After months of hearings, debate and tedious district-tweaking, the first Colorado Independent Congressional Redistricting Commission has agreed upon a map to send to the state Supreme Court.
Now the legal battles begin.
With the submission of a new congressional map to the court Friday, and the state House and Senate maps set to follow in mid-October, it will be up to the Colorado Supreme Court to determine whether the maps drawn for the first time by independent commissions meet constitutional muster. The court could also send maps, with instructions for changes, back to the commissions.
And the court will undoubtedly field legal challenges from prospective candidates, political parties and advocacy groups.
Organizations including the Colorado Latino Leadership, Advocacy and Research Organization and Campaign Legal Center, a national nonprofit, have already said they plan to argue before the court that the new congressional map would dilute the influence of Latino voters.
On Wednesday, the day after the map was approved, CLLARO released a statement calling the final product an “incredibly disappointing outcome for Colorado Latinos, communities of interest, and Colorado voters as a whole.”
“We’ll have a more detailed explanation of our concerns when we file a brief with the Supreme Court,” CLLARO spokesman Curt Baker said.
The Colorado Democratic Party, meanwhile, is questioning how the congressional commission considered political competitiveness, the last of six criteria set out in Amendments Y and Z, the voter-approved provisions that created the two independent redistricting commissions.
The party is reviewing its legal options, spokesman David Pourshoushtari said.
The court’s involvement isn’t new in the redistricting process.
In the last four congressional redistricting cycles in Colorado, which happen every decade, courts ended up choosing the final maps. In 2001 and 2011, the most recent redistricting cycles, the congressional maps selected by the courts favored Democrats.
“There were 17 different parties to the litigation, and any member of the public — any parties — could submit maps,” Scott Martinez, a Democratic attorney, said about the 2011 congressional redistricting process.
Martinez drew the maps that were ultimately selected by the Supreme Court in both 2001 and 2011.
The court had a variety of options to choose from because political parties, advocacy groups and individuals submitted maps directly to the court.
This time around, it was the congressional commission’s job to vet map proposals from outside groups. The Supreme Court’s role now is to determine whether the map adopted Tuesday meets the criteria outlined in the state constitution and make sure the commission didn’t stray from those guidelines.
“The court is giving a thumbs up or thumbs down,” said Martinez, who isn’t being paid to represent any groups in this year’s redistricting process.
If the court rejects the map, they will send it back to the congressional commission with instructions for how it must change. And that’s where feedback and legal challenges from outside groups could also hold sway.
“Since this is the first time around, I will expect the court will have a great deal of latitude in how it evaluates the commission’s redistricting efforts,” said Bob Loevy, a retired political science professor at Colorado College and Republican member of the 2011 reapportionment commission that drew the current state House and Senate maps.
A new process under Amendments Y and Z
The independent commissions created by Amendments Y and Z set specific guidelines for how new maps should be drawn. The ballot measures also require open meetings and plenty of opportunity for public comment and interaction.
That’s different from many other states, said Yurij Rudensky, a lawyer with the New York-based Brennan Center for Justice’s democracy program.
“This isn’t a redistricting process where one party that’s in control of the state legislature met in back rooms with consultants and iterated on a gerrymander that advantages their candidates,” Rudensky said. “In that sort of instance, it’s much more understandable to want a court to come in and really interrogate how were the decisions made, what evidence was considered and to shed some light on the process.”
In past decades, the Colorado legislature tried to draw new congressional boundaries, but often failed to reach consensus.
Before Y and Z, a politically appointed commission drew new maps for Colorado’s state House and Senate districts. Approval required a simple majority of the 11-member commission, and the Supreme Court also had to approve the plans.
In 2011, the court returned the legislative plans it received because they split too many counties, said Jason Dunn, a lawyer who recently served as U.S. Attorney in Colorado. He represented a Republican nonprofit in challenging the original 2011 map.
This year, any person or group seeking court-mandated changes to a map or maps would have to prove the new independent commissions violated the constitutional guidelines.
“An ‘abuse of discretion’ standard is a pretty low standard,” Dunn said. “So the court will essentially review it to ensure it meets the constitutional requirements. And if it does, then my sense is the court will likely approve it.”
The state constitution requires that the new districts must, in order of importance:
- Have “equal population”
- Be contiguous
- Comply with the federal Voting Rights Act of 1965
- Preserve whole communities of interest and political subdivisions, including cities and counties
- Be reasonably compact
- Maximize the number of competitive districts
At least two advocacy groups say they plan to file objections claiming the new congressional map doesn’t meet state constitutional requirements to protect the voting power of racial and language minority groups.
