One of the news articles on the Colorado SCT's decision includes an
argument that the court's one-bite-at-the-apple rule (one bite even if the
only consumer is a court?) will make it harder for the legislature to agree
upon its own plan in the first place because minority parties or factional
coalitions w/ sufficient blocking power will prefer to prevent any
legislative redistricting, knowing that the subsequent court-drawn plan
will be permanent (permanent that is until after the next decennial). This
argument seems to depend upon the assumption that legislators'
redistricting strategies previously included an understanding that the
'game' might have multiple iterations within a decade even after a
court-produced plan. Does anyone have any sense of how often legislators
here and in other states did in fact have this understanding (say Florida
where some court plans were described as being understood as stopgaps until
the legislature was able to agree upon a redistricting plan for itself).
I'm not just asking about the frequency of past re-redistricting by
legislatures (I think it was the Jeffrey Toobin article that provided good
material on the historical waves of that phenomenon) but about the
typicality of court-produced plans as definitive substitutes for leg.
action and understood as such by the leg actors.
[Original Message]
From: <mleen@law.harvard.edu>
To: Steven Mulroy <sjmulr@wm.edu>
Cc: Michael McDonald <mmcdon@gmu.edu>; election-law
<election-law@majordomo.lls.edu>
Date: 12/5/2003 11:36:59 AM
Subject: Re: Colorado Redistricting Decision
The federal constitution may limit the extent to which the state
constitution
can limit the power of the state legislature. Additionally, if the
Supreme
Court believes that the Colorado court's interpretation of state law is
based
on an erroneous view of federal law it might reverse and remand with
instructions of the federal law (The Supreme Court did this type of thing
in a
death penalty case in Georgia, I believe, a while back).
Mark Leen
HLS 3L
Quoting Steven Mulroy <sjmulr@wm.edu>:
How can the Republicans appeal to the Supreme Court if the Colorado Sup
Ct
decided the case based on the Colorado Constitution? Is there a
federal
issue lurking here?
At 09:51 AM 12/05/2003 -0600, Michael McDonald wrote:
I've been traveling for my testimony in the Arizona redistricting
trial,
so I don't know if this has been posted. The Colorado Supreme Court,
ruling along partisan lines, ruled that more than once a decade
redistricting in Colorado is unconstitutional. Republicans intend to
appeal to the U.S. Supreme Court.
Here is a link to the decision:
<http://www.cobar.org/opinions/opinion.cfm?
OpinionID=3975>http://www.cobar.org/opinions/opinion.cfm?OpinionID=3975
An important quote from the decicion, and a guideline for the
Plaiuntiffs
in the Texas lawsuit, is below. The state Supreme Court relied on two
provisions in the Colorado constitution. One was that the
constitution
did not explicitly place the power of redistricting into the state
legislature, and that the constituion requires redistricting in as
close
proximity to the census as possible. Thus, the legislature forfit its
authority when it failed to produce a map in 2001, and there is
nothing
restricting the courts from taking over that authority. Perhaps
someone
like Sam Hirsch can provide a comment on the similarity to the Texas
law:
"In this opinion, we conclude that the General Assembly does not have
the
unprecedented power it claims. Federal law grants the states the
authority
to redistrict, and federal law defines and limits this power. Our
state
constitution cannot change these federal requirements. Instead, it can
only place additional restrictions on the redistricting process.
Therefore, even though the first sentence of Article V, Section 44, of
our
constitution appears to grant redistricting power to the state
"general
assembly" acting alone, this language has been interpreted broadly to
include the Governor s power to approve or disapprove the legislature
s
redistricting plan, and the voters power to redistrict by initiative
or by
resort to the courts if the legislature fails to timely act. Finally,
the
second sentence of Article V, Section 44, of the Colorado Constitution
says "when" Colorado may redistrict. The plain language of this
constitutional provision not only requires redistricting after a
federal
census and before the ensuing general election, but also restricts the
legislature from redistricting at any other time.
In short, the state constitution limits redistricting to once per
census,
and nothing in state or federal law negates this limitation. Having
failed
to redistrict when it should have, the General Assembly has lost its
chance to redistrict until after the 2010 federal census."
Below is an article from the Dec. 2 Denver Post:
HEADLINE: Court tosses GOP remapping State justices overturn '03
redrawing
of Colorado's congressional districts
The Colorado Supreme Court on Monday ruled that last spring's
redrawing
of congressional districts was unconstitutional and ordered next
year's
elections held using the 2002 boundaries.
In a 5-2 decision with the court's Democratic majority sticking
together,
the state's highest court threw out the congressional boundaries
pushed
through by Republicans last spring.
The opinion marked the first time a court had ruled directly on
a legislature's authority to replace a plan drawn by a state court,
said
Tim Storey, analyst with the National Conference of State
Legislatures.
National observers said the ruling could slow a national push to
increase
Republican power in Congress, but it remains to be seen whether
Democrats
can capitalize on the victory.
Republicans immediately threatened to appeal the ruling to the
U.S. Supreme Court.
In the decision, closely watched nationwide, the Colorado Supreme
Court
declared that redistricting can occur only once every 10 years during
a
limited window of opportunity - after a federal census and before the
next general election - and at no other time.
'Having failed to redistrict when it should have, the General
Assembly
has lost its chance to redistrict until after the 2010 federal
census,'
Chief Justice Mary Mullarkey said in the 63-page ruling, writing for
the
majority.
The ruling came more than six months after the Republican-controlled
legislature hastily passed a new congressional district map that
favored
GOP candidates in five of Colorado's seven congressional districts,
tossing out a 2002 court-ordered plan.
