Rob Witwer

Colorado Reapportionment Commission ‘Minority Report’ filed as challenge to legislative district maps in Colorado Supreme Court

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday (6 December).

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted mapsmaps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

UPDATE:

The “minority” commissioners on the Colorado Reapportionment Commission – denied a fair procedural hearing and opportunity to discuss changes, submit amendments, or even file a dissenting ‘Minority Report’ (per standard practice in past commissions) as part of the commission’s official resubmission of state legislative district maps – filed their ‘Minority Report’ as a separate legal challenge to the “official” commission maps just prior to the filing deadline yesterday.

The fact that the commission’s minority was actually forced by the Democrat majority (including officially unaffiliated chairman Mario Carrera) to file their Statement of Opposition to the re-submitted maps as a legal challenge highlights the procedurally deficient path by which the maps were rammed through the commission, as well as remaining constitutional deficiencies in the re-submitted maps:

The intentional actions of the six-member majority created an irrevocably flawed process that led to adoption of unconstitutional maps

The commissioners’ ‘Minority Report’ filing also presents alternate maps for both House and Senate that better meet constitutional criteria and non-constitutional factors, including:

  • fewer county splits
  • fewer city splits
  • better preservation of communities of interest
  • better “competitiveness” (as a whole, and by district)
  • avoiding incumbent same-district pairings
  • avoiding unconstitutional sequencing of senate district elections

As a remedy to both the procedural failings of the commission’s adoption of the re-submitted maps, and the constitutional deficiencies of the maps themselves, the ‘Minority Report’ challenge urges the Colorado Supreme Court to adopt the alternate maps submitted as the most appropriate and timely remedy – for which there is precedent (“In re Reapportionment 1982, 647 P.2d 209, 213 (Colo. 1982).”)

Because the Court is not presented with plans that are “each consistent with the constitutional requirements,” it is not faced with a choice between alternative, competing maps.  Instead, because it is left with only one set of maps consistent with the constitutional criteria, a set drawn by members of the Commission, it is appropriate for the Court to [order] adoption of those alternate maps.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the court would seem likely to order the adoption of the more constitutionally-consistent ‘Minority Report’ map over the ratification of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court.

In any event – we expect that the Colorado Supreme Court’s reply will not be long in waiting.

Additional references:

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.

Colorado Reapportionment Commission legislative district maps draw challenges, supporters before Colorado Supreme Court

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday.

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted mapsmaps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

Many of the same county and municipal governments that had challenged the commission’s previous maps did so again, on much the same grounds – emphasizing the repeated failure of the maps to meet the Colorado constitutional criteria of minimizing county and municipal splits, maintaining compact & contiguous districts, and preserving communities of interest. (Article V, Section 47)

Interestingly, a number of non-governmental special interest groups filed amicus curiae briefs in support of the commission’s maps – including representatives of the AFL-CIO, NARAL Pro-Choice Colorado, Planned Parenthood, Mi Familia Vota & “New Era Colorado” (a Boulder-based “progressive” group).

No county or city governments filed amicus curiae briefs in favor of the commission’s maps (one county, Garfield County, filed a “does not oppose” brief)

Briefs filed in Response to 12/5/11 Plan Resubmission (Opposing):

Briefs filed in Response to 12/5/11 Plan Resubmission (Does Not Oppose):

Briefs filed in Response to 12/5/11 Plan Resubmission (Supporting):

Once receiving written briefs, the Colorado Supreme Court would normally schedule oral arguments; however, due to the extremely constrained timeline (by statute, final state legislative district maps are due to the Secretary of State for certification no later than next Wednesday, 14 December), the court could conceivably issue a decision based on the written briefs alone as early as Friday (9 December) or even over the weekend, in order to allow time for any necessary adjustments.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

It would be absolutely inconsistent of a majority on the Colorado Supreme Court to approve the commission’s most recently resubmitted state legislative maps in light of these glaring constitutional deficiencies (not to mention the procedural farce by which these maps were rammed through the commission absent discussion, opportunity for amendments, public transparency, or even the inclusion of an official ‘Minority Report’ as has happened in the past).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court” may succeed in making history.

Additional references:

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.

Colorado Reapportionment Commission files new state legislative maps with Colorado Supreme Court; appeals on tight timeline

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) officially submitted state legislative district maps rammed through on a party-line vote last week (6-5, with technically unaffiliated Chairman Mario Carrera joining the commission’s other Democrats) to the Colorado Supreme Court for review late Monday.

