“Mary-Mandering” – Redistricting by courts in Colorado gets boost from Colorado Legislature, updating political lexicon
“No man’s life, liberty, or property is safe while the legislature is in session.” — Mark Twain (1866)
The Colorado Legislature is still in session – so our lives, liberty, and property (and our Constitution) remain under threat. Many of the worst threats against our constitutional rights are being aided and abetted by the Colorado Supreme Court – the latest threat is an attempt by the Colorado legislature to remove some of the rules restricting the power of the courts to draw up our legislative boundaries whichever way they want (not that they’ve been much constrained by the laws on the books, anyway). As a recent Denver Post editorial (“What are Colorado Democrats up to?“) points out:
Here we are, in the waning weeks of the state legislative session, and Democratic leadership has introduced a bill that would whack a big part of congressional redistricting law from the books.
The bill (HB10-1408 Repeal Congressional Districting Criteria) would remove from state law several factors designed to ensure fair and impartial review by courts concerning legislative district boundaries. As another Denver Post article explains,
Redistricting is an intrinsically partisan process, and while most citizens may not take notice of it, the exercise is deeply important to political parties, as it can greatly influence which one has the upper hand in an election.
Weissmann’s bill would eliminate language in the law that says courts, in determining whether congressional districts have been drawn fairly, cannot consider “non-neutral” factors that include “political party registration, political party election performance and other factors that invite the court to speculate about the outcome of an election.”
The bill also would eliminate requirements that a redistricting plan avoid splitting cities or counties or “communities of interest” that can include ethnic, economic or geographic groups.
Finally, the bill also would clip language that calls for district lines to be as compact as possible.
Numerous commentators have pointed out that battles over legislative redistricting – drawing up those lines on a map that will determine how we are represented in Congress and in the state legislature – and the shenanigans that often accompany those battles, are nothing new (and hardly restricted to any particular political party). Indeed, the term “gerrymandering” (used to describe such shenanigans, and the twisted boundaries and odd-shaped districts that result) is just shy of 200 years old last month:
Gerrymandering is a form of boundary delimitation (redistricting) in which electoral district or constituency boundaries are deliberately modified for electoral purposes, thereby producing a contorted or unusual shape. The resulting district is known as a gerrymander; however, that word can also refer to the process.
Gerrymandering may be used to achieve desired electoral results for a particular party, or may be used to help or hinder a particular group of constituents, such as a political, racial, linguistic, religious or class group.
The term first appeared in the Boston Centinel on March 26, 1812. (Wikipedia article)
What is new (or relatively new – since the Colorado Supreme Court also played these shenanigans during the last redistricting battles in Colorado following the 2000 Census) about this approach is the use of the courts to advance a particular political agenda and deliberately modify legislative boundaries for electoral purposes.
Given the prominent role of Colorado Chief Justice Mary Mullarkey in advancing the practice – going so far as to declare the courts “part of the General Assembly” (Salazar v. Davidson, 2003) in order to get around the Colorado constitutional requirement that the Legislature (and no other branch) should draw up our Congressional districts – we propose that the political lexicon should be updated to reflect this 21st Century innovation, and coin the term “Mary-mandering” to describe the process.
Don’t let the courts “Mary-mander” away your rights to fair representation – exercise your right to vote “NO” this November on the 4 ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on retaining these unjust justices on the bench for another 10-year term!
“Given the prominent role of Colorado Chief Justice Mary Mullarkey in advancing the practice – going so far as to declare the courts “part of the General Assembly” (Salazar v. Davidson, 2003) in order to get around the Colorado constitutional requirement that the Legislature (and no other branch) should draw up our Congressional districts – [sic] we propose that the political lexicon should be updated to reflect this 21st Century innovation, and coin the term “Mary-mandering” to describe the process.”
I am interested in the substance of your arguments against these judges. This was the first I looked at. I visited the link to the case you so helpfully provided — the phrase “part of the General Assembly” is not in the document, i.e. you have misquoted it. What in that case does support your claim?
Responding:
Are we reading the same case?
