Supreme Court nixes plans for reapportionment

Commission must go back to the drawing board
The Colorado Statesman

The Colorado Supreme Court on Tuesday rejected proposals for redrawing state legislative boundaries that focused on competitive districts, sending the maps back to the Reapportionment Commission for further work after ruling that the House and Senate districts are not “sufficiently attentive to county boundaries.”

The ruling is a blow to the Reapportionment Commission, especially to its unaffiliated chairman, Mario Carrera, who had worked tirelessly for a compromise that creates competitive districts in the state. Carrera’s maps would have created 33 competitive districts from the 100 districts in Colorado, as opposed to the current 28 competitive seats. Twenty-two of the districts were in the House and 11 in the Senate.

When the 11-member bipartisan commission last met on Sept. 19, Carrera felt empowered by the 9-2 vote in favor of the Senate map and the 8-3 vote on the House version. The only opposition came from Republicans concerned that the maps violated constitutional criteria outlined by the Colorado Supreme Court a decade ago. Justice Gregory Hobbs mandated at the time that counties retain whole districts.

The Supreme Court agreed, stating in its 4-2 ruling, “We hold that the Adopted Plan is not sufficiently attentive to county boundaries to meet the requirements… We further hold that the commission has not made an adequate showing that a less drastic alternative could not have satisfied the equal population requirement…” Much of their concern lies with splits in Arapahoe and Jefferson counties.

Led by Republican Commissioner Mario Nicolais, an attorney, Republicans argued that it was possible to place 47 House seats within a single district and 26 Senate seats within a single district. In the maps sent to the Supreme Court, 46 counties are drawn wholly within one House district and 18 counties contain more than one House district. On the Senate side, 54 counties are drawn wholly within one district and 10 counties have more than one district. There are 64 counties in Colorado and 100 legislative districts.

Carrera publicly chastised Nicolais at the commission’s last meeting on Sept. 19 for raising concerns over competitive districts and the impact it could have on keeping counties whole. Nicolais said he feels “vindicated” following the Supreme Court ruling.

“I took a little bit of heat during those commission hearings for standing up [for] my convictions, and now I feel like that is where we have to start,” said Nicolais.

Former Denver Mayor Wellington Webb, a Democratic member of the Reapportionment Commission who often found himself at odds with Nicolais, agreed.

“Commissioner Nicolais should feel good about doing this well and winning this quarter of the game,” Webb said. “But you know, there’s four quarters to the game. The game’s not over yet.”

Nicolais is hopeful that the commission will begin its re-examination of legislative boundaries by starting with his original Republican map, and Carrera has acknowledged that the commission will need to start at “square one.”

“We’re going to take another look and hope that the spirit of bipartisanship remains and we move forward,” said Carrera, vice president of Denver-based Spanish language TV Entravision Communications. He earned the nickname “Super Mario” on the commission because of his dedication to striking a balance between Republicans and Democrats and his powerful swing vote as the lone unaffiliated member of the commission. The maps that were ultimately sent to the Supreme Court take from both Republican and Democratic proposals.

Reapportionment can often be a divisive process as the redrawing of legislative boundaries can determine the balance of power at the legislature for a full decade. With split chambers — Republicans control the House by only one seat and Democrats rule the Senate — reapportionment could have a significant impact on the political makeup of the state after next year’s elections.

The political implications are significant. Republicans have raised concerns about thrusting incumbents together, creating overly competitive or non-competitive races for lawmakers facing re-election. At the centerpiece of the debate are the districts of Reps. Ken Summers, R-Lakewood, and Andy Kerr, D-Lakewood. Summers would have been moved out of House District 22 into House District 26 under Carrera’s plan. Kerr currently represents HD 26 and would be given about an eight-point Democratic advantage in the district.

Other lawmakers who would face more competitive districts with the maps that were sent to the Supreme Court include Democratic Reps. Sue Ryden, Aurora; Cherylin Peniston, Westminster; Millie Hamner, Dillon; Daniel Kagan, Denver; and Dave Young, Greeley. Republicans facing more competitive districts were Reps. Cindy Acree, Aurora; J. Paul Brown, Ignacio; and Don Beezley, Broomfield.

Carrera points out that the Supreme Court did not wholly reject the practice of reapportioning based on competitive districts. In fact, the court wrote, “Other nonconstitutional considerations, such as the competitiveness of a district, are not per se illegal or improper; however, such factors may be considered only after all constitutional criteria have been met.”

