The Colorado Supreme Court’s decision is surprising, since the court had previously rejected the commission’s earlier maps for constitutional deficiencies less stark than those exhibited by the commission’s re-submitted maps.

• House Map: Final House Plan Maps and Reports
• Senate Map: Final Senate Plan Maps and Reports
• Google Earth maps (requires Google Earth download): Final House Plan (download zip file), Final Senate Plan (download zip file)
• Colorado Supreme Court “Order of Court” approving the Commission’s resubmitted maps

Given the constitutional deficiencies remaining in the Colorado Reapportionment Commission’s re-submitted maps, the procedural travesty by which the maps were adopted, and the availability of a more constitutionally-consistent alternative set of maps submitted as part of the ‘Minority Report’ appeal (which the majority commissioners had attempted to suppress), rejection of the commission’s maps - particularly given the court’s rejection of the commission’s previous set of constitutionally-deficient maps - appeared to be the only outcome consistent with constitutional and statutory criteria.

It will be interesting to analyze the reasoning by which a majority on the Colorado Supreme Court reached the conclusion that these maps were constitutionally valid once the court issues its full written opinion, which should follow within a week or so.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

The court’s decision is all the more surprising given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey and the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), and in the face of a set of legislative maps that were seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

Unfortunately, it is possible that politics trumped law in this highly-charged case.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

• House Map: House Resubmitted Plan Maps and Reports
• Senate Map: Senate Resubmitted Plan Maps and Reports
• Google Earth maps (requires Google Earth download): House Resubmitted Plan (download zip file), Senate Resubmitted Plan (download zip file)

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps - maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

UPDATE:

The “minority” commissioners on the Colorado Reapportionment Commission - denied a fair procedural hearing and opportunity to discuss changes, submit amendments, or even file a dissenting ‘Minority Report’ (per standard practice in past commissions) as part of the commission’s official resubmission of state legislative district maps - filed their ‘Minority Report’ as a separate legal challenge to the “official” commission maps just prior to the filing deadline yesterday.

The fact that the commission’s minority was actually forced by the Democrat majority (including officially unaffiliated chairman Mario Carrera) to file their Statement of Opposition to the re-submitted maps as a legal challenge highlights the procedurally deficient path by which the maps were rammed through the commission, as well as remaining constitutional deficiencies in the re-submitted maps:

The intentional actions of the six-member majority created an irrevocably flawed process that led to adoption of unconstitutional maps

The commissioners’ ‘Minority Report’ filing also presents alternate maps for both House and Senate that better meet constitutional criteria and non-constitutional factors, including:

• fewer county splits
• fewer city splits
• better preservation of communities of interest
• better “competitiveness” (as a whole, and by district)
• avoiding incumbent same-district pairings
• avoiding unconstitutional sequencing of senate district elections

As a remedy to both the procedural failings of the commission’s adoption of the re-submitted maps, and the constitutional deficiencies of the maps themselves, the ‘Minority Report’ challenge urges the Colorado Supreme Court to adopt the alternate maps submitted as the most appropriate and timely remedy - for which there is precedent (”In re Reapportionment 1982, 647 P.2d 209, 213 (Colo. 1982).”)

Because the Court is not presented with plans that are “each consistent with the constitutional requirements,” it is not faced with a choice between alternative, competing maps.  Instead, because it is left with only one set of maps consistent with the constitutional criteria, a set drawn by members of the Commission, it is appropriate for the Court to [order] adoption of those alternate maps.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

The ‘Minority Report’ challenge ably deconstructs the constitutional deficiencies of the commission’s re-submitted maps, and presents an alternative set of maps which better meet constitutional criteria (urging the adoption of the alternate maps by court order, per precedent established under similar circumstances several decades ago, as the best and most timely option).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the court would seem likely to order the adoption of the more constitutionally-consistent ‘Minority Report’ map over the ratification of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court.”

