Carstens v. Lamm

• Decision Date: 28 January 1982
• Docket Number: Civ. A. No. 81-F-1713,81-F-1870.
• Citation: 543 F. Supp. 68
• Parties: Judith F. CARSTENS, Kim M. Rue, W. R. Bray, J. Robert Schafer, and Sherill R. Rochford, Plaintiffs, v. Richard D. LAMM, as Governor of the State of Colorado; J. D. McFarlane, as Attorney General of the State of Colorado; and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants. David T. GOENS, Janet Roberts, Jennie Sanchez, George Rosenberg, and Jean Galloway, Plaintiffs, v. Richard D. LAMM, as Governor of the State of Colorado, and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

543 F. Supp. 68

Judith F. CARSTENS, Kim M. Rue, W. R. Bray, J. Robert Schafer, and Sherill R. Rochford, Plaintiffs, v. Richard D. LAMM, as Governor of the State of Colorado; J. D. McFarlane, as Attorney General of the State of Colorado; and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants.

David T. GOENS, Janet Roberts, Jennie Sanchez, George Rosenberg, and Jean Galloway, Plaintiffs, v. Richard D. LAMM, as Governor of the State of Colorado, and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants.

Civ. A. Nos. 81-F-1713, 81-F-1870.

United States District Court, D. Colorado.

January 28, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Theodore S. Halaby, and Brian McConaty, Halaby & Bahr, Denver, Colo., for plaintiffs Judith F. Carstens, Kim M. Rue, W. R. Bray, J. Robert Schafer, and Sherill R. Rochford.

Edwin S. Kahn, and Stephen H. Kaplan, Kelly, Haglund, Garnsey, Kahn & Donnell, Denver, Colo., for plaintiffs David T. Goens, Janet Roberts, Jennie Sanchez, George Rosenberg, and Jean Galloway.

Deanna E. Hickman, Asst. Atty. Gen., Denver, Colo., for defendants Richard D. Lamm and J. D. McFarlane.

John L. Holm, Holm & Christensen, Denver, Colo., for defendant Mary Estill Buchanan.

Before McWILLIAMS, Circuit Judge, and FINESILVER and KANE, District Judges.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, District Judge:

In these consolidated cases, the Court is called upon to select a congressional redistricting plan for the State of Colorado. Following the tabulation of the 1980 decennial census, the Clerk of the United States House of Representatives informed the Governor of Colorado that the state, which currently has five representatives in Congress, was entitled to an additional congressional seat. Although the Governor and the General Assembly (sometimes referred to as the "State Legislature") made repeated attempts to develop an acceptable redistricting plan, both parties were unable to agree on the composition of the new districts. These suits were filed by several concerned citizens of Colorado in an effort to break the existing stalemate through judicial intervention.

After reviewing the testimony and evidence presented at trial, we conclude that the current congressional redistricting plan set forth in C.R.S. 1973 § 2-1-101 is unconstitutional. The Court is of the view, however, that none of the plans submitted to the Court during the course of this litigation fully comport with the objectives and criteria which we feel should be incorporated in a judicially approved redistricting plan. As a result, the Court has fashioned its own plan which satisfies the relevant legal criteria and incorporates the most desirable aspects of the plans presented to the Court.

I OVERVIEW OF THE LITIGATION

At the outset, we emphasize that "reapportionment is primarily a matter for legislative consideration and determination and that judicial relief becomes appropriate only when a legislature fails to reapportion to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354, 37 L.Ed.2d 335 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964)). The State Legislature fulfilled this responsibility ten years ago when the bill creating the current congressional districts was passed by both houses in the General Assembly and signed into law by the Governor. See C.R.S. 1973 § 2-1-101. At that time, there were 2,209,596 people residing within the borders of this state, and the ideal population¹ of each district was 441,919.

Over the past ten years, however, the population of Colorado has grown at a rapid pace. According to the most current 1980 census figures, the population has increased by almost 700,000 people and now stands at 2,889,735.² Since this growth rate was proportionally greater than the average overall growth of the nation, Colorado was assigned an additional congressional seat during the decennial reapportionment³ of the House of Representatives.

Under the provisions of both federal and state law, the primary responsibility for drawing new congressional districts lies with the State Legislature, subject to the approval of the Governor. 2 U.S.C. § 2c (1979)⁴; Colo.Const. art. V, § 44 (1973)⁵. Shortly after the Clerk of the House of Representatives issued the reapportionment mandate, the Governor and the General Assembly began to consider various methods of approaching the task of redistricting.⁶ By July 6, 1981, the first proposed plan, designated "H.B. 1615"⁷, had passed both houses of the General Assembly. The Governor promptly vetoed the bill and sent the matter back to the Legislature for further study. His veto message urged the General Assembly to set aside partisan political considerations and develop a "fairer and more responsible plan for congressional redistricting." Exhibit 27a, Governor's Veto Message of H.B. 1615 dated June 12, 1981.