Chief Justice Michael Bender and Justice Nancy Rice offered the two dissenting votes, but agreed that competitiveness is an important factor to consider. Bender led the opposition, arguing that the maps do not violate constitutional criteria when it comes to county boundaries. In fact, Bender believes strongly that the maps aim to create fair, competitive elections in Colorado.

“In my view, a nonpartisan commission is more likely to draw competitive political districts which would promote political fairness and would counterbalance any gerrymandering efforts,” Bender wrote in his dissent. “Hence, competitive legislative districts are the antithesis of gerrymandered ones. The creation of competitive legislative districts is an appropriate discretionary consideration for the commission. The commission’s report reflects testimony that competitiveness was significant to both the public and to the Commission’s decisions.”

But Ryan Call, chairman of the Colorado Republican Party, cautioned against the commission taking a renewed look at competitiveness as a factor when it submits new plans to the Supreme Court. In a statement released Tuesday, Call said county boundaries must be considered above all else.

“Colorado Republicans agree with the Colorado Supreme Court that a measure of a district’s so-called ‘competitiveness’ and other non-constitutional factors should only be considered after all other constitutional criteria of respecting counties and city boundaries have first been fully met,” Call said. “Respecting county boundaries and communities of interest leads to more effective representation as legislators will better reflect the perspectives and needs of the communities they are chosen to represent.”

Jason Dunn, an attorney with Brownstein Hyatt Farber Schreck who represents Colorado Citizens for Fair Representation, a group opposed to the maps sent to the Court, agreed that the Supreme Court made the right move in sending them back to the commission for further consideration.

“The court gave us everything we asked for, which was simply to remand the maps back to the commission with the instruction to follow the constitutional criteria precisely as it is written in the constitution,” Dunn said. “The commission unnecessarily split a variety of counties both in the House map and in the Senate map, and thereby weakened the power of those counties to have an appropriate voice in the legislature.”

Carrera is concerned that when the commission goes back to redraw legislative boundaries, there will be casualties to competitiveness in the name of keeping counties whole.

“There’s just so many ripple effects within the maps and the districts and how it all comes together, it’s not an easy task,” he said. “I believe we had a certain plan and a certain idea in working through the scope of both the House and the Senate maps, and there were some issues that we had to address, and I thought that they were addressed, but I think it’s back to square one for now.”

David Fine, the attorney representing the Reapportionment Commission, said the Supreme Court’s ruling allows the commission to continue drawing districts that account for competitiveness, but he added that the commission would first need to address the court’s constitutional concerns.

“The commission worked very hard to come up with a plan, and the process is very time consuming and complicated, but the commission worked very hard to do justice to the reapportionment process,” he said. “The Supreme Court’s role is to review the plan and to determine whether the plan meets all legal requirements as interpreted by the court.”

Democrats say they do not have a specific plan yet for redrawing the maps when the commission gets back to work, other than to begin to address some of the constitutional concerns raised by the court.

Rick Palacio, chairman of the Colorado Democratic Party, said in a statement that he is hopeful the commission will not abandon the philosophy of aiming to keep districts competitive.

“I am confident that over the coming weeks, the commission will continue to work in a collaborative fashion and develop a solution that will both satisfy the court and ensure that Coloradans have a fair shot of electing representation that is accountable to the people of their communities,” Palacio said.

Webb said his first priority when the commission gets back to work is taking another look at minimizing county and certain city splits, such as in Colorado Springs. Of course, that may have a ripple effect on incumbents, he said.

Webb believes the commission will be able to quickly redraw new maps, especially with the directive from the Supreme Court regarding county splits.

“What’s going to happen now is there will be much more of an effort to draw county lines and let the chips fall where they may,” Webb predicted.

The Reapportionment Commission was scheduled to meet in executive session on Nov. 18 for the purpose of consulting with private counsel about the resubmission of the state redistricting plan.

Two additional meetings to discuss and approve the proposed resubmission have been scheduled, the first on Monday, Nov. 28, at 11:00 a.m., and the second on Wednesday, Nov. 30, at 1:00 p.m, at which time the commission will vote on the resubmission of the plan. No public testimony will be heard at either of these meetings. However, comments may be submitted by email, letter, or phone call to: 1313 Sherman Street, Suite 122, Denver, CO 80203. Email: reapp2011@state.co.us. Fax: 303-866-3945. Phone: 303-866-3950.

The commission must file new maps with the Supreme Court by 5 p.m. on Dec. 6.

Peter@coloradostatesman.com