In re Interrogatories on Senate Bill 21-247 Submitted by the Colo. Gen. Assembly

• Citation: 488 P.3d 1008
• Decision Date: 01 June 2021
• Docket Number: Supreme Court Case No. 21SA146
• Court: Supreme Court of Colorado
• Parties: IN RE: INTERROGATORIES ON SENATE BILL 21-247 SUBMITTED BY the COLORADO GENERAL ASSEMBLY

488 P.3d 1008

IN RE: INTERROGATORIES ON SENATE BILL 21-247 SUBMITTED BY the COLORADO GENERAL ASSEMBLY

Supreme Court Case No. 21SA146

Supreme Court of Colorado.

June 1, 2021

Attorneys for the Colorado General Assembly: Westfall Law, LLC, Richard A. Westfall, Denver, Colorado

Attorneys for the Governor and Attorney General: Philip J. Weiser, Attorney General, Natalie Hanlon Leh, Chief Deputy Attorney General, Eric R. Olson, Solicitor General, Kurtis T. Morrison, Deputy Attorney General, Michael McMaster, Assistant Solicitor General, Lauren Davison, Assistant Attorney General, Denver, Colorado

Attorneys for the Colorado Secretary of State: Philip J. Weiser, Attorney General, Leeann Morrill, First Assistant Attorney General, Grant T. Sullivan, Assistant Solicitor General, Peter G. Baumann, Campaign Finance Enforcement Fellow, Denver, Colorado

Attorneys for Colorado Independent Congressional Redistricting Commission: Wheeler Trigg O'Donnell LLP, Frederick R. Yarger, Meghan Frei Berglind, Denver, Colorado, Achieve Law Group, Jerome DeHerrera, Luis A. Corchado, Denver, Colorado

Attorneys for Colorado Independent Legislative Redistricting Commission: Law Office of Richard C. Kaufman PC, Inc., Richard Kaufman, Centennial, Colorado, Peters Schulte Odil & Wallshein LLC, Timothy R. Odil, Loveland, Colorado

En Banc

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 For the last several decades, Colorado's decennial redistricting process has been a tumultuous, politically fraught, and notoriously litigious affair.¹ Seeking a new approach, Colorado voters in 2018 passed Amendments Y and Z, amendments to the state constitution that vest the authority to draw congressional and legislative districts with new, independent commissions made up of ordinary voters. Colo. Const. art. V, §§ 44 to 48.4. The Amendments lay out instructions for how the commissions should draw district maps, including criteria to be considered in determining boundaries and detailed timetables that require public feedback and judicial review of the final plans.

¶2 The cascading deadlines set out in Amendments Y and Z were based on a crucial assumption: that the United States Census Bureau would release its decennial census data in a timely fashion, as required by federal law. Delays caused by the ongoing COVID-19 pandemic, however, mean that the Census Bureau is operating months behind schedule this year and has yet to release crucial redistricting data to which the redistricting commissions expected to already have access. This delay has thrown into question the feasibility of complying with the timelines established by Amendments Y and Z.

¶3 To address the resulting uncertainty, the General Assembly introduced Senate Bill 21-247 ("SB 21-247"). Among other things, the bill would amend a recently enacted statutory definition of "necessary census data" to allow the commissions’ work to move forward based on preliminary census data and any other state or federal demographic data the commissions see fit to consult. The bill would also require the final plans submitted to this court for review to be based on the more complete redistricting data that the Census Bureau is expected to release later this year and would require the commissions to hold an additional public hearing after that data is incorporated into the plans. Finally, the bill would require a reviewing court to apply a "substantial compliance" standard to any legal challenges that may be brought alleging a failure to comply with the technical—but not substantive—requirements of Amendments Y and Z.

¶4 Recognizing that there are important questions as to the constitutionality of SB 21-247, the General Assembly petitioned this court to exercise its original jurisdiction under article VI, section 3 of the Colorado Constitution to answer the following interrogatories:

1. Are the provisions of Senate Bill 21-247, which amend the statutory definition of "necessary census data," establish statutory authority for nonpartisan staff to use that data for the preliminary plans, and confirm in statute that the staff plans which provide the basis for action by the commission must be based on final census data, constitutional in allowing the commissions to perform their constitutional responsibilities in accordance with sections 44 to 48.4 of article V of the state constitution following the 2020 federal census?