In any event - we expect that the Colorado Supreme Court’s reply will not be long in waiting.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

• House Map: House Resubmitted Plan Maps and Reports
• Senate Map: Senate Resubmitted Plan Maps and Reports
• Google Earth maps (requires Google Earth download): House Resubmitted Plan (download zip file), Senate Resubmitted Plan (download zip file)

The Colorado Supreme Court, upon receiving the commission’s resubmitted maps, quickly announced accelerated filing deadlines for the inevitable legal challenges to the maps, putting appeals on a very tight timeline.  A total of eighteen groups filed briefs by the 5:00PM Thursday deadline (exceeding the dozen briefs, including eleven challenges, filed against the commission’s previously submitted maps - maps ultimately rejected by the Colorado Supreme Court for failure to meet Colorado’s constitutional requirements).

Many of the same county and municipal governments that had challenged the commission’s previous maps did so again, on much the same grounds - emphasizing the repeated failure of the maps to meet the Colorado constitutional criteria of minimizing county and municipal splits, maintaining compact & contiguous districts, and preserving communities of interest. (Article V, Section 47)

Interestingly, a number of non-governmental special interest groups filed amicus curiae briefs in support of the commission’s maps - including representatives of the AFL-CIO, NARAL Pro-Choice Colorado, Planned Parenthood, Mi Familia Vota & “New Era Colorado” (a Boulder-based “progressive” group).

No county or city governments filed amicus curiae briefs in favor of the commission’s maps (one county, Garfield County, filed a “does not oppose” brief)

Briefs filed in Response to 12/5/11 Plan Resubmission (Opposing):

• Brief of Gunnison County Board of County Commissioners
• Brief of J.M. Fay (4-Mile Neighborhood)
• Brief of Elbert County Board of Commissioners, et al.
• Brief of Delta County Board of Commissioners
• Brief of Club 20 and Southwest Colorado
• Brief of Grand County Board of Commissioners
• Brief of Town of Superior et al.
• Brief of Washington County Commissioners
• Brief of Colorado Citizens for Fair Representation
• Brief of El Paso County Clerk & Recorder
• Brief of Colorado Reapportionment Commissioners (’Minority Report’)

Briefs filed in Response to 12/5/11 Plan Resubmission (Does Not Oppose):

• Brief of Garfield County Board of County Commissioners

Briefs filed in Response to 12/5/11 Plan Resubmission (Supporting):

• Brief of Colorado Reapportionment Commission (official majority report)
• Brief of Michael Cerbo (AFL-CIO)
• Brief of Mi Familia Vota Education Fund
• Brief of NARAL Pro-Choice Colorado Inc.
• Brief of New Era Colorado
• Brief of Planned Parenthood Votes Colorado
• Brief of Clean Water Action
• Brief of Jennie Sanchez

Once receiving written briefs, the Colorado Supreme Court would normally schedule oral arguments; however, due to the extremely constrained timeline (by statute, final state legislative district maps are due to the Secretary of State for certification no later than next Wednesday, 14 December), the court could conceivably issue a decision based on the written briefs alone as early as Friday (9 December) or even over the weekend, in order to allow time for any necessary adjustments.

BOTTOM LINE:

The resubmitted maps retain a veritable plethora of constitutional deficiencies (in particular, failing to achieve the minimal splits in county lines, which was the primary rationale for the court’s rejection of the commission’s previous maps).  Municipal (city) splits were also multiplied, districts were not drawn to be as “compact and contiguous” as possible, and communities of interest were ignored or broken up. Additionally, the pairing of multiple incumbents into the same district raises additional constitutional issues - and one just-discovered “glitch” (”Glitch in new Colorado legislative map could unseat senator“) in the maps would result in “essentially airbrushing [State Senator Tim Neville] from the Senate after he serves next session.”

It would be absolutely inconsistent of a majority on the Colorado Supreme Court to approve the commission’s most recently resubmitted state legislative maps in light of these glaring constitutional deficiencies (not to mention the procedural farce by which these maps were rammed through the commission absent discussion, opportunity for amendments, public transparency, or even the inclusion of an official ‘Minority Report’ as has happened in the past).