The new 8th Congressional District, stretching from the northern Denver suburbs to Greeley, is nearly 39% Hispanic, while the 1st District in Denver is 28% Hispanic and the 3rd District in western and southern Colorado is nearly 26% Hispanic. The 6th District centered in Aurora is 22% Hispanic.
In a statement, CLLARO said the congressional map prioritized competitiveness over communities of interest made up of minority groups.
“This scenario was avoidable. CLLARO submitted two maps to the Commission that met all constitutional requirements without diluting minority votes, demonstrating alternatives to what was adopted,” the group said in a written statement.
The Colorado League of United Latin American Citizens and the Campaign Legal Center have also submitted multiple letters challenging draft maps drawn by nonpartisan staff and arguing the commission didn’t take into account requirements under the state constitution that give greater protections to voters in minority groups than under the federal Voting Rights Act.
Even if the new map draws a district with a high percentage of Hispanic residents, those voters are drawn into the same district as white voters who vote against Hispanic-preferred candidates, negating their impact.
“Our concern is that the chosen map violates the Colorado Constitution because it needlessly dilutes the electoral influence of Colorado’s Latino voters,” said Corey Goldstone, a spokesman for Campaign Legal Center, adding that the group plans to file a brief with the court by Oct. 8.
It’s difficult to tell how commissioners and nonpartisan staff made decisions about obligations to minority groups under federal and state law because those conversations were held in executive sessions, closed meetings where the commissions can receive legal advice or talk about potential litigation issues.
Amanda Gonzalez, executive director of Colorado Common Cause, said the congressional commission did not spend enough time studying the Voting Rights Act or conducting detailed analyses of race-based voting patterns.
While the Independent Legislative Redistricting Commission hired an outside expert to conduct analyses of areas where there may be “racially polarized voting” — where minority groups vote cohesively, and white voters vote as a bloc to defeat minority-preferred candidates — the congressional commission did not conduct such a study, according to nonpartisan staff.
Colorado Common Cause plans to meet Saturday to decide whether to file a legal challenge, Gonzales said.
“Our constitution intentionally goes further in protecting the rights of people that have been historically disenfranchised … and the commission spent a lot of time, both last night and throughout their process, talking about competitiveness,” said Gonzalez, noting that competitiveness is at the bottom of the commission’s constitutional priorities.
“We never heard that discussed, never recall seeing it on the agenda … we don’t have any indication that it was done in a robust way and we don’t have a public report,” Gonzalez said.
Competitiveness could also be a potential sticking point, though it’s ranked last among the criteria.
While Democrats may be complaining that the new congressional map favors Republicans, the Colorado Republican Party argues a draft of state House and Senate maps released earlier this month would give Democrats an advantage in the state legislature.
Loevy argues that the congressional map should have four competitive districts and four safe districts. The map before the Supreme Court has six safe seats — three for Democrats and three for Republicans — and two competitive seats, with one of those leaning Democratic.
“The constitutional amendment wasn’t sold to the public on ‘lets have more safe Democratic seats and more safe Republican seats,’ which is what this commission has come up with,” Loevy said.
Even if the state’s two major political parties aren’t happy, former Democratic Secretary of State Bernie Buescher said the congressional commission successfully steered an independent process for the first time, even if there were some bumps along the road.
“Members of the commission worked really, really hard and have taken their job seriously. And, not 100 percent, but to some extent have put party politics way in the back,” said Buescher. “I think we’re going to come up with probably the most fair maps that we’ve seen in Colorado in years.”
“One of the criticisms I’ve heard was, ‘these folks don’t understand politics.’ And, yeah, they don’t.”
That was the point of Amendments Y and Z, he said.
Final deadlines in December
The Supreme Court will accept briefs about the congressional map until Oct. 8. The court will then hear oral arguments at 1 p.m. on Oct. 12, and will issue a decision on whether to approve the map or send it back to the commission no later than Nov. 1.
The legislative commission, meanwhile, is still debating the details of the next state House and Senate maps drafts, which will be released on Oct. 5. The panel currently plans to vote on final maps Oct. 12 and submit those plans to the court by Oct. 15.
Once the plans are submitted, the court will accept briefs on the state House and Senate maps until Oct. 22 and hear oral arguments at 1 p.m. Oct. 25.
The court will issue an opinion on the legislative maps no later than Nov. 15.
If the court rejects a map or maps, the commissions will have 12 days to hold a public hearing and come up with a plan that meets the courts objections. If the commission can’t agree on such a plan, the nonpartisan staff would have three more days to draw a map that would address the court’s objections.
A final congressional map must be approved by the court by Dec. 15. Final legislative maps must be approved by the court by Dec. 29.