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced filing deadlines for the inevitable legal challenges to the maps, proceeding this week on a very tight timeline (briefs are due to the court by this Thursday at 5PM):

Counsel and Parties to 11SA282 –  In Re Reapportionment of the Colorado General Assembly

The Reapportionment Commission has filed its Resubmitted Plan for Districts for the Senate and House of Representatives with the Court Today, December 5, 2011, in advance of the deadline set forth in the Court’s Order of November 15, 2011.

Accordingly, the Supreme Court has Ordered that the Simultaneous Briefs are now due from the Proponents and Objectors in this matter no later than Thursday, December 8, 2011 at 5:00 PM.  A copy of the order being mailed out today is attached for your perusal.

The court order was mailed out to each of the attorneys representing the eleven challenges to the commission’s previously submitted state legislative maps (the Colorado Supreme Court rejected the earlier maps and sent them back to the commission for a re-write).  Additional interested parties – either for or against the maps – may also “intervene” by filing briefs before the deadline as well.

Once receiving written briefs, the Colorado Supreme Court would normally schedule oral arguments; however, due to the extremely constrained timeline (by statute, final state legislative district maps are due to the Secretary of State for certification no later than next Wednesday, 14 December), the court could conceivably issue a decision based on the written briefs as early as Friday (9 December) or even over the weekend, in order to allow time for any necessary adjustments.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues – and one just-discovered “glitch” (“Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

It would be absolutely inconsistent of a majority on the Colorado Supreme Court to approve the commission’s most recently resubmitted state legislative maps in light of these glaring constitutional deficiencies (not to mention the procedural farce by which these maps were rammed through the commission absent discussion, opportunity for amendments, public transparency, or even the inclusion of an official ‘Minority Report’ as has happened in the past).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court” may succeed in making history.

Additional references:

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.

Colorado Reapportionment Commission rams through post-deadline Democrat maps, bars amendments or Minority Report

The Colorado Reapportionment Commission (charged with drawing our state legislative districts) rammed through a pair of Democrat-proposed maps for state legislative districts today on a party-line vote (6-5, with officially unaffiliated Chairman Mario Carrera joining the commission’s other Democrats).

Despite the fact that the maps, submitted at 10PM on Sunday before Monday’s 11AM meeting to discuss revised map proposals, were submitted after the commission’s self-imposed Wednesday deadline for new submissions, the commission also voted 6-5 to close debate and discussion, bar any amendments, and suppress a Minority Report including an alternative map that better met constitutional criteria (further reducing the number of city and county splits).

The commission process in these final days has been a sham.

The unseemly haste of the commission’s majority to ram through these highly partisan revised maps (introduced at the 11th hour, with no opportunity for public review or comment) in back-to-back meetings of the commission without discussion, debate, or opportunity for amendment is a shameful chapter in the decennial circus that has characterized the determination of Colorado’s state legislative district boundaries.

As Commissioner Rob Witwer noted, “we’re under obligation – in compliance with the state Constitution and the court order to at least consider a map with fewer county splits.”

Commissioner Gayle Berry (the commission’s lone Western Slope representative) noted that even with the short notice, she’d received “LOTS of input” from people on the Western Slope about the Fv1 House map – “and they are NOT happy” (particularly with the split of Gunnison County).

Commissioner Mario Nicolais was particularly scathing in his indictment of the Fv1 House map, and of the short-circuited process in moving quickly to a vote without allowing discussion or amendments:

This is a politically vindictive map – this places GOP leadership at risk [pairing incumbents]

You want to subvert our state constitution to a matter of procedure… You can roll your eyes at me again, if you wish (to Atencio), but this map is out there – we have seen it, as a commission.

The vote on the Senate maps also proceeded without alternatives, discussion, or debate – passing on a 6-5 party-line vote.

Commissioner Gayle Berry added the following comment to her vote:

Unlike the sentiment expressed earlier by my colleagues, I hope we ARE the 1st commission to be remanded twice. I have concerns about the constitutionality of this map, and my vote is No.

Finally, Commissioner Dolores Atencio introduced a motion to suppress the inclusion of a “Minority Report” with the commission’s submission of the maps to the Colorado Supreme Court for review.

Again, Commissioner Mario Nicolais was scathing in his reply:

I don’t understand why we want to limit what the Court sees; the Court can consider other maps.

If this is just a cover-up, I think you’re going to fail miserably.  Personally, I don’t think the Court will go on [the commission's rules of] procedure and gut the Constitution.