Particularly given the more centrist makeup of the current Colorado Supreme Court (following the departure of former Chief Justice Mary Mullarkey & the more recent resignation of Justice Alex Martinez, replaced with Justices Monica Marquez and Brian Boatright, who just assumed his seat last week), the commission’s approval of a set of legislative maps seemingly designed “out of spite” and apparently “calculated to antagonize the court” may succeed in making history.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

(Link for Colorado Supreme Court order affirming the Denver court’s ruling and Moreno Map)

(New Democrat redistricting map - statewide)

(UPDATE: the Denver Post has created a “find your congressional district” application)

The Colorado Supreme Court’s ruling, although disappointing to Colorado Republicans (particularly the residents of Douglas and Larimer counties) hardly comes as a surprise - Colorado Democrats carefully prepared the conditions for their victory on Congressional Redistricting as part of a long-standing strategy of sending the decision to the courts, where they have traditionally enjoyed a friendly venue.

Even before reprising the 2000 legislative session playbook by blocking passage of (constitutionally required) Congressional Redistricting legislation in the Colorado state senate, the more strategically-savvy Democrat leadership set the conditions for their eventual court victory by enabling judicial consideration of “non-neutral” political factors (and removing guidelines establishing a hierarchy of neutral criteria) in the  “Mary-mandering” legislation passed at the close of the 2010 legislative session - allowing Denver District Court Judge Robert Hyatt room for extensive discretion (i.e. exercising his own personal preferences) in ruling for the ‘Moreno Map’:

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Despite having copious advance notice of Democrat intentions in regard to Congressional Redistricting strategy, Republican “leadership” was caught flat-footed and “steamrollered” in the courts:

Republicans may not even be able to decry the Colorado Supreme Court’s ruling as purely partisan (contrasting with the situation in the 2003 Salazar v. Davidson congressional redistricting case) or an example of unmitigated judicial activism, since the statutory changes (enabling consideration of purely political factors by the courts) and selective use of testimony may have provided sufficient legal “cover” for the court’s ruling majority to affirm the lower court’s ruling - aside from that pesky constitutional provision (Article V, Section 44) mandating Congressional Redistricting as a legislative, not judicial, responsibility in the first place.

Final judgment on the legal merits of the Colorado Supreme Court’s decision in this case (along with knowing the vote count) will have to wait, pending release and review of the actual written ruling (expected in the coming weeks).

In any event, the boundaries of Colorado’s Congressional districts are now set for the next decade - there is no further appeal from the Colorado Supreme Court’s ruling in this case.

Irrespective of one’s preferences on the congressional district maps, the negative repercussions of manipulating the redistricting process to impose an outcome via the courts are severely damaging to public confidence in our institutions of state government - both legislative and judicial.  Legislative abdication of constitutionally-mandated responsibilities reinforces public perception of politicians as feckless and irresponsible (not without reason).

Perhaps more importantly, the intentional politicization of the judiciary - increasingly seen as acting as just another category of politician, distinguished from the other branches only by a unique mode of dress (black robes) - is corrosive to our institutions, and undermines the sanctity of the rule of law.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Thursday’s oral arguments before the Colorado Supreme Court, in which each side had 30 minutes to make their case, were recorded and posted online shortly after the hearing.

Unlike the challenges to the state legislative district maps (which resulted in the maps being rejected by the Colorado Supreme Court and remanded back to the Colorado Reapportionment Commission), which revolved around clear and straightforward constitutional criteria, the arguments in the Congressional Redistricting case dealt with much more esoteric issues of case precedent & standards of legal review, making a prediction of the outcome much less certain.

(New Democrat redistricting map - statewide)

Opponents (challenging the “Moreno Map” approved by Judge Hyatt) went first.

