d  at 160 (other
 considerations such as maintaining integrity of county lines must yield to
 that of equal representation).  Our constitutional and statutory language
 makes this point clear.  The constitution mandates that House and Senate
 districts "shall afford equality of representation," whereas the
 constitution requires only that the Legislature "seek to maintain
 geographical compactness and contiguity and to adhere to boundaries of
 counties."  Vt. Const. ch. II, {{ 13, 18.  Statutory law requires the
 Legislature, insofar as practicable, to draw districts consistent with
 "policies" of preserving existing political lines, maintaining communities
 of interest, and using compact territory.  17 V.S.A. { 1903(b).
      Nevertheless, state reapportionment laws "are not subject to the same
 strict [equal representation] standards applicable to reapportionment of
 congressional seats."  White v. Regester, 412 U.S. 755, 763 (1973).  Early
 on, the Supreme Court acknowledged the practical impossibility of arranging
 state legislative districts "so that each one has an identical number of
 residents," and required only "that a State make an honest and good faith
 effort to construct districts . . . as nearly of equal population as is
 practicable."  Reynolds v. Sims, 377 U.S.  at 577; see also Vt. Const. ch.
 II, { 73 (Legislature shall "maintain equality of representation among the
 respective districts as nearly as it is practicable").  Thus, "minor
 deviations from mathematical equality among state legislative districts are
 insufficient to make out a prima facie case of invidious discrimination
 under the Fourteenth Amendment so as to require justification by the State."
 Gaffney v. Cummings, 412 U.S.  at 745.  As a general rule, an overall
 deviation under 10% within a redistricting plan is considered a minor
 deviation that does not require justification by some rational state policy.
 Brown v. Thomson, 462 U.S. 835, 842 (1983); see Gaffney v. Cummings, 412 U.S.  at 745 (de minimis deviation does not violate equal protection clause
 whether it is considered alone or compared with another plan with lower
 deviations); In re Legislative Districting, 475 A.2d 428, 440 (Md. 1984)
 (plan with less than 10% deviation was "well within the permissible limits
 for state legislative districts" under federal constitution); Holmes v.
 Farmer, 475 A.2d  at 988 (overall deviation of 5.4% is a minor deviation that
 is prima facie constitutional absent a showing of bad faith).
      Accordingly, "nonnumerical"(FN5) constitutional and statutory criteria are
 not rendered superfluous either by the primary concern for the one-person,
 one-vote requirement or by the flexibility the Legislature has in meeting
 the nonnumerical criteria.  See Schrage v. State Board of Elections, 430 N.E.2d 483, 486 (Ill. 1981) (dominant equal protection requirement should
 not be read as "death knell" to compactness requirement); Ater v. Keisling,
 819 P.2d 296, 300, 303 (Or. 1991) (redistricting statute with criteria
 similar to those in Vermont statute viewed as giving Legislature "latitude"
 in applying criteria).  Indeed, this Court has a mandate to retain
 jurisdiction over redistricting until the Legislature produces a plan that
 conforms to "all constitutional and statutory requirements."  17 V.S.A. {
 1909(e) (emphasis added).
      All of the nonnumerical criteria at issue here -- the maintenance of
 political lines, the use of compact and contiguous territories, and the
 preservation of communities with common interests -- are not only important
 but are related to one another in that they share the common purpose of
 assuring more effective representation.  See Gaffney v. Cummings, 412 U.S.  at 748-49 (fair and effective representation "does not depend solely on
 mathematical equality among district populations"); Reynolds v. Sims, 377 U.S.  at 578-79 ("Indiscriminate districting, without any regard for
 political subdivision or natural or historical boundary lines, may be little
 more than an open invitation to partisan gerrymandering.").  Thus, the
 preservation of town and county boundaries is important "because the sense
 of community derived from established governmental units tends to foster
 effective representation."  Carstens v. Lamm, 543 F. Supp. 68, 88 (D. Colo.
 1982).  Local governmental units have various responsibilities incident to
 the operation of state government in a wide range of areas, including the
 court system, law enforcement, education, mental health, taxation, and
 transportation.  Consequently, unnecessary fragmentation of these units
 limits the ability of local constituencies to organize effectively and
 increases voter confusion and isolation.  Id.; see Davenport v.
 Apportionment Commission, 304 A.2d 736, 745 (N.J. Super. Ct. 1973) (quoting
 Jackman v. Bodine, 205 A.2d 713, 718 (N.J. 1964)) ("'citizens of each county
 have a community of interest by virtue of their common responsibility to
 provide for public needs'").  Voters in a community are less effectively
 represented when their elected representative's principal constituency lies
 outside their community and has interests different from their own.  See In
 re Reapportionment Plan for Pennsylvania General Assembly, 442 A.2d  at 669
 (Nix, J., dissenting).  These considerations are particularly relevant in
 this state, which has a long history of preserving the independence and
 integrity of local government.  See In re Senate Bills 177 and 83, 132 Vt.
 at 287, 318 A.2d  at 160.
      Similarly, compactness and contiguity requirements ultimately concern
 "the ability of citizens to relate to each other and their representatives
 and . . . the ability of representatives to relate effectively to their
 constituency."  Wilson v. Eu, 823 P.2d 545, 553, 4 Cal. Rptr. 2d 379, 387
 (1992).  These relationships are fostered through shared interests and
 membership in a political community.  Id.; see In re Reapportionment Plan
 for Pennsylvania General Assembly, 442 A.2d  at 669 (Nix, J., dissenting)
 (requirements of contiguity and compactness go beyond geographical concern
 and embrace concept of homogeneity of district).  They are undermined,
 however, when geographic barriers that severely limit communication and
 transportation within proposed districts are ignored.  See Wilson v. Eu, 823 P.2d  at 574, 4 Cal. Rptr.  at 400 (Appendix I).  Thus, the statutory criteria
 contained in { 1903(b), including "recognition and maintenance of patterns
 of geography, social interaction, trade, political ties and common
 interests," are an implementation and extension of our constitutional
 requirements that the Legislature "seek to maintain geographical compactness
 and contiguity and to adhere to boundaries of counties and other existing
 political subdivisions."  Vt. Const. ch. II, {{ 13, 18.
      We now examine the findings of the master, which are not in dispute.
 The towns of Jay, Troy, Westfield, Lowell, and Montgomery comprise the
 challenged district, Orleans-Franklin 1, which has a population of 3,829 and
 an overall deviation of 2.05%.  The northern spine of the Green Mountains
 divides Montgomery from the Orleans County towns, affecting transportation
 and communication between them, particularly in the winter.  Although there
 are two roads that run east from Montgomery over the spine, one is a
 seasonal road and the other is difficult to travel in the winter.  Because
 of the natural barriers to the east, Montgomery's economic, social,
 educational and political ties have always faced away from the mountains
 toward Richford, Enosburg and other Franklin County towns.  For example,
 trade and commerce generally moves westward from Montgomery, children go to
 high schools in towns in the school district to the west, social and
 sporting events generally take place with towns to the west, serious health
 problems are dealt with in hospitals to the west, and except for a few
 Montgomery residents who work at the Jay Peak ski area, the work force moves
 in a westerly direction.  Because of the lack of shared interests between
 towns in the two counties, the weekly and daily newspapers of Franklin and
 Orleans counties generally do not cover local events outside their own
 counties.
      In sum, these findings, and other evidence presented at the hearing
 before the master, indicate that Montgomery was placed in a district with
 towns from a different county separated by a mountain range that greatly
 limits transportation and communication -- and therefore, social, political
 and economic interaction --  between the two areas. (FN6) The only explanation
 for the placement provided by the State is that the Orleans-Franklin 1
 district did not present an equal protection problem.  When asked why
 Montgomery was joined in a district with Orleans County towns, the minority
 leader of the House Government Operations Committee stated that the
 Committee "felt that there was a connection with Jay Peak and that
 historically and in many ways there is a strong connection in Montgomery and
 Franklin County.  But we were bound by numbers."  (Emphasis added.)  He was
 unable to provide details or support for any connection between the two
 communities. (FN7) Although the minority leader stated how difficult it was to
 "put together districts around the State" without exceeding a 16.4% maximum
 deviation,(FN8) he never indicated that the Committee considered nonnumerical
 criteria but was unable come up with a plan that satisfied both equal
 population concerns and the other criteria.  Rather, he testified that there
 were numerous ways the Committee could have gone, and that there was no
 specific vote on Montgomery.  Further, he conceded that the redistricting
 was "based primarily upon numbers and that it was driven by arithmetic."
      In short, there is nothing in the record before us, including the
 State's brief, indicating either that the Legislative Apportionment Board or
 the Committee considered nonnumerical criteria with respect to the Orleans-
 Franklin 1 district, or that the Board or Committee could not produce a plan
 that adhered to all criteria with regard to that district. (FN9) Cf. State v.
 Crowell, 656 S.W.2d 836, 838 (Tenn. 1983) (court affirmed lower court
 decision rejecting redistricting plans that were drafted with sole objective
 of obtaining low percentages of total deviation, with no effort made to
 consider other nonnumerical criteria); compare In re Reapportionment of the
 Colorado General Assembly, 828 P.2d  at 195-96 (plan returned to
 redistricting commission for reconsideration and resubmission because plan
 joined in one district towns of different counties separated by mountains)
 with In re Reapportionment of the Colorado General Assembly, 828 P.2d 213,
 216 (Colo. 1992) (resubmitted plan approved, though similar to the one
 rejected earlier, because commission provided court with sufficient basis
 for judicial review of its actions).  Instead, the State argues that the
 equal population requirement is paramount and contends that putting
 Montgomery in a Franklin district, without making any other changes, would
 violate that requirement.  Although we give great deference to the
 Legislature's redistricting decisions, such decisions are not foreclosed
 from further review when the Legislature makes only a general reference to
 equal population and does not justify or explain why a district fails to
 satisfy any of the nonnumerical criteria.  To hold otherwise would be to
 render meaningless those nonnumerical criteria.
      Petitioners argue that placing Montgomery with other Franklin County
 towns in the Franklin 2 district would satisfy all constitutional and
 statutory criteria.  The master found that placing Montgomery in the
 Franklin 2 district, and not otherwise changing the House plan, would
 improve the deviation in that district from  -8.3% to 2.3%.  The deviation
 in the Orleans-Franklin 1 district, however, would widen from 2.1% to -
 19.9%, thereby creating an overall deviation within the House plan of 28.8%,
 approximately 11.2% greater than that of the current plan.  Petitioners
 contend that such a deviation, if justified by legitimate state policies,
 such as maintaining county lines or communities of common interest, would
 pass constitutional muster under the equal protection clause.  We disagree;
 the case law provides no such assurance.  The United States Supreme Court,
 in permitting an overall deviation of 16.4% in one state redistricting plan
 based on rational state objectives, warned that "this percentage may well
 approach tolerable limits."  Mahan v. Howell, 410 U.S. at 329-30; see State
 v. Crowell, 656 S.W.2d  at 839 (overall deviation of 21% would be
 unacceptable under Mahan).  Indeed, this Court has already rejected on equal
 protection grounds a Senate plan that had a maximum deviation of 25.3%.  In
 re Senate Bill 177, 130 Vt. at 370, 294 A.2d  at 659-60.
      Petitioners contend, however, that recent federal case law allows much
 greater deviation when justified by rational state objectives, but the cases
 they cite do not support their argument.  In Swann v. Adams, 385 U.S. 440,
 444-46 (1967), the Court actually rejected a plan with a maximum deviation
 of 26%, see Mahan v. Howell, 410 U.S.  at 328, and only suggested by negative
 inference that the State's presentation of rational state policies could
 have changed the result.  In Brown v. Thomson, 462 U.S.  at 839, 846, the
 Court avoided ruling on the constitutionality of a Wyoming redistricting
 plan with a -89% maximum deviation that resulted from giving a
 representative to a sparsely populated county.  Because of the limited
 review in that case and Wyoming's unique situation, the Brown opinion has
 been considered an aberration with little precedential value.  See id. at
 850 (Brennan, J., dissenting) ("it is worth stressing how extraordinarily
 narrow [the holding] is, and how empty of likely precedential value"); State
 v. Crowell, 656 S.W.2d  at 840 ("the unusual single deviation in Brown may
 well be inapplicable elsewhere"); see also New York City Board of Estimate
 v. Morris, 489 U.S. 688, 702 (1989) (citing, among other cases, Brown v.
 Thomson, Court noted that "no case of ours has indicated that a deviation of
 some 78% could ever be justified").  Assuming that the Legislature's only
 choice was to place Montgomery in the Orleans-Franklin 1 district or the
 Franklin 2 district, we could not conclude that its decision to place
 Montgomery with towns in Orleans County was irrational or illegitimate.
      Citing a plan appended to another petition, petitioners also argue
 that the Legislature could have kept Montgomery with Franklin County towns
 and achieved minimal population deviations in the overall plan.  Because the
 plan has never been presented as part of this case,(FN10) we do not consider it
 here.  Regardless of the merits of the cited alternative plan, petitioners
 contend that because they have shown that the statutory criteria have not
 been adhered to, it is up to the Legislature, not them or this Court, to
 come up with an alternative plan that satisfies both equal population and
 the other criteria.  The apparent flaw in this argument is that, unless
 there is some showing that such an alternative plan can be produced, it is
 unclear whether the Legislature has ignored its duty to consider the
 nonnumerical criteria.  Nevertheless, we believe that further legislative
 consideration is appropriate in this instance, where (1) petitioners have
 shown that none (FN11) of the nonnumerical statutory or constitutional criteria
 were adhered to with regard to the Town of Montgomery; (2) the State has
 failed to provide any rational reason for Montgomery's placement, other than
 a general reference to equal population; and (3) the State has not shown, by
 evidence or affidavit, that an alternative plan satisfying the various
 constitutional and statutory criteria could not be produced.
      As we have noted, redistricting is a legislative function, and equal
 population is the overriding objective.  We have a duty, however, to review
 redistricting plans to assure that the Legislature has given full
 consideration to all constitutional and statutory criteria.  We cannot allow
 equal population to be elevated from an overriding objective to the sole
