Almost three years ago, former state lawmaker Rob Witwer invited a few other “legislative has-beens” to meet him for lunch on the 16th Street Mall.
Witwer, ever the optimist, kicked around his ideas for fixing one of the longest-running, most-divisive battles in politics: the fight over political power itself. The downtown lawyer and father of four, who was introduced in his previous job under the dome as a Republican from Evergreen, chatted in a “wouldn’t-it-be-cool?” kind of way at the now-shuttered Katie Mullen’s Irish Pub.
For Witwer, the meeting was part of a career-long quest, a return to an issue he tried and failed to solve while still in the legislature — the clash over redistricting.
The lunch between two Republicans and two Democrats would stick in their minds as a key moment.
It laid the bedrock for an unprecedented confluence of opinion that would lead to two proposals on the ballot this November that could overhaul the way congressional and legislative district lines are drawn in Colorado. The once-a-decade map-drawing brings an all-out battle of partisanship that ends in bitterness and court rulings to settle the matter, as history shows.
“There are half a dozen issues the legislature deals with that are just fraught with politics. This is as high as you can get,” said Bernie Buescher, a former Democratic state representative and secretary of state who attended that lunch along with former house speakers Mark Ferrandino of Denver, a Democrat, and Frank McNulty of Highlands Ranch, a Republican.
Whichever party is in the majority has the advantage in the current system, and both sides have accused the other of backroom map-drawing to make each legislative and congressional district as politically self-advantageous as possible. The law stipulates that every district have the same number of people, so the boundary lines are redrawn after every decennial Census.
Problem is, partisan mapmakers will draw squiggly lines to scoop up apartment buildings, housing projects, wealthy enclaves or ethnic neighborhoods that can make a district more friendly to one party or the other. Even small cities are split through the middle in partisan maps. Denver can look like the spokes of a bicycle, either to pack Democrats into certain districts or dilute them across the city, depending on your viewpoint.
In recent history, Democrats have had the upper hand. And in three out of the last four redistricting cycles, a court has had to choose the maps because of deadlock. A national analysis by The Associated Press last year found Colorado was one of eight states where Democrats had the advantage in redistricting, based on a comparison of each party’s votes per district versus and seats won.
How the ballot measures would change redistricting
The proposals up for a vote this November — called Amendments Y and Z — would amend the Colorado Constitution to create a new process, one proponents say could become a model for the rest of the nation.
That Colorado came up with a plan that has the support of the right-leaning Independence Institute’s Jon Caldara and top Democratic donor Pat Stryker’s Bohemian Foundation is a rare story in current politics, and a glimpse at what happens when politicians try to do better than the national shouting match.
Amendment Y reforms the congressional redistricting process, while Z deals with districts for the state House and Senate.
Under current law, the state legislature draws congressional district lines. The commission to draw state House and Senate districts includes four people appointed by the legislature, three by the governor and four by the chief justice of the state Supreme Court. The political makeup of the 11-person panel depends on which party is in the governor’s office, and perhaps on whether a Democratic or Republican governor appointed the chief justice. Historically, it has included just one swing vote, a single member not affiliated with either party. A simple majority wins.
State lawmakers who helped draw the congressional boundary lines went on to run for Congress soon after, including Democrats Brandon Shaffer, Morgan Carroll and Sal Pace.
“It’s a bad process,” Witwer said. “It destroys goodwill. It elevates partisan power plays over genuine compromises that are made in the interest of the state. It drives you toward a winner and a loser endgame. That’s the problem.”
Under the new proposals, the commissions that would approve the maps would include four Republicans, four Democrats and four unaffiliated members. None could have served in office or run for office in the previous five years. Plus, they would need a supermajority to select a map, meaning eight out of the 12.
Nonpartisan legislative staff would draw the first version of the map, putting an end to the practice of Democrats and Republicans caucusing behind closed doors and presenting their own maps just ahead of the deadline, leading to accusations of “midnight gerrymandering.”
Community members could weigh in on the maps to point out any problems in the ways counties or regions were split. For example, a mountain community particularly concerned about the pine beetle epidemic could ask to stay in the same district. Suburbs whose politics don’t jibe with the city could make their pitch. The amendments would require at least three public hearings in each congressional district.
The legislature in May approved the proposals for the ballot. Unanimously. It was a feat even those involved in crafting them had not predicted.
Statehouse friends and political foes
That lunch meeting in 2015 had its roots in the statehouse, circa the mid-2000s.
The former lawmakers involved all spent time under the dome beginning around 2004. Republicans McNulty and Witwer weren’t often the political allies of Democrats Ferrandino and Buescher. Yet they liked each other, and after years of watching how each other worked, had a mutual trust.