Attorney Richard Westfall (representing the Hall plaintiffs - the Republican parties to the original case) opened by stating “the crux of this appeal is whether the trial court is free to disregard decades of precedent in amending congressional districts this cycle.”  He outlined the basis for the appeal on two main points:

1. It was ‘manifestly unreasonable’ for the trial court to ignore existing ‘communities of interest’ regarding Douglas and Larimer counties
2. When a court draws congressional districts, there are judicial standards that should be followed - and when they are not, a ‘de novo review’ of the record is required

Westfall then addressed the disparate application of “agricultural communities of interest” in the case of Douglas and Larimer counties - held by the trial court to be paramount in tying Douglas, yet negligible in linking Larimer, to the Eastern Plains congressional district, CD4 (long established in case law as the “Eastern agricultural” district for the state).  He highlighted Larimer’s status as an agricultural production center (the 10th largest in the state, with $128M in agricultural production, contrasted with Douglas County’s mere $16M) and close ties with ’similar’ neighboring Weld County as strong evidence for Larimer’s continuing “community of interest” with CD4.  Westfall also raised the “absolute inconsistency in application” of the standard of oil & gas exploration as a “community of interest” binding Douglas County (with “zero” oil & gas permits issued in 2010) to CD4 while ignoring existing oil & gas exploration efforts in Larimer County.

Questions put to Westfall by the Colorado Supreme Court justices raised the issue of competing ‘communities of interest’ (Chief Justice Bender asked,”why is it so unreasonable that beetlekill, and the universities” don’t establish a “community of interest” between Boulder and Larimer counties?)

Other questions addressed the ’standard of review’ for the Colorado Supreme Court to apply in reviewing the lower court’s ruling (Justice Monica Marquez asked regarding standards of review, “was the trial court decision supported by the record?” and raised the issue of how to apply judicial standards vs. statutory standards, and discretion in applying standards).

Attorney Kelly Dunnaway, representing the Douglas County plaintiffs, added more information about the “communities of interest” applying to Douglas County - as perceived by the county government and majority of county residents.  He highlighted the fact that transportation, jobs, water compacts, membership in regional government organizations (including RTD, the stadium district and DRCOG, the Denver Regional Council of Governments) and tax-sharing agreements all tied Douglas County to the Denver metro suburban area and NOT to the Eastern Plains.  He pointed out the “manifestly arbitrary” nature of the trial court’s selection of evidence to put Douglas County in CD4 - noting that the trial court “invented communities of interest that don’t really exist in order to support the order.”

Questions to Dunnaway also addressed the issues of standards of review and findings of fact in the trial court’s order.  Justice Rice asked if the standard of review is to “look for absence of information in the court order;” Chief Justice Bender asked if there was “insufficient data to support findings of fact” in the trial court ruling (Dunnaway: “absolutely”) or if there was “sufficient evidence to support the conclusion” reached by the trial court (Dunnaway: it was arbitrary to not consider Douglas County’s evidence and testimony, “ignoring wishes of residents in both [Douglas and Larimer] counties”).  Justice Marquez noted that “we need to look at this map as a whole… there are always competing interests” (Dunnaway: the standard is whether the decision was “manifestly unreasonable” - noting that not only were Douglas and Larimer counties impacted but “1.4 Million people in Colorado were reassigned to different congressional districts under the ‘Moreno Map’ - over a third of Colorado residents, without ‘compelling reason,’ concluding that it is “manifestly unreasonable to disenfranchise 1.4 Million people”).

Proponents for the ‘Moreno Map’ were represented by Democrat Party attorney Mark Grueskin (astute observers of Clear The Bench Colorado (or of Colorado politics in general) may recall Mark Grueskin from his role in establishing a shadowy and well-funded special-interest group to counter the Clear The Bench Colorado judicial accountability efforts during the 2010 judicial retention vote).

Grueskin opened by noting that the Colorado General Assembly had failed to pass congressional redistricting legislation 4 times in the past 30 years - resulting in 3 judicial redistricting decisions.  He asserted that the Moreno Map created “appropriate districts to ensure fair representation.”

Grueskin’s opening statement drew an immediate question from Justice Marquez - noting that “part of this notion of effective representation hinges in some part on stability of districts, in part to establish that identity over time.”  Each congressional district “conjures in my mind a certain image…”

Is it really appropriate every 10 years to just completely wipe the slate clean? How does your map honor minimizing disruption of districts?

Grueskin responded that although it’s appropriate to “recognize stability”… it doesn’t trump other criteria.  He asserted that issues and “communities of interest” do change, and that the judicial process is an appropriate venue for assessing what is “put into evidence” in order to establish congressional districts, and argued that it is “counterintuitive… that districts are set in stone.”

