In re Colo. Indep. Cong. Redistricting Comm'n

• Decision Date: 01 November 2021
• Docket Number: 21SA208
• Citation: 2021 CO 73
• Parties: In Re Petitioner: Colorado Independent Congressional Redistricting Commission.
• Court: Colorado Supreme Court

2021 CO 73

In Re Petitioner: Colorado Independent Congressional Redistricting Commission.

No. 21SA208

Supreme Court of Colorado, En Banc

November 1, 2021

Original Proceeding Pursuant to Article V, Section 44.5 of the Constitution of the State of Colorado

Attorneys for Petitioner:

Wheeler Trigg O'Donnell LLP

Frederick R. Yarger

Meghan Frei Berglind

Denver, Colorado

Achieve Law Group

Jerome A. DeHerrera

Denver, Colorado

Troutman Pepper

Misha Tseytlin

Chicago, Illinois

Attorneys for the Colorado Secretary of State:

Philip J. Weiser, Attorney General

LeeAnn Morrill, First Assistant Attorney General

Grant T. Sullivan, Assistant Solicitor General

1

Peter G. Baumann, Campaign Finance Enforcement Fellow

Denver, Colorado

Attorneys for Proponents The Colorado Multi-Ethnic Coalition and The

Hispanic Churches of the Central District/Distrito Central of the Assemblies

of God in Northern Colorado:

Faegre Drinker Biddle & Reath

Doug Benevento

Rebecca A.R. Smith

Alexandra K. Benton

Denver, Colorado

Attorneys for Proponent Douglas County Board of County Commissioners:

Robert McGuire Law Firm

Robert A. McGuire, III

Denver, Colorado

Attorneys for Proponents Summit County and the Town of Breckenridge:

Squire Patton Boggs (US) LLP

Keith Bradley

ScheLeese Goudy

Samuel Ballingrud

Denver, Colorado

Attorneys for Opposer All on the Line-Colorado:

Covington & Burling LLP

Shankar Duraiswamy

Sarah Suwanda

Washington, District of Columbia

Mendoza Marquez Law Office

Marcela A. Mendoza

Denver, Colorado

Attorney for Opposer Colorado Common Cause:

Amanda M. Gonzalez

Denver, Colorado

2

Attorneys for Opposer Colorado Latino Leadership, Advocacy & Research

Organization:

Messner Reeves LLP

Kendra N. Beckwith

Bruce A. Montoya

Darren D. Alberti

Benjamin J. Brittain

Denver, Colorado

Attorneys for Opposer Democratic Congressional Campaign Committee:

Holland & Hart LLP

Christopher M. Jackson

Jessica J. Smith

Denver, Colorado

Attorneys for Opposer Eagle County:

Bryan R. Treu, County Attorney

Christina C. Hooper, Senior Assistant County Attorney

Eagle, Colorado

Attorneys for Opposer Fair Lines Colorado:

Recht Kornfeld, P.C.

Mark G. Grueskin

Denver, Colorado

Attorneys for Opposer Jerry M. Natividad:

Westfall Law, LLC

Richard A. Westfall

Denver, Colorado

Attorneys for Opposers League of United Latin American Citizens and

Colorado League of United Latin American Citizens:

Eric Maxfield Law, LLC

Eric Maxfield

Boulder, Colorado

Campaign Legal Center

Mark P. Gaber

Washington, District of Columbia

3

Attorneys for Opposer Paul D. Lopez, Clerk and Recorder, City and County of Denver:

Kristin M. Bronson, Denver City Attorney

Troy Bratton, Assistant City Attorney

Laurie J. Heydman, Assistant City Attorney

Paige A. Arrants, Assistant City Attorney

Denver, Colorado

Attorney for Opposer William Thiebaut:

Clark Williams & Matsunaka, LLC

Stanley T. Matsunaka

Loveland, Colorado

OPINION

MÁRQUEZ, JUSTICE

4

¶1 In this original proceeding, we review the final congressional redistricting plan (the "Plan") adopted by the Colorado Independent Congressional Redistricting Commission (the "Commission"), pursuant to our obligation under article V, section 44.5 of the Colorado Constitution. We conclude that the Commission did not abuse its discretion in applying the criteria in article V, section 44.3 in adopting the Plan on the record before it. We therefore approve the Plan for Colorado's congressional districts for the ensuing decade, and we order the Commission to file the Plan with the Colorado Secretary of State no later than December 15, 2021, as required by article V, section 44.5(5).

