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
'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."