Witwer and Buescher were known as moderates in their respective parties. McNulty and Ferrandino each served in the more partisan role of House speaker. McNulty, a conservative, and Ferrandino, the first openly gay house speaker in Colorado, became such good friends that their toddler daughters started having playdates.
Their friendship remains, despite that McNulty, as speaker in 2012, effectively shut down a bill to allow civil unions by banishing it to the House’s “kill committee,” State Affairs.
“Frank and I got along really well, and most people think that’s crazy given our history on civil unions,” Ferrandino said. Ferrandino was disappointed, but not surprised, because McNulty told him what he was about to do. “He and I were communicating. It was very honest.”
“The fact that we knew each other personally allowed us to trust each other.”
McNulty, who passed the speaker’s gavel to Ferrandino, said the same, noting that “when you are in the state legislature, you have to see members of the opposing party every day.”
While the four were at the statehouse, the wounds from the previous redistricting cycle were fresh. Buescher, elected in 2004, said many lawmakers who had been around for the restricting debacle remained bitter. Buescher’s town, Grand Junction, was split in two. The process was set up to “create really hard feelings and made it a challenge for some members of our legislature to work together at all,” he said.
In 2002, when the legislature failed to pick a map, the matter went to court. Republicans were accused of ramming through a redistricting plan in 2003 that would have given them an advantage in the next round of elections, and the Colorado Supreme Court later ruled that the Republican-supported redistricting plan was unconstitutional.
For years afterward, the late Ken Gordon, a Democrat and former Senate majority leader, was often trying to brainstorm over coffee with fellow lawmakers about ways to fix the process. In 2008, Gordon and Witwer teamed up to propose a bill that took a crack at a new policy. It died quickly.
In 2011, after Witwer was chosen for the panel that determined legislative boundary lines, he sent his fellow members on the Colorado Reapportionment Commission a letter asking “how we might do things differently.” Witwer asked them to consider copying Iowa, where the maps are drawn by staff, not warring politicians.
“We should direct commission staff to draw a map based on constitutional guidance, Colorado Supreme Court case law, and any other criteria we may agree upon by consensus,” Witwer wrote in May 2011. He asked the commission not to create a “Democratic map” or a “Republican map.”
Here’s how Witwer describes the response he got: “Crickets.”
By November of that year, the whole process went down in flames. Again.
In the end, Republicans accused Democrats of turning in their version of the map four days after the original deadline, just under the wire. The commission voted 6-5 to use the Democrats’ map. The battle moved to a courtroom, and a judge ruled in favor of the Democratic map submitted at trial.
“The Senate Democrats introduced their maps. We introduced our maps. The process still failed,” said McNulty, who was in the legislature from 2007 to 2015. “Part of the challenge was you had folks who had their eyes on running for Congress, and that played a significant role.”
Josh Penry, a Republican in the legislature from 2005 to 2011, said district boundaries that result in nearly every person in a district supporting one party means the lawmaker elected from that district has little choice but to represent the party at every turn. “It promotes dysfunction,” said Penry, who owns a political strategy and communications firm that is working on Congressman Mike Coffman’s re-election bid as well as campaigning for oil and gas interests.
Penry later joined the redistricting overhaul effort with his former legislative pals, whom he described as “a bunch of has-been legislators who saw the untoward effects of redistricting gone bad.”
“There is a bigger atmospheric thing at work here,” Penry said. “There are a lot of conservatives and progressives who do politics for a living and think it has gone too far.”
The group also looped in Kathleen Curry, a state representative from 2005 to 2011 who switched her affiliation from Democrat to unaffiliated in 2009. Witwer said they credit her with keeping unaffiliated voters “at the center of the conversation,” giving them equal say in drawing maps.
The game-changer. And a coming together of minds.
Their first run at amending the Colorado Constitution to change the redistricting process was a fail.
Soon after the 2015 lunch, the group of former lawmakers designed a redistricting proposal that would have created a commission of four Republicans, four Democrats and four members not affiliated with either major party. They got the support of former governors Dick Lamm and Bill Owens and a list of former fellow lawmakers.
For months, they emailed drafts and questions to each other. They met for coffee once or twice each week and hammered out the details at Starbucks, Ink and The Bardo Coffee House.
They attempted to get a measure on the ballot, but it was struck down in 2016 by the Colorado Supreme Court, which said it asked too many questions of voters in the same measure. It was a single measure that would have changed the legislative and congressional process.
“We got our lunch handed to us, and we regrouped,” Buescher recalled.
And here is where their proposal began capturing more attention — and more criticism.
Another side in the redistricting debate — a left-leaning group of some of the most powerful people in the Democratic Party — had stepped up to counter them.
