The Colorado Supreme Court on Tuesday rejected an effort by the General Assembly to make changes to this year’s consequential legislative and congressional redistricting process, ruling that it would be unconstitutional for state lawmakers to get involved.
Legislative leaders introduced a measure, Senate Bill 247, that would have allowed the commissions to use preliminary U.S. Census Bureau data to start their work, among other changes to the map-drawing process. That effort was supported by the governor, attorney general and secretary of state.
The legislation came in response to a monthslong delay in Colorado receiving final population data needed to finish the maps, threatening to derail the deadlines mandated in Amendments Y and Z, the constitutional amendments approved by voters in 2018 to establish Colorado’s independent congressional and legislative redistricting commissions.
It would be unconstitutional for lawmakers to become involved in a process that voters have removed them from, a majority of justices found, and “attempts to direct the actions of the commissions and their nonpartisan staff … would be unconstitutional if enacted.”
But the Supreme Court also ruled, in a 5-2 decision Tuesday, that Amendments Y and Z don’t require “exclusive use” of final census data, and the commissions are “free to consult other reliable sources of population data.”
The redistricting commissions have already voted themselves to move forward with the use of preliminary data. After the court’s opinion was released Tuesday, the commissions released new deadlines, with plans to finish drawing preliminary maps by June 23rd for the Congressional Redistricting Commission and June 28th for the Legislative Redistricting Commission.
“The Colorado Supreme Court affirmed that the independent commissions are just that– independent,” said Carlos Perez, chair of the Legislative Redistricting Commission and an unaffiliated voter from Colorado Springs, in a statement Tuesday.
The commissions would hold joint public hearings on the preliminary maps from July 7 through August 30. Once the U.S. Census Bureau releases additional data on August 16, staff would begin preparing that data and staff maps.
Public hearings on staff maps, based on final census data, would be held throughout September, and the commissions plan to complete the redistricting process by the end of the year.
Senate Bill 247 also sought to make other changes to the redistricting process, including requiring an additional public hearing on map drawing to be held after the commissions update their plans using final census data. Lawmakers also sought to direct courts on what legal standard they should use if a party sues to challenge the final redistricting plans.
The court also rejected those proposed changes.
Majority Leader Rep. Daneya Esgar, a Pueblo Democrat, said in a statement that General Assembly’s bipartisan bill was aimed at allowing the commissions to more forward with preliminary census data and avoid disruptions.
“The Court in its ruling today allowed the commission to use preliminary data and the process the General Assembly suggested. It’s now up to the commission to decide how to proceed,” Esgar said.
Fred Yarger, an attorney for the commissions, argued before the Supreme Court last month that allowing the General Assembly to get involved in the redistricting process at all threatens to erode the commissions’ independence.
The Colorado Supreme Court agreed with Yarger’s argument.
Amendments Y and Z already give commissions and their staff “sole constitutional authority” over key tasks of the redistricting process, the court’s opinion said on Tuesday.
“But however benign the General Assembly’s motives may be, upholding the General Assembly’s incursion into the domains of both the independent redistricting commissions and the judiciary here would set a troubling precedent and run contrary to voter intent in enacting Amendments Y and Z as well as our constitutional system of separation of powers,” according to the opinion.
Justices William W. Hood III and Richard L. Gabriel dissented.
Hood disagreed with the interpretation that lawmakers can only get involved in redistricting where the state constitution explicitly allows.
“Rather than focusing on the General Assembly’s broad plenary authority to legislate, which requires us to presume that the legislature can act unless the constitution explicitly says that it cannot, the majority limits the General Assembly to only that which the Amendments expressly permit,” Hood wrote in his dissenting opinion. “This is new ground.”
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