Redistricting versus Reapportionment – the confusion continues

As the battle over redistricting Colorado’s Congressional districts dominates the state’s political news this week, the general lack of knowledge about how district boundaries are determined (and the very different processes for deciding Congressional versus state legislative district boundaries) is striking.

The confusion is not restricted to the general populace alone (who might be excused for having better things to do with their time than research an esoteric process that occurs but once a decade), but – disturbingly – is shockingly common among many political “experts” and permeates many of the resources on which an interested observer might rely.

Many “resources” get it wrong (such as this April 15th BallotNews article which mixes up Colorado’s redistricting and reapportionment processes); the following is a well-referenced start at getting it right.

First, it is important to understand that there are two separate and distinct processes for determining legislative district boundaries in Colorado:

• Redistricting – which refers to Congressional districts
• Reapportionment – which refers to state legislative districts

The most publicly visible and contentious battles concern Congressional Redistricting – for which constitutional authority rests with the Colorado General Assembly (state legislature).  Under the Colorado Constitution (Article V, Section 44)

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 General Assembly has until the end of the current legislative session (which must end by 11 May 2011) to enact legislation setting the new boundaries for the state’s Congressional districts; if the state legislature is unable to pass legislation through both chambers (the Republican-controlled House AND the Democrat-controlled Senate) during the regular session, a special session may be convened over the summer to make another attempt.

Once (if!) the legislature passes a redistricting bill, the governor may sign the bill into law – or veto the bill, sending it back to the state legislature.  Often the threat of a gubernatorial veto is sufficient to force a compromise on pending redistricting legislation (a tactic employed by former Governor Roy Romer in 1990, for example).

Finally, if and when the redistricting legislation is passed and signed into law, it must survive the inevitable legal challenges.  Each of the last several decades has seen the eventual Congressional redistricting map decided by the courts – following the 1980 and 1990 census in Federal court, and most recently (following the 2000 census) by the Colorado Supreme Court, when the court essentially ruled itself ‘part of the General Assembly’ (in the Salazar v. Davidson case) in order to usurp the legislature’s exclusive constitutional authority to “divide the state into congressional districts.”

Unfortunately, the state legislature expanded the opportunity for judicial mischief in 2010 with late-session legislation expanding the court’s discretion in considering “non-neutral factors” (such as party affiliation and voter demographics and trends) when reviewing redistricting plans – enacting the so-called “Mary-mandering” bill, which removed from state law several factors designed to ensure fair and impartial review by courts concerning legislative district boundaries.

State legislative district boundaries are determined by a completely different process – one in which the legislature has an extremely limited – almost inconsequential – role.  Following adoption of a ballot measure (Colorado Amendment 6 (1974), which was approved on November 5, 1974), the constitutional authority for drawing up state legislative districts was shifted from the legislature to a Reapportionment Commission with members appointed from each of the three branches of Colorado government.

Composition and timelines for the Reapportionment Commission are specified in Colorado Constitution Article V, Section 48, the key language of which follows:

The four legislative members shall be the speaker of the house of representatives, the minority leader of the house of representatives, and the majority and minority leaders of the senate, or the designee of any such officer to serve in his or her stead, which acceptance of service or designation shall be made no later than April 15 of the year following that in which the federal census is taken. The three executive members shall be appointed by the governor between April 15 and April 25 of such year, and the four judicial members shall be appointed by the chief justice of the Colorado supreme court between April 25 and May 5 of such year.

Thus the legislative appointments to the commission result in a nearly automatic 2:2 tie, irrespective of the balance of power in the General Assembly (there is no difference between having 1 representative or 64 in the House, or 1 senator or 34 in the Senate – either way, or anywhere in between, each major party in the state legislature gets a single appointment from each chamber).

Even the Governor’s 3 appointments are not enough to gain a majority of commission membership, even added to the 2 legislative members.

However, the Chief Justice’s 4 picks – the decisive ‘final four‘ – are enough to secure a majority for one party, even in the face of complete dominance by the other side.  (Exactly that situation occurred in 2000, when Chief Justice Mary Mullarkey appointed 4 Democrats to secure a 6:5 advantage on the Reapportionment Commission, despite Republican control of the governor’s office and half of the state legislature.  Many observers – including the Denver Post – have noted that Mullarkey’s successor in the top judicial slot Chief Justice Michael Bender holds the balance of power with this year’s appointments to the commission).  The Post’s post-election coverage (“Who holds the key on redistricting“) noted:

Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.

It gets worse – since the Colorado Supreme Court is not only the ultimate arbiter of any legal challenges to Congressional redistricting (the U.S. Supreme Court has rejected most challenges on redistricting as a matter of state, not Federal, responsibility – which is appropriate) but also reviews the work product of the Reapportionment Commission – the very commission dominated by the Chief Justice’s appointments!

One need not have an overly suspicious or cynical mind to discern the potential for corrupting and politicizing influence on the courts, an unhealthy concentration of political power in the judicial branch, and a potential conflict of interest for the Chief Justice.

Reapportionment Timeline:

• 15 April 2011: legislative appointments to Reapportionment Commission due
• 25 April 2011: gubernatorial appointments to Reapportionment Commission due
• 5 May 2011: Chief Justice’s appointments to Reapportionment Commission due
• 15 May 2011: Reapportionment Commission convenes
• 5 September 2011: preliminary plan for reapportionment due (113 days after Commission convenes)
• 11 September 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” Article V, Section 48, (1)(e)
• 20 October 2011: due date for public hearings on reapportionment (“within 45 days of publication”)
• October 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” no later than 123 days prior to the date established in statute for the event commencing the candidate selection process” (which will be March 2012)
• 14 December 2012: due date for filing reapportionment plan with Secretary of State – IF the plan has been approved by the Colorado Supreme Court (“no later than ninety days prior to the date established in statute for the event commencing the candidate selection process”).

And that’s if everything proceeds according to plan…

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site – although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site – contributions come from a variety of sources and are frequently edited – proceed with some skepticism)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public, and to provide useful evaluations of judicial performance.

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