The Colorado Reapportionment Commission (charged with drawing our state legislative districts) meets today (Monday, 28 November) to discuss revisions to the state legislative district maps submitted by the commission, but later rejected by the Colorado Supreme Court, following eleven challenges filed against the maps by county governments and other interested parties.

Today’s meeting, for the purpose of public discussion (by commission members) of revisions to the maps, will be held beginning at 11:00 AM in Hearing Room A of the Legislative Services Building, located at 200 E. 14th Avenue, Denver CO 80203.

The meeting will also be broadcast online (audio only)

The commission will meet again tomorrow (Tuesday, 29 November) same time/location, to vote on the revisions to the state legislative district maps to be re-submitted to the Colorado Supreme Court.

From the Colorado Reapportionment Commission’s information release:

No public testimony will be heard at either of these meetings. However,comments may be submitted by email, letter, or phone call. Please use the following contact information for the commission to submit comments.

Mailing address: 1313 Sherman Street, Suite 122, Denver, CO 80203
Email: reapp2011@state.co.us
Fax: 303-866-3945
Phone: 303-866-3950

The commission will apply the instructions handed down by the Colorado Supreme Court in their ruling (“In re Reapportionment of the Colorado General Assembly”) to comply with Colorado Constitutional requirements (see below) guiding the composition of state legislative district boundaries, in order to generate a set of constitutionally-compliant maps by the court’s deadline of 6 December 2011.

Reference: Audio recording of the Colorado Supreme Court hearing on state legislative reapportionment (9 November 2011)

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly, 2002), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

The Colorado Supreme Court granted certioriari Thursday, 17 November (agreed to hear the appeal) on a challenge to Denver District Court Judge Robert Hyatt’s ruling on Colorado Congressional redistricting.  The appeal, led by Douglas County and joined by the Republican petitioners (one from each of the state’s seven congressional districts) in the original case, is proceeding on an accelerated schedule culminating in oral arguments (open to the public) on 1 December starting at 11:15 AM in the Old Supreme Court Chambers of the Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver 80203)

Opening briefs from the petitioners (appellants) are due to the Colorado Supreme Court on Wednesday, 23 November; response briefs are due to the court on Monday, 28 November (so much for a happy Thanksgiving weekend for the lawyers).

Next Thursday’s (1 December) oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

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.

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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) will hold a series of meetings to discuss revisions to the state legislative district maps submitted by the commission, but later rejected by the Colorado Supreme Court, following eleven challenges filed against the maps by county governments and other interested parties.

The commission meets first on Friday, 18 November in executive session (which means that it will not be broadcast or open to the public) for the purpose of consulting with private counsel about the resubmission of the state redistricting plan.

The next meeting - for the purpose of public discussion (by commission members) of revisions to the maps, will be held on Monday, 28 November 2011 beginning at 11:00 AM at the state Capitol.

The final meeting - for the purpose of voting on revisions to the state legislative district maps to be re-submitted to the Colorado Supreme Court for review - will be held beginning at 1:00 PM on Wednesday, 30 November 2011.

From the Colorado Reapportionment Commission’s information release:

No public testimony will be heard at either of these meetings. However,comments may be submitted by email, letter, or phone call. Please use the following contact information for the commission to submit comments.

Mailing address: 1313 Sherman Street, Suite 122, Denver, CO 80203
Email: reapp2011@state.co.us
Fax: 303-866-3945
Phone: 303-866-3950

The commission will apply the instructions handed down by the Colorado Supreme Court in their ruling (“In re Reapportionment of the Colorado General Assembly”) to comply with Colorado Constitutional requirements (see below) guiding the composition of state legislative district boundaries, in order to generate a set of constitutionally-compliant maps by the court’s deadline of 6 December 2011.

UPDATE: Audio recording of the Colorado Supreme Court hearing on state legislative reapportionment  (9 November 2011)

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly, 2002), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

The Colorado Supreme Court rejected the state legislative district maps submitted by the Colorado Reapportionment Commission, remanding the maps back to the commission with instructions for addressing constitutional deficiencies.

The Colorado Supreme Court’s ruling, “ In re Reapportionment of the Colorado General Assembly,” rejected arguments putting “competitiveness” ahead of constitutional criteria for defining the boundaries of Colorado’s state legislative districts:

The supreme court holds that the finalized Reapportionment Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2), and the Colorado Reapportionment Commission has not made an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002). The supreme court returns the plan to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011.