In the press and in legal filings, the progressive group criticized the proposals from the bipartisan group of former lawmakers. Their main argument was that the measures from Witwer, Buescher and the rest would harm minority communities by weakening their interests during the redistricting process, stripping voting power from Latino and African-American communities. Crafters were accused of writing a racist proposal, and Buescher and Ferrandino, as Democrats, were taking heat from their party.
Working with the Democrats was the Colorado Democratic Party’s go-to lawyer, Mark Grueskin, known as one of the smartest and toughest election attorneys in the state. Grueskin’s group had reached out to Buescher and crew before to offer their thoughts, but mostly felt their suggestions were ignored.
In 2017, Witwer and friends submitted new proposals to the Secretary of State’s Office, this time breaking the matter into two questions. The progressive side challenged it in court, just as it had in 2016.
Buescher and Witwer called their group Fair Districts. Formed on the other side was People Not Politics.
Buescher, Witwer and the others got the League of Women Voters on their side, despite the claims that their proposal wasn’t fair to minorities.
And then a game-changer: DaVita chief executive and multimillionaire Kent Thiry invited them to meet with him. Thiry offered the financial support the campaign had so far lacked. The executive, who briefly considered running for governor unaffiliated with either party, gained some clout in the political scene a year earlier for helping pass Propositions 107 and 108, measures on the 2016 ballot that allowed unaffiliated voters to vote in primary elections.
“Everyone knew that we had the horsepower to get this on the ballot and the gravitas had increased,” Buescher said.
In November 2017, a conversation that would become key in linking the two sides occurred at a black-tie fundraiser for the Denver Art Museum held at the downtown Hyatt Regency.
Scott Martinez, who helped the Democrats draw their maps in 2001 and 2011, recognized Thiry and introduced himself. Martinez, former Denver city attorney and a government relations lawyer at Snell and Wilmer, told Thiry he’d like to talk to him about the “unintended consequences” of the ex-lawmakers’ proposal that Thiry was backing.
He was invited to meet with Thiry the next day, he said.
But then on Jan. 5, 2018, the progressive group filed its own ballot measures on redistricting to the Secretary of State’s Office.
Buescher read the opposing group’s proposal and liked most of what he saw. He dialed Martha Tierney, the attorney for the Colorado Democratic Party and linked to the other group. The basic principles were the same, and “they had done some things better than we had done, frankly,” Buescher said.
Just 11 days after the filing, Buescher met with Grueskin, author of the Democrats’ proposal.
And on Jan. 25, the groups met face to face for the first time — in a DaVita conference room. Buescher was elected by his group to speak first. There is a lot of distrust, he recalled saying, but also “a lot of common ground.”
Penry and McNulty were there to speak for the Republican Party. Grueskin, the Democrats’ closer, was in the room to speak for the Democratic Party.
“He’s a tough guy,” Penry said of Grueskin. “When he wants to fight you, you pretty well know he wants to fight you. But he was eager to work through the issues. There was no doubt he was in the room with the goal of getting an agreement.”
“Pure partisans are going to lose”
The plan that both sides agreed upon over the following weeks included bits from each side.
As the original four “has-been lawmakers” had wanted years ago, the measures say legislative staff — not politicians — will draw the first map. And in what otherwise would have been a deal-breaker for the progressive side, the measures restore minority voting power by removing language that could have packed minorities into their own districts instead of spreading them out for wider influence.
“Congratulations!,” Buescher texted Witwer in March, when both sides had agreed on language for the proposals. “Your idea is much closer to reality.”
Instead of gathering signatures to get the proposals on the ballot, the combined forces took it to the legislature. They sought meetings with House and Senate leadership, and the endorsements of current and former politicians.
The day the legislature made a unanimous decision to send the proposals to the ballot, Witwer kept thinking, “bipartisanship is not totally dead.”
Bigger than the story of a grand political compromise, though, is the case that this was an idea whose time had come, Witwer said. “Redistricting reform is so necessary that the idea has an energy all its own,” he said. “Sometimes good public policy is not obvious, and other times it’s right up in your face with a flashing neon sign. This is a reform that justifies itself.”
The proposals will appear on the Colorado ballot this November at a time when national politics has divided people to the point that “we’ve lost the idea that someone can have a different opinion and still be a good person,” former speaker Ferrandino said.
People are fed up with partisanship, and with politicians who are too far to the left or to the right. In that view of the future, both parties helped themselves by moving closer to the center, even if it’s just on a process that happens once every 10 years.
“We’re coming to an era where pure partisans are going to lose, and consensus builders are going to be the winners,” Democratic lawyer Martinez said.
This story was updated at 11:31 a.m. Sept. 21, 2018, to correct a reporting error. Bernie Buescher served in the Colorado House of Representatives.