Chief Justice Bender then asked Grueskin to address the main points of the opponents’ argument (1. disagreement on standard of review, and 2. taking Douglas and Larimer counties out of current districts was ‘unfair’) - “what are the facts supporting [Hyatt's] decision?”

Grueskin argued that “evidence linking Boulder and Larimer counties is strong” - citing “expert testimony” that the demographics of Boulder and Larimer counties are “virtually identical” while the demographics of Larimer and the Eastern Plains are “exceedingly different.”  He noted many common employment industries in both counties, while noting that the percentage of residents actually employed in agriculture in Larimer is not large.

Grueskin noted that the “standard of review” issue is important, while maintaining that the issue of what is open to ‘de novo review’ is very limited.

Finally, the attorney for Aurora expressed support for the ‘Moreno Map’ in keeping Aurora wholly within a single congressional district, citing previous case law supporting keeping the city intact as a “community of interest” that had previously been trumped by other factors.  He did note, however, the close ties of Aurora to Douglas and Elbert counties as a provider of water resources (which one might think would be an argument for maintaining Aurora in a “community of interest” with those counties).

Interestingly, neither side brought up the disputed notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

Bottom Line:

The Colorado Supreme Court’s decision in the appeal of the trial court’s congressional redistricting ruling is likely to come down to the ’standards of review’ issue: was the trial court “manifestly unreasonable” in defining districts and did it “inconsistently apply” standards for ‘communities of interest’ in assigning counties to congressional districts?

The extent of judicial discretion exercised by Denver District Court Judge Robert Hyatt (in selecting evidence and applying statutory criteria) is also likely to factor in the court’s ruling.  Thanks to the “Mary-Mandering” bill passed in the waning days of the 2010 legislative session, the judge could pick & choose criteria including “non-neutral” political factors according to his personal preference.

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

Quo Vadis?

Although “reading the tea leaves” in such a complex and highly political case is fraught with danger, based on the arguments presented, questions posed by the Colorado Supreme Court justices, and in light of relevant case law precedent and Colorado statutory requirements (see below), Clear The Bench Colorado can discern some indicators on the eventual outcome:

• Justices Bender and Rice (the remaining members of the “Mullarkey Majority”) will almost certainly vote to uphold the Moreno map (based on past ‘performance’ and questions asked)
• Justices Eid and Boatright (the Colorado Supreme Court’s newest member) appeared skeptical that the trial court consistently applied standards and considered existing “communities of interest” and relevant case law; they appear disposed to reject the map
• Justice Coats asked no questions during oral argument; he trends “conservative” and dissented in the judicial usurpation of legislative redistricting authority in the 2003 redistricting case (Salazar v. Davidson), and tends to support case law precedent (which would support maintaining traditional “communities of interest” & minimizing disruption).  Leans reject.
• Justice Hobbs appeared to accept proponents’ arguments that competing “communities of interest” had been considered by the trial court, and that on balance the evidence was sufficient to support Hyatt’s ruling; leans uphold.
• Justice Marquez asked the most incisive and relevant questions at oral argument.  Although it’s not clear how she might eventually decide, it is clear that she is possessed of a sharp legal mind and appears disposed to rule on the merits of the evidence and legal criteria applicable to the case.
• CTBC predicts that the Colorado Supreme Court will almost certainly issue a split decision, most probably ending on a 4-3 vote (with Justice Marquez the most likely deciding vote). Based on available evidence, it’s impossible to predict which way it will go - but given the urgency of reaching a decision, we’ll see a ruling from the court next week.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Statutory Criteria governing Congressional Redistricting:

2-1-102. Neutral criteria for judicial determinations of congressional districts.
(1) In determining whether one or more of the congressional districts established in section 2-1-101 are lawful and in adopting or enforcing any change to any such district, courts:

(a) Shall utilize the following factors:

(I) A good faith effort to achieve precise mathematical population equality between districts, justifying each variance, no matter how small, as required by the constitution of the United States. Each district shall consist of contiguous whole general election precincts. Districts shall not overlap.
(II) Compliance with the federal “Voting Rights Act of 1965″, in particular 42 U.S.C. sec. 1973; and

(b) May, without weight to any factor, utilize factors including but not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city, or town boundaries are changed, adjustments, if any, in districts shall be as prescribed by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

Today’s meeting, for the purpose of public discussion (by commission members) of revisions to the maps, will be held beginning at 11:00 AM in Hearing Room A of the Legislative Services Building, located at 200 E. 14th Avenue, Denver CO 80203.