The court’s decision followed challenges to the commission’s maps submitted by eleven Colorado counties and other interested parties, based primarily on violations of the constitutional requirement to maintain county integrity to the extent possible.

The commission’s maps split counties more than necessary to maintain numerical parity between districts, and failed to apportion a number of “whole” state legislative districts within counties that qualified based on population.

The court also rejected the notion, advanced by Democrat plaintiffs, that “competitiveness” - a concept lacking constitutional or statutory definition -could trump constitutional criteria in drawing state legislative boundaries.

Several plaintiffs also cited the fact that the commission’s maps submitted to the Colorado Supreme Court for constitutional review were introduced at the 11th hour by the commission’s lone unaffiliated member, Chairman Mario Carrera, in substitution for other maps which had been scrutinized in public hearings over the course of the summer (one round of hearings in June, followed by another round of public hearings on maps incorporating public comment and testimony throughout the month of August).  The maps voted out of commission and submitted to the court were not subjected to public comment or testimony, and in many cases contradicted the views expressed by individual citizens and county governments.

Since the maps failed to meet the criteria set forth in the Colorado Constitution, particularly the requirement to maintain county integrity where possible, the eleven challenges filed by county governments around the state were inevitable.

Clear The Bench Colorado had the most complete and accurate coverage of last week’s hearing by the court, and even predicted the outcome (down to the 4-2 margin of decision).

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

In a surprise move announced at the close of Thursday’s business day, Denver District Court Judge Robert Hyatt approved the Democrat “Moreno Map” for Colorado’s Congressional districts - “a blow to Colorado Republicans that could affect election outcomes for the next decade.”

On the macro (statewide) level, the most noticeable changes:

• 2nd Congressional District: adds Larimer County, southern Jefferson County, drops half of Eagle County
• 3rd Congressional District: adds Lake County, most of Eagle County; drops Las Animas and Otero counties
• 4th Congressional District: loses Larimer County (to 2nd), gains Las Animas and Otero counties (from 3rd) and Douglas & Elbert counties (from 6th) along with most (the non-urban areas) of Arapahoe and Adams counties
• 5th Congressional District: drops Lake County (to 3rd CD)

Moreno Map statewide

Some of the greatest changes were made to Denver metro-area districts:

• 1st Congressional District: picks up chunks of Arapahoe and Jefferson counties along the southern edge of the current district
• 6th Congressional District: loses Elbert County, Douglas County (except Highlands Ranch) and the non-urban majority of Adams and Arapahoe counties to 4th CD; gains all of Aurora, northern Adams County suburbs (from 7th CD)
• 7th Congressional District: loses all of Aurora & northern Denver-metro (Adams County) suburbs to 6th CD; gains parts of Jefferson County

Moreno Map metro magnified

(UPDATE: the Denver Post has created a “find your proposed district” application)

Judge Hyatt’s ruling relies heavily on the “competitiveness” trope advanced by the Democrat plaintiffs as a consistent theme in both legal arguments and in the public-relations “framing” of the case in the media and public discussions.
(H/T Law Week Colorado for posting the court’s ruling online)

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”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Nevertheless, despite the fact that the Colorado Supreme Court consistently critiqued the notion of “competitiveness” as a basis for legal rulings during hearings on state legislative district maps, Denver District Court Judge Hyatt repeatedly cited “competitiveness” as a basis for ruling in favor of the ‘Moreno Map’, based on party registration numbers, not voting performance:

Judge Hyatt also relied heavily on the “discretionary factors” facilitated by 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 issue of redistricting to the courts all along:

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

The 2010 legislative changes not only added “political” or “non-neutral” data to the list of factors which could be considered by the courts, but also removed legal guidance on prioritizing other factors, allowing the judge to pick and choose the remaining “discretionary” factors according to his personal preference - which he did:

Of the discretionary factors specifically listed in the statute, the court finds that no factor is more important than a district’s communities of interest. (Ruling at 43)

Why should the factor of “community of interest” - subject to shifting and subjective definition - trump any of the other more objective and quantifiable factors set forth in Colorado statute?

Statutory Criteria for Congressional Redistricting

Colorado law [C.R.S. 2-1-102(1)(b)] also sets forth a number of discretionary criteria that this Court may consider.  In Congressional redistricting litigation, a court:

May, without weight to any factor, utilize factors that include but (are) not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns.  When county, city or town boundaries are changed, adjustments, if any, in districts shall be preserved by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines

Judge Hyatt was also selective in choosing which testimony he cited to define “communities of interest”,  further moving the ruling from the realm of legal review based on consistent standards (rule of law) into the area of arbitrary decisions by a single individual (rule by caprice) - the very antithesis of “what makes a good judge.”