BOTTOM LINE:

The commission has all but guaranteed additional legal challenges to the maps approved in today’s narrow (and partisan) vote.  The commission’s attorneys will definitely require all of the intervening period (cited by Commissioner Atencio as additional justification for rushing the process) to prepare for written and oral arguments before the Colorado Supreme Court, which may take a dim view of the commission’s perversion of the court’s intent in remanding the commission’s map the previous time.

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey and the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and “calculated to antagonize the court” may succeed in making history.

Additional references:

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.

Contentious Colorado Reapportionment Commission meeting highlights partisan divide, post-deadline map submissions

Monday’s meeting of the Colorado Reapportionment Commission (charged with drawing our state legislative district boundaries) opened on a contentious note, with Commissioner Wellington Webb stating, “I don’t like the court’s ruling – I feel that it reduces the commission’s discretion” and failed to improve in tone until the meeting was summarily closed on a motion from Commissioner Dolores Atencio to end debate and bar any additional amendments or changes to the maps previously submitted (the motion passed 6-5, with (unaffiliated) Chairman Mario Carrera joining the 5 Democrat commissioners to overrule the 5 Republican commissioners who wanted to work out a potential compromise set of maps).

The meeting was also characterized by plenty of wrangling over process; the commission had earlier set a deadline of last Wednesday (23 November) for submission of new state legislative maps to the commission staff in order to ensure sufficient time for analysis (and posting on the commission’s website for public viewing).  However, the Democrat commissioners failed to submit and post their version of the maps until 10 PM Sunday evening (a mere 13 hours prior to the commission’s meeting on Monday).

Several commissioners took issue with the late submission of the map, decrying the failure to follow a public process and maintain the transparency established over a full summer schedule of public hearings (beginning with meetings in Denver from 31 May to 25 July, followed by meetings around the state throughout the month of August).

Commissioner Mario Nicolais was particularly incisive in his condemnation of the post-deadline submission of the maps, stating

I think the members who submitted those maps should just… absolutely be ashamed.
It bothers me most not because it’s cheating these commissioners, but because it’s cheating the people of Colorado… you’re cheating them of transparency, it’s unfair.

Commissioners also “cried foul” over the fact that the Democrat maps drew incumbent legislators into the same district.  Curiously, all of the incumbents drawn into the same district are Republicans, including House Majority Leader Amy Stephens, R-Monument paired with Rep. Marsha Looper, R-Calhan; and Senate Minority Leader Bill Cadman, in the same Colorado Springs district as Sen. Keith King. (Other “incumbent pairings” – all GOP – include Bradford/Scott, Sonnenberg/Becker and Nikkel/Delgrosso).

Commissioner Bob Loevy – who had previously argued for the preservation of “competitive” districts in Colorado Springs and had earlier carved out Democrat-leaning districts in that “most Republican of major Colorado cities” – was particularly critical of this aspect of the Democrat maps:

This plan appears to be calculated to antagonize the court… The plan seems to go out of its way to place incumbents in the same district – especially Republicans.

Although it appears likely that the late-submitted (post-deadline) map will be voted out of commission when it meets later today for a vote (beginning Tuesday 29 November 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) it remains to be seen if the issue of violating the ‘public’ process (24-hour notice for “adequate time for the Commission to consider”), disputes over interpretations of constitutional requirements for minimizing county and city splits, and lumping incumbent legislators into the same district will indeed “antagonize the court” into remanding the commission’s maps for an unprecedented second time.  [Ed. we consider it not unlikely, given the changing nature of the court]

UPDATE: WSYS posted video of the meeting (“Colorado Reapportionment Commission Shenanigans“)

The maps under consideration by the commission for a vote today (listed in order of submission) follows:

House Maps:

Senate Maps:

Additional references:

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.

Reapportionment Commission takes shape with Governor’s picks – but Colorado Supreme Court Chief Justice Michael Bender has last word with upcoming “final four” selections

The ongoing legislative battle over Congressional Redistricting remains the “hot” topic in the news – with an escalating “blame game” as to who “killed the bipartisan redistricting effort” and even disagreement on basic principles (“competitive” districts or communities of interest?).   Hint – only one of those is mandated by law – Colorado Constitution Article V, Section 47 Composition of Districts:

Composition of Districts.

(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.

(2) 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. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.

(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.