 consideration.  The nonnumerical criteria are neither superfluous nor
 unimportant.  They assure that our citizens obtain effective representation
 by being placed in districts comprised of communities with shared interests.
      Petitioners' burden is not to establish that there exists a preferable
 alternative, but to demonstrate that a plan does not meet constitutional or
 statutory standards.  In re 1991 Pennsylvania Legislative Reapportionment
 Commission, 609 A.2d  at 136.  Once petitioners have made such a showing, the
 State must demonstrate why a better alternative was not possible, or that an
 alternative plan submitted by the petitioners is flawed.  See Davenport v.
 Apportionment Commission, 304 A.2d  at 746-47 (where reapportionment
 commission failed to show whether, or to what extent, compactness was
 considered, court remanded plan for commission to determine whether it would
 be possible to devise an alternative plan that considered state
 constitutional criteria); State v. Crowell, 656 S.W.2d  at 843 (House
 reapportionment plan held to be unconstitutional because Legislature failed
 to justify substantial crossing of county lines); cf. In re Legislative
 Districting of General Assembly, 193 N.W.2d  at 791 (legislature failed to
 sustain its burden to show why it could not comply with state constitutional
 compactness requirement); but see In re 1983 Legislative Apportionment, 469 A.2d  at 831 (petitioners must show that district could be improved without
 creating constitutional violations elsewhere in state).  Accordingly, we
 return the House plan to the Legislature for consideration of the
 nonnumerical criteria with respect to the Orleans-Franklin 1 district and
 determination of whether Montgomery can be placed in a district that
 satisfies those criteria without creating constitutional or statutory
 violations elsewhere in the state.
                        B.  The Springfield Petition
      Petitioners from Springfield challenge various aspects of Act 116 and
 Act 147.  They argue that (1) the House plan violates the equal protection
 clause because it has an overall deviation greater than 10%, and the State
 has failed to show that the deviation was the necessary result of the
 implementation of legitimate state policies; (2) their initial district
 violates constitutional and statutory criteria because it crosses a county
 line and lacks contiguity, compactness, and common interests; (3) the
 subdivided districts created by the Legislature resulted from political
 gerrymandering rather than the application of the relevant constitutional
 and statutory criteria; (4) the incumbency criterion for subdividing
 multimember districts violates the Vermont Constitution; (5) Act 116
 violates equal protection by giving each town board of civil authority,
 regardless of population, an equal vote in subdividing multimember
 districts; and (6) the Legislature violated statutory procedure when it
 subdivided their initial district.  We reject each of these arguments, and
 dismiss the petition.
      Petitioners first argue that the State failed to adequately justify the
 House plan's overall deviation of 17.6%.  We agree with the State that
 petitioners have waived their right to raise this issue at this juncture
 because it was not raised in their petition or at the hearing before the
 master.  See In re Mullestein, 148 Vt. 170, 175, 531 A.2d 890, 893 (1987)
 (absent extraordinary circumstances, constitutional issues not raised before
 trial court are waived on appeal).  Petitioners contend that the issue was
 adequately raised by a request for relief in their petition -- "Declare Act
 116 unconstitutional under the Equal Protection Clause of the 14th Amendment
 of the United States Constitution" -- and by unspecified evidence presented
 at the master's hearing. (FN12) But the prayer for relief was one of fifteen
 various requests for relief in a thirty-page petition that never specifi-
 cally challenged the overall deviation of the House plan.  Further, a
 challenge based on the plan's overall deviation was not specifically
 addressed at the master's hearing.  It is not enough that there was evidence
 before the master that could have supported this claim.  The point is that
 the State was not given adequate notice of the claim.  Further, the fact
 that this Court has original jurisdiction is not significant.  The purpose
 of the master is to take testimony and make findings for this Court.  See 17
 V.S.A. { 1909(d).  Because the State was not on notice that petitioners were
 challenging the overall deviation of the plan, it had no opportunity to
 create a record before the master that included justification for the
 deviation.
      Next, petitioners argue that inclusion of Springfield in a district
 with three Windham County towns violated constitutional and statutory
 criteria requiring the Legislature to create compact and contiguous
 districts that, if possible, maintain county lines and common interests.  We
 reject this argument on procedural grounds.  First, petitioners are
 challenging the initial Windsor-Windham 1 district, which no longer exists
 as a "representative" district.  See id. { 1903(b) (stating standards for
 the creation of representative and senatorial districts).  We are aware that
 the town boards of civil authority are directed to consider the { 1903
 standards when recommending proposals of initial districts to the
 Legislative Apportionment Board, see id. { 1905, but the fact of the matter
 is that the initial Windsor-Windham 1 district has been subdivided and does
 not exist as a representative district.  Therefore, petitioners cannot
 complain that it is not compact or that towns within it have no common
 interests.
      Second, even if we accepted petitioners' argument as a challenge to the
 subdivided Windsor-Windham 1 district, we agree with the State that
 petitioners have no standing to raise this issue because they do not reside
 in the challenged district.  Petitioners correctly point out that many of
 their arguments entail a broader challenge, foreclosing dismissal of their
 petition on grounds of standing.  But that is not the case with this
 argument.  Petitioners all reside in the Windsor 6 district, yet they argue
 that Windsor-Windham 1 is invalid because it crosses county lines, is not
 compact or contiguous, and is not composed of towns with common interests.
 We address their broader political gerrymandering claims below, but we do
 not accept this narrow challenge to a district in which none of the
 petitioners reside.
      Finally, even if we considered petitioners' challenge of Windsor-
 Windham 1 on the nonnumerical criteria, we would reject it because
 petitioners have failed to meet their burden of showing that the
 Legislature had no rational or legitimate basis for creating the district.
 Petitioners' principal argument is that the nonnumerical constitutional and
 statutory criteria would be better met by placing Springfield with other
 towns.  The question is not whether there is a better alternative plan,
 however, but whether the Legislature's plan violates the legal standards.
      We find no such violation.  The boot-shaped district clearly does not
 violate principles of compactness and contiguity.  See, e.g., Schrage v.
 State Board of  Elections, 430 N.E.2d  at 486-87 (citing cases involving
 noncompact districts and describing one challenged district as "tortured"
 and "extremely elongated"); In re Legislative Districting, 475 A.2d at 443-
 44 (describing odd-shaped districts that might pose compactness problem, and
 noting that presentation of alternative only begs the question of whether a
 district meets constitutional or statutory requirements).  Although the
 master found that the town of Springfield was not contiguous with the towns
 of Windham and Grafton, he did not find that the district lacked contiguity.
 On the contrary, he found that all four towns in the district shared at
 least one common border.  Further, petitioners presented virtually no
 evidence to show a lack of common interests among the towns in Windsor-
 Windham 1.  Indeed, the master found that there is a network of state
 highways connecting the towns.  The only evidence presented by petitioners
 showing that Windsor-Windham 1 does not meet a nonnumerical criterion is
 that the district breaches a county line.  That alone, however, does not
 prove that there was no rational or legitimate basis for creation of the
 district.  See In re Senate Bills 177 and 83, 132 Vt. at 289, 318 A.2d  at
 162 (crossing county lines does not disqualify plan, given difficulties of
 reaching an acceptable result statewide); In re Reapportionment Plan for
 Pennsylvania General Assembly, 442 A.2d  at 668 (crossing county lines is
 unavoidable).
      Petitioners also argue that the subdivision of Windsor 6 violated the
 requirement that the Legislature seek to adhere to boundaries of existing
 political subdivisions because the district line within Springfield splits
 too many streets, relies too much on boundaries of census blocks, and, at
 times, ignores all natural boundaries.  Petitioners, however, have failed to
 indicate which political subdivisions were ignored, or to refute adequately
 the State's contention that the line was drawn to separate Springfield's
 most urban areas from neighborhoods that would have more in common with the
 relatively rural town of Rockingham.  We cannot conclude that there was no
 rational and legitimate basis for the internal line drawn within
 Springfield.
      Petitioners' next contention is that the subdivision of Windsor-Windham
 1 amounted to political gerrymandering in favor of the Democratic Party, in
 violation of the compactness and contiguity requirements of Chapter II, { 13
 and Chapter I, Article 7, the Common Benefits Clause of the Vermont
 Constitution.  They rely chiefly on hearsay testimony to the effect that the
 Speaker of the House indicated that he wanted internal lines drawn in
 Springfield to protect certain Democratic incumbents.  According to
 petitioners, this goal was accomplished by forming districts that would pit
 a Republican incumbent against two unbeatable Democratic incumbents rather
 than against a more vulnerable Democratic incumbent.  This argument is
 without merit.  Political considerations are an inevitable component of
 redistricting and are not per se improper.  In re Reapportionment of the
 Colorado General Assembly, 828 P.2d  at 199; see Davis v. Bandemer, 478 U.S. 109, 129 (1986) ("As long as redistricting is done by a legislature, it
 should not be very difficult to prove that the likely political consequences
 of the reapportionment were intended."); Gaffney v. Cummings, 412 U.S.  at
 753 ("districting inevitably has and is intended to have substantial
 political consequences"); see also In re 1991 Pennsylvania Legislative
 Reapportionment Commission, 609 A.2d  at 142 (no individual has a right to
 run for a particular office, nor do citizens have a right to vote for a
 specific individual).
      In challenging the formation of a district, the fundamental question is
 whether constitutional or statutory criteria have been violated, not whether
 the legislators intended to obtain some political advantage.  See Republican
 Party of Virginia v. Wilder, 774 F. Supp. 400, 404 (W.D. Va. 1991) (even if
 petitioners showed that "district boundaries were drawn solely for partisan
 ends," they must prove an actual discriminatory effect) (emphasis in
 original).  Because we have found that neither of the challenged districts
 violates constitutional or statutory criteria, we need not consider the
 motives of the legislators.  In re 1991 Pennsylvania Legislative
 Reapportionment Commission, 609 A.2d  at 147 (because redistricting plan does
 not violate state constitution on its face, court need not resolve whether
 members of the commission can be compelled to disclose underlying motives);
 see People ex rel. Burris v. Ryan, 588 N.E.2d 1033, 1038 (Ill. 1992) ("A map
 that is politically unacceptable to one political party is not, for that
 reason, legally unacceptable.") (emphasis in original).  If we were to
 accept gerrymandering claims based solely on a showing of an intent to favor
 a political party, we would commit the responsibility for redistricting to
 the courts rather than to the Legislature.
      Next, petitioners challenge two of the procedures added by Act 116 for
 subdividing multimember districts.  First, petitioners argue that Act 116
 violates Chapter II, { 13 and Chapter I, Article 7 of the Vermont
 Constitution by requiring boards of civil authority to consider
 "incumbencies" when creating subdivision proposals for multimember
 districts.  See 17 V.S.A. {{ 1906b(c)(4) and 1906c(c)(4).  The thrust of
 petitioners' argument is that protecting incumbents is just another form of
 political gerrymandering, which the criteria of Chapter II, { 13 are meant
 to prevent.  We disagree that consideration of incumbents in any manner
 constitutes a per se violation of the Vermont Constitution.  As long as
 constitutional and statutory criteria regarding redistricting are adhered
 to, including those criteria contained in Chapter II, { 13, creating
 districts to avoid contests between incumbents is a legitimate consideration
 that may justify minor deviations from equal representation.  Karcher v.
 Daggett, 462 U.S. 725, 740 (1983); see In re Legislative Districting of
 General Assembly, 193 N.W.2d  at 790 (minimizing contests between incumbents
 is not impermissible consideration unless it results in districts lacking
 population equality or compactness).  The record indicates that the
 incumbency criterion was narrowly interpreted to mean avoiding alternatives
 that create contests between incumbents, (FN13) which is the limited 
 construction
 we give it.  As noted above, there is no showing that consideration of this
 criterion created a district that violated any constitutional or statutory
 criteria.
      Regarding the Common Benefits Clause,(FN14) petitioners have not indicated
 what part of, or how, the community has been disadvantaged.  Cf. In re
 Property of One Church Street, 152 Vt. 260, 264, 565 A.2d 1349, 1351 (1989)
 (construing State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791
 (1982)) (supporters of Sunday closing law could not claim that large
 businesses compelled to close on Sundays were included in the general class
 of beneficiaries, or that the detriment they incurred was only incidental).
 Petitioners complain that the incumbency criterion is a form of gerry-
 mandering, yet, under the narrow construction we have given it, it can
 reduce the potential for gerrymandering by making it more difficult to pit a
 targeted incumbent against another incumbent who is more likely to prevail.
 See State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 269, 448 A.2d 791, 795
 (1982) (preferential legislation must further a goal independent of the
 preference awarded).  Although two incumbents had to be pitted against one
 another in this case, we believe that in cases where it is possible to avoid
 this result, the criterion will prevent gerrymandering.  We conclude that
 the purpose of the criterion is reasonably related to a legitimate state
 interest.  See Town of Sandgate v. Colehamer, 156 Vt. 77, 88, 589 A.2d 1205,
 1211 (1990) (test of constitutionality is whether law's purpose is
 reasonably related to promoting valid state interest).
      The second provision of Act 116 to which petitioners object concerns
 the procedure by which town boards of civil authority share responsibility
 for preparing a proposal for subdivision of multimember districts.  After
 enactment of a final plan for initial districts, boards of towns within
 multimember districts are directed to meet and prepare a proposal for
 division of the district.  17 V.S.A. {{ 1906b(b) and 1906c(b).  Each town,
 regardless of population, has one vote on accepting or rejecting any
 proposal, and any town may veto a proposal that draws internal lines within
 that town.  Id. {{ 1906b(b) and 1906c(b).  If a majority of the towns agree
 on a proposal, and it is consistent with the statutory standards, the
 Legislature must accept it.  Id. {{ 1906b(f) and 1906c(f).  On the other
 hand, if the boards are unable to obtain a majority vote on a proposed
 subdivision, the Legislature must subdivide the district.  Id. {{ 1906b(e)