(Until court transcripts are available, Clear The Bench Colorado has the most comprehensive review and summary of the congressional redistricting trial arguments and testimony available).

Although the ultimate decision on Colorado’s Congressional District maps will be made by the Colorado Supreme Court (following the inevitable appeal), the district court’s decision has at a minimum framed the terms of the debate and set the conditions for the eventual outcome.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring - an outcome pursued by yesterday’s winners fully expecting a “friendly” set of judges.

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.

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.

The Colorado Supreme Court heard arguments in the case of eleven challenges to the state legislative district maps that were approved by the Colorado Reapportionment Commission and submitted for review in early October this morning in the Old Supreme Court Chambers at the Colorado Capitol.

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved - after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

• House Final Plan Maps & Reports
• Senate Final Plan Maps & Reports
• Maps by District (sets): (House District 1-20), (House District 21-40), (House District 41-60),  (House District 61-65), (Senate District 1-35)
• Google Earth maps (requires Google Earth download): Final Plan House (download zip file), Final Plan Senate (download zip file)

Although the specific examples varied somewhat, attorneys for the challengers (a variety of county government officials, from around the state) consistently cited the failure of the Commission maps to meet the constitutional criteria, particularly the requirement to maintain county integrity and allocate “whole” districts within counties Colorado Constitution Article V, Section 47(2), except as necessary to meet the equal population requirements of Colorado Constitution Article V, Section 46.

Some examples:

• Only 43 single-county districts were formed (out of 47 possible); of the 11 most populous counties, 4 lacked full representation “whole districts.”
• Colorado Springs, qualifying for 5.38 House seats, was instead split into 8 districts (the total number of districts for which El Paso County qualified as a whole), “fracturing” the city’s representation while failing to minimize municipal splits.
• Weld County qualified for 3.27 House districts, but was assigned only 2 “whole” districts
• Arapahoe County qualified for 3.98 senate districts but failed to receive 4 whole districts (while in 2002, the court rejected maps failing to assign 4 “whole” districts to Arapahoe when the county qualified for 3.87)
• Jefferson County, qualifying for 7 House districts, was assigned only 6 “whole” districts with the remaining 66,000 population placed into 2 ’split’ districts

Attorneys for the various parties also challenged the “ripple effects” of attempting to preserve a “community of interest” for Aurora and creating “competitive” districts forcing further county splits.  The concept of “competitiveness” was frequently criticized, as an “extra finger on the scale” that is “not defined in law or the Constitution” and therefore an “illegitimate non-constitutional criterion put ahead of [actual] constitutional criteria” (particularly Article V, Section 47(2), county integrity).

An additional objection raised against the commission’s maps was the last-minute nature of the introduction and approval of the final maps without any opportunity for public input and/or comment (the commission’s chair, Mario Carrera, introduced “his” maps on Wednesday September 14th before the commission vote on Monday September 19th) citing “competitiveness” as a primary objective.

The Commission’s attorney argued that although county integrity was a high priority, “other factors may be taken into consideration” at the “discretion” of the commission.  He argued that the commission’s “discretion” is sufficient to “allow a break with the mathematical requirement to grant “whole” districts to counties.  In particular, he stressed “implications” of the Voting Rights Act (VRA) as a U.S. constitutional requirement that “supercedes” Colorado state constitutional requirements, even absent a judicial finding or documented evidence that VRA violations had occurred.  (”Supposition” or “good-faith” inference of potential VRA violations was argued to be sufficient).

Several questions asked by the Colorado Supreme Court justices may have been the most interesting indicators of how the court might rule in the case (either accepting the maps as submitted, or remanding the maps back to the commission with instructions for remedying deficiencies).

• Chief Justice Bender asked only one question of note (Justice Rice asked none at all) - regarding the last-minute introduction & approval of the maps , without public comment.
  • (Answer: “no process mandated to require public testimony after maps adopted.”)
• Justice Eid followed up on that point - twice noting that the maps received “no public input” and the public was provided “no opportunity for comment”
  • (Answer: “no process called for,” “opportunity to comment throughout total process”)
• Justice Hobbs asked several questions about where ethnic “community of interest” criteria (Article V, Section 47(3)) fall in order of precedence in relation to other state and federal constitutional criteria (along with a number of short “definition”-type questions)
• Justice Coats asked several questions about the conditions under which some criteria might be set aside or supercede others - such as
  • Is “where it’s necessary” the only basis to break county integrity?
  • How do we construe the Constitution to allow the commission “discretion” to break county integrity?
  • Is it necessary to have a Voting Rights Act violation in order to split counties?
  • Is a violation of U.S. law necessary to trump the Colorado constitutional requirement for county integrity?  (Noting: “this seems to be fundamental”)
  • Is the commission able to not follow the Colorado Constitution if it ’suspects’ VRA violations?
  • Is there anything in prior decisions (esp. 1992) showing justification for splitting counties that did not have to be split?