(Salazar v. Davidson, No. 03SA133,
link http://www.cobar.org/opinions/opinion.cfm?opinionid=3975&courtid=2)
The relevant constitutional language is Article V, Section 44 (Colorado Constitution):
“The General Assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to this state by the congress of the United States for the election of one representative to congress from each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.”
The Colorado Supreme Court majority opinion in this case (Chief Justice Mullarkey, joined by justices Michael Bender, Gregory Hobbs, Alex Martinez, and Nancy Rice, with justices Nathan Coats and Rebecca Love Kourlis dissenting) relied upon creative redefinition of the term “General Assembly” in order to reach their decision.
The phrase “part of the General Assembly” was not a quote from the opinion, but a paraphrase – your assertion that I have “misquoted” the ruling is inaccurate. The actual language follows.
The majority opinion in the case states the following:
“1. Who May Redistrict
The Secretary of State and the General Assembly argue that three words in the state constitution grant the General Assembly exclusive power to draw Colorado’s congressional districts: “General Assembly shall.” At first blush, this logic seems persuasive; however, this argument is not consistent with existing Colorado law. Although the first sentence of Section 44 says that the “General Assembly shall” draw congressional districts, the term “General Assembly,” like the term “legislature” in Article I of the U.S. Constitution, has been interpreted broadly. The term “General Assembly” encompasses the entire legislative process, as well as voter initiatives and redistricting by court order.”
Later in the ruling, the court’s majority asserted:
“The term “General Assembly” in Section 44 also encompasses the courts”
and closed their argument on “Who May Redistrict” with the following statement:
“In sum, the term “General Assembly” in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting. Regardless of which body creates the congressional districts, these districts are equally valid. Hence, judicially created districts are no less effective than those created by the General Assembly.”
Nowhere else – constitutional language, legislative language, statutory language, or even in any political lexicon, does the term “General Assembly” encompass “judicial redistricting” or include “the courts.”
In fact, the Colorado Constitution is quite explicit in delineating the distribution of powers between the three separate branches:
Article III, Distribution of Powers
“The powers of the government of this state are divided into three distinct departments,–the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
The Mullarkey Majority’s ruling in this case is nothing more than a judicial power grab of authority constitutionally delegated to another branch of government (the legislative) and blatantly violates the clear language of the Colorado Constitution and the principle of separation of powers.
As Justice Kourlis noted in her dissent:
“The majority concludes that the delegation of redistricting power in Article V, Section 44, of the Colorado Constitution to the “General Assembly” includes the courts and specifically imbues the courts with independent authority to undertake such redistricting. Further, the majority reads the word “when” in Article V, Section 44, of the Colorado Constitution to limit the exercise of all redistricting authority, by the General Assembly or the courts, to a window of time between a new apportionment by Congress and the next general election.
I fundamentally disagree. Courts cannot be lawmakers under Article V of the Colorado Constitution. Courts do not enact or create laws; courts declare what the law is and what it requires. To hold otherwise violates the clear language of Article V and also the mandates of Article III of the Colorado Constitution, which delineates the separation of powers among the three coordinate branches of Colorado government.
The only authority that courts have to intervene in this purely political, legislative process is to review the constitutionality of existing districts, as we would review the constitutionality of any law, in order to protect the voting rights of aggrieved claimants. Within that limited framework, courts may enter emergency or remedial orders for the purpose of allowing elections to go forward. Such court orders are interstitial, and cannot then serve to preempt the legislature from reclaiming its authority to redistrict.”
She adds:
“That circuitous process avails the majority little. Colorado law could not be clearer with respect to the meaning of the term “General Assembly.” Article V itself defines the General Assembly as “the senate and house of representatives, both to be elected by the people.” The term neither needs nor permits any further semantic gymnastics.”
Concluding:
“With its holding today, the court significantly alters our form of government.”
Justice Kourlis had it right – the Mullarkey court altered “our form of government” from a democratically representative republic to a “rule by judges.”
Time to depose our would-be rulers, and Clear The Bench, Colorado!