The meeting will also be broadcast online (audio only)

The commission will meet again tomorrow (Tuesday, 29 November) same time/location, to vote on the revisions to the state legislative district maps to be re-submitted to the Colorado Supreme Court.

From the Colorado Reapportionment Commission’s information release:

No public testimony will be heard at either of these meetings. However,comments may be submitted by email, letter, or phone call. Please use the following contact information for the commission to submit comments.

Mailing address: 1313 Sherman Street, Suite 122, Denver, CO 80203
Email: reapp2011@state.co.us
Fax: 303-866-3945
Phone: 303-866-3950

The commission will apply the instructions handed down by the Colorado Supreme Court in their ruling (“In re Reapportionment of the Colorado General Assembly”) to comply with Colorado Constitutional requirements (see below) guiding the composition of state legislative district boundaries, in order to generate a set of constitutionally-compliant maps by the court’s deadline of 6 December 2011.

Reference: Audio recording of the Colorado Supreme Court hearing on state legislative reapportionment (9 November 2011)

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly, 2002), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Opening briefs from the petitioners (appellants) are due to the Colorado Supreme Court on Wednesday, 23 November; response briefs are due to the court on Monday, 28 November (so much for a happy Thanksgiving weekend for the lawyers).

Next Thursday’s (1 December) oral arguments before the Colorado Supreme Court, in which each side will have 30 minutes to make their case, will be recorded and posted online shortly after the hearing.

Arguments in the case are likely to revolve around the issue of whether the lower court properly adhered to Colorado constitutional and statutory guidelines governing redistricting, in particular the requirement to maintain county integrity where possible

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Article V, Section 47(2)

and “preservation of political subdivisions such as counties, cities, and towns.” [C.R.S. 2-1-102(1)(b)]

Douglas County is also challenging Judge Hyatt’s assertion that Douglas County is more properly within a “community of interest” with the Eastern Plains (putting Castle Rock and Park Meadows shopping mall in the same district as Wray, Burlington, and Lamar).  [Ed. an observer wryly noted that Douglas County doesn't even have a Burlington Coat Factory location, much less strong 'agricultural' ties to the plains]

Finally, petitioners are likely to challenge the notion of “competitiveness” as a basis for defining congressional district boundaries, cited by Judge Hyatt in support of his decision to split some counties (Douglas, Adams, Arapahoe, and Eagle) and not others. (Ruling at 43)

It must be noted that ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Given the Colorado Supreme Court’s rejection of “competitiveness” as a factor taking precedent over clear constitutional and statutory guidelines in remanding state legislative district maps back to the Colorado Reapportionment Commission for corrections and revisions, it would be utterly inconsistent of the court to reject “competitiveness” as a primary factor in state legislative redistricting while upholding the notion for Colorado’s Congressional districts.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring.

Congressional District Google Earth maps (requires Google Earth download): Moreno/South Map (Google Earth)

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

The commission meets first on Friday, 18 November in executive session (which means that it will not be broadcast or open to the public) for the purpose of consulting with private counsel about the resubmission of the state redistricting plan.

The next meeting - for the purpose of public discussion (by commission members) of revisions to the maps, will be held on Monday, 28 November 2011 beginning at 11:00 AM at the state Capitol.

The final meeting - for the purpose of voting on revisions to the state legislative district maps to be re-submitted to the Colorado Supreme Court for review - will be held beginning at 1:00 PM on Wednesday, 30 November 2011.

From the Colorado Reapportionment Commission’s information release:

No public testimony will be heard at either of these meetings. However,comments may be submitted by email, letter, or phone call. Please use the following contact information for the commission to submit comments.

