Am I nuts to think we'd be better off if one of the five Colo Justices who are Dems (that's how they're being described, I know zero about that court) had voted with the dissenters, to make it a 4-3?  Same result-- but maybe it would soften the drumbeat about a partisan decision?  Or would any such softening be so little as not to matter?

David Epstein wrote:

Interesting discussion; I hadn't realized the state constitutional angle until I read Michael's post this morning.Roy's Art I, Sec 4suggestion 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
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