Colorado Supreme Court strikes down reapportionment reform initiatives, retains legislative mapmaking power for themselves

The Colorado Supreme Court, on a 4-3 vote, ruled that a pair of ballot initiatives (#132, #133) seeking to reform the process of drawing Colorado’s state legislative and congressional district boundaries violated the “single subject” rule and therefore could not be presented to voters.

The court case resulted from a lawsuit brought by former Democrat legislative aide and former Jefferson County Education Association (JCEA) President (and perennial Leftist activist) Donna R. Johnson, challenging the initiatives.  Johnson was represented by Democrat “go-to” attorney Mark Grueskin.

Both ballot initiatives sought, in slightly different ways, to reform the process by which state legislative district maps are drawn (“reapportionment”).  Initiative #132 additionally sought to shift authority for drawing congressional districts (“redistricting”) from the state legislature to an appointed, multipartisan (evenly split between Republican, Democrat, and unaffiliated/minor party members) commission.

The stated intent of both initiatives was to minimize politically-motivated gerrymandering, increase the number of “competitive” districts, and reduce the role of “political influence” or “political pressures” in determining legislative district boundaries.  Interestingly, the initiative proponents were two former legislators: Frank McNulty (R) and Karen Curry (D, later unaffiliated) with extensive experience dealing with the current process.

Both initiatives sought to amend the Colorado Constitution, Article V (Sections 44–48); key provisions of each included

“modify the criteria to be used in drawing districts; subject the commission to open meetings and open records laws; require a two-thirds vote of commissioners to approve any action of the commission; change the process for drafting and approving redistricting plans and the process for supreme court review of such plans” as well as modifying commission membership, including “prohibiting registered lobbyists, as well as members of or candidates for the U.S. Congress or the General Assembly, from serving as members of the commission.” [Ruling at 5]

Although the petitioner (Johnson, via Grueskin) also sought to have the Court reject the prohibition on lobbyists, legislators, or candidates (each of which, presumably, have a vested (conflict of?) interest in drawing legislative district maps), the Court declined to address the claim.  [Ruling at 15, footnote 2]

The Court’s majority DID find that the proposed change to the role of the Supreme Court Nominating Commission in each initiative violates the single subject rule, finding that the initiatives “fundamentally alter the role and objective of an unrelated constitutional commission” [Ruling at 14] and “would fundamentally change the role and mission of the independent Supreme Court Nominating Commission” [Ruling at 15].

Additionally, the Court’s majority found that Initiative #132‘s shift of authority for congressional redistricting from the state legislature, as assigned in Colo. Const. Art. V Section 44, to a newly created Redistricting Commission “affects separate redistricting processes derived from different sources of constitutional authority” and thus violates the single-subject rule. [Ruling at 17].

Ironically, and likely not coincidental to the current majority’s ruling, the state legislature has essentially abdicated its responsibility for congressional redistricting in each of the last five decades – throwing the ultimate decision to the courts (specifically, the Colorado Supreme Court)

Arguably, the basis for the majority’s ruling is as narrow as the majority itself (4-3), focusing on the “process” and “sources of authority” rather than the overarching objective or subject of “changing how electoral districts are redrawn in Colorado” – which was precisely the critique raised in the dissent, concluding “every provision in the proposed initiatives relates to that subject and is integral to that subject’s fulfillment.” [Dissent at 1]

The Dissent also highlighted the Court’s “limited role in ballot title cases” and precedent directing the Court to “liberally construe the single subject requirement” to facilitate voters having the final say, and mandating that the Court will “overturn the Title Board’s finding that an initiative contains a single subject only in a clear case.”  Accordingly, the dissenting view held that “these proposed initiatives are not “clear case[s]” of multiple subjects because every provision in the initiatives is necessarily and properly connected to the single subject of changing how electoral districts are redrawn in Colorado.”  [Dissent at 2]

Analysis:

The irony in the majority opinion’s ruling regarding the potential for the redistricting reform initiatives to sully the supposedly apolitical nature of the Supreme Court Nominating Commission, with its explicitly (bi)partisan makeup and supermajority rules, should not be overlooked.  The pretense that nominating judges with the ultimate authority to rule on legislative reapportionment, congressional redistricting (and other) legislation, and other policy issues is somehow apolitical but nominating commissioners to propose the legislative district maps on which the courts will ultimately rule is somehow fraught with undue political influence is, quite simply, laughable.

Another factor which cannot be ignored is the Court’s institutional self-interest (at least, as seen by jurists wishing to actively influence policy, rather than be restricted to mere question of law) in retaining control of the state’s legislative district reapportionment process.

In Colorado,  the process for determining both Congressional and state legislative district boundaries has, for decades, been dominated by the courts – specifically, the perennially and predictably partisan Colorado Supreme Court.

As noted a half a decade ago:

In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to their dominance of judicial appointments, especially to the state supreme court) is clear. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).  In fact, injecting the chief justice into this inevitably political process – hypocritically highlighted in the recent ruling rejecting reform initiatives – is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary.

Former Chief Justice Mullarkey was notorious for (ab)using the “single-subject rule” to strike down ballot initiatives with which she disagreed, personally; it appears the tradition is alive and well with Mullarkey’s handpicked successor, Justice Monica Marquez.

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.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.