Redistricting rears its ugly head

House committee seeks to undo 'midnight gerrymander'

By Marianne Goodland

The effort to redraw Colorado’s congressional district boundaries in 2011 took its first step forward this week, after the House State, Veterans and Military Affairs Committee gave its approval to a bill that could give direction to the courts if they need to step in, and the House passed it on second reading on Thursday.

HB 1408 is sponsored by House Majority Leader Paul Weissmann, D-Louisville, and by Senate Majority Leader John Morse, D-Colorado Springs.

The 7-3 committee vote on HB 1408 was largely along party lines, although one Republican, Rep. Carole Murray, R-Castle Rock, also voted in favor of it.

The bill as introduced sought to repeal laws passed in 2004, one year after the Republican majority rushed through legislation in the last three days of the session that gave the courts a prioritized list of factors to consider in redrawing congressional boundaries. Weissmann was a freshman member of the House during that 2003 session, referred to by Democrats as the “midnight gerrymander.”

In 2002, after the Legislature failed to draw its own maps, the courts came up with their own. The following year, the General Assembly passed 03-352, which redrew the maps, and in 2004 passed 04-1043, which provided the list of factors to the courts.

The factors listed in statute, and according to priority 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.

While HB 1408 as introduced intended to strike the entire section of statute that included the factors, Weissmann agreed to amend the bill in committee that instead allowed the factors to stay in statute. Under the amended version, the first two factors must still be used. The last four could be used, without priority order, and the courts could also bring in other factors.

The Colorado Supreme Court threw out the maps drawn during the 2003 session, stating that the General Assembly was required to redistrict after each census and before the next general election, and the maps they drew were unconstitutional because they failed to do them prior to the 2002 election. An appeal to the U.S. Supreme Court was denied.

None of the members of the State Affairs Committee were in the Legislature during the 2003 session, but they were more than willing to fight that battle over again during the bill’s two hearings on April 21 and April 27, and for at least one witness it
reopened old wounds.

“There’s no way to separate out the politics of redistricting,” Weissmann told the committee this week. HB 1408 “undoes the gerrymander from the 2004 session” and is as “fair a direction to the courts as we can give them.”

Weissmann explained that the state has three very competitive congressional districts, and while voters like competitive districts it is not a factor taken into consideration by the courts.

Rep. Joe Miklosi, D-Denver, went on the attack on the 2003 session, reading from newspaper headlines on the redistricting effort. “Republicans went out of their way to mark the seession with rancor and ill will,” Miklosi said, citing a Fort Collins Coloradoan story. Another, from The Durango Herald, said GOP leaders “are unwilling to settle for majority status — they want total control.”

“We’re trying to reverse this Karl Rove-initiated bill,” Miklosi said, a bill that “doesn’t meet the smell test… This bill reduces the handcuffs and allows the court to do their jobs.”

Republicans on the committee accused Weissmann and the other Democrats of trying to do their own gerrymander, by running a bill in the last three weeks of the session.

Murray responded that “two wrongs don’t make a right,” and for the current Democratic majority to perform in a similar manner doesn’t make it right. She also pointed out that the courts did not keep together communities of interest and did its own gerrymandering. Teller County was placed into the same district as Douglas County, rather in Colorado Springs, where she said it should have been placed.

Factors could still be considered, but having them prioritized was unnecessary, according to Miklosi. “We’re trying to take the law back to where it was before [2003], where it worked very well,” explained Rep. Dickey Lee Hullinghorst, D-Niwot. She maintained the 2003 map was designed to help Republican congressional candidates and favored urban areas over rural ones.

In addition to removing the prioritized factors, the bill also strikes language regarding non-neutral factors. Under current law, the courts cannot consider political party registration, political party election performance, and other factors that would “invite the court to speculate about the outcome of an election.” Rep. Brian DelGrosso, R-Loveland, and Rep. B.J. Nikkel, R-Loveland, questioned removing the prohibition against using non-neutral factors, stating that the courts could then take into account election results and redraw maps that could make the districts more competitive.

Testifying against HB 1404, El Paso County Commissioner Wayne Williams said the issue for him is on the communities of interest. El Paso County has a community of interest that includes military installation and the school districts where the children of military personnel attend school, he said. Williams also asked that the issue of redistricting be reviewed during a full legislative session rather than in the last weeks to allow for a “full process.”

Williams also pointed out that the 2002 Legislature that failed to draw the maps was the first one to fail in that task, so to say that the laws prior to 2003 worked well in the past was not accurate since prior legislatures had always done their jobs in drawing the maps. And it is the General Assembly’s duty to have some standards in place and to give direction to the courts should the courts have to take action, he said.

Christine Watson of the League of Women Voters of Colorado said her group was “cautiously opposed” to HB 1408. Criteria to guide the courts should be in statute, Watson said, and there should be a priority, although her group did not like the priorities set in statute. Watson said the League was very unhappy about the 2003 effort; it went against all things the League believes is important about good government and good governance, and “the scars of that are still raw.”

Matt Arnold testified against the bill on behalf of Clear the Bench Colorado, a group he said is dedicated to restoring accountability to the courts, especially the Colorado Supreme Court. Arnold said the Colorado Supreme Court has been unaccountable, partisan and activist and has played “far too strong a role” in both reapportionment and redistricting. The General Assembly has the responsibility for redrawing congressional districts, he said but that the Legislature needs to provide guidelines to the judiciary branch when redistricting ends up in the courts. Chief Justice Mary Mullarkey has exerted a partisan influence on the redistricting and reapportionment processes, Arnold charged, and said an effort was made to tie up the process of drawing the maps in the Legislature (in 2002) so the issue could be referred to the courts. Arnold referred to it as “mary-mandering,” which he defined as the use of the courts to achieve results that could not be otherwise achieved through the constitutionally-delineated process accorded the General Assembly.

Testifying in favor of the bill, Attorney Scott Martinez of Holland & Hart, pointed out that he had drawn the map adopted by the courts. Martinez, a Democrat, said the factors in the current law favor one political party. “If I had the ability to redraw the factors, you would have one congressional seat for Republicans,” Martinez said. “If you get rid of them, you have a nonpartisan nonbiased party [the judicial branch] that would look at factors” from previous case law, and balance them, not prioritize them.

Weissmann later in the day agreed to amend the bill in committee rather than on the House floor.

House Republican Leader Mike May, R-Parker, had sharp words for House Democrats.

“The stage is set for a gerrymandering bonanza,” May said. “I am shocked that Democrats are moving forward with a bill that they know is incredibly partisan and wrong for the people of Colorado. This is the worst type of politics.”

May added, “Colorado communities deserve fair representation in Congress but that is not what this bill is about. It is unfortunate that Democrats are taking us down the road of partisan politics rather than striking a balance that we could agree on.”