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Opinion Columns

Armstrong: Amendments Y and Z discriminate against members of Colorado’s minor parties

Gerrymandering undermines democratic institutions. Unfortunately, the Colorado ballot measures intended to fix the problem, Amendments Y and Z, however well-intentioned, are the wrong solution.

The measures blatantly discriminate against members of minor parties — 58,219 active voters as of last count — by excluding them from participating in proposed redistricting commissions. Such discrimination is wrong, unnecessary, and an affront to the moral-legal principle that all people should be treated equally under the law. As bad as gerrymandering is, legal discrimination is worse.

Thankfully, Amendments Y and Z are not the only possible ways to fix the redistricting problems that have plagued our politics for decades. If voters reject Y and Z, or if minor-party members successfully sue to block the measures, we have an opportunity to pass better-drafted reforms in 2020, in time for 2021 redistricting.

Gerrymandering is the despicable practice of drawing boundaries of political representation to advantage one party over another. The result is that one party has disproportionate influence over a legislative body relative to the size of its membership. Typically gerrymandered districts look ridiculous on the map as they slice up communities in bizarre ways.

Amendments Y and Z seek to fix the problems of gerrymandering and hyper-partisan redistricting fights. Amendment Y covers congressional redistricting, which will be especially important given that Colorado is projected to add a congressional seat after 2020. As Legislative Council’s Blue Book reviews, the current redistricting “process has resulted in court action the last four times congressional redistricting has occurred.” A 2011 Denver Post article describes aspects of those battles. The Blue Book continues, “Amendment Y transfers the authority to draw congressional district maps from the state legislature to a newly created Independent Congressional Redistricting Commission.” Amendment Z replaces the current commission charged with drawing state legislative lines with a new commission.

A key detail is that the new commissions each would have 12 members, four from each major party and four unaffiliated voters. The idea is that, by keeping the Republicans and Democrats balanced and by giving unaffiliated voters an equal voice, the end result will be maps that break free of partisan scheming.

I have no problem with 12-person commissions. The problem is that the commissions as proposed exclude members of minor parties. That’s just wrong. (According to Corey Hutchins of the Colorado Independent, draft language of Y and Z did not exclude minor parties, but the final language did.)

There’s no reason those involved with the Libertarian, American Constitution, Green, or Unity parties should be excluded from the commissions. Indeed, members of Colorado’s minor parties would have a compelling Fourteenth Amendment claim that Y and Z deny them “equal protection of the laws.” In an important way, the measures turn members of minor parties into second-class citizens.

Wayne Harlos, chair of the Libertarian Party of Colorado, said his “board feels that third parties have been excluded intentionally.” Doug Aden of the American Constitution Party of Colorado and Andrea Mérida of the Green Party of Colorado said that, although their parties had not taken legal action on the measures, they were open to working with other minor parties to pursue such action.

I communicated with two representatives of Fair Maps Colorado (the main group supporting Y and Z), Kate Roberts and Josh Penry. Between them, they offered four main responses to my complaint that the measures are discriminatory. I’ll summarize and reply to each argument.

1. The proposed commissions exclude less than 2 percent of the population.

Legal discrimination is wrong whether it applies to a single person, a minority, or a majority. Mormons, Jews, Muslims, Buddhists, and Hindus each comprise 2 percent or less of Colorado’s population — yet no one thinks it would be morally or legally acceptable to exclude them from participating in the redistricting commissions. Excluding minor-party members is just as arbitrary and just as wrong.

Besides, it is impossible to predict future registration trends — especially if such reforms as approval voting (which I favor) are passed. Even if minor-party registrations grew dramatically, those people would be excluded. Only if a now-minor party became one of the largest two major parties could its members participate — and then members of the demoted party would be excluded. Sure, as Penry told me, voters could amend the state constitution again if conditions changed, but, as a practical matter, if Amendments Y and Z pass, those rules will be very difficult to change, regardless of how poorly they reflect the makeup of Colorado’s electorate.

2. Amendments Y and Z would dramatically expand the number of people who can participate in redistricting.

This point is true as far as it goes. At least unaffiliated voters — who currently lead in voter registrations — would have a serious voice in the redistricting process. And, as Roberts told me, “‘Participation’ is not limited to commission membership. Amendments Y and Z significantly expand the role for any member of the public to participate.”

The difference is that the current system excludes many voters by default, simply by giving the two major parties control over the process. Amendments Y and Z entrench discrimination as a matter of law. Even if Y and Z are less discriminatory in effect than the status quo, discrimination is still wrong.

3. Some minor-party members support Y and Z.

I do not doubt that this is true. But it is irrelevant. To adapt the previous example, even if some Buddhists supported a hypothetical measure that excluded Buddhists from the redistricting commissions, that wouldn’t change the fact that discrimination against Buddhists is wrong. The same goes for minor parties.

4. If minor-party members were allowed onto the commissions, they might align with major-party members and undermine the process.

Obviously it’s theoretically possible that members of minor parties, if allowed onto the commissions, might align with members of a major party. For example, members of the American Constitution or Libertarian parties might have more in common with Republicans, while members of the Green Party might have more in common with Democrats.

But so what? It’s also theoretically possible that unaffiliated voters on the commissions might align with one party or the other. There’s not much reason to think that minor-party members might be more prone than unaffiliated voters to this. Many unaffiliated voters are nevertheless closely aligned with one party or another, and the alignment between certain minor and major parties typically is overstated. For example, Libertarians may align with Republicans on guns and taxes, but they often align with Democrats on the drug war, criminal justice, and civil rights. Anyway, even if two people on a commission align politically, they’ll probably still work toward the larger goal of drawing a fair map.

Even if a minor-party member managed to get on a commission (if it were allowed), given their few numbers, the rules of Y and Z protect against improper collusion. The commissions work by supermajority; eight of 12 members must agree to pass a map. Participants must have been registered the same way for “the last five consecutive years.” And in the extraordinarily unlikely event of a conspiracy to pack the commissions, anyone caught conspiring would be eliminated from consideration.

There just is no real problem with letting minor-party members onto the commissions. And, even if there were some slight potential problem, that would not justify the discrimination of Y and Z.

To my mind, the obvious way to redraft the language of Y and Z is simply to allow members of minor parties to join unaffiliated voters in vying for the four non-major-party slots. A more complicated rewrite would start with the evenly split commissions but allow for possible future changes in party makeup. For example, if someday the two largest parties attract less than half of voters and other parties grow larger, it would not make sense to give the two largest parties eight of the 12 seats. Thankfully, if Y and Z fail, their drafters will have two more years to get the details right.

I sincerely appreciate the efforts of the many people behind Y and Z. Their goals are admirable. And I realize how disheartening it would be to them to lose the fight to pass reforms this year. But, in the end, no amount of good intentions can justify the legal discrimination that Y and Z would write into our state constitution.

Ari Armstrong (@ariarmstrong) publishes the Colorado Freedom Report and is the author of Reclaiming Liberalism.