Garnering less media attention, but of equal and parallel importance for the composition of Colorado’s state legislative districts (contrary to confused coverage, a completely separate process), the state Reapportionment Commission today took further shape with the publication of Governor Hickenlooper’s three appointments to the commission.  As reported by State Bill Colorado,

They are former state legislator, Gayle A. Berry, a Republican from Grand Junction, from the 3rd Congressional District; former Mayor of Denver, Wellington Webb, a Democrat from Denver, from the 1st Congressional District; and Arnold Salazar, a Democrat from Alamosa, from the 3rd Congressional District.

Governor Hickenlooper’s press release announcing the appointments noted that “[m]y three appointments have committed themselves to creating more competitive districts, which should therefore create more competitive elections wherever possible” and ”expressed hope” that the sum of appointments from all three branches of government “would result in a commission with precise partisan balance.”  He expounded on this “hope” in an ‘open letter’ statement to Colorado Supreme Court Chief Justice Michael Bender, who will make (and announce) the ‘final four’ commission picks by May 5th:

“When the Chief Justice of the Colorado Supreme Court makes the final four appointments to this Commission, I hope he will make sure that there is a precise balance between Democrats and Republicans,” Hickenlooper said. “That means appointing at least one unaffiliated voter to the Commission.  Neither political party should have a majority in this process and we ought to encourage consensus on the Commission.”

However, it should be clear to all but the most naive observers that the “partisan balance” on the commission is mere window-dressing.  Hickenlooper’s “Republican” appointment to the commission, former Grand Junction legislator Gayle A. Berry (R- HD55) has worked for the past several years as a lobbyist – for Governor Ritter’s Energy Office, among others (click here for a list of her major clients).  The Western Slope’s “representation” on the commission  is rounded out by Arnold Salazar (yes, brother of Ken and John), the Executive Director of Colorado Health Partnerships, LLC and a member of Governor Ritter’s Blue Ribbon Commission on Healthcare Reform.

Further, although it is possible that Chief Justice Bender will honor the letter of Governor Hickenlooper’s request to round out the commission with apparent partisan balance and appoint an “unaffiliated” member, it is all but certain that the token “unaffiliated” commissioner will be an INDO at best (Independent in Name, Democrat in Orientation), if not an outright Democrat in unaffiliated clothing.  In fact, the leading candidate for the token “unaffiliated” slot is reportedly none other than former Gunnison Democrat legislator Kathleen Curry, according to the Denver Post:

Former state Rep. Kathleen Curry said she’s in the running for an appointment to a commission redrawing legislative boundaries.

“I applied and have been told by Justice Bender that I am being considered,” she said, in an email.

Republicans (and actual independents) may console themselves with what may appear to be a relatively close balance on the commission, but the reality is clear: once again, just like the last time around, Democrats will dominate the commission membership, with insurance picks provided courtesy of the Colorado Supreme Court.

On the bright side, the Republicans will be ably represented on the Reapportionment Commission by two of the sharpest and most knowledgeable minds available, thanks to inspired picks by both House leadership (Speaker Frank McNulty selected former Rep. Rob Witwer as his delegate) and Senate leadership (Senate Minority Leader Mike Kopp selected attorney Mario Nicolais as his delegate).  According to the Reapportionment Commission staff, “this is the first time that legislative leaders have not appointed serving legislators” to the commission; if so, the selections are a welcome break from tradition and demonstrate some fresh, “out-of-the-box” thinking.

Conversely, the Democrat selections are “politics as usual”: Senate President Brandon Shaffer selected ueber-partisan Senator Morgan Carroll (D-Aurora), and House Minority Leader Sal Pace picked Boulder Democrat Matt Jones (D-Boulder), who served on the 1991 Reapportionment Commission and also co-founded and co-chaired the Democratic House Majority Fund.

Unfortunately, we are once again witnessing in slow motion the erosion of our liberty – aided and abetted by the Colorado Supreme Court.

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.

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.

Redistricting versus Reapportionment – the confusion continues

As the battle over redistricting Colorado’s Congressional districts dominates the state’s political news this week, the general lack of knowledge about how district boundaries are determined (and the very different processes for deciding Congressional versus state legislative district boundaries) is striking.

The confusion is not restricted to the general populace alone (who might be excused for having better things to do with their time than research an esoteric process that occurs but once a decade), but – disturbingly – is shockingly common among many political “experts” and permeates many of the resources on which an interested observer might rely.

Many “resources” get it wrong (such as this April 15th BallotNews article which mixes up Colorado’s redistricting and reapportionment processes); the following is a well-referenced start at getting it right.

