Courts would get new guidance for redistricting

By Marianne Goodland
THE COLORADO STATESMAN

One of the last by-products of the 2002 redistricting battle at the capitol is just a governor’s signature away from being reversed.

Tuesday, the Senate gave final approval to House Bill 1408, which would change the guidance to the courts that must create new congressional boundaries after each census, if the General Assembly fails to draw the maps for those districts.

In 2004, the General Assembly passed legislation to set up a prioritized list of factors to be used by the courts when they draw congressional district maps.

The issue arose after the 2000 census. In 2002, the General Assembly failed to agree on congressional boundaries, and the task fell to the Colorado Supreme Court.

In 2003 the General Assembly, in an infamous three-day battle, drew new congressional maps, which were later thrown out by the Colorado Supreme Court because they did not meet the deadline required for the 2002 general election.

The following year, legislators passed HB 04-1043, which created a list of six factors: two required by the Colorado and U.S. Constitution, and four others, in priority order, that the courts would have to use if they were required to step in to draw the maps.

The factors 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.

As originally introduced, HB 1408 would have struck the last four factors, but was amended in the House to allow for the factors to be considered, but not in a priority order and the courts are not required to consider them.

The votes on HB 1408 have been along party lines all the way from its first vote in the House to its last vote in the Senate. In the past week, the bill got out of the Senate State, Veterans and Military Affairs Committee, passed the Senate on second reading on Monday and got a 21-13 final vote from the Senate on Tuesday. HB 1408 was not amended in its trip through the Senate and heads next to Gov. Bill Ritter for signature.

HB 1408 was part of a late night for the Senate on Monday. Republicans tried to amend the bill to require the criteria to be used, or to restore the bill to the original language of the statute.

A strike-below amendment from Senate Minority Leader Josh Penry, R-Grand Junction, sought to put “communities of interest” into the third position on the list of criteria, and to require that the criteria be required and continue to be prioritized.

Senate Majority Leader John Morse, D-Colorado Springs, the sponsor of HB 1408, said the strike-below addressed a question on how to guide the courts, but there were two very different answers. Republicans failed to get the maps drawn to their liking in the General Assembly after the 2000 census, so their response after losing in the courts was to pass HB 04-1043, which barred the courts from considering non-natural factors such as competitiveness of congressional districts. Morse said the effect of such a position would leave very lopsided districts and would eliminate any competitiveness in maps drawn by the General Assembly.

The second answer has to do with how the priorities were established. In the current law, the first thing the courts would have to consider is to keep counties intact, with the largest county, Denver, considered first. The effect would be to keep all the Democrats in that single district and not be parsed out into competitive districts.

The final criteria, minimal disruption of prior district boundaries, means that “we like the districts the way they were drawn 10 years ago,” Morse said, adding that HB 04-1043 was a way for the Republicans to win with the criteria after losing in the courts.

Penry pointed out that prior to 2004 the congressional districts had been skewed 5-2 in favor of Republicans, but after that it has switched to 5-2 in favor of Democrats. “That this skews the playing field to Republicans ignores history,” he said. The criteria are not overtly hostile to one party or another, Penry explained. “This is an equitable way” for the courts to have some guidelines.

Morse disputed Penry’s view of history, noting that HB 04-1043 has never been used by the courts; the maps drawn after the 2000 census were done by the courts prior to the 2002 general election.

Sen. Bill Cadman, R-Colorado Springs, noted that changing the statute from “shall” consider the criteria to “may” consider means the courts can ignore the criteria, other than the ones required by federal law or the constitution. “‘May’ means ‘may not,’” he argued.

Assistant Senate Minority Leader Greg Brophy, R-Wray, said keeping together the communities of interest is a “big deal” to people on the eastern plains, and without it the eastern plains could wind up in a “spoke-styled” congressional district.

Sen. Shawn Mitchell, R-Broomfield, later tried to force the issue on competitiveness with an amendment to add “creating competitive districts” to the bill. “If you take your leader’s word seriously, you’ll support this,” he said. But it failed to gain even one Democrat vote and lost, 14-21.

The final vote on Tuesday raised many of the same issues. The Legislature needs to make sure that politics isn’t the overriding consideration, and shouldn’t be a consideration at all, Penry said. “A vote for this today is to give carte blanche to split up the western slope, eastern plains, Pueblo and the San Luis Valley.”

Sen. Kevin Lundberg, R-Berthoud, had called HB 1408 a “whatever” bill on Monday — whatever the courts want to do, he explained. On Tuesday, he said the bill was a “harbinger for hardball politics” and will turn redistricting into a heavy-handed partisan battle.

The only other Democrat to speak in favor of HB 1408 on the Senate floor, Sen. Morgan Carroll, D-Aurora, said the bill is “the furthest from hardball politics I can think of.” Case law does not prioritize factors, she explained, and that the law does that could skew the outcome. Once the first two criteria are used, as is required by federal law, “the minute you take the rest and pick favorites, that’s weird and not well-supported” by case law.

Marianne@coloradostatesman.com