In response to the Governor's veto message, the Executive Committee of the State Legislative Council appointed an Interim Committee on Congressional Redistricting to review new proposals and make recommendations to the General Assembly⁸. After several days of meetings in early July, the Committee referred five plans to the General Assembly. Although the Governor notified the Legislature in advance that none of these plans was acceptable, one plan, designated "H.B. 1618"⁹, was subsequently passed by both the State House of Representatives and Senate. The Governor vetoed the bill immediately upon receipt. He criticized the General Assembly for creating a highly partisan plan which would split the home counties of three incumbent Democratic representatives while giving "safe" districts to two incumbent Republicans. In addition to the political problems, the Governor noted that the plan "needlessly split select counties and failed to respect important communities of interest." He urged the General Assembly to work together toward an acceptable compromise for the citizens of Colorado. Exhibit 27b, Governor's Veto Message of H.B. 1618 dated July 17, 1981.

The matter was sent back to the Legislature's Interim Committee on Congressional Redistricting which met for several days in August. The Committee reviewed a large number of proposals and ultimately selected three plans for referral to the entire Legislature. Despite warnings from the Governor that he could not approve any of the plans recommended by the Committee, the Legislature reconvened and passed a third plan, designated "H.B. 1624"¹⁰, on September 22, 1981. Rather than veto the bill immediately, the Governor announced his intention to refrain from taking any action on the measure for ten days to allow for the possibility of a compromise.

Before any serious negotiations could begin, however, the first of these consolidated lawsuits, Civil Action No. 81-F-1713, was filed with the Court. The plaintiffs, Judith F. Carstens, Kim M. Rue, W. R. Bray, J. Robert Schafer and Sherill R. Rochford, are residents of each of the five current congressional districts. Their complaint seeks declaratory and injunctive relief against Governor Richard D. Lamm and Secretary of State Mary Estill Buchanan.¹¹ Specifically, plaintiffs (hereinafter referred to as the "Carstens plaintiffs") make three requests of this Court:

(1) to rule that C.R.S. 1973 § 2-1-101 is unconstitutional because it provides for only five congressional districts instead of the six districts mandated by the 1980 apportionment of the House of Representatives;

(2) to enjoin defendants from conducting either the primary or general congressional election for 1982 until Colorado is lawfully divided into six congressional districts; and

(3) to accept H.B. 1624, the most recent plan adopted by the Legislature, as the redistricting plan for Colorado in the event that the Governor and the Legislature could not agree on a compromise proposal in a timely manner.

Even the possibility of judicial intervention in the redistricting matter could not prompt the parties to reach an accord. On October 8, 1981, the Governor's ten-day grace period expired and he vetoed H.B. 1624. For the first time, however, the Governor's veto message not only included a critique of the rejected plan but also put forth a counter-proposal.¹² Exhibit 27c, Governor's Veto Message of H.B. 1624 dated October 8, 1981. The Governor subsequently met with leaders of the State Legislature to discuss the merits of his plan and the prospects for resolving the matter without judicial assistance.

In the meantime, several concerned citizens filed a second lawsuit on October 23, 1981. The new plaintiffs, David T. Goens, Janet Roberts, Jennie Sanchez, George Rosenberg and Jean Galloway (hereinafter referred to as the "Goens plaintiffs") are also residents of each of the five current congressional districts. Their complaint similarly requests this Court to enjoin the defendants, Governor Richard D. Lamm and Secretary of State Mary Estill Buchanan from conducting the primary or general congressional elections until a new redistricting plan has been adopted. In the absence of a compromise by the parties, the Goens plaintiffs asked the Court to adopt a plan which satisfied the following seven requirements: (1) population equality; (2) absence of racial discrimination and non-dilution of minority votes; (3) compactness; (4) contiguity; (5) preservation of county lines; (6) preservation of municipal boundaries; and (7) preservation of communities of interest. The Goens plaintiffs also urged the Court to adopt their proposed plan¹³ which complied with the seven stated criteria or, in the alternative, to implement provisions of 2 U.S.C. § 2a(c)(2) (1979). Under this federal statute, the state would elect the "additional Representative ... from the state at large and the other...