First, it is important to understand that there are two separate and distinct processes for determining legislative district boundaries in Colorado:

  • Redistricting – which refers to Congressional districts
  • Reapportionment – which refers to state legislative districts

The most publicly visible and contentious battles concern Congressional Redistricting – for which constitutional authority rests with the Colorado General Assembly (state legislature).  Under the Colorado Constitution (Article V, Section 44)

The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to this state by the congress of the United States for the election of one representative to congress from each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.

The Colorado General Assembly has until the end of the current legislative session (which must end by 11 May 2011) to enact legislation setting the new boundaries for the state’s Congressional districts; if the state legislature is unable to pass legislation through both chambers (the Republican-controlled House AND the Democrat-controlled Senate) during the regular session, a special session may be convened over the summer to make another attempt.

Once (if!) the legislature passes a redistricting bill, the governor may sign the bill into law – or veto the bill, sending it back to the state legislature.  Often the threat of a gubernatorial veto is sufficient to force a compromise on pending redistricting legislation (a tactic employed by former Governor Roy Romer in 1990, for example).

Finally, if and when the redistricting legislation is passed and signed into law, it must survive the inevitable legal challenges.  Each of the last several decades has seen the eventual Congressional redistricting map decided by the courts – following the 1980 and 1990 census in Federal court, and most recently (following the 2000 census) by the Colorado Supreme Court, when the court essentially ruled itself ‘part of the General Assembly’ (in the Salazar v. Davidson case) in order to usurp the legislature’s exclusive constitutional authority to “divide the state into congressional districts.”

Unfortunately, the state legislature expanded the opportunity for judicial mischief in 2010 with late-session legislation expanding the court’s discretion in considering “non-neutral factors” (such as party affiliation and voter demographics and trends) when reviewing redistricting plans – enacting the so-called “Mary-mandering” bill, which removed from state law several factors designed to ensure fair and impartial review by courts concerning legislative district boundaries.

State legislative district boundaries are determined by a completely different process – one in which the legislature has an extremely limited – almost inconsequential – role.  Following adoption of a ballot measure (Colorado Amendment 6 (1974), which was approved on November 5, 1974), the constitutional authority for drawing up state legislative districts was shifted from the legislature to a Reapportionment Commission with members appointed from each of the three branches of Colorado government.

Composition and timelines for the Reapportionment Commission are specified in Colorado Constitution Article V, Section 48, the key language of which follows:

The four legislative members shall be the speaker of the house of representatives, the minority leader of the house of representatives, and the majority and minority leaders of the senate, or the designee of any such officer to serve in his or her stead, which acceptance of service or designation shall be made no later than April 15 of the year following that in which the federal census is taken. The three executive members shall be appointed by the governor between April 15 and April 25 of such year, and the four judicial members shall be appointed by the chief justice of the Colorado supreme court between April 25 and May 5 of such year.

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.

Reapportionment Timeline:

  • 15 April 2011: legislative appointments to Reapportionment Commission due
  • 25 April 2011: gubernatorial appointments to Reapportionment Commission due
  • 5 May 2011: Chief Justice’s appointments to Reapportionment Commission due
  • 15 May 2011: Reapportionment Commission convenes
  • 5 September 2011: preliminary plan for reapportionment due (113 days after Commission convenes)
  • 11 September 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” Article V, Section 48, (1)(e)
  • 20 October 2011: due date for public hearings on reapportionment (“within 45 days of publication”)
  • October 2011: “the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination” no later than 123 days prior to the date established in statute for the event commencing the candidate selection process” (which will be March 2012)
  • 14 December 2012: due date for filing reapportionment plan with Secretary of State – IF the plan has been approved by the Colorado Supreme Court (“no later than ninety days prior to the date established in statute for the event commencing the candidate selection process”).

And that’s if everything proceeds according to plan…

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 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.

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.

Wisconsin Ground Zero for state supreme court elections as progressives pursue power by seizing control of judicial branch

The “Colorado Model” progressive “Blueprint” is being aggressively exported to other states…

An essential element of the “Colorado Model” used to facilitate a “progressive” takeover of our state was missed in the eponymous Weekly Standard article (The Colorado Model by Fred Barnes, July 2008) and the otherwise excellent (and highly readable) book, The Blueprint (by former Rep. Rob Witwer and former 9News Reporter Adam Schrager): the backstop (and occasional door-opener) provided by the progressive-left dominance of the Colorado Supreme Court.  Former Chief Justice Mary Mullarkey reliably advanced the progressive agenda, or blocked conservative or liberty-oriented policies and legislation, from her position on the high court.  Continued dominance of the court by her chosen successor, newly-elected Chief Justice Michael Bender, is carrying out much the same tradition.

