By Marianne Goodland
THE COLORADO STATESMAN
Legislative efforts to change the guidelines to the courts when they have to redraw congressional district boundaries in the future are nearing finality, after passage of House Bill 1408 in the House and in its assigned Senate committee this week. Debate over the bill drew accusations of liberal bias and judicial activism from Republicans, with Democrats charging that they only intended to undo what was done in 2003 and 2004.
HB 1408 as introduced sought to repeal laws passed in 2004 that set up a prioritized list of factors to be used by the courts when they must step in to redraw congressional district boundaries. Those boundaries must be redrawn after every census and it is up to the legislature to do that. The next time that will happen will be next year. Census results are expected in April and legislators predict the boundaries will be redrawn in a special session. If the legislature fails to redraw the maps, then the task falls to the courts.
The issue of guidance to the courts in how to draw the maps came up in 2004, after the legislature failed in 2002 to draw its own maps. The Colorado Supreme Court then picked a map to be used in the 2002 general election. The following year, the Republican majority in the General Assembly, in the last three days of the 2003 session, rushed through legislation to redraw the maps, which Democrats referred to as the “midnight gerrymander.” The Colorado Supreme Court threw those maps out, stating that the law required the maps to be done prior to the 2002 general election.
It was the second time the courts have had to step in to draw the maps; the first time, in 1981, resulted in the 1982 Colorado Supreme Court decision in Carstens v. Lamm, which established that the courts should step in and select a map when the General Assembly fails to do so.
The factors currently listed in statute as established in the 2004 legislation, and in priority order, are:
• mathematical population equality between districts and that districts may not overlap;
• compliance with the 1965 Voting Rights act;
• preservation of political subdivisions such as counties, cities and towns;
• preservation of “communities of interest,” including ethnic, cultural, economic, trade area, geographic and demographic factors;
• that districts be as compact as possible; and
• minimal disruption of prior district lines.
The first two must be considered according to the Colorado and U.S. constitutions; in HB 1408 as amended the last four “may” be considered and are not prioritized. And that’s just a few of the things about HB 1408 that bothered Republicans at the state capitol in the past 10 days.
Republicans mounted heated arguments against HB 1408 during its second reading debate in the House on April 29, and the Democrats gave back as much as they got.
Rep. Bob Gardner, R-Colorado Springs, raised concerns about the consideration of “non-neutral” criteria, such as political party registration, election performance and other factors that invite the courts to speculate about the outcome of an election. HB 1408 removes language that requires the court not to consider those non-neutral factors.
“This is one of the most important bills we will do this year,” Gardner said. This bill “will determine whether the people of Colorado are represented in a fair and equitable way in Congress, or whether we will have unbridled gerrymander,” he said. The courts may look at whether a seat has always been held by a Democrat or Republican, Gardner explained, adding that this is what is wrong with Congress — out of 435 seats perhaps only 40 or 50 are competitive. But by removing the language that the court would be prohibited from looking at non-neutral factors, “we are inviting them to do so.”
House Majority Leader Paul Weissmann, D-Louisville, the sponsor of HB 1408, said he wanted to include competitiveness as a factor so that voters would feel like their vote matters and could make a difference. “The courts have done a pretty good job” in drawing what Weissmann called the most competitive district in the nation — Congressional District 7. Weissmann added that the state will not be adding or losing a congressional seat in 2011, and that it will likely continue with three competitive seats and four that are “relatively competitive,” and that he believed the legislature would be able to redraw the maps next year.
The fireworks started when Rep. Frank McNulty, R-Highlands Ranch said he did not share Weissmann’s confidence about the legislature’s ability to draw the maps. This will wind up back in the courts, McNulty predicted, and then done by “unelected justices beholden to no one but themselves. Colorado has one of the most political state supreme courts in the country,” he said, based on their decisions such as ruling against a ballot initiative that would have prohibited the state from offering benefits to illegal immigrants.
McNulty also charged that HB 1408 was a step to put in the place the power of “the liberal court” to draw districts however they choose, and part of a conspiracy to ensure that Congressional District 4 becomes a safe Democratic seat. McNulty cited a blog written by David Thielen regarding a recent Boulder County Democratic Assembly, in which Thielen wrote that Rep. Jared Polis, D-CD 2, had said it was important to get Rep. Betsy Markey, D-CD 4, through the next election because they could then make her seat safe through redistricting.
That drew heated responses from several Democrats, including Rep. Joe Miklosi, D-Denver, who said HB 1408 was in response to a “Karl Rove-initiated power grab” that took place in 2003 and 2004.
Prior to the final House vote on April 30, Assistant Minority Leader David Balmer, R-Centennial, warned that the purpose of the bill was for the majority to exert its will, and he believed one of the intents would be break up Denver County and its Democratic voters among multiple congressional districts, a move he said would backfire.
The final House vote was 35-27, with two Democrats absent and Rep. Kathleen Curry, I-Gunnison, siding with the Republicans against the bill.
By comparison, the May 5 hearing in the Senate State, Veterans and Military Affairs Committee was tame, with only one reference to the courts overstepping their boundaries and one reference to gerrymandering.
Senate Majority Leader John Morse, D-Colorado Springs, sponsor of HB 1408, told the committee he hoped and believed the bill would not be necessary in 2011 or anytime in the foreseeable future.
Those who testified on HB 1408 all asked that the “may” be changed to a “shall” with regard to the criteria, a suggestion rejected by the majority Democrats on the committee. Those requests came from both the League of Women Voters and Colorado Common Cause.
A representative of the 9/12 Project in Colorado warned Democrats that if they passed the bill it would be used against them in the fall elections. Lu Busse said that her group did not support HB 1408 and would not have supported the gerrymandering by the Republicans back in 2004. “Voters are awake to your games,” she said.
Sen. Dave Schultheis, R-Colorado Springs, said he believed the Colorado Supreme Court had overstepped its boundaries in redrawing the maps, pointing out that the Colorado constitution directs the legislature to do that, not the courts. But Morse replied that the courts had no choice. “It can’t order us to do something when we don’t do it.” Without the “shall,” this is a “letter to Santa Claus,” said Sen. Bill Cadman, R-Colorado Springs.
HB 1408 passed on a 3-2 party-line vote and is scheduled for second reading in the Senate on Monday.