Mailing address: 1313 Sherman Street, Suite 122, Denver, CO 80203
Email: reapp2011@state.co.us
Fax: 303-866-3945
Phone: 303-866-3950

The commission will apply the instructions handed down by the Colorado Supreme Court in their ruling (“In re Reapportionment of the Colorado General Assembly”) to comply with Colorado Constitutional requirements (see below) guiding the composition of state legislative district boundaries, in order to generate a set of constitutionally-compliant maps by the court’s deadline of 6 December 2011.

UPDATE: Audio recording of the Colorado Supreme Court hearing on state legislative reapportionment  (9 November 2011)

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly, 2002), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

The Colorado Supreme Court’s ruling, “ In re Reapportionment of the Colorado General Assembly,” rejected arguments putting “competitiveness” ahead of constitutional criteria for defining the boundaries of Colorado’s state legislative districts:

The supreme court holds that the finalized Reapportionment Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2), and the Colorado Reapportionment Commission has not made an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo. 2002). The supreme court returns the plan to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011.

The court’s decision followed challenges to the commission’s maps submitted by eleven Colorado counties and other interested parties, based primarily on violations of the constitutional requirement to maintain county integrity to the extent possible.

The commission’s maps split counties more than necessary to maintain numerical parity between districts, and failed to apportion a number of “whole” state legislative districts within counties that qualified based on population.

The court also rejected the notion, advanced by Democrat plaintiffs, that “competitiveness” - a concept lacking constitutional or statutory definition -could trump constitutional criteria in drawing state legislative boundaries.

Several plaintiffs also cited the fact that the commission’s maps submitted to the Colorado Supreme Court for constitutional review were introduced at the 11th hour by the commission’s lone unaffiliated member, Chairman Mario Carrera, in substitution for other maps which had been scrutinized in public hearings over the course of the summer (one round of hearings in June, followed by another round of public hearings on maps incorporating public comment and testimony throughout the month of August).  The maps voted out of commission and submitted to the court were not subjected to public comment or testimony, and in many cases contradicted the views expressed by individual citizens and county governments.

Since the maps failed to meet the criteria set forth in the Colorado Constitution, particularly the requirement to maintain county integrity where possible, the eleven challenges filed by county governments around the state were inevitable.

Clear The Bench Colorado had the most complete and accurate coverage of last week’s hearing by the court, and even predicted the outcome (down to the 4-2 margin of decision).

Colorado Constitutional Requirements:

• Equal population (with no more than 5% deviation;  ideal district size - Senate: 143, 691; House: 77,372) (Colorado Constitution Article V, Section 46)
• Counties cannot be split unless necessary to achieve equal population between districts

Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.  Article V, Section 47(2)

• Municipalities may not be split unless necessary to achieve equal population between districts (Article V, Section 47(2))
• Districts must be as compact and contiguous as possible, and consist of whole precincts

(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. (Article V, Section 47(1))

• Finally, communities of interest - ethnic, economic, cultural, demographic, trade area and geographic - are to be preserved whenever possible

(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible. (Article V, Section 47(3))

Note that per a previous Colorado Supreme Court ruling (In re: Reapportionment of the Colorado General Assembly), these criteria are listed in order of priority - i.e. there’s a hierarchy of constitutional criteria which must be satisfied in order for legislative districts to pass constitutional review.

Additional references:

• Additional information is also available on the Reapportionment Commission website.
• Constitutional Provisions Controlling Reapportionment/Redistricting (state website listing relevant legal language on Congressional redistricting & state legislative reapportionment)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

On the macro (statewide) level, the most noticeable changes:

• 2nd Congressional District: adds Larimer County, southern Jefferson County, drops half of Eagle County
• 3rd Congressional District: adds Lake County, most of Eagle County; drops Las Animas and Otero counties
• 4th Congressional District: loses Larimer County (to 2nd), gains Las Animas and Otero counties (from 3rd) and Douglas & Elbert counties (from 6th) along with most (the non-urban areas) of Arapahoe and Adams counties
• 5th Congressional District: drops Lake County (to 3rd CD)