 and 1906c(e).  Petitioners contend that giving each town one vote,
 regardless of population, offends the Equal Protection Clause of the
 Fourteenth Amendment to the United States Constitution.  We disagree.
      Petitioners rely heavily on two cases, which stand for the proposition
 that under certain circumstances the makeup of local governing boards is
 subject to the one-person, one-vote principle of Reynolds v. Sims, 377 U.S. 533 (1964).  See New York City Board of Estimate v. Morris, 489 U.S. 688
 (1989); Kelleher v. Southeast Regional Vocational Technical High School
 District, 806 F.2d 9 (1st Cir. 1986).  Petitioners correctly point out that
 equal representation applies to local governing bodies in situations where
 the members of the local body are elected officials, and the body exercises
 a wide range of local governmental functions.  Regarding the second
 criterion, the Court in Board of Estimate listed a litany of significant
 functions common to municipal governments that are performed by New York's
 Board of Estimate -- including calculating tax rates, zoning, managing city
 property, fixing salaries of city employees, granting city contracts, and
 sharing responsibility for formulation of the city budget -- and concluded
 that these "'powers are general enough and have sufficient impact throughout
 the district' to require that elections to the body comply with equal
 protection strictures."  489 U.S.  at 696 (quoting Hadley v. Junior College
 District of Metropolitan Kansas City, 397 U.S. 50, 54 (1970)); see Kelleher,
 806 F.2d  at 10-11 & n.7 (court lists wide range of powers given to regional
 school district committee that brings the committee within the one-person,
 one-vote principle).
      According to petitioners, the second criterion is satisfied here
 because the boards of civil authority of each town perform many functions
 common to municipal governments.  Petitioners miss the point, however.
 They are challenging the voting procedure of a "superboard" created by
 combining the boards of each town in a multimember district, not of an
 individual town board.  This "superboard" does not perform a wide range of
 local governmental functions.  Rather, the Legislature has delegated an
 aspect of redistricting, a legislative function, to this "superboard,"
 perhaps in deference to Vermont's unique history as a state formed by an
 association of preexisting independent towns.  Thus, rather than performing
 a wide range of functions common to local government, the "superboard"
 performs an extremely narrow role within a legislative function.  There is
 no equal protection violation.
      Assuming the constitutionality of { 1906(c), petitioners argue that the
 Legislature violated that section by adopting its own subdivision of
 Windsor-Windham 1 despite the fact that a majority of the district's boards
 of civil authority agreed upon their own subdivision.  We cannot agree that
 this fact alone is sufficient to establish a violation of { 1906(c).  On or
 before April 1 of an election year, a majority of a district's boards of
 civil authority must present a proposal for subdividing the district.  17
 V.S.A. { 1906c(e).  On March 30, 1992, Springfield's proposal for
 subdividing Windsor-Windham 1 was transmitted to the clerk of the House.
 The proposal required subdivision lines within both Springfield and
 Rockingham, but no internal lines were drawn through Rockingham.  The House
 Government Appropriations Committee held a public hearing on April 2, 1992,
 in which it learned or was aware that Springfield, Grafton, and Windham
 supported the Springfield plan, but Rockingham objected to being subdivided.
 The Legislature was entitled to subdivide Windsor-Windham 1 because the
 Springfield plan required that Rockingham be divided, and Rockingham had a
 right to veto a plan that drew internal lines within its boundaries.  Id. {
 1906c(b).
      We also reject petitioners' argument that the Legislature's subdivision
 favored only Democrats.  Because of the decline in the population of the
 area, any subdivision plan would have had to pit the Republican incumbent
 against Democratic incumbents.  We are not concerned with speculation as to
 which incumbent had the best chance to prevail over which incumbent in the
 other party.  In this situation, one of the political parties had to be in a
 presumably favored position.  We find no violation of any statutory or
 constitutional criteria.
                           C.  The Berlin Petition
      Petitioners from Berlin challenge the subdivision of an initial three-
 member district, comprised of the town of Berlin and the city of Barre, into
 a one-member district completely within Barre City, and a two-member
 district that included the town of Berlin and a portion of Barre City.  The
 gist of petitioners' argument is that Berlin should have been placed in a
 one-member district with a small part of Barre so as to assure that at least
 one of the three representatives of the initial district would represent
 the interest of Berlin's rural, small town voters.
      Petitioners acknowledge that, in any scenario, residents of Barre and
 Berlin would have to be joined in a representative district.  They believe
 they are entitled to be part of a one-member district composed of
 approximately 1500 Barre residents and 2500 Berlin residents.  They point
 out that during the last decade the population of Berlin increased from 2454
 residents to 2561 residents, while Barre's population fell from 9824
 residents to 9482 residents.  Thus, Barre has a population that would
 support approximately two and one-half representatives, while Berlin's
 population would support approximately two-thirds of a representative.
 Petitioners argue that, given these numbers and the fact that the residents
 of their rural community have virtually nothing in common with Barre
 residents, it is fundamentally unfair to disenfranchise them by placing them
 in a two-member district with a majority of Barre residents.  We disagree.
      The residents of Berlin are not disenfranchised simply because they
 make up a minority of their two-member representative district.  Even in
 situations involving racial or political groups, proportional representation
 is not constitutionally required.  See Davis v. Bandemer, 478 U.S.  at 132
 (one cannot presume that the winning candidate will entirely ignore the
 voters who supported the losing candidate; "a group's electoral power is not
 unconstitutionally diminished by the simple fact of an apportionment scheme
 that makes winning elections more difficult").  Members of a group are
 disenfranchised only when they are denied an opportunity to effectively
 influence the election results by securing the attention of the winning
 candidate.  Id. at 132-33.  There has been no such showing here.
      Ironically, petitioners acknowledge that approximately 1500 Barre
 residents would have to be joined with Berlin residents in any single-member
 district.  They argue that those 1500 will not be disenfranchised because
 their interests will be represented by the other two Barre representatives.
 This argument is untenable.  If the lack of common interests would preclude
 placing 5000 Barre residents with Berlin, it would also preclude placing
 1500 Barre residents with Berlin.
      Stripped of the disenfranchisement aspect of their claim, petitioners
 are left with the argument that placing Berlin and Barre residents in the
 same representative district violates Vermont's statutory criteria because
 the two communities have no common interests.(FN15) The master found that Barre
 and Berlin are in separate school districts, that the two towns do not share
 any essential governmental services, that they have distinct types of
 governmental structures, resulting in a much higher tax rate in Barre, and
 that, unlike Berlin, Barre has an urban residential pattern with a
 relatively high population density.
      On the other hand, the master found that there is a network of roads
 connecting the two communities, that both communities have large commercial
 areas which serve residents from both towns, that many residents from each
 community work in the other community, that there are state offices in each
 community that serve the residents of both communities, that the regional
 hospital and airport serve both communities, that both Berlin and Barre are
 members of the Central Vermont Regional Planning Commission and the Central
 Vermont Waste District, and that the governing bodies of both municipalities
 are currently meeting to address common issues and problems.  In short,
 there is ample evidence of common interest between the town of Berlin and
 the city of Barre in support of the creation of the Washington 4
 representative district.  We find no statutory violation.
                          D.  The Hartland Petition
      Petitioners from the towns of Hartland, West Windsor, and Windsor
 challenge the Legislature's establishment of two single-member districts,
 one containing the town of Windsor, and one containing the towns of West
 Windsor and Hartland.  The Legislative Apportionment Board proposed that all
 three towns remain in a single two-member district, which would have had a
 deviation of -1.6% from the ideal district.  The Windsor and West Windsor
 boards of civil authority expressed their preference for a single two-member
 district, while the Hartland board wanted two single-member districts.
 Eventually, the House Government Operations Committee recommended, and the
 Legislature adopted, a plan creating two districts.  The district containing
 the town of Windsor has a deviation of -1.0%, and the district containing
 the towns of West Windsor and Hartland has a deviation of 4.2%.
      Petitioners argue that the creation of the two districts violates the
 Equal Protection Clause of the Fourteenth Amendment of the United States
 Constitution because the new districts do not attain the minimum percentage
 of deviation practicable.  According to petitioners, the State failed to
 show that the increase in deviation in one of the new districts was
 justified by a legitimate, rational state interest.  We conclude that the
 establishment of the two districts does not constitute an equal protection
 violation.
      Petitioners rely on Karcher v. Daggett for the proposition that even
 the most minor variance from equal population must be justified by a
 legitimate state policy.  This position is erroneous.  Karcher considered
 the validity of a congressional redistricting statute, and explicitly stated
 that the absolute-population-equality requirement applied to apportionment
 of congressional districts only, not to state legislative districts.  462 U.S.  at 732-33 ("we have required that absolute population equality be the
 paramount objective of apportionment only in the case of congressional
 districts").  Because we conclude that the 4.2% deviation is de minimis and
 therefore does not require justification by the State, we need not reach the
 issue of whether a preference for single-member districts is a legitimate
 state policy that justifies the slight increase in the deviation of one of
 the new districts.  The deviation complained of here is well within the
 limits permitted under the United States Constitution. (FN16)
      Petitioners also cite Vermont law in support of their position,
 although without any supporting argument.  The Vermont Constitution requires
 the Legislature to reapportion the membership of the General Assembly so as
 "to maintain equality of representation among the respective districts as
 nearly as is practicable."  Vt. Const. Ch. II, { 73.  Further, Vermont
 statutory law requires the Legislature to form "districts with minimum
 percentages of deviation from the apportionment standard," which is the
 number obtained by dividing the total population of the state by the number
 of representatives or senators.  17 V.S.A. {{ 1902, 1903(b).  These
 provisions do not require stricter adherence to equal population require-
 ments than that required by federal law.  The phrase "as nearly as is
 practicable," which was adopted from federal case law construing the federal
 equal protection clause, (FN17) contemplates the consideration of other
 nonnumerical factors.  Indeed, Vermont historically has placed great
 importance on the integrity of individual towns and other nonnumerical
 criteria, while the existence of state constitutional and statutory
 provisions requiring equal representation according to population can be
 traced to federal court decisions construing the federal constitution.  In
 re Senate Bills 177 and 83, 132 Vt. at 287-88, 318 A.2d  at 160-61.  We find
 no violation of the Vermont Constitution or Vermont statutory law.
                         E.  The Shrewsbury Petition
      Petitioners challenge the placement of the town of Shrewsbury, which is
 in Rutland County, in a representative district with the towns of Plymouth
 and Ludlow, which are in Windsor County.  Petitioners argue that placing
 Shrewsbury in the same district with Ludlow and Plymouth violates con-
 stitutional and statutory criteria that require the Legislature to join
 towns with common interests.  See Vt. Const. ch. II, { 13 ("General Assembly
 shall seek to maintain geographical compactness and contiguity and to adhere
 to boundaries of counties and other existing political subdivisions."); 17
 V.S.A. { 1903(b) (insofar as practicable, representative districts should
 preserve existing political lines, maintain patterns of geography, social
 interaction, trade, political ties, and common interests, and consist of
 compact and contiguous territory).  Because petitioners have failed to show
 that there was no rational basis for the creation of the challenged
 district, we dismiss the petition.
      For the most part, the master's findings are undisputed.  From 1982 to
 1992, Shrewsbury had been placed in a district with the town of Sherburne.
 Both towns made it known that the district was unworkable because of
 inaccessibility between the two towns and because of conflicting positions
 regarding ski development.  Following the 1990 census, the Legislative
 Apportionment Board placed Shrewsbury in a district with the towns of
 Tinmouth and Wallingford, and the town of Mount Holly with Plymouth and
 Ludlow.  Rejecting that proposal, the House Government Operations Committee
 created a plan, eventually adopted by the Legislature, that contained
 districts in which Shrewsbury and Mount Holly were switched from the Board's
 plan.  Shrewsbury was joined with Ludlow and Plymouth to form Windsor-
 Rutland 1 district, while Mount Holly was realigned with Tinmouth,
 Wallingford, and Mt. Tabor to form Rutland 4 district.
      The resulting Windsor-Rutland 1 district is shaped like an inverted
 "L", with Shrewsbury and Plymouth across the top from west to east, and
 Ludlow south of Plymouth.  A graded gravel road, which is passable only six
 months of the year, provides access over the mountain from Shrewsbury to
 Plymouth.  Shrewsbury and Plymouth are largely undeveloped, rural towns
 that share the Calvin Coolidge State Forest and the Plymouth Wildlife
 Management Area, which residents of both towns use for recreational
 purposes.  Access from Shrewsbury to Ludlow is via State Route 103, a major
 east-west artery that passes through Mount Holly.  Route 100 runs north from
 Ludlow to Plymouth.  Other than the fact that the three towns are in the
 same transportation district, there was no evidence presented concerning
 common interests between Shrewsbury and Ludlow.
      Upon review of the record, we conclude that petitioners have failed to
 show that the Legislature violated any constitutional or statutory criteria
 in creating the Windsor-Rutland 1 district.  As noted, the Legislature's
 redistricting plans are presumed to be valid, In re Senate Bill 177, 130 Vt.
 at 361, 294 A.2d  at 654; therefore, there is a heavy burden of proof on
 those challenging them to show that the plans do not meet constitutional or
 statutory criteria.  Davis v. Bandemer, 478 U.S.  at 185 (Powell, J.,
 concurring in part and dissenting in part).  Petitioners here have not shown
 the absence of social, economic, or political ties among the towns in the
 challenged district.  Rather, their evidence is aimed at showing that Mount