Amateurs study tactics, professionals study logistics.” (Military aphorism, variously attributed)

Translating from the military vernacular to the political, “amateurs” focus on short-term electoral gains (transitory shifts in legislative majorities or changes in who holds political office) while “professionals” focus on building long-term institutional and philosophical shifts – and there are few institutions with more (and more enduring) power to impact public policy than the states’ highest courts.

In Colorado last year, the elections with the greatest and most long-lasting implications for the future of the state were not the votes for legislative or executive office, but the once-in-a-decade opportunity to hold an increasingly powerful and expansive judicial branch accountable to the public and to their sworn duty to uphold the Colorado Constitution and the rule of law.  Unfortunately, the bad guys won.

Many of the “leaders” on the center-right in Colorado have still failed to grasp this fact, and its implications (starting with continued domination of the Congressional redistricting and state-level legislative reapportionment process).  However, the ongoing battle (which will be decided in elections today) in Wisconsin over a single state supreme court seat shows that the powers-that-be in that state (on both sides) “get it” – and “the national implications of the contest are even greater,” according to a Newsmax article (‘Filthy, Dirty’ Tricks Alleged in Pivotal Wisconsin Election):

Prosser is part of the Wisconsin high court’s 4-to-3 conservative majority. The court ultimately is expected to rule on the legality of Walker’s efforts to rein in the power of public-sector unions.

So if Democrats and their union allies can push Kloppenburg over the top, they stand an excellent chance of blocking key reforms Republicans say are necessary to plug a $3.6 billion budget deficit without resorting to massive layoffs.

But the national implications of the contest are even greater. Most analysts say defeating Prosser will send an unmistakable signal that Republicans who stand up to the forces pushing for the continual expansion of big government may have to pay for it with their political careers.

With so much at stake – “[b]oth sides are describing Wisconsin as ground zero in the national battle over how to address the nation’s fiscal woes” – it should come as no surprise that resources (people – particularly national union organizers and cohorts – and money) are pouring in to the race:

Sources report that about $2.5 million already has been spent on the race, and projections are that expenditures on both sides could tally more than $5 million when the smoke finally clears.

By comparison, costs in a normal election cycle for a state Supreme Court race in Wisconsin probably would amount to less than $400,000.

Sad (and sobering) to think that a mere fraction of that amount could have changed a state supreme court majority for the better right here in Colorado.

However, even with a significant influx of money, the campaign against Colorado’s incumbent ‘unjust justices’ would have remained clean (if occasionally irreverent), in marked contrast to the “dirty tricks” and personal attacks that have characterized the Wisconsin state Supreme Court elections.  As noted in this BigGovernment article,

We all know Democrats and public unions plays dirty. That’s not the question. The question is only how dirty, and in their bid to get Kloppenburg on the court, they played it as dirty as anyone can — going so far as to exploit a victim of sexual abuse. Here’s a disgusting smear that’s been airing non-stop in Wisconsin for a week now:

The ad buy was for a full $3 million but immediately upon release the victim, Troy Merryfield, asked Kloppenburg to call for the ad to be taken down, calling it “offensive, inaccurate, and out of context.” Incredibly, Kloppenburg refused, and residents of my home state tell me that as of yesterday the smear was still airing ad nauseum on every channel.

Obviously disgusted with the Left shamelessly exploiting what was obviously as traumatic and painful an experience anyone can go through, Merryfield bravely took to the airwaves today with a devastating ad that Milwaukee talk radio host Charlie Sykes has learned is part of a massive buy:

The dueling TV ads are merely the most visible part of a dirty, high-stakes campaign by Wisconsin and national progressives to seize control of that state’s supreme court (as the Left has seized control of state supreme courts in Colorado and many other states in order to fortify or expand their hold on government power).  As another article (Prosser vs. Kloppenburg: Wisconsin Supreme Court battle royale) indicates, the organized Left is very much aware of what’s at stake – and the importance of judicial elections in Wisconsin, and in other states:

And unions are excited.  In fact, a letter sent out by the American Federation of Teachers states that: “a Kloppenburg victory will swing the balance to our side.  A vote for Prosser is a vote for Walker.  It’s time to ‘get even.’”

The battle lines are clear; and the fight is unrelenting.  Those who would use the courts to advance a partisan political agenda – instead of insisting that the courts maintain their proper role of defending the Constitution and the rule of law – are ruthless, well-organized, well-funded, and pervasive.  Although it is an uphill battle – they must be stopped.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado (and, working with allied groups, nationwide) 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.

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.

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