2. Is the provision of Senate Bill 21-247 that directs a court to apply the standard of substantial compliance when adjudicating a legal proceeding that challenges the lack of compliance with the technical requirements for the redistricting process established in the state constitution and related statutes, such as the timing of this court's review of a commission's first approved map or a staff map when the commission is unable to adopt a plan by the deadline to do so, constitutional?

¶5 We accepted jurisdiction and now answer both questions in the negative. Amendments Y and Z do not require the exclusive use of final census data as the commissions and their nonpartisan staff begin their work. The commissions are thus free to consult other reliable sources of population data, such as preliminary census data and interim data from the Census Bureau's American Community Survey.

¶6 However, the General Assembly does not have the power to compel the independent commissions or their nonpartisan staff to consider a particular source of population data or take any action beyond what Amendments Y and Z already require. The Amendments were expressly intended to remove the General Assembly from the redistricting process, instead vesting all authority to draw district maps with independent commissions. Under this new scheme, the General Assembly has a discrete and limited role in appropriating funds for the commissions and nominating a limited number of applicants for consideration as commission members. See Colo. Const. art. V, §§ 44.1, 44.2, 47, 48. But nothing in the Amendments authorizes the General Assembly to enact implementing legislation or take actions that would otherwise curtail the commissions’ constitutionally mandated independence. Accordingly, insofar as SB 21-247 attempts to direct the actions of the commissions and their nonpartisan staff, it would be unconstitutional if enacted.

¶7 The General Assembly likewise lacks the inherent power to dictate what standard a court should apply when determining compliance with the technical provisions of Amendments Y and Z; that task lies within the sole province of the courts. Thus, while this court could certainly adopt such a standard, the provision of SB 21-247 directing courts to apply a "substantial compliance" standard to these constitutional provisions would be unconstitutional if enacted.

¶8 In so answering, we do not mean to suggest that the General Assembly had any nefarious intent in proposing SB 21-247. The legislation was the product of broad, bipartisan support and by all accounts appears to be a well-intentioned attempt to help the redistricting commissions handle the unforeseen delay in the release of census data. 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. Accordingly, we answer both of the General Assembly's interrogatories in the negative.

I. Background

A. Colorado's Redistricting History

¶9 Redistricting "has had a checkered history in Colorado." People ex rel. Salazar v. Davidson , 79 P.3d 1221, 1225 (Colo. 2003). Our original 1876 constitution vested the General Assembly with authority to create both congressional and legislative 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 districts accordingly."); id. § 47 ("Senatorial and Representative districts may be altered from time to time, as public convenience may require."). However, for years, the General Assembly failed to redistrict even after the population had grown and the state had received additional congressional seats, resulting in "grossly disproportionate" districts in which "urban areas were systematically underrepresented." Salazar , 79 P.3d at 1225–26.

¶10 This state of affairs ended after the U.S. Supreme Court ordered Colorado to comply with the "one-person, one vote" principle. See Lucas v. Forty-Fourth Gen. Assembly of State of Colo. , 377 U.S. 713, 739, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). Lucas "ushered in a new era," after which it became clear that the state "must redistrict both its legislative and congressional seats after every new census." Salazar , 79 P.3d at 1226.

¶11 Two years after the announcement of Lucas , the voters of Colorado passed an initiative vesting the power to conduct legislative redistricting for state House and Senate districts in a commission made up of members of the legislative, executive, and judicial departments. See Colo. Const. art. V, § 48 (1967). The authority to draw congressional district boundaries, however, remained in the hands of the General Assembly. And while the constitution provided the legislative redistricting commission with procedural steps and substantive criteria to guide its redistricting process, see Colo. Const. art. V, §§ 46, 47 (2017), the General Assembly was simply instructed 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," id. § 44 (2017).

¶12 Notwithstanding this broad grant of authority, the General Assembly failed to produce a constitutional redistricting plan in three of the last four redistricting cycles. See Hall v. Moreno ,...