 Holly has more in common with Ludlow and Plymouth than does Shrewsbury.
 Petitioners focus their attack on the recommendation of the House Government
 Operations Committee to place Mount Holly, instead of Shrewsbury, with
 Wallingford, Tinmouth, and Mt. Tabor.  Indeed, petitioners argue that
 placing Mt. Holly rather than Shrewsbury with Wallingford shows that there
 is no rational basis for the creation of the challenged district.
      Petitioners' arguments are misdirected.  The Legislature is not
 required to accept the Apportionment Board's plan.  See 17 V.S.A. { 1906
 (proposal of Board is referred to appropriate committee, after which General
 Assembly may enact the Board's plan into law or substitute its own plan).
 The final plan adopted by the Legislature need only be in conformity with
 constitutional and statutory criteria; it need not be the best possible
 plan.  See Gaffney v. Cummings, 412 U.S.  at 750-51.  By the same token,
 petitioners cannot succeed merely by presenting an alternative plan that
 appears to meet constitutional and statutory criteria to a greater degree
 than the plan chosen by the Legislature.  Rather, the burden is on them to
 show the absence of any rational or legitimate basis for the Legislature's
 plan.
      Petitioners have failed to meet that burden.  The three towns form a
 geographically compact and contiguous district and are in the same
 transportation district.  Shrewsbury is separated by mountains from
 Plymouth but has ready access by highway to Ludlow and through Ludlow to
 Plymouth.  Further, there is a seasonal road directly to Plymouth, and the
 two communities share a common recreational area.  Shrewsbury is not in the
 same county or school district as Ludlow and Plymouth, but that alone does
 not indicate there was no rational basis for creation of the district.  See
 In re Senate Bills 177 and 83, 132 Vt. at 289, 318 A.2d  at 162 (crossing of
 county lines does not disqualify plan, given difficulties of reaching an
 acceptable result statewide); In re Reapportionment Plan for Pennsylvania
 General Assembly, 442 A.2d 661, 668 (Pa. 1981) (crossing county lines is
 unavoidable).
      Petitioners, of course, may cast doubt on the validity of a
 legislative plan by demonstrating that the Legislature failed to adopt an
 alternative that substantially improves on that plan, see In re Legislative
 Districting of General Assembly, 193 N.W.2d  at 790, but they have also
 failed to do that.  The thrust of petitioners' argument is that the failure
 of the House Government Operations Committee to adopt the Board's proposal
 aligning Mt. Holly with Ludlow and Plymouth demonstrates the lack of a
 rational basis for placing Shrewsbury with those towns.  We cannot agree.
 Because both Mt. Holly and Shrewsbury are in Rutland County, both
 alternatives involve crossing a county line.  The degree of compactness is
 similar with respect to each alternative.  As for community of interests,
 there were various factors for the Committee to consider.  Both Shrewsbury
 and Mt. Holly are connected to Ludlow by the same highway, although Mt.
 Holly is closer to Ludlow and consequently has more trade with it.  Unlike
 Shrewsbury, Mt. Holly is in the same school district as Ludlow; however,
 disproportionate tax burdens in the two towns have led to conflicts over
 attempts to finance a union district school.  Further, there is an ongoing
 dispute between Mt. Holly and Ludlow over the location of their common
 border, and the towns have conflicting views on the development of Mt. Okemo
 ski area.  Finally, there was testimony that Mt. Holly wanted to remain in
 the district in which it had spent the last eighteen years and conflicting
 testimony that some residents of that town preferred the Board's plan.
 Although petitioners have challenged the significance of the conflicts
 between Mt. Holly and Ludlow, we cannot conclude that there was no rational
 basis for the Legislature's decision to keep Mt. Holly with Wallingford and
 Tinmouth rather than adopt the Board's plan.  See Ater v Keisling, 819 P.2d 
 at 301 (redistricting plan upheld where "facts would permit more than one
 rational conclusion").
      Petitioners argue that the master erred by not allowing a potential
 candidate to testify that the Speaker of the House admitted to him that
 Shrewsbury was switched with Mt. Holly to protect an incumbent repre-
 sentative.  The State had objected that the testimony was hearsay, and we
 agree.  The testimony was offered to prove the truth of the matter asserted
 and nothing more.  See V.R.E. 801(c), 802.
      Further, the proffered testimony was not significant.  Petitioners
 themselves concede that the emphasis in redistricting challenges is not
 whether there was a discriminatory intent, but rather whether there was a
 violation of constitutional or statutory criteria.  See Gaffney v. Cummings,
 412 U.S.  at 752 ("It would be idle, we think, to contend that any political
 consideration taken into account in fashioning a reapportionment plan is
 sufficient to invalidate it."); see also Village of Arlington Heights v.
 Metropolitan Housing Development Corp., 429 U.S. 252, 266-68 (1977)
 (discussing ways to determine motive of legislators without placing
 decisionmaker on the stand).  As indicated in our prior discussion,
 petitioners have failed to show a violation of constitutional or statutory
 criteria.  Consequently, the issue of motive is irrelevant.  In re 1991
 Pennsylvania Legislative Reapportionment Commission, 609 A.2d  at 147
 (because court had already ruled that redistricting plan did not violate
 federal or state constitution, any evidence of motives of legislative
 commission was irrelevant).  Indeed, we would be naive if we did not
 acknowledge that political considerations underlie many redistricting
 decisions.  A search for impermissible political motives would embroil this
 Court in evaluating the wisdom of redistricting decisions, a function that
 is inconsistent with our limited role.
      Petitioners also allege that creation of the challenged district
 violates Articles 7 and 8 of Chapter I of the Vermont Constitution.  See Vt.
 Const. ch. I, art. 7 (government is instituted for the "common benefit" of
 the community and not for any particular group within that community); id.
 ch. I, art. 8 (all freemen, having a common interest with the community,
 have a right to elect officers).  These arguments appear to be an attempt to
 bootstrap petitioners' claims into a stricter level of scrutiny than would
 normally be available in a redistricting petition.  The constitutional
 provisions governing reapportionment are self-contained; there is no
 indication that additional limits on legislative prerogatives were intended
 to be applied from other parts of the constitution.  Petitioners' arguments
 are a restatement of, and are completely dependent on, the claims regarding
 Chapter II, { 13 and 17 V.S.A. { 1903(b).  Petitioners argue that Article 7
 applies because the Legislature failed to match Shrewsbury with towns of
 similar interests, and that Article 8 applies because denying a citizen the
 right to vote in a district with citizens that share common interests
 effectively denies that citizen the right to elect a representative.
 Because these arguments are premised on the lack of common interests within
 Windsor-Rutland 1, a claim that we have rejected, they must also fail.
      Finally, petitioners' argument that the creation of the Windsor-Rutland
 1 district denied a certain would-be candidate a fair chance at being
 elected is without merit.  Potential candidates are not guaranteed a
 favorable district to run in, and citizens of a district do not have a right
 to vote for a specific candidate.  In re 1991 Pennsylvania Legislative
 Reapportionment Commission, 609 A.2d  at 142 (aspirant's right to run for
 political office "does not rise to a constitutionally protected level
 requiring Legislative Reapportionment Commission to tailor its plan around
 the residences of political aspirants who seek to challenge a specific
 incumbent").
                          F.  The Richford Petition
      Petitioners from Richford challenge the Legislature's redistricting of
 the Senate, with respect to the Essex-Orleans district, which includes all
 of the towns within Essex and Orleans counties, and one town each from
 Franklin, Caledonia, and Lamoille counties.  Richford is the lone Franklin
 County town in the district.  Petitioners contend that placing Richford in
 the Essex-Orleans district violates Vermont constitutional and statutory
 criteria concerning county lines and common interests.  See Vt. Const. ch.
 II, { 18 (in establishing senatorial districts, General Assembly shall seek
 to adhere to county boundaries); 17 V.S.A. { 1907 (board shall apportion the
 senatorial seats "among the counties or combinations of counties"); 17
 V.S.A. { 1903(b).  We dismiss the petition.
      The situation here is similar in some, but not all, respects to that in
 the Montgomery petition challenging its House district.  Like Montgomery,
 Richford is a Franklin County town placed in a district with towns on the
 other side of the spine of the Green Mountains.  Richford is equidistant
 from the major population centers of Franklin and Orleans counties, St.
 Albans and Newport, and there is direct access by State Route 105 to both
 population centers, as well as a more circuitous route through Canada to
 Newport.  Nevertheless, the direct route over the mountains to Newport is
 difficult during the winter, and, consequently, the ties between Richford
 and towns in Orleans or Essex counties are minimal.  Further, as noted, the
 weekly and daily newspapers of Franklin and Orleans counties generally do
 not cover local events outside their own county.
      Petitioners first contend, as did the Montgomery petitioners, that it
 would not offend equal protection requirements if Richford were placed with
 the Franklin County district, and the other districts were left as they are.
 This would create an overall deviation of 21.8%, 5.3% greater than the 16.3%
 deviation in the current plan.  It would leave the Essex-Orleans district
 with 32,228 persons, 14.1% below the Senate apportionment standard.  We
 acknowledge that the difference between the plans is not great, but, as
 noted, the United States Supreme Court has indicated that an overall
 deviation of 16.4% approaches tolerable limits.  Mahan v. Howell, 410 U.S.  at 329.  We have rejected an overall deviation of 25.3% for Senate
 districts.  In re Senate Bill 177, 130 Vt. at 370, 294 A.2d  at 659.  More
 important, the Legislature's burden is to maintain "equality of
 representation . . . as nearly as it is practicable."  Vt. Const. ch II, {
 73.  An overall deviation of 21.8%, under the circumstances facing the
 Legislature, was inconsistent with that command.
      Petitioners also argue that the Essex-Orleans senatorial district
 violates constitutional and statutory redistricting criteria.  Specifically,
 they point out that our constitution requires the Legislature to adhere to
 boundaries of counties, Vt. Const. ch. II, { 18, and that 17 V.S.A. { 1907
 requires that Senate districts be made up of "counties or combinations of
 counties."  They see in these provisions a prohibition against crossing
 county lines.  We have already rejected this position,  In re Senate Bills
 177 and 83, 132 Vt. at 286, 318 A.2d  at 160, and see no reason to change
 our holding.  County lines must, if necessary, give way to the higher
 priority of equal representation by population.  See id.
      Second, they argue that placing Richford with towns in the current
 district violates the nonnumerical requirements of Chapter II, { 18
 (geographical compactness and contiguity) and 17 V.S.A. { 1903(b)(2)
 (recognition of patterns of geography, social interaction, trade, political
 ties and common interests).  Despite the similarities between this petition
 and the Montgomery petition, we are persuaded that the differences between
 them warrant dismissal of this petition.  Here, we are dealing with the
 creation of Senate districts, which, because of the proportion of senators
 to representatives, are necessarily five times the size of representative
 districts.  Consequently, it will be difficult, if not impossible, to
 achieve the same level of common interests among individual towns within
 Senate districts that is attainable among towns within House districts.
 Two-member senatorial districts contain approximately 37,500 people, which,
 in most cases, will involve many towns in our rural state.  Indeed, the
 Essex-Orleans senatorial district is comprised of forty-one towns from five
 different counties.
      Considering that the common interests among the residents of towns
 within Senate districts will invariably be diluted to some extent, the
 State's limited showing of common interests within the current Essex-Orleans
 senatorial district carries more weight.  The district is geographically
 compact and contiguous, but separated by a mountain range.  There is road
 access between Richford and the rest of the district.  Also important is the
 historical treatment of Richford in Senate representation inasmuch as the
 legislative command is to recognize and maintain existing patterns with
 respect to nonnumerical factors, including political ties.  17 V.S.A. {
 1903(b)(2); see also 17 V.S.A. { 1903(b)(1) (Legislature should preserve
 existing political subdivision lines insofar as practicable).  Richford has
 been a member of the Essex-Orleans senatorial district for twenty years, and
 past and present senators have met with Richford residents and worked with
 them on a number of issues.  We do not mean to imply that there is a
 presumption of common interests when the district is long standing.  We
 merely point out that the master's findings recognize some political
 interaction within the district over the years, and that the Legislature
 could consider this fact in deciding to keep Richford in a district with
 towns with which it has long been associated.
      Finally, there is evidence of consideration of alternatives in
 response to Richford's request.  The Senate committee considered moving
 Caledonia County towns into the Essex-Orleans district to make up for the
 loss of Richford, but the ripple effects were not manageable.
      Based on all of the above considerations, we conclude that petitioners
 have failed to show that there was no rational or legitimate reason for
 placing Richford in the Essex-Orleans senatorial district.
                               IV.  Conclusion
      Our review of these petitions should reveal at least two important
 points.  The first is that the nonnumerical statutory guidelines contained
 in 17 V.S.A. { 1903(b) are an implementation and extension of constitutional
 criteria that seek to achieve effective representation.  Accordingly, those
 policies are important in the redistricting process and must be considered.
 The second point is that, although we emphasize the requirement that the
 Legislature consider the nonnumerical statutory criteria, we acknowledge and
 reiterate that redistricting is a legislative function.  The Legislature
 must have rational and legitimate reasons for the creation of legislative
 districts based on consideration of all constitutional and statutory
 criteria.  But we are not a superlegislature.  If the Legislature's plans
 have rational and legitimate bases, we will not disturb them merely because
 there appear to be better alternative plans or because politics entered into
 the process.
      The Hartland, Springfield, Berlin, Richford, and Shrewsbury petitions
 are dismissed.  Because the inclusion of the town of Montgomery in the
 Orleans-Franklin 1 district does not appear to comply with constitutional
 and statutory criteria, we return the House plan to the Legislature for
 reconsideration.  The Legislature shall revise and correct the plan so as to
 place the town of Montgomery in a district that conforms with statutory and
 constitutional requirements and make any other necessary changes, or
 provide this Court with information indicating that it is not possible to
 make such changes while satisfying all constitutional and statutory criteria
 with respect to the other districts and the plan in its entirety.

