New Twist in Colorado Congressional Redistricting Court Battle? State Senator Brandon Shaffer files brief to include his own map

The legal battle to re-draw the boundaries of Colorado’s Congressional Districts – sent to the courts for the fourth consecutive decade at the end of the legislative session in May 2011 after the legislature (specifically the state senate) failed to do its job by passing redistricting legislation as required by the Colorado Constitution – recently received a new twist when state Senate President Brandon Shaffer (D-Longmont) filed an amicus curiae brief with the court introducing (and urging adoption of) his own map. (H/T Colorado Peak Politics for breaking the story earlier today: “BRANDON-MANDER GOES TO COURT: Brandon Shaffer Tries To Sue For A Seat In Congress“).

Although the filing of amicus curiae briefs to intervene in court cases of interest are not uncommon, certain aspects make THIS filing rather unusual (and rather ironic).

First, the fact that Congressional redistricting in Colorado has ended up before the courts at all, rather than being carried out by the legislature, which is unambiguously assigned the responsibility under the Colorado Constitution, Article V Section 44,

Text of 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.

is due in no small part to an apparently long-term plan (with the 2010 session closing out with the “Mary-mandering” bill (HB1408) enabling the courts to consider “non-neutral factors” such as partisan affiliation when evaluating redistricting plans) finalized when state senate Democrats, under the leadership of Senate Majority Leader John Morse and Senate President Brandon Shaffer himself, filibustered their own redistricting legislation to prevent a vote.

Second, Brandon Shaffer’s interest in the outcome (along with the shape of the district maps) appears to be directly linked to his personal political aspirations; as the Colorado Peak Politics article points out,

Shaffer’s brief is a pretty brazen move, making Shaffer the only candidate or incumbent to file a motion with the court. Candidates and incumbents are generally expected to stay away from the process, since they have a very clear vested interest in the outcome.

Shaffer’s redistricting amicus brief begins by admitting, with complete irony and total lack of self-consciousness, the failure of the legislature (under his leadership) to do its job:

the Sixty-eighth General Assembly adjourned sine die on May 11, 2011 without discharging its constitutional mandate.

Shaffer’s plan then proceeds to advocate splitting Colorado’s Eastern Plains – defined as a distinct “community of interest” in the foundational and governing case law, Carstens v. Lamm (1982) – in order to consolidate a district around his “home base” (the Longmont-Fort Collins-Greeley triangle).  Curiously (or perhaps, not-so-curiously), Shaffer’s brief ONLY addresses the boundaries of the 4th CD, and advances no argument on the constitutionality of any other districts.

This intentional politicization of the judiciary, already adversely implicated by involvement in what is expressly mandated as a legislative branch responsibility, in order to advance one’s personal political advancement, is deeply troubling.  It is corrosive to our institutions, and undermines the sanctity of the rule of law and public confidence in our courts.

In any event, the case (combined cases, actually) bears careful watching as it plays out in court, scheduled to begin trial (open to the public) on 17 October.

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 to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

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