State Attorney General Ken Salazar sued the state to overturn the new
law, the first time since 1905 that the top law enforcement official
had
taken such action.
The chairman of the Colorado Republican Party criticized
Monday's decision and called an appeal 'very likely.'
'The finding of the Colorado Supreme Court in my opinion was a clear
usurpation of the legislative powers of the General Assembly as
mandated
in the Colorado Constitution,' chairman Ted Halaby said.
'If we appeal, the question still arises as to which plan -
the court-ordered plan or the legislatively enacted plan - the
2004 election will be held under,' he said.
But Salazar urged Republicans to accept the ruling.
'I think it would be a waste of resources to continue this litigation
to
the United States Supreme Court,' Salazar said, noting that the
ruling
was based on the Colorado Constitution.
'For the other party to decide to pursue this to the U.S. Supreme
Court
would be a mistake. If they want to pursue it, we'll pursue it as
well.
However, I hope that's not necessary,' Salazar said.
Democrats hope Monday's ruling will give them a better chance to
increase
their numbers in Congress next year. Republicans now hold five of
Colorado's seven congressional seats.
U.S. Rep. Mark Udall, D-Colo., who participated as a plaintiff
with Salazar, said the GOP-drawn map actually made his 2nd
Congressional District politically safer for his re-election. But he
said
he prefers competitive districts to safe districts.
'I see frankly in the U.S. House of Representatives too many safe
seats
both Democrat and Republican seats. I think that leads to rhetorical
excess and ideological positions. I think we're better served with a
large percentage of competitive seats,' Udall said.
He declined to say if he would leave his congressional seat and
challenge
U.S. Sen. Ben Nighthorse Campbell, a Republican, as many Democrats
have
asked him to do. Udall said he would announce his decision before the
end
of the year.
Nationally, Republicans have a 12-seat edge in the 435-member House
of
Representatives.
Since Monday's court ruling was based on state law, several lawyers
who
read the opinion said an appeal to a federal jurisdiction or the U.S.
Supreme Court would be more difficult.
But the ruling also dealt with the broad policy issue of how often to
redistrict and the stability of representation by
congressional representatives. Several observers predicted the ruling
would be looked to by other states, including Texas, where a
similar redistricting case is now before the courts.
'It has limited precedential value, but it does have symbolic
and learning value, and it certainly will be scrutinized by
other states,' said Storey. 'Where it could be of value is
preventing other states from wading into this process.'
In the dissenting opinion, Justice Rebecca Love Kourlis
said redistricting is the responsibility of the General Assembly
and that 'no specific time limits' should apply.
Republican Gov. Bill Owens agreed with Kourlis. 'This represents a
clear
expansion of judicial authority,' said Owens, who quickly signed the
new
map into law last spring. 'Remember, the judges are the only
unelected
part of the three branches of government. I'm troubled by the
aggressive
expansion of power of the unelected judiciary.'
Supreme Court justices, like other judges, do periodically stand for
retention votes.
All seven justices concurred that Salazar not only had the power
to challenge the law before the high court, contrary to what
Republicans
claimed, but has the ethical duty to bring an action whenever the
legislature passes a law that might be unconstitutional.
'Consistent with his ethical duties and his oath of office, if
the attorney general has grave doubts about the constitutionality of
the
impending 2004 general election, he must seek to resolve these doubts
as
soon as possible,' the court said.
Salazar, a Democrat, sued the Republican secretary of state in May
after
the law was passed in the final three days of the legislature.
The new law pre-empted the 2002 court-approved plan under which last
year's general elections were held. That plan gave Republicans an
advantage in four districts, Democrats in two and created a seventh
district evenly split among Republicans, Democrats and unaffiliated
voters.
Republican Bob Beauprez won the 7th District by 121 votes last year
but
is expected to have an edge next year because he is an incumbent. On
Monday his race grew tougher as Jefferson County's Democratic
district
attorney, Dave Thomas, announced his intention to run.
Salazar argued that redistricting was legal only once a decade and
that
the task had been completed by the court last year after a divided
legislature failed to agree on a plan in time for the elections.
Republicans argued that the court map was temporary and that the law
required redistricting to be done by the legislature.
But in Monday's opinion, the court majority chastised
the Republican-controlled legislature for claiming they should be
able to redraw congressional boundaries multiple times in a single
decade.
'Limiting redistricting to once every 10 years maximizes stability,'
the
court said. 'a If the districts were to change at the whim of the
state
legislature, members of Congress could frequently find their current
constituents voting in a different district in subsequent elections.
In
that situation, a congressperson would be torn between effectively
representing the current constituents and currying the favor of
future constituents.'
Democrats in Colorado and Washington, D.C., applauded the decision
and
criticized Republicans for an abuse of power.
'The ruling is a major setback in the GOP's effort to rig the seats
of
vulnerable Rep. Bob Beauprez in Colorado's (7th District) and the
Republican held open seat in Colorado's (3rd District),' said Robert
Matsui, chairman of the Democratic National Campaign Committee.
'This isn't just a victory for Democrats,' said Colorado Democratic
Party
chairman Chris Gates. 'It's a victory for all of us in Colorado who
value
fair elections, open government and balance of power.'
Carl Forti, spokesman for the National Republican Congressional
Committee
in Washington, said the battle isn't over, because a similar
challenge to
the Colorado districts is pending in federal court in Denver.
'This was expected. It's far from over. There's still a federal case
to
play out,' Forti said.
But David Fine, an attorney for the Democrats who filed the separate
suit
now in federal court, said the case is over, though he will not ask
for
an outright dismissal.
"We don't believe our case needs to go further," he said. "But we do
not
want to waive our ability to litigate if for some reason the U.S.
Supreme
Court overrules the state Supreme Court."