People ex rel. Salazar v. Davidson, No. 03SA133

• Citation: 79 P.3d 1221
• Decision Date: 01 December 2003
• Docket Number: No. 03SA147., No. 03SA133
• Parties: PEOPLE of the State of Colorado, ex rel. Ken SALAZAR, in his official capacity as Attorney General for the State of Colorado, Petitioner, Mark Udall, individually as a citizen of Colorado, and in his capacity as the elected representative to the United States House of Representatives for the Second Congressional District of the State of Colorado, Petitioner-in-intervention, v. Donetta DAVIDSON, in her official capacity as Secretary of State for the State of Colorado, Respondent, Colorado General Assembly, Respondent-in-intervention. Donetta Davidson, in her official capacity as Secretary of State for the State of Colorado, Petitioner, v. Ken Salazar, in his official capacity as Attorney General for the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

79 P.3d 1221

PEOPLE of the State of Colorado, ex rel. Ken SALAZAR, in his official capacity as Attorney General for the State of Colorado, Petitioner, Mark Udall, individually as a citizen of Colorado, and in his capacity as the elected representative to the United States House of Representatives for the Second Congressional District of the State of Colorado, Petitioner-in-intervention, v. Donetta DAVIDSON, in her official capacity as Secretary of State for the State of Colorado, Respondent, Colorado General Assembly, Respondent-in-intervention.

Donetta Davidson, in her official capacity as Secretary of State for the State of Colorado, Petitioner, v. Ken Salazar, in his official capacity as Attorney General for the State of Colorado, Respondent.

Nos. 03SA133, 03SA147.

Supreme Court of Colorado, En Banc.

December 1, 2003.

Friedlob, Sanderson, Paulson & Tourtillott, LLC, James W. Sanderson, Richard K. Kaufman, Denver, Colorado, Attorneys for Petitioner Donetta Davidson in Case No. 03SA147 and for Respondent Donetta Davidson in Case No. 03SA133.

Ken Salazar, Attorney General, Alan J. Gilbert, Solicitor General, Anthony Navarro, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent Ken Salazar in Case No. 03SA147.

Ken Salazar, Attorney General, Alan Gilbert, Solicitor General, Renny Fagan, Deputy Attorney General, M. Terry Fox, Assistant Attorney General, Anthony Navarro, Assistant Attorney General, Monica Marquez, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner Ken Salazar in Case No. 03SA133.

Christopher G. Seldin, Assistant Pitkin County Attorney, Aspen, Colorado, Attorney for Petitioner-in-Intervention Board of County Commissioners of the County of Pitkin.

Brownstein, Hyatt & Farber, P.C., Stanley L. Garnett, Lynne M. Hufnagel, P. Cole Finegan, Scott A. Sundstrom, Denver, CO, Attorneys for Petitioner-in-Intervention Mark Udall.

Hale Hackstaff Friesen, LLP, Allan L. Hale, Richard A. Westfall, Scott E. Gessler, Denver, Colorado, Attorneys for Respondent-in-Intervention Colorado General Assembly.

Britt I. Weygandt, Jonathan M. Anderson, Denver, Colorado, Attorneys for Governor Bill Owens.

Thurbert E. Baker, Jeff L. Milsteen, Atlanta, Georgia, Lawrence E. Long, Attorney General of South Dakota, Roxanne Giedd, Assistant Attorney General of South Dakota, Pierre, South Dakota, Attorneys for Amici Curiae Thurbert E. Baker, Attorney General of Georgia; Lawrence E. Long, Attorney General of South Dakota; and the Attorneys General of 42 other States and Territories.

Jenner & Block, LLC, Sam Hirsch, Washington, D.C., Pendleton, Friedberg, Wilson & Hennessey, P.C., Edgar L. Neel, Michelle M. Merz, Denver, Colorado, Attorneys for Amicus Curiae Congresswoman Diana DeGette, the elected member of the United States House of Representatives for the First Congressional District of the State of Colorado.

Burt Neuborne, Deborah Goldberg, J.J. Gass, New York, New York, O'Melveny & Myers, LLP, Ronald A. Klain, Charles E. Borden, Washington, D.C., Attorneys for Amicus Curiae Brennan Center for Justice.

Brenda L. Jackson, Fremont County Attorney, Canon City, Colorado, Attorney for Amicus Curiae Fremont County, through its Board of Commissioners, Norma J. Hatfield, in her official capacity as the Clerk and Recorder for Fremont County.

Schwarz McNab & Bailey, P.C., Christopher M. Kamper, Denver, Colorado, Attorneys for Amicus Curiae Colorado Common Cause.

Davis & Ceriani, P.C., Patrick J. Kanouff, Denver, Colorado, Attorneys for Amici Curiae Gail Schwartz and Cindy Carlisle.

