<< So I'm doubting there's a real constitutional angle for the Republicans
to shoot for.>>
I'm inclined to disagree w/ this last part of DE's post (but agree w/ most
of the comments leading up to his conclusion.) I think the Colorado SCT
opinion uses language that *could* present an unusually strong argument for
those who favor the art. I, sec. 4, cl. 1 separation-of-powers argument. I
say "could" because I also think the court might have otherwise
successfully insulated itself from the fed. const. problem (and I also
question whether the US SCT would want to cut back on judicial power in
favor of legislatures.)
As with the article II version of the argument from Bush v. Gore, it seems
there are a spectrum of separation-of-powers arguments about the meaning of
the word "legislature". The most difficult version of the argument (tho'
some litigants have been making it in the past few years) is that
"legislature" means only the literal legislature, or the legislature
subject to executive veto. But this argument is probably hard to reconcile
with a lot of practice and precedent , esp. since the 1960s changes in
justiciability (e.g. as DE observes, courts regularly create their own
plans when there is an impasse).
Suppose then that we reject the literal-minded reading of "legislature" and
read the term as referring to the "constitutional legislature" (this is L.
Kramer's terminology from his piece in The Unfinished Election of 2000);
that is, the legislative process that the people of a state have
established for themselves. Thus, the legislature of a state for purposes
of Article I might include non-leg bodies such as redistricting comm'ns,
additional redistricting constraints in the state constitution, maybe
initiative processes ( perhaps some of these institutional
alternatives--depending on their origins--might be subject to
separation-of-powers challenges). BUT the CO SCT goes one large step
farther by expressly stating that "legislature, as used in art. I of the
[Federal] Const. encompasses court orders." And not just court orders that
are remedial action in cases of leg default. According to the court, the
affirmative redistricting plans of courts are every bit as much an
expression of the Art. I "legislature" as the literal legislature. My
hunch is that *this* move represents a much much more assertive judicial
role than we've previously seen. I feel fairly confident that this move
would be understood as an unconstitutional collapse of separation-of-powers
on many *traditional* theories of separation-of-powers. As to modern
doctrine, can any of you w/ more knowledge of contemporary redistricting
cases tell me if you've seen such before? (I remember J. Scalia made some
very court-assertive assumptions in Branch v Smith but he didn't go so far
as to say that courts themselves can act as constitutional legislatures in
the sense of creating prospective rules as a general matter.)
----- Original Message -----
From: David Epstein
To: Roy Schotland;Steven Mulroy
Cc: Michael McDonald; election-law
Sent: 12/5/2003 1:19:17 PM
Subject: RE: Colorado Redistricting Decision
Interesting discussion; I hadn't realized the state constitutional angle
until I read Michael's post this morning.
Roy's Art I, Sec 4 suggestion sounds like the most likely issue, but it
certainly can't be absolute, since courts actually do the redistricting
when the legislature reaches an impasse. (I read in the opinion that of the
last two times that courts have drawn the Colorado congressional districts,
once it was a state court and the other time a federal court, so state
courts certainly can do this.)
And I can't imagine that the Art I, Sec 4 language means that states can't
place *any* constraints on the legislature's exercise of their powers.
So the question is really to what degree a state *constitution* can limit
the state legislature's redistricting powers. (The fact that it's
constitutional is important, since it means that the legislature isn't
voluntarily limiting itself.)
It seems probable that states can order their legislatures to take certain
factors into account, like respect for pre-existing political subdivisions,
so that means some constraints are OK. The argument would have to be that a
limit of one redistricting per cycle is too onerous a restriction, but that
seems a bit farfetched to my mind. So I'm doubting there's a real
constitutional angle for the Republicans to shoot for.
Best,
David Epstein
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Roy Schotland
Sent: Friday, December 05, 2003 3:03 PM
To: Steven Mulroy
Cc: Michael McDonald; election-law
Subject: Re: Colorado Redistricting Decision
Isn't there a federal issue on whether Art I, Sec 4 (Times, Places and
Manner) empowers only the state legislatures, to the exclusion of a
judicial action like the Colo SupCt's?
Steven Mulroy wrote:
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
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."
--
Roy A. Schotland
Professor
Georgetown U. Law Ctr.
600 New Jersey Ave. N.W.
Washington, D.C. 20001
phone 202/662-9098
fax 662-9680 or -9444