                                         FOR THE COURT:




                                         Associate Justice



FN1.    The changes in the procedures for redistricting the House brought
 about by Act 116 limit the role of the Legislative Apportionment Board
 (LAB), and place more of the redistricting process in the hands of the House
 Government Operations Committee, which included members of both major
 political parties.  Under prior law, the LAB referred its plan directly to
 the House, which treated it as a bill.  1965, No. 97, { 6.  Whether the
 Legislature amended the LAB's plan or substituted its own plan, the LAB,
 after consultation with the town boards of civil authority, determined the
 internal district lines of multimember districts.  Id. at {{ 5 and 6.
 Decisions of this Court accepting a petition were sent back to the LAB
 rather than the General Assembly.  Id. at { 9.

FN2.    According to the 1990 census, the state population is 562,758.  The
 size of the ideal representative district -- 3752 -- is arrived at by
 dividing the total population by 150, the number of representatives
 mandated by Chapter II, { 13 of the Vermont Constitution.  Deviations,
 whether positive or negative, are from this norm.  If the number of citizens
 in the district is below 3752, there is a negative deviation, while a
 positive deviation results if there are more than 3752 citizens in the
 district.  The overall, or maximum, deviation of a plan is calculated by
 disregarding the positive or negative signs, and taking the sum of the
 highest positive and negative deviations within the plan.  For example, if
 the highest positive deviation of any district in a plan were 5.6%, and the
 highest negative deviation of any district in that plan were -5.6%, the
 overall deviation of the plan would be 11.2%.

FN3.    The dissent states that there are no parallels or precedents for
 shifting the burden to the State to show that an alternative plan that
 meets constitutional or statutory criteria is possible, and for "remanding"
 the plan if the State fails to meet that burden.  This is simply not true.
 As the dissent concedes, several jurisdictions have remanded plans to
 reapportionment commissions where the commissions have failed to provide
 sufficient justification for the plan or to show that a better alternative
 plan was not possible.  See, e.g., In re Colorado General Assembly, 828 P.2d 185, 195-96 (Colo. 1992) (plan remanded to commission to determine whether
 less drastic alternative could be devised that would also satisfy equal
 population requirement); Davenport v. Apportionment Commission, 304 A.2d 736, 746-47 (N.J. Super. Ct. 1973) (plan remanded to commission to show
 whether, and to what extent, state constitutional criteria were considered,
 and to devise alternative plan, if possible).  According to the dissent,
 these cases are not controlling because redistricting commissions are "a
 type of administrative agency over which the court has a form of judicial
 review," and the "court's relationship to an administrative agency is far
 different from its relationship with a legislature."  The dissent provides
 no support for these statements, but even assuming they are true, we fail to
 see how they nullify our approach.  Our law provides that five or more
 persons aggrieved by a plan "may petition the supreme court of Vermont for
 review of the same."  17 V.S.A. { 1909(a) (emphasis added).  In the event we
 conclude that constitutional or statutory criteria have not been met, we are
 required to "forward [our] opinion and decision to the general assembly
 which shall forthwith revise and correct the apportionment law in light of
 the supreme court's decision, to conform to the requirements of law."  Id. {
 1909(e) (emphasis added).  We must retain jurisdiction "until the general
 assembly has produced a plan conforming to all constitutional and statutory
 requirements."  Id.
      Moreover, there are jurisdictions that have placed the burden of proof
 on the state, not a commission, to show why the legislature's plan deviated
 from redistricting requirements.  For example, in In re Legislative
 Districting of General Assembly, 193 N.W.2d 784, 791 (Iowa 1972), the court
 held that the state had "failed to sustain the burden to show why the
 legislature could not comply with the compactness requirement."  In State v.
 Crowell, 656 S.W.2d 836, 838, 840 (Tenn. 1983), the court affirmed a trial
 court's conclusion that house and senate redistricting plans were
 unconstitutional because they overemphasized achieving near numerical
 perfection while ignoring the state's constitutional prohibition against
 crossing county lines.  Finally, a parallel situation exists in the United
 States Supreme Court's ruling that a deviation of greater than 10% from
 equal population in a plan redistricting a state legislative body requires
 the state to demonstrate that there is some rational state policy that
 justifies the plan.  See Brown v. Thomson, 462 U.S. 835, 843 (1983).  The
 very case cited by the dissent for the proposition that the petitioners must
 come forward with an alternative plan acknowledged and accepted this burden-
 shifting procedure.  See In re 1983 Legislative Apportionment, 469 A.2d  at
 829 ("the burden shifts to respondents to show that this deviation in the
 House districting is the product of the Legislature's implementation of a
 rational state policy").

