More discussion on Colorado Congressional Redistricting and state legislative reapportionment
Since publishing an article (“Redistricting versus Reapportionment – the confusion continues“) nearly two weeks ago clarifying the different constitutional constraints and processes for drawing up Colorado’s Congressional and state legislative district boundaries, Clear The Bench Colorado has received renewed interest and feedback from multiple sources concerning the ongoing developments in each area (including gubernatorial and legislative appointments to the Reapportionment Commission) and the role of the courts in ultimately deciding our Congressional and state legislative district boundaries.
The terminology can indeed be confusing – particularly since many resources and references mix up some of the words and descriptive phrases.
An alert reader pointed out that the term “Apportionment” refers to the process by which the 435 seats in the U.S. House of Representatives are divided among the 50 states based on proportional shares of population, as enumerated in the decennial U.S. Census. As a result of the 2010 Census, Colorado has been apportioned 7 Congressional districts. Apportionment is a more or less purely mathematical process that is completely beyond the scope of our ability to influence, once census data has been collected and tabulated. The Census Bureau has produced a video clip (your tax dollars at work) describing the process, included for your edification and entertainment:
The key distinction Clear The Bench Colorado wished to highlight – in very practical terms – is how the processes differ in Colorado. Most importantly, far too many people – even politically actively and presumably savvy activists and officials – fail to understand the role of the legislature in both processes (more accurately, the very minimal role played by the legislature in drawing state district boundaries).
Redistricting is the term used to describe the process and act of re-drawing Congressional District boundaries. In Colorado, this is accomplished by an act of legislation (“Redistricting Bill”) passed by the Colorado General Assembly and signed into law by the Governor following the decennial census, under the provisions of Colorado Constitution Article V, Section 44:
Representatives in Congress.
The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.
Congressional Redistricting is a mostly political process that we (as Citizens, activists/officials, and/or legislators) have the MOST opportunity to influence – directly through gaining majorities in the General Assembly, influencing the vote and/or draft maps, and (currently) via the public arena by weighing in on the discussion to help shape public opinion (and provide electoral pressure).
Reapportionment is the term commonly used to describe the process of re-drawing state legislative boundaries. (Some references – even some statutory or legal references – use the term “redistricting” interchangeably, which adds to the confusion). However, the reapportionment of state legislative districts is governed by different constitutional language (Colorado Constitution Article V, Section 48) and conducted according to a completely different process by different participants.
Most importantly, following a 1974 ballot measure (Colorado Amendment 6), constitutional authority for drawing up state legislative districts shifted from the legislature to a Reapportionment Commission with members appointed from each of the three branches of Colorado government. In contrast to Congressional Redistricting, the state legislature has an extremely limited – almost inconsequential – role. (For details, review ”Redistricting versus Reapportionment – the confusion continues“)
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.
Drawing state legislative districts – for the sake of clarity and distinction, “Reapportionment” – is a highly (but very indirectly) political process over which Citizens and elected officials have very little influence (and for which there is very little accountability). However, Clear The Bench Colorado believes that educating people on the difference, and raising public awareness, can help to get a more balanced and fair approach to the process – particularly when SO much of the ultimate power rests in the hands of a single individual (the Chief Justice of the Colorado Supreme Court).
- 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.
Ultimately, though – it’s worth the effort.