I. Background

A. Previous Redistricting in Colorado

¶2 The congressional redistricting process in Colorado "has had a checkered history," People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1225 (Colo. 2003), and in recent decades has resulted in a "tumultuous, politically fraught, and notoriously litigious affair," In re Interrogatories on Senate Bill 21-247 Submitted by Colo. Gen. Assembly, 2021 CO 37, ¶ 1, 488 P.3d 1008, 1010; see also id. at ¶ 1 n.1, 488 P.3d at 1010 n.1 (listing cases). Historically, the state constitution vested the General Assembly with the authority to draw the boundaries of Colorado's congressional districts. See Colo. Const. art. V, § 44 (1876) ("When a new apportionment shall be made by Congress the General Assembly shall divide the State into Congressional

5

Districts accordingly."); id. § 44 (2017) (directing the General Assembly to "divide the state into as many congressional districts as there are representatives in congress apportioned to this state by the congress of the United States for the election of one representative to congress from each district"). However, during three of the last four congressional redistricting cycles, the General Assembly was unable to agree on a map, forcing our courts to assume the "unwelcome obligation" of judicial redistricting. Hall v. Moreno, 2012 CO 14, ¶ 2, 270 P.3d 961, 963 (quoting Connor v. Finch, 431 U.S. 407, 415 (1977)). Such litigation required "the apolitical judiciary to engage in an inherently political undertaking." Id. at ¶ 5, 270 P.3d at 964.

B. Amendment Y

¶3 This state of affairs changed in 2018 with the passage of Amendment Y. Passed by a unanimous General Assembly and approved by voters by an overwhelming margin, this referred measure amended the state constitution to overhaul Colorado's congressional redistricting process. In re Interrogatories on Senate Bill 21-247, ¶ 13, 488 P.3d at 1013. Now codified as article V, sections 44 to 44.6 of the Colorado Constitution, Amendment Y removed congressional redistricting authority from the General Assembly and placed it, instead, in the hands of a new Colorado Independent Congressional Redistricting Commission.

6

¶4 The Commission is composed of twelve ordinary voters, Colo. Const. art. V, § 44.1(2), who are appointed by a three-member panel of retired judges or justices, id. § 44.1(5)(a). The Commission must include four Democrats, four Republicans, and four voters who are unaffiliated with any political party, id. § 44.1(10), and should, to the extent possible, "reflect[] Colorado's racial, ethnic, gender, and geographic diversity," id. § 44.1(10)(a). The Commission receives assistance from appointed nonpartisan staff from the Legislative Council Staff or the Office of Legislative Legal Services-nonpartisan offices of the General Assembly. Id. § 44.2(1)(b).

¶5 Amendment Y establishes a series of cascading deadlines for the redistricting process. Once the commissioners have been selected under the procedures set forth in section 44.1, the redistricting process begins on March 15 of the redistricting year, when the Governor convenes the Commission. Id. § 44.2(1)(a). Nonpartisan staff begin by creating a "preliminary plan," which must be presented to the Commission and published "no earlier than thirty days and no later than forty-five days after the commission has convened or the necessary census data are available, whichever is later." Id. § 44.4(1). The nonpartisan staff then must prepare and publish at least three staff plans, with each plan presented at least ten days after presentation of the previous plan. Id. § 44.4(3). The Commission may adopt a final plan at any time, id. § 44.4(5)(a), and it may request

7

that its nonpartisan staff prepare additional plans or amend one of its staff plans, id. § 44.4(4).

¶6 The Commission may retain legal counsel in connection with the performance of its duties, id. § 44.2(1)(c), and must adopt rules governing its administration and operation, id. § 44.2(1)(e). To ensure transparency in the redistricting process, the Commission is subject to open meetings and open records requirements under state law. Id. § 44.2(4)(b)(I)(A), (II).

¶7 Throughout the redistricting process, "[t]he commission must, to the maximum extent practicable, provide opportunities for Colorado residents to present testimony at hearings held throughout the state." Id. § 44.2(3)(b). The Commission must hold at least three public hearings in each existing district to receive public comments, including one west of the continental divide and one "east of the continental divide and either south of El Paso county's southern boundary or east of Arapahoe county's eastern boundary." Id. § 44.2(3)(b). The Commission must also maintain a website through which it can communicate with the public, including through the public's submission of proposed plans or written comments. Id. § 44.2(3)(c).

¶8 By no later than September 1, the Commission must adopt a final plan and submit it to this court for review. Id. § 44.4(5)(b). Adoption of a final plan requires the affirmative vote of at least eight commissioners, including at least two

8

commissioners who are unaffiliated with any political party. Id. § 44.2(2). If the Commission fails to adopt a plan by September 1, the nonpartisan staff must submit the unamended third staff plan to this court instead. Id. § 44.4(6). By November 1, this court must determine whether the submitted plan satisfies the applicable substantive criteria and must approve or reject the plan. Id. § 44.5(1), (4)(a). If this court rejects the plan, the Commission receives an additional twelve days to hold a hearing, receive public testimony, and adopt a new plan that resolves the defects in the original plan. Id. § 44.5(4)(b). By no later than December 15, this court must approve a redistricting plan and order that the approved plan be filed with the Secretary of State. Id. § 44.5(5).

¶9 Importantly, Amendment Y requires the Commission to affirmatively comply with certain substantive criteria when drawing congressional...