Moreno Map statewide

Some of the greatest changes were made to Denver metro-area districts:

• 1st Congressional District: picks up chunks of Arapahoe and Jefferson counties along the southern edge of the current district
• 6th Congressional District: loses Elbert County, Douglas County (except Highlands Ranch) and the non-urban majority of Adams and Arapahoe counties to 4th CD; gains all of Aurora, northern Adams County suburbs (from 7th CD)
• 7th Congressional District: loses all of Aurora & northern Denver-metro (Adams County) suburbs to 6th CD; gains parts of Jefferson County

Moreno Map metro magnified

(UPDATE: the Denver Post has created a “find your proposed district” application)

Judge Hyatt’s ruling relies heavily on the “competitiveness” trope advanced by the Democrat plaintiffs as a consistent theme in both legal arguments and in the public-relations “framing” of the case in the media and public discussions.
(H/T Law Week Colorado for posting the court’s ruling online)

However, it must be noted that reliance on ”competitiveness” is a political argument, NOT a legal or constitutional argument (since there is neither a clear definition, nor constitutional requirement, for “competitiveness”), and as such has no place in a court ruling on the constitutional or legal merits of the maps.

Nevertheless, despite the fact that the Colorado Supreme Court consistently critiqued the notion of “competitiveness” as a basis for legal rulings during hearings on state legislative district maps, Denver District Court Judge Hyatt repeatedly cited “competitiveness” as a basis for ruling in favor of the ‘Moreno Map’, based on party registration numbers, not voting performance:

Judge Hyatt also relied heavily on the “discretionary factors” facilitated by the “Mary-mandering” legislation passed at the close of the 2010 legislative session in what has been confirmed by events as a preparatory move in the plan to send the issue of redistricting to the courts all along:

The General Assembly amended this statute in 2010 to repeal the statutory prohibition, adopted in 2004, against the use of political data such as party registration and so-called “political performance” data. (Ruling at 43)

The 2010 legislative changes not only added “political” or “non-neutral” data to the list of factors which could be considered by the courts, but also removed legal guidance on prioritizing other factors, allowing the judge to pick and choose the remaining “discretionary” factors according to his personal preference - which he did:

Of the discretionary factors specifically listed in the statute, the court finds that no factor is more important than a district’s communities of interest. (Ruling at 43)

Why should the factor of “community of interest” - subject to shifting and subjective definition - trump any of the other more objective and quantifiable factors set forth in Colorado statute?

Statutory Criteria for Congressional Redistricting

Colorado law [C.R.S. 2-1-102(1)(b)] also sets forth a number of discretionary criteria that this Court may consider.  In Congressional redistricting litigation, a court:

May, without weight to any factor, utilize factors that include but (are) not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns.  When county, city or town boundaries are changed, adjustments, if any, in districts shall be preserved by law.
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior district lines

Judge Hyatt was also selective in choosing which testimony he cited to define “communities of interest”,  further moving the ruling from the realm of legal review based on consistent standards (rule of law) into the area of arbitrary decisions by a single individual (rule by caprice) - the very antithesis of “what makes a good judge.”

(Until court transcripts are available, Clear The Bench Colorado has the most comprehensive review and summary of the congressional redistricting trial arguments and testimony available).

Although the ultimate decision on Colorado’s Congressional District maps will be made by the Colorado Supreme Court (following the inevitable appeal), the district court’s decision has at a minimum framed the terms of the debate and set the conditions for the eventual outcome.

Sadly, the entire spectacle of judicial imposition of a political solution to Colorado’s Congressional District representation could have been prevented had the state legislature carried out their constitutionally-mandated responsibility to pass redistricting legislation instead of sending it to the courts last Spring - an outcome pursued by yesterday’s winners fully expecting a “friendly” set of judges.

Additional references:

• Constitutional Provisions Controlling Reapportionment/Redistricting (official Colorado state website, which collates relevant constitutional language on Congressional redistricting and state legislative reapportionment)
• Redistricting in Colorado (Ballotpedia site - although the site contains several errors