In Review: Colorado Congressional Redistricting Trial

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 – concluded trial proceedings in Denver District Court today (Monday, Halloween Day) with closing statements and the introduction of new and revised Congressional District maps.

(New Democrat redistricting map – statewide)

Sitting through the hearings and witness statements is admittedly dry stuff, with topics ranging from pine beetles and educational funding (which Democrat attorney Mark Grueskin claimed is what ties Boulder and Larimer counties together into a common “community of interest”) to water and agriculture issues (which Democrat attorney Mark Grueskin claimed were issues tying Douglas County and the Eastern Plains together into a common “community of interest”), and transportation funding (which witnesses from Douglas County – including County Commissioner Jill Repella and county lobbyist Ken Butler – advanced as evidence of common ties between Douglas and the other Denver Metro counties).

Witnesses at the Congressional Redistricting trial included a “Who’s Who” of the Colorado political scene – including over half of Colorado’s Congressional Delegation (CD2 Congressman Jared Polis, CD3 Congressman Scott Tipton, CD6 Representative Mike Coffman, and CD7 Representative Ed Perlmutter) along with other political luminaries such as CU Regent Michael Carrigan (D-Denver/CD1) (just re-elected in 2010) and former director of the Department of Higher Education Rico Munn (for the Democrats) and former Deputy Treasurer Dick Murphy and former state representative candidate (and current Denver County GOP Chair) Danny Stroud (for the Republicans).

As might be expected with so much at stake, the attorneys participating in the trial were also a “Who’s Who” of the state’s legal profession: Democrats were represented by a team headed by perennial political litigator Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counteract the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention elections); Republicans were represented by a team led by former Colorado Solicitor General Richard Westfall (who also contested the constitutionality of the Colorado “Mill Levy Tax Freeze” case, first successfully in Denver District Court in May 2008 before being overturned in a highly political decision by the Colorado Supreme Court in March 2009); the Colorado Latino Forum, which introduced a separate set of maps, was represented by Gina Rodriguez; and the City of Aurora, which intervened in the case in order to carve out an Aurora-centric district (keeping the city, although split between multiple counties, in a single congressional district) was represented by former state senator and CD7 candidate Mike Feeley (apparently taking a break from his participation in the “Fenster’s Folly” anti-TABOR lawsuit pursued against the state of Colorado in federal court).  A wag reportedly opined that the sum of billable hours over the several weeks of the Congressional Redistricting trial could feed, clothe, and bathe the “Occupy Denver” crowd for a year…

Media coverage of the trial ranged from the trivial (Denver Post Lynn Bartels tweeting about former Congressman Bob Beauprez having the zipper down on his jeans) to the mildly humorous (comments on repeatedly spilled water and “a huge, industrial-size roll of paper towels” along with Democrat attorney Mark Grueskin’s characterization of the GOP “Minimum Disruption” map as a “light-jazz band”) to the occasionally informative (a background piece on presiding Denver District Court Judge Robert Hyatt, “Colorado redistricting judge unafraid to issue controverial decisions“).

An interesting sideline to the overall Colorado Congressional Redistricting narrative was provided by the shifting fortunes of state senator Brandon Shaffer, running for Congress in CD4 in 2012, as district maps submitted by his own party first drew him out of, then later back within, the boundaries of the district (prompting him to submit his own map) – as chronicled in a series of article in the Colorado Peak Politics political website:

• TEA LEAVES: Shaffer Screwed, Gardner Safe; Tipton And Coffman Will Have To Fight
• BOMBSHELL: Under Questioning From Grueskin, Dems’ Top Lawyer Says Cory Gardner Can’t Be Beat
• THE BRANDON-MANDER IS BACK: Dems New Redistricting Map Allows Shaffer To Stay In CD4

(NOTE: although residency within the district is not a requirement to run for Congress, it is certainly a political disadvantage to live outside the district one is seeking to represent)

The main themes of the Congressional Redistricting trial, however, were attempts by all parties to argue the constitutionality of the various map proposals.  All parties acknowledged the federal and state constitutional requirements in general terms, but sought to emphasize different aspects in making their case.  All sides attempted to define “communities of interest” via witness testimony (or refute the commonality of interests claimed by the other side during cross-examination).

For example, Democrat witnesses Michael Carrigan and Rico Munn advocated for combining Boulder and Larimer counties as a single “community of interest” based on the presence of Colorado’s two largest institutions of higher education in each (CU in Boulder, CSU in Fort Collins).  GOP witness Dick Murphy countered that the cultural differences between the two schools – to say nothing of the two counties – diverged sharply between “liberal” CU/Boulder and more traditionally rural/conservative CSU/Fort Collins.  (Ed.: Plus, how could a combined district deal with a candidate unable to take a stand on football matchups between the two universities, or alienating half the district?)  GOP attorney Westfall also pointed out that both CU and CSU have multiple campuses around the state, and that multiple institutions of higher education exist around the state in different congressional districts, eliminating any unique claim to a “Higher Ed” community of interest centered around Boulder and Larimer counties.

Bottom Line?

The GOP argument (as well as the title of the map proposal) centered around the theme that voters should suffer “minimal disruption” to their current congressional representation.  GOP attorneys emphasized the “clear legal guidelines” and precedents (including the rightly-maligned 2003 Salazar v. Davidson case when the Mullarkey Court usurped the legislative role in redistricting – a responsibility willingly abdicated by the legislature this year) binding upon the court.

The City of Aurora sought to be contained whole within a single congressional district (despite being split between counties, which enjoy a higher constitutional precedence for remaining intact than municipalities).  Interestingly, both the modified Democrat and Republican maps appear to have accepted this premise.

The Colorado Latino Forum maps were roundly panned by all sides – the original maps (which paired Scott Tipton and Ed Perlmutter in a single district, ranging from Cortez to Lakewood) were criticized both by Republicans:

“When I saw that I thought, ‘They can’t possibly be serious,’ ” said state Sen. Greg Brophy, R-Wray. “We had public testimony earlier this year against this kind of proposal.”

as well as by Democrats (even after modifications to the original maps):

“When a map is driven by the issue of race, whatever the race, it becomes suspect.” (Democrat attorney Mark Grueskin)

(The Latino Forum’s lawyer returned the favor, “ripping” both Republican and Democrat maps)

The Democrat argument sought to create or define new “communities of interest” but most prominently promoted the principle of “competitiveness” as a basis for determining district boundaries.  However, it must be noted that reliance on “competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”) – even notwithstanding the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the question of redistricting to the courts all along (instead of being resolved in the legislature, as mandated by 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.

Judge Hyatt, who has a reputation as being hardworking, independent-minded and well-versed in the law, is not expected to take long to reach a decision – and may have already reached some conclusions on the merits of the arguments advanced during trial, as indicated by an aside uttered casually during the second week of the trial, stating (and this may be more a paraphrase than a precise quote)
“Is there anything being presented here as testimony that is likely to influence my decision?”

In any event, all parties have indicated that whatever the outcome, the case is almost certain to be appealed to – and ultimately decided by – the Colorado Supreme Court.

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)

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