FN4.    The dissent states that it is irrelevant whether the Legislature
 considered the constitutional and statutory criteria, and that our reviewing
 the committee's actions here would create a dangerous precedent.  In support
 of these statements, it cites three cases.  In one of them, the respondents
 argued that the apparent meaning of a statute should not be accepted because
 the committee reports concerning the statute did not indicate that such a
 meaning was contemplated.  The Court restated the unremarkable rule of
 statutory construction that one cannot successfully challenge the plain
 meaning of a statute merely by showing that that meaning was not considered
 in the legislative history of the statute.  Harrison v. PPG Industries,
 Inc., 446 U.S. 578, 589-92 (1980).  The second case involves a city
 regulation forbidding the exhibition of movies in enclosed booths not
 visible from the main aisle of the business.  The court noted that the
 regulation amounted to a legislative determination that closed booth
 showings produced side effects destructive to the public health.  Wall
 Distributors, Inc. v. City of Newport News, 782 F.2d 1165, 1169 (4th Cir.
 1986).  According to the court, this determination could survive
 constitutional attack as long as it was not facially without factual
 support; the legislature was not bound to create an evidentiary record that
 demonstrated the regulation's necessity and fitness to achieve the desired
 results.  Id.  Thus, the case concerns the standard for determining whether
 the government has met its burden of showing that a regulation restricting
 speech furthers an important government interest.  The third case concerned
 a challenge to a state statute that fixed maximum prices for handling and
 selling leaf tobacco.  In rejecting the argument of the tobacco warehousemen
 that the Georgia Legislature had enacted the statute without sufficient
 investigation, the Court stated the obvious -- that a statute will not be
 overturned because of how much or how little the legislature researched the
 need for, or the possible effects of, the statute.  Townsend v. Yeomans,
 301 U.S. 441, 451 (1937).
     These cases are not relevant to the unique situation here.  Although
 the districting plans take the form of a statute, the statute is subject to
 specific procedures for challenging it, with original jurisdiction in this
 Court.  The redistricting criteria are set forth within the body of state
 constitutional and statutory law.  We are authorized to hold hearings, take
 testimony and make findings of fact in order to determine whether these
 constitutional and statutory criteria are met.  Indeed, "it is for us, to
 review and test reapportionment legislation with an eye to preserving, as
 far as possible, the purposes expressed in our constitutional and statutory
 law, without violating Equal Protection requirements."  In re Senate Bill
 177, 130 Vt. 358, 362, 294 A.2d 653, 654 (1972).  To fulfill this duty, we
 must determine whether the Legislature considered the criteria that it was
 required by law to consider.  Cf. State v. Crowell, 656 S.W.2d 836, 838
 (Tenn. 1983) (court affirmed trial court decision rejecting House plan
 because drafters of plan admitted "no effort" was made to adhere to county
 lines).

FN5.    By this term, we refer to criteria other than the requirement that
 each representative represent the same number of people as nearly as is
 practicable.

FN6.    The dissent states that we have accepted a shallow and incomplete
 notion of "community of interest," and then lists the legislative issues of
 the day that actually determine where common interests lie.  The statute
 requires the Legislature to consider "patterns of geography, social
 interaction, trade, political ties and common interests."  17 V.S.A. {
 1903(b).  These are precisely the concerns addressed by petitioners: the
 difficulty of transportation and the lack of communication, social
 interaction and trade within the district because of geographical barriers.
 Instead of considering these statutory concerns, the dissent would have us
 consider statewide legislative issues that have little to do with the common
 interests of neighboring towns.  Indeed, according to the dissent, the very
 fact that communication between two towns is difficult creates a common
 interest.  We see little relation to the interests noted by the dissent, and
 the interests enumerated in { 1906(b).

FN7.    The dissent states that the Jay Peak ski area is an important
 connection between Montgomery and the Orleans towns in the Orleans-Franklin
 1 district, and suggests that a significant portion of jobs in Montgomery
 depend on the ski resort.  There is no evidence in the record that supports
 these statements.  One witness, a long-time resident of Montgomery who has
 co-authored a book on the history of the town, testified that the work
 force in Montgomery travels to towns to the west, and that "nobody in
 Montgomery [is] working to the east."  Another witness, the owner of a toy
 factory, testified that all of the persons he had employed in his twenty-one
 years of business had come from towns to the west.  A third witness, a
 member of the state senate from St. Albans, conceded that he had testified
 before the House Government Operations Committee that he heard that at least
 some people from Montgomery work at the Jay Peak ski resort, and that some
 restaurants in Montgomery cater, in part, to tourists who ski at Jay Peak.
 Finally, a member of the House Government Operations Committee testified,
 without any further explanation, that the Committee "felt that there was a
 connection with Jay Peak."  This testimony hardly suggests that there is a
 significant connection between Montgomery and Jay Peak or that a significant
 portion of jobs in Montgomery depend on the ski resort.

FN8.    The Committee had been advised that the largest deviation allowed by
 the United States Supreme Court was 16.4%, and that the Court had indicated
 that "this percentage may well approach tolerable limits."  Mahan v. Howell,
 410 U.S. 315, 329 (1972); see In re Senate Bills 177 and 83, 132 Vt. 282,
 288, 318 A.2d 157, 161 (1974) (allowing 16.65% deviation).

FN9.    The Committee adopted the same Orleans-Franklin 1 district proposed
 by the Board.  No member of the Board testified at the hearing.  The
 majority report of the Board to the Legislature contained a "boilerplate"
 statement indicating that its recommendation was consistent insofar as
 possible with all statutory criteria.  The minority report of the Board
 disagreed with that statement.  In any case, we cannot accept such a
 general summary statement as evidence that all criteria were considered with
 respect to the Orleans-Franklin 1 district.

FN10.     The alternative plan was devised by the Shrewsbury petitioners in a
 separate petition.  The instant petitioners did not present the plan to the
 master in this case, but merely mentioned it in a brief footnote.  The
 State did not respond to the plan with respect to this petition, but
 criticized it sharply in the Shrewsbury case.

FN11.     The dissent points out that petitioners have failed to show that
 the challenged district is not geographically compact or contiguous.  This
 is technically true for the most part, although the town of Montgomery is
 not contiguous with the town of Jay.  The geographical compactness of the
 Orleans-Franklin 1 district, however, is less significant when we consider
 that a mountain range bisects the district.  As noted, compactness is
 related to other constitutional and statutory criteria which share a common
 purpose -- to create effective representation.  We do no mean to equate the
 compactness and contiguity requirement with the statutory criteria
 concerning "community of interests," as the dissent suggests.  But in
 determining whether the criteria have been met, we cannot ignore the reality
 of what they seek to accomplish.  The dissent criticizes us for confusing
 the requirement with the purpose of the requirement, but then proceeds to
 discuss compactness in terms of one of its purported purposes -- prevention
 of political gerrymandering -- which is just one component of the overall
 goal of effective representation.  Our point is that none of the
 nonnumerical criteria have been met, aside from a shallow reading of the
 geographical compactness and contiguity requirement.

FN12.     The mere fact that petitioners asked for relief pursuant to the
 Equal Protection Clause does not necessarily indicate that they were
 challenging the overall deviation of the House plan.  Indeed, petitioners
 are challenging specific provisions of Act 116 under the Equal Protection
 Clause on other bases.

FN13.    For instance, the majority chair of the House Government Operations
 Committee interpreted the incumbency criterion to mean that "where you have
 an alternative, don't unnecessarily pit two [incumbents] against each other."

FN14.     The part of the Common Benefits Clause that petitioners claim is
 relevant provides that "government is, or ought to be, instituted for the
 common benefit, protection, and security of the people, nation, or
 community, and not for the particular emolument or advantage of any single
 man, family, or set of men, who are part only of that community."  Vt.
 Const. ch. I, art. 7.

FN15.     The State suggests that the statutory criteria do not apply when
 the Legislature subdivides districts after the boards of civil authority
 have failed to come up with a proposal.  The State bases its argument on the
 fact that the only provision referring to statutory standards for
 subdividing districts is addressed to the boards, not the Legislature.  We
 disagree with the State's position.  The fact that the Legislature must
 approve the subdivision of districts "if they are consistent with the
 standards" imposed on the boards suggests that the Legislature must abide by
 those standards.  17 V.S.A. {{ 1906b(f) and 1906c(f).  Further, the
 standards set forth in 17 V.S.A. { 1903(b) apply to the creation of
 representative districts, which would include districts subdivided by the
 Legislature.

FN16.     We are aware that the Hartland petitioners complain about the
 deviation within one particular district, the Windsor 3 district, rather
 than the overall deviation of the House plan.  Nevertheless, the case law
 cited above is controlling.  Requiring an overall deviation of no more than
 10%, absent justification by the State, insures that the deviation within
 any particular district will not exceed 10%.

FN17.     As a result of the holding in Reynolds v. Sims, 377 U.S. 533, 568
 (1964), former sections of the Vermont Constitution dealing with the
 apportionment of the General Assembly were held to be in violation of the
 United States Constitution.  See Buckley v. Hoff, 234 F. Supp. 191, 198 (D.
 Vt. 1964), aff'd and modified sub nom. Parsons v. Buckley, 379 U.S. 359, 364
 (1965).  Former Chapter II, { 13 had permitted each town, regardless of its
 population, to elect one representative to the General Assembly.  The
 Vermont Constitution now requires that all legislative districts be
 apportioned so as "to maintain equality of representation among the
 respective districts as nearly as is practicable."  Vt. Const. ch. II, {
 73.