Berenbaum, Weinshienk & Eason, P.C., Michael J. Belo, Timothy D. Knaus & Associates, Timothy D. Knaus, Foster, Graham & Huttner, LLP, Michael Huttner, Denver, Colorado, Attorneys for Amicus Curiae Christine Baca.

McDermott Law Firm, Daniel B. Slater, Canon City, Colorado, Attorneys for Amici Curiae Fremont County Democratic Party and Roberto Costales.

Ballard Spahr Andrews & Ingersoll, LLP, A. Thomas Downey, Denver, Colorado, Attorneys for Amicus Curiae Colorado House Minority in Support of Attorney General Salazar's Original Petition.

Kenneth L. Smith, Pro Se, Golden, Colorado.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

The cases before us are matters of great public importance involving the fundamental rights of Colorado citizens to vote for their representatives in the United States Congress. In the closing days of the 2003 legislative session, the General Assembly enacted a bill to redraw the boundaries of Colorado's seven congressional districts. With this new law, the General Assembly intended to supplant the court-ordered 2002 redistricting plan, which governed the 2002 general election. Pitted against each other in this dispute are two strongly opposed views of the Colorado Constitution.

The Secretary of State and the General Assembly interpret the state constitution as an unlimited grant of power from the People of Colorado to the General Assembly to draw and redraw congressional district boundaries. Under this view, the General Assembly may change the congressional districts as frequently as it likes, even if an earlier General Assembly or the courts have already redrawn congressional districts since the most recent census. At the same time, these parties contend that the Attorney General has no power to ask this court to exercise its original jurisdiction to review the constitutionality of the General Assembly's districts.

The Attorney General presents a very different understanding of Colorado law. He argues that although our constitution directs the General Assembly to draw congressional boundaries, it limits the timeframe and frequency within which the General Assembly may do so. Specifically, the General Assembly may redistrict only once every ten years, and this must occur immediately after each federal census. Accordingly, the General Assembly loses its power to redistrict if it does not act within the window of time beginning after each federal census when Congress apportions seats for the U.S. House of Representatives and ending with the next general election. The Attorney General also maintains that he may petition this court to exercise its original jurisdiction to decide state constitutional issues of public importance. Similarly, the Attorney General does not oppose the Secretary of State's ability to petition this court for relief in an appropriate case.

Because of the importance of the issues raised, we exercise our discretion to decide two cases. The first is the Attorney General's constitutional challenge to the General Assembly's congressional redistricting bill. The second is the Secretary of State's separate challenge to the Attorney General's authority to bring the first case. We decide both issues as a matter of state law.

Since our constitution was ratified in 1876, the congressional redistricting provision found in Article V, Section 44, has always provided, as it does today, that the General Assembly shall redistrict the congressional seats "[w]hen a new apportionment shall be made by Congress." There is no language empowering the General Assembly to redistrict more frequently or at any other time. To reach the result that the Secretary of State and the General Assembly would have us reach, we would have to read words into Section 44 and find that the General Assembly has implied power to redistrict more than once per census period.

We cannot do that, however, because another section of the original Colorado Constitution makes it clear that the framers carefully chose the congressional redistricting language and that this language gives no implied power to the General Assembly. Article V, Section 47, of the original 1876 Constitution addressed legislative redistricting, and originally stated that "[s]enatorial and representative districts may be altered from time to time, as public convenience may require." The phrase "from time to time" means that an act may be done occasionally. Had the framers wished to have congressional district boundaries redrawn more than once per census period, they would have included the "from time to time" language contained in the legislative redistricting provision. They did not.

In addition to the plain language of our constitution, Colorado has had 127 years of experience in applying the congressional redistricting provision. It has never been given the interpretation advanced by the Secretary of State and General Assembly.

Congressional redistricting, like legislative redistricting, has had a checkered history in Colorado, marked by long periods of time when the General Assembly failed to redistrict even though the state population grew dramatically and Colorado received more congressional seats. The federal government has conducted thirteen federal censuses since Colorado became a state, but the General Assembly has redrawn congressional districts only six times. The legislature's failure to redistrict meant that urban areas were systematically underrepresented, and congressional districts were grossly disproportionate. For example, in 1964, when the General Assembly had not drawn new districts for over forty years, the four congressional districts ranged in population from 195,551 to 653,954; one person's vote in the smallest district was equivalent to the votes of 3.3 people in the largest district.

This era of inaction came to an abrupt end when the United States Supreme Court announced its "one-person, one-vote" principle and ordered Colorado to comply. See generally Lucas v. Forty-Fourth Gen. Ass'y, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). In the cases leading up to Lucas, this court, as well as a federal district court in Colorado, held that the legislature's inaction violated both the Colorado and the U.S. Constitutions. See generally In re Legislative Reapportionment, 150 Colo. 380, 374 P.2d 66 (1962); Lisco v. McNichols, 208 F.Supp. 471 (D.Colo.1962). These and other...