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Members of the public make remarks during a redistricting meeting on Tuesday, August 24, 2021, at the Eagle Pointe Recreation Center in Commerce City. The Colorado Independent Congressional and Legislative Redistricting Commissions draw Colorado's legislative districts for 2021. (Olivia Sun, The Colorado Sun)

A redistricting case out of North Carolina that went before the U.S. Supreme Court last week for oral arguments is threatening to upend Colorado’s new, voter-approved system of drawing congressional district boundaries.

The North Carolina case — Moore v. Harper — hinges on the question of who has the ultimate authority when it comes to redistricting. Republican lawmakers in that state argue it’s the legislature, and that nothing — not a state’s constitution nor its judicial branch — can supersede that power.

The U.S. Supreme Court took up the case after the North Carolina Supreme Court earlier this year rejected the state legislature’s congressional map, which would have likely resulted in GOP control of 11 of the state’s 14 congressional districts, as being too partisan. The court instead enacted its own map, one aimed at splitting the districts evenly between Democrats and Republicans.

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GOP state lawmakers in North Carolina challenged the decisions in the U.S. Supreme Court, arguing what’s called the “independent state legislature” theory, which contends that only Congress and legislatures have the power to regulate federal elections. 

If justices side with the state lawmakers, Colorado’s congressional redistricting commission could simply be overruled by the legislature. The commission was created through the 2018 passage of Amendment Y, which was the product of bipartisan negotiation aimed at limiting politics and enhancing transparency in the highly charged map-drawing process.

“Certainly Colorado Amendment Y would be in peril if the North Carolina plaintiffs were to prevail,” said Scott Martinez, a Democratic campaign attorney who worked on Colorado’s redistricting processes in 2001 and 2011. “The legislature could draw or redraw districts as they see fit.”

Martinez thinks the legislature could also change Colorado’s congressional maps from election cycle to election cycle, as opposed to waiting every 10 years after each census.

“There is no limit on the word of the state legislature, according to the plaintiffs in this case,” Martinez said. “If the legislature is the ultimate authority, the legislature could redraw the districts on a whim and whenever the whims change.”

The ACLU warned the case could have far-reaching impacts if the court sides with the North Carolina state lawmakers. 

“State courts, governors, and redistricting commissions could also lose their power to invalidate, veto, or draw congressional maps,” the organization said on a webpage explaining the case’s implications. “And the effects could apply well beyond gerrymandering, including dramatically changing how federal elections are conducted and giving state legislatures broad, unchecked power to set otherwise-illegal election rules.”

Something similar is already playing out in Utah, where the Republican legislature and governor this year “ignored the recommendations of an independent commission and enacted their own U.S. House districts after the census,” according to The Associated Press. That decision is being challenged in court.

Any efforts by the legislature to toss out the work of Colorado’s redistricting commissions would surely draw blowback since Amendment Y and its companion, Amendment Z, which created an independent legislative redistricting commission, were widely approved by voters. 

Amendment Z wouldn’t be affected by the U.S. Supreme Court case out of North Carolina because the case only deals with federal elections.

Amanda Gonzalez, who worked on drafting Amendments Y and Z during her time leading the Colorado branch of Common Cause, the nonprofit pushing for a more accountable government, thinks Colorado voters sent a clear message when they passed the initiative in 2018. 

“They wanted to make sure politicians weren’t gerrymandering the state,” she said

Gonzalez is hopeful that if the GOP lawmakers in North Carolina prevail, Colorado’s state lawmakers won’t ignore the will of the people.

“I hope Colorado legislators would continue to do the right thing, even if they didn’t have to,” said Gonzalez, who ran successfully as a Democrat this year to be Jefferson County’s clerk and recorder. “We want to think that all politicians will do the right thing and will listen to the will of the people and do right by their constituents. We’ve seen in other states that’s not always the case.”

Gonzalez pointed out how some Democrats, who control the statehouse and the governor’s mansion, bemoaned Amendments Y and Z last year since they were in power but didn’t have oversight of the redistricting process as they would have before the amendments passed. Ultimately, however, Democrats expanded their majorities in the Colorado House and Senate this year under new legislative maps and kept their majority in the state’s eight-person congressional delegation.

Senate President Steve Fenberg, a Boulder Democrat and one of the architects of Amendments Y and Z, said the legislature won’t try to change the state’s congressional map as long as he’s in office. “That’s not going to happen,” he said. Fenberg’s term ends in January 2025.

Republicans don’t have a real shot at winning a majority in either chamber of Colorado’s state legislature until 2026.

The AP reported earlier this month that the U.S. Supreme Court’s justices, during nearly three hours of oral arguments, appeared to be leaning toward rejecting the arguments of the GOP state lawmakers in North Carolina. 

A ruling in the case is expected in the spring.

Jesse Paul

The Colorado Sun — jesse@coloradosun.com Desk: 720-432-2229 Jesse Paul is a political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is...