-------------------------------------------------------------------------------
                        Concurring and Dissenting

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


            Nos. 92-088, 92-136, 92-230, 92-259, 92-261 & 92-291

                                Supreme Court
                            Original Jurisdiction


 In re Reapportionment of Towns of
 Hartland, Windsor and West Windsor           September Term, 1992


 In re Reapportionment of Town
 of Montgomery                                September Term, 1992


 In re Reapportionment of Town of
 Shrewsbury                                   September Term. 1992

 In re Reapportionment of Town of             October Term, 1992
 Berlin

 In re Reapportionment of Town of             October Term, 1992
 Springfield

 In re Reapportionment of Town of
 Richford                                     October Term, 1992


 Thomas O. Kenyon, et al., pro se, Brownsville, for petitioners (92-088)

 Douglas D. DeVries, Enosburg Falls, and Michael Rose (On the Brief),
   St. Albans, for petitioners (92-136 and 92-291)

 James M. Jeffords and Rebecca R. Osterhoudt, Shrewsbury, for petitioners
 (92-230)

 Robert Halpert, Montpelier, for petitioners (92-259)

 Stephen S. Ankuda and Patrick M. Ankuda, Law Clerk (On the Brief), of
   Parker & Ankuda, P.C., Springfield, for petitioners (92-261)

 Jeffrey L. Amestoy, Attorney General, William E. Griffin, Chief Assistant
   Attorney General, and Claudia Horack Bristow and William P. Russell,
   Legislative Council, for respondents


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

           Allen, C.J., Gibson, Dooley and Morse, JJ., and Maloney, Supr.
           J., Specially Assigned (92-230 only)

      DOOLEY, J., concurring and dissenting.  I concur in parts I, III(B)
 (Springfield), III(C) (Berlin), III(D) (Hartland), III(E) (Shrewsbury), and
 III(F) (Richford).  I do not concur in part III(A) (Montgomery) and the
 standard of review analysis in part II on which that result is based.  I
 would deny the Montgomery petition along with the others.  In my view the
 disposition of the Montgomery petition is an unwarranted interference with
 the legislative function that will in future years mire this Court in
 reapportionment petitions for no legitimate purpose.
      The entire case put forward by the Town of Montgomery consisted of a
 short stipulation of the essential facts, five witnesses whose entire
 examination and cross-examination consists of thirty transcript pages, a few
 exhibits (most of which are maps) and an affidavit of Professor Frank Bryan
 of the University of Vermont.  The thrust of the town's case was that the
 mountains surrounding Montgomery meant that its economic and social
 interactions were with Franklin County towns to the east.  From that
 evidence, it built its case that Montgomery should be shifted to the
 adjoining district containing the Franklin County towns, despite the
 population disparities such a shift would create.  There was absolutely no
 evidence of the feasibility of reopening the whole districting scheme to
 satisfy Montgomery.  The only mention of an alternative solution was a
 statement by Professor Bryan that, although he had not "run the data"
 himself, he would "bet the house and the car" that an alternative could be
 found that met Montgomery's demands "and even come closer to the one-person,
 one-vote criterion."  There was, of course, no specification of such an
 alternative.
      The state's response was also sparse.  In addition to entering into the
 stipulation of facts, it offered the testimony of Representative Westman, a
 member of the House Government Operations Committee, who testified to
 receiving Montgomery's arguments and discussing them in committee.  He
 stated that the districts were left undisturbed because of the need to
 afford equality of representation and because of Montgomery's ties to the
 Jay Mountain ski area.  From the testimony and the maps, it appears that the
 ski area is in the Town of Jay and that the southern and eastern access to
 the ski area is through the Town of Montgomery.  Further, it also appears
 that some Montgomery residents work at the ski area and that Montgomery
 businesses, primarily restaurants, have customers who come to the area to
 ski.
      Like the Town of Shrewsbury, the petition of which is also addressed
 today, Montgomery presented one alternative -- moving the town to the
 adjoining Franklin County district.  The Court correctly rejects this
 alternative as inconsistent with Equal Protection requirements.  That should
 end the matter, and the petition should be denied.  Without a request,
 however, and with no understanding of the ripple effects of its action, this
 Court requires the Legislature to reconsider the whole reapportionment plan
 in an attempt to satisfy Montgomery, with the Legislature's only solution
 being to convince this Court that it is impossible to meet Montgomery's
 demand.  I cannot agree with this distortion of the proper process and thus
 dissent.
      In my opinion, three major errors in analysis underlie the approach
 taken by the Court.  The first error deals with the standard of review in
 general, the second with the standard on the Montgomery issues, and the
 third with the factual analysis.  On the first, the Court recognizes that
 redistricting is primarily a legislative function and that challengers have
 a heavy burden of proof in showing that a redistricting plan is invalid.  It
 omits, however, that the establishment of districts is done by statute,
 which is "entitled to the presumptions of justification and regularity
 accorded regular statutory enactment."  In re Senate Bill 177, 130 Vt. 358,
 361, 294 A.2d 653, 654 (1972); see also In re 1983 Legislative Apportionment
 of House, Senate and Congressional Districts, 469 A.2d 819, 827 (Me. 1983)
 (apportionment law entitled to the same presumption of validity as any other
 legislative enactment).
      Attacks on the validity of a statute must be based on "clear and
 irrefragable evidence that it infringes the paramount law."  In re
 Proceedings Concerning a Neglected Child, 129 Vt. 234, 241, 276 A.2d 14, 18
 (1971).  In equal protection challenges, which are analogous to the
 challenge the Court considers here, we normally uphold a statute as long as
 the classification "is not arbitrary and has a reasonable connection with a
 permissible legislative or administrative purpose."  Veilleux v. Springer,
 131 Vt. 33, 39, 300 A.2d 620, 624 (1973).  Thus, a reapportionment challenge
 should prevail only if the redistricting "'cannot possibly be justified by
 the exercise of any judgment or discretion . . . .'"  Preisler v. Doherty,
 284 S.W.2d 427, 431 (Mo. 1955) (quoting State ex rel. Lamb v. Cunningham, 53 N.W. 35, 55 (Wis. 1894)); see also Merriam v. Secretary of the Commonwealth,
 376 N.E.2d 838, 848 (Mass. 1978) (petitioners must show beyond a reasonable
 doubt that it is impossible to interpret the reapportionment statute as in
 harmony with the constitution).  Under these standards of review, it is
 irrelevant whether the Legislature considered all relevant constitutional
 and statutory criteria with respect to its action.  A legislature is judged
 by its acts, not its processes.   See Harrison v. PPG Industries, Inc., 446 U.S. 578, 592 (1980) (in construing a statute, Court does not "in the manner
 of Sherlock Holmes, pursue the theory of the dog that did not bark");
 Townsend v. Yeomans, 301 U.S. 441, 451 (1937) (legislature is presumed to
 know the needs of the people; whether special inquiries should be made is
 entirely a matter of legislative discretion); Wall Distributors, Inc. v.
 City of Newport News, 782 F.2d 1165, 1169 (4th Cir. 1986) (legislature not
 required to "create an evidentiary record that would pass muster on plenary
 judicial review of legislation's necessity and fitness to achieve desired
 results"); see also Linde, Book Review, 66 Yale L.J. 973, 975 (1957)
 (legislator's factual assumptions "need be based on no evidence of record").
      In hindsight, part of the problem in this case is that the State
 offered the evidence of a legislator to defend against the Montgomery
 challenge.  The majority has now treated him, and the House Government
 Operations Committee on which he sits, like a trial court which must explain
 and defend its actions.  Compare Andreson v. Andreson, 145 Vt. 634, 636, 497 A.2d 371, 373 (1985) (findings must be adequate to explain court's action
 and if evidence is inadequate, "the trial court must inquire").  Thus, the
 legislator was faulted because he "was unable to provide details or support
 for any connection between the two communities" and because "he never
 indicated that the Committee considered nonnumerical criteria but was
 unable to come up with a plan."  It sets a dangerous precedent to determine
 the validity of a legislative statute based on what evidence its committee
 heard or considered.
      The second error underpinning the Court's analysis lies in its
 evaluation of the standards applicable to the Montgomery claim.  The
 relevant constitutional and statutory provisions set forth three types of
 standards the reapportionment plan must meet.  Placed in hierarchical order,
 these are:
      1.  Equality of Representation -- According to Chapter II, { 73 of the
 Vermont Constitution, the plan must provide "equality of representation
 among the respective districts as nearly as it is practicable."  Because of
 the importance of this criteria, the statute goes further and requires that
 districts be formed "with minimum percentages of deviation from the
 apportionment standard."  17 V.S.A { 1903(b).

      2.  Nonnumerical Constitutional Standards -- According to Chapter II, {
 13 of the Constitution, the Legislature "shall seek to maintain geographical
 compactness and contiguity and to adhere to boundaries of counties and
 other existing political subdivisions."  These standards are also recognized
 in the statute with the requirement that districts be formed "consistent
 with . . . [these] policies insofar as practicable."  17 V.S.A. {
 1903(b)(1), (3).

      3.  Statutory Standards -- Under the requirement that the Legislature
 form districts "consistent with the following policies insofar as
 practicable," the statute includes "recognition and maintenance of patterns
 of geography, social interaction, trade, political ties and common
 interests."   17 V.S.A. { 1903(b)(2).

      That these requirements should be viewed in hierarchical fashion is
 clearly shown by their placement.  Cf. In re Senate Bill 177, 130 Vt. 365,
 371, 294 A.2d 657, 660 (1972) (preeminence of constitutional requirements).
 Further, the provisos attached to these standards recognize that it may be
 impossible to meet all of them in any given case, and that a balancing of
 factors is inevitable.  I am not sure I have any disagreement with the
 majority on these general points.  I have differences in the specifics.
      The majority concludes that "petitioners have shown that none of the
 nonnumerical statutory or constitutional criteria were adhered to with
 regard to the Town of Montgomery."  It reaches that conclusion, I infer, by
 reasoning that the "compactness and contiguity" requirement really means
 community of interest or creation of "effective representation," that as a
 result there are two nonnumerical requirements -- community of
 interest/effective representation and adherence to political boundaries --
 and that the placement of Montgomery with the Orleans county towns meets
 neither of these standards. (FN1) The reasoning is clearly flawed.
      I can agree that one of the purposes of the compactness and contiguity
 requirements is to create a commonality of interests in legislative
 districts.  See, e.g., Karcher v. Daggett, 462 U.S. 725, 756 (1983)
 (Stevens, J., concurring) ("To some extent, geographical compactness serves
 independent values; it facilitates political organization, electoral
 campaigning, and constituent representation.").  The majority has, however,
 confused a purpose with the requirement.  Compactness and contiguity are
 clearly geographic requirements.  See Carpenter v. Hammond, 667 P.2d 1204,
 1218-19 (Alaska 1983) (Matthews, J., concurring); Acker v. Love, 496 P.2d 75, 76 (Colo. 1972); Schrage v. State Board of Elections, 430 N.E.2d 483,
 486 (Ill. 1981).  That is clearly so in Vermont because the constitution
 requires "geographical compactness and contiguity" (emphasis supplied).
 Vermont Const. ch. II, { 13.  There is nothing in the requirement that
 suggests a district is not compact or contiguous because it has a mountain
 in it.
      If we are to examine the purposes of the compactness and contiguity
 requirement, it is important to recognize that the dominant purpose is to
 prevent gerrymandering.  See, e.g., Holmes v. Farmer, 475 A.2d 976, 986
 (R.I. 1984); see generally J. Schwartzberg, Reapportionment, Gerrymanders,
 and the Notion of "Compactness", 50 Minn. L. Rev. 443 (1966).  To the extent
 compactness has a nongeographic component, it lies in the prevention of
 "districts solely for political considerations, without reference to other
 policies."  Holmes, 475 A.2d  at 986.  The Legislature recognized that
 compactness and contiguity is different from community of interest because
 it set them out separately.  See 17 V.S.A. { 1903(b)(2), (3).
      The California case on which the majority relies to equate compactness
 and contiguity to community of interest, Wilson v. Eu, 823 P.2d 545, 553, 4 Cal. Rptr. 2d 379, 387 (1992), demonstrates the danger in relying on
 legislative apportionment cases from other states without careful
 examination.  California has no constitutional requirement that legislative
 districts be compact.  See Cal. Const. art. 21, { 1.  Further, the
 reapportionment process in California had broken down to the point where
 redistricting had to be done by the courts.  Thus, the phrases quoted by the
 majority refer to judicial standards created for judicial reapportionment
 and not to constitutional standards to judge the validity of a
 legislatively-created districting scheme.  Any legislature would be wise to
 consider communities of interest in drawing districts.  It is quite a
 different thing to say that the failure to do so in a particular case makes
 a district unconstitutional.
      Each town in the challenged Orleans-Franklin District is contiguous
 with at least one other town.  Montgomery is contiguous with the towns of
 Westfield and Lowell. The district is as compact as any other multi-town
 district in the state.  No one has challenged the district as lacking in
 compactness or contiguity.  There is no serious claim that it violates
 either requirement.
      Also significant, in view of the majority's reliance on the purpose of
 contiguity and compactness requirements, is the lack of any evidence even
 hinting that this district was gerrymandered for political purposes, and the
 Town of Montgomery does not so claim.  Thus, the district meets both the
 letter of the compactness and contiguity requirements and their primary
 purpose.
      The district does cross the county boundary, and in that sense is
 inconsistent with the "goal" of chapter II, { 13.  It shares that
 characteristic with twenty other multi-county districts in the state.
 Except as a passing note, little is made of the breach of the county line by
 either the majority or the petitioners.  County lines are of limited
 significance to house districts because of the very limited county
 government in Vermont.  Where the county line follows a geographical
 boundary, the breach of the county line is significant because of the
 geographical boundary, not necessarily because of the county line.
      More significant are town lines, and this district crosses none of
 these.  It is impossible in a rural state with a large number of towns to
 follow town lines without crossing county lines.  Thus, the district here is
 consistent with the important boundary requirement of { 13.
      Instead of the total violation of nonnumerical requirements claimed by
 the majority, the reality is that the district in question complies fully
 with the significant, nonnumerical constitutional requirements.  Thus, the
 real complaint is that the Legislature failed to abide by a statutory
 requirement.  As discussed below, I find the evidence of that failure
 shallow and incomplete.  For purposes of our approach to review, it is
 important to state how vague and tentative this statutory requirement is.
 It requires that districts be formed "consistent with the following policies
 insofar as practicable" and details one of those policies as "recognition
 and maintenance of patterns of geography, social interaction, trade,
 political ties and common interests."  17 V.S.A. { 1903(b)(2).  Given the
 breadth and imprecision of the requirement, and its placement at the bottom
 of the hierarchy of requirements, we should be saying that only the
 clearest and most extreme breaches of the mandate are cognizable by this
 Court in reviewing a reapportionment plan.  See Fonfara v. Reapportionment
 Commission, 610 A.2d 153, 163 (Conn. 1992).  Our failure to do so means that
 this Court will make the choices that determine district boundaries rather
 than leaving those choices to the appropriate body, the Legislature.
      The majority has avoided confronting the most difficult problem caused
 by its analysis.  If the only real deviation from applicable standards is in
 compliance with 17 V.S.A. { 1903(b)(2), as I believe it to be, then why
 cannot the Legislature react by simply repealing the statute?  We should be
 very careful to adopt a mandate subject to that kind of evasion.  We have
 not been careful here.
      Finally, I think the majority has accepted a shallow and incomplete
 notion of community of interest that ignores the reality of the tasks facing
 the legislators who represent these districts.  This opinion is issued at
 the start of a legislative session in which the major concerns are the level
 of state taxation and the nature of those taxes, the level of state spending
 and the areas in which the spending occurs, creating jobs and income growth
 to counteract the effect of the recession, and regulatory reform.  There is
 absolutely nothing in the sparse evidence produced by Montgomery to show
 that the residents of that town have a common interest in how these issues
 are resolved with the residents of the Franklin County towns in the
 adjoining district.
      One does not have to consider the legislative issues in depth to
 realize that a significant possibility exists that the real common
 interests here are between the "mountain" towns.  That is, if a significant
 portion of jobs in Montgomery are dependent on tourists who come to ski at
 Jay Peak, its citizens may see economic development as promotion of tourism,
 through state spending and tax policy, as well as regulatory reform to make
 such development easier.  This interest is shared with residents of towns
 like Jay but not necessarily with the towns of Franklin County, which depend
 on an agricultural economy.
      Although this evaluation might be considered speculative, it is useful
 to note a significant similarity in the facts of the Shrewsbury appeal.
 Shrewsbury had been joined in a district with the Town of Sherburne, with
 which it shared the kind of social and economic interaction demonstrated in
 the evidence put forward by Montgomery.  That joinder failed, however,
 because the towns disagreed on ski area development and related
 environmental issues.  Social, political and educational ties are important
 but they do not mean that citizens with these ties have a common
 perspective and interest in the policy issues a legislature must resolve.
 For example, the difficulty of transportation and communication over the
 mountain raises a common legislative issue for Montgomery and its abutting
 Orleans County towns.  The Montgomery evidence showed little about common-
 ality of interests in the legislative issues of the day.  It is at best
 incomplete.
      I find it particularly ironic that the majority ignores the evidence
 that represents the most significant community of interest factor.  Although
 the majority recognizes that Representative Westman's testimony indicated a
 reliance, in part, on the Jay Peak connection, it goes on to say that the
 only reason for the district formation was avoidance of "an equal protection
 problem."  That is a misstatement of the evidence.  Significantly, the Jay
 Peak connection may be the most important element in the "patterns of geo-
 graphy, social interaction, trade, political ties and common interests"
 present.  See 17 V.S.A. { 1903(b)(2).  Certainly, the Legislature is
 entitled to draw that conclusion without being second-guessed by the
 judiciary.
      These three major points of disagreement with the reasoning of the
 Court lead to my disagreement with its conclusion both on process and
 result.  Ultimately, the Court derives from its analysis a burden-shifting
 rule under which the showing of lack of community of interest by petitioner
 shifts to the Legislature the burden of showing "that an alternative plan
 satisfying the various constitutional and statutory criteria could not be
 produced."  Failing this burden, the Legislature is directed to place the
 Town of Montgomery in a new district "that conforms with statutory and
 constitutional requirements and make any other necessary changes" or to
 show that such a change is "not possible."  In this process, petitioners are
 not required to demonstrate that there exists at least one alternative
 districting plan that meets the constitutional and statutory mandates and
 places Montgomery in a district with Franklin County towns.
      I find the burden-shifting rule totally inconsistent with our limited
 standard of review.  I would follow the recent and thoroughly-reasoned
 opinion of the Connecticut Supreme Court in Fonfara v. Reapportionment
 Commission, 610 A.2d 153, 159 (Conn. 1992), that a mere showing of a
 violation of a nonnumerical requirement -- in that case, a state
 constitutional prohibition on crossing town lines -- does not shift the
 burden of proof to the apportionment body to prove the plan is valid.  If
 anything, this case is easier than Fonfara because the requirement here is
 statutory rather than constitutional, less specific, and petitioners have
 presented no alternative plans.
      I find no parallels in any of our standards of judicial review of
 legislative action to the burden-shifting and "remand" procedure created by
 the majority.  The "heavy burden of proof" imposed by the majority on
 petitioners miraculously disappears.  Nor are there any precedents for such
 a "remand" to the Legislature in the opinions from other states.  Whenever a
 "remand" has been used, it has been to a redistricting commission, a type of
 administrative agency over which the court has a form of judicial review.
 See In re Colorado General Assembly, 828 P.2d 185, 195-96 (Colo. 1992)
 (under a specific constitutional mandate that "communities of interest . . .
 shall be preserved" and a specific constitutional procedure that requires a
 reapportionment commission to submit a plan to the Colorado Supreme Court
 "for review," failure of commission to explain why it combined parts of one
 county with other counties across the continental divide required a remand
 for a factual showing that less drastic alternatives were unavailable);
 Davenport v. Apportionment Commission of New Jersey, 304 A.2d 736, 746-47
 (N.J. Super. 1973) (redistricting plan remanded to reapportionment
 commission because recent decision of United States Supreme Court suggested
 reapportionment could be done while respecting county lines as required by
 New Jersey Constitution; commission directed to report on whether compliance
 with state constitution "is possible").  The court's relationship to an
 administrative agency is far different from its relationship with a
 legislature.
      Nor have any other courts relieved petitioners from the burden of
 showing that at least one alternative valid plan exists.  The cases cited by
 the majority hold that such a showing does not mean the petitioner will
 automatically prevail.  The one court to analyze the issue has held that a
 showing of a valid alternative is required in a situation similar to that
 present here.  In In re 1983 Legislative Apportionment of House, Senate and
 Congressional Districts, 469 A.2d 819, 831 (Me. 1983), petitioners attacked
 a house district as not meeting the compact and contiguous requirement of
 the Maine Constitution.  The Court ruled the attack unsuccessful because
 changes in the district would produce a "ripple effect" elsewhere and "a
 challenger at the very least must show that . . . [the] district . . . could
 be substantially improved without creating constitutional violations
 elsewhere in the state."  Id.  This is exactly the burden the petitioners
 failed to meet here.
      The burden allocation is directly contrary to the rules under which we
 normally allocate burdens of proof.  As discussed above, the statutory
 mandate of community of interest must be met "insofar as practicable."  17
 V.S.A. { 1903(b).  The majority has stated that the burden of proof of
 noncompliance with constitutional or statutory mandates lies on petitioners
 and that it is a heavy burden.  See majority opinion at 5.  Despite this
 stated allocation, it relieves petitioners of the only important burden of
 proof involved in this case -- the burden of showing what is practicable.
 The fact is that petitioners have never demonstrated a noncompliance with {
 1903(b)(2) and are not being required to do so.
      The only rationale given for the burden-shifting rule is that "basic
 notions of fairness" require the burden be placed on the state because the
 Legislature can better devise alternative plans and because other towns will
 be affected.  The effect on other towns is exactly the point.  They should
 have an opportunity in this Court to respond to any proposed change in their
 circumstances rather than being blind-sided by an unpredictable direction to
 the Legislature.  Nor do I believe that the burden to develop an alternative
 plan is heavy in this small state.  Indeed, alternatives have routinely been
 presented by petitioners in other cases.  See, e.g., Hellar v. Cevarrusa,
 664 P.2d 765, 768 (Idaho 1983); In re Legislative Districting of General
 Assembly, 193 N.W.2d 784, 790 (Iowa 1972); Clements v. Valles, 620 S.W.2d 112, 115 (Tex. 1981).  In Davenport v. Apportionment Commission, the New
 Jersey Superior Court was struck that "one of the parties, on very short
 notice and without the aid of computer services, produced a plan which, at
 least on its face, represents a far greater compliance with the requirement
 of compactness while still complying substantially with the equal population
 imperative."  304 A.2d  at 743-44.  I cannot believe what can be done "on
 very short notice" in New Jersey is an unacceptable burden here.
      Finally, I can find no precedent in which a legislative apportionment
 scheme was upset under the type of broad, statutory standard involved here
 and where such weak evidence of noncompliance with a determinative standard
 was presented.  It is inescapable that, when we begin to judge legislative
 action by whether it respects a proper community of interest or creates
 effective representation, we have taken on ourselves the reapportionment
 policy decisions even while representing that we are leaving the legislative
 role intact.  I think we will come to regret the day we took on this super-
 legislative responsibility.
      The towns of Vermont who are not presently before this Court will be
 surprised to learn that the redistricting plan that they have just accepted
 has now been reopened to cope with the ripple effect resulting from the
 "repair" of the placement of the Town of Montgomery.  As with the Senate
 District placement of Richford, it may well turn out that the possible
 alternatives are far less desirable than the original plan.  Unfortunately,
 the Court's mandate overrides legislative judgments of desirability.  The
 analysis and ruling that reaches that result is unwise, inadequately
 supported and inappropriately intrudes on a legislative function.  I
 dissent.
      I am authorized to state that Justice Morse joins in this dissent.




                                         Associate Justice



FN1.    Although the majority, in response to this dissent, now denies that
 it relies on this logic, it is the only way to reach the conclusion that the
 Legislature adhered to none of the nonnumerical statutory or constitutional
 criteria.