Perhaps most interesting, from a court-watcher’s perspective (and because of the lack of prior rulings on which to rely for context) were the questions posed by Justice Marquez, the Colorado Supreme Court’s newest justice (the most-recently appointed justice, Brian Boatright, has not yet fully joined the court, and was absent from today’s hearings).  Justice Marquez asked several astute and penetrating questions, indicating on several occasions that she was “troubled” by the commission’s arguments:

• “What constitutes an adequate explanation” for violating county integrity?
• Where in that list [of constitutional criteria] does “competitiveness” play a role?
  • (Answer: Court is entitled to take into account other factors, including “competitiveness” - not arguing that it trumps other criteria)
    • (Marquez): “Competitiveness” can’t trump “less drastic” alternative
• Do other criteria trump county integrity “if Voting Rights Acts concerns are active?”
  • (Answer: Yes - understanding that this isn’t part of constitutional hierarchy - but the commission membership being “diverse” afforded more “insight”)
• Questioning the argument that Voting Rights Act concerns take priority (based on 1992 case precedent), Marquez noted that in 1992, those issues were “hotly contested” and that the commission was attempting to resolve disputed issues - but in 2011, “no such disputed issues” exist outside San Luis valley
  • Marquez noted “the only way the commission’s argument stands is if VRA issues exist in order to trump Article V, Section 47(2)” - without such violations, no legal grounds exist to trump that constitutional requirement”

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented (both orally today and in previous written statements by both sides), questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado Constitutional requirements (see below), Clear The Bench Colorado will hazard a guess on the outcome:

• CTBC predicts that the Colorado Supreme Court will not accept the Colorado Reapportionment Commission’s state legislative district maps as submitted, and will remand the maps back to the commission with instructions to remedy deficiencies (and will do so before Thanksgiving), most likely on a 4-2 vote.

Any takers?

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

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.

The Colorado Supreme Court has set a date (9 November 2011) to hear oral arguments in the case of eleven challenges to the constitutionality (filed predominantly by affected county governments) of the state legislative district maps filed by the Colorado Reapportionment Commission in early October for constitutional review by the Colorado Supreme Court (yes, these challenges… “go to eleven”).

(Hearings begin at 9AM in the Old Supreme Court courtroom, Colorado Capitol, 200 E. Colfax Avenue, Second Floor, Denver CO 80203)

UPDATE: Live audio streaming of the oral arguments also available online

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved - after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

• House Final Plan Maps & Reports
• Senate Final Plan Maps & Reports
• Maps by District (sets): (House District 1-20), (House District 21-40), (House District 41-60),  (House District 61-65), (Senate District 1-35)
• Google Earth maps (requires Google Earth download): Final Plan House (download zip file),Final Plan Senate (download zip file)

The Colorado Latino Forum - the sole group that had filed a brief in support of the approved maps, prior to the challenges - also filed a reply brief in response to challenges of the maps.

The Colorado Reapportionment Commission legal counsel filed a somewhat lengthier reply brief in response to the eleven challenges as well.

Ironically, the Colorado Supreme Court must now review the approved maps - and challenges to the approved maps - which are largely the sole creation of Colorado Reapportionment Commission Chair Mario Carrera, appointed to the commission by Colorado Supreme Court Chief Justice Michael Bender.  The court will essentially be reviewing the work product of its own appointee - a potential conflict of interest that in other circumstances might warrant recusal, and which highlights the problematic involvement of the courts in deciding issues of policy and politics.

Additional references:

• State Courts Reapportionment page
• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & legislative reapportionment)

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.

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)

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.

“These go to eleven…”

Unsurprisingly, the state legislative district maps filed by the Colorado Reapportionment Commission earlier this month for review of constitutionality by the Colorado Supreme Court have drawn a number of challenges based on constitutional shortcomings - as of press time, the challenges “go to eleven.”

Many of the challenges (from across the state) arose in response to the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved - after earlier maps had been subjected to multiple rounds of public comment and scrutiny (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout August, and a final commission meeting on 12 September.

• House Final Plan Maps & Reports
• Senate Final Plan Maps & Reports
• Maps by District (sets): (House District 1-20), (House District 21-40), (House District 41-60),  (House District 61-65), (Senate District 1-35)
• Google Earth maps (requires Google Earth download): Final Plan House (download zip file), Final Plan Senate (download zip file)

Ironically, the Colorado Supreme Court must now review the approved maps - and challenges to the approved maps - which are largely the sole creation of Colorado Reapportionment Commission Chair Mario Carrera, appointed to the commission by Colorado Supreme Court Chief Justice Michael Bender.  The court will essentially be reviewing the work product of its own appointee - a potential conflict of interest that in other circumstances might warrant recusal, and which highlights the problematic involvement of the courts in deciding issues of policy and politics.

The eleven challenges to the commission’s maps were filed from around the state:

• Statement of Opposition/Las Animas County Board of County Commissioners
• Statement of Opposition/Garfield County Board of County Commissioners
• Statement of Opposition of Montezuma County Clerk and Recorder - Carol Tullis
• Statement of Opposition of Southwest Colorado Citizens for a Constitutional Map and Club 20
• Statement of Opposition of The Board of County Commissioners of Weld County, Colorado
• Statement of Opposition Town of Superior et al
• Statement of Opposition of Jefferson County Board of County Commissioners
• Statement of Opposition of Arapahoe County, Colorado
• Statement of Opposition of Elbert County Board of Commissioners, et al.
• Statement of Opposition of Douglas County Board of County Commissioners
• Statement of Opposition of Colorado Citizens for Fair Representation

In contrast, only a single group (the Colorado Latino Forum, a special interest group which may have been involved with creating the chairman’s maps) filed a short brief in support of the final product, immediately after the commission filed the maps with the Colorado Supreme Court for review).

Justice Takes a Holiday?

In any event, the Colorado Supreme Court will have its hands full in the coming month (or more - the statutory deadline for completing review of legislative district maps is 14 December) reviewing not only the state legislative district maps and the eleven (and possibly counting) challenges to the maps for compliance with federal and state constitutional requirements, but also dealing with the inevitable legal challenges to the eventual outcome of the Congressional Redistricting trial in Denver District Court (set to end with closing arguments on Hallowe’en morning, 31 October).  Other court business must (by law) take a back seat to the resolution of these political issues.  Further complicating matters, both cases will ultimately be decided by a court including a new member to be appointed to the bench later this week (replacing outgoing Justice Alex Martinez, resigning to take a “city job” as Denver Manager of Safety effective 31 October).  Talk about a baptism of fire…

Additional references:

• State Courts Reapportionment page
• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & legislative reapportionment)

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.

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) submitted the final (approved) set of state legislative district maps for Colorado, having completed two rounds of hearing public testimony (meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout the month of August) and a final commission meeting on 12 September, to the Colorado Supreme Court for review of constitutionality, as required by law. (Read Court filing here)

The competing plans for put forward for consideration and public review by the major parties (Democrats and Republicans) over the summer were modified significantly based on public testimony, but were ultimately all rendered irrelevant by the eleventh-hour introduction of an entirely new set of maps by the commission’s sole unaffiliated member (and chair) Mario Carrera - the maps that were, in the end, approved.

• House Final Plan Maps & Reports
• Senate Final Plan Maps & Reports
• Maps by District (sets): (House District 1-20), (House District 21-40), (House District 41-60),  (House District 61-65), (Senate District 1-35)
• Google Earth maps (requires Google Earth download): Final Plan House (download zip file), Final Plan Senate (download zip file)

The Colorado Supreme Court is now required to review the approved maps for compliance with constitutional requirements.  Ironically, since the approved maps were drawn up almost entirely by Colorado Reapportionment Commission Chair Mario Carrera, who was appointed to the commission by Colorado Supreme Court Chief Justice Michael Bender, the court will essentially be reviewing the work product of its own appointee - a potential conflict of interest that in other circumstances might warrant recusal, and which highlights the problematic involvement of the courts in deciding issues of policy and politics.

The following quick-reference summary of constitutional provisions controlling how Colorado’s legislative districts are drawn is provided with a view towards informing public comprehension of what are sure to be both contentious and complex discussions.

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691, House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for district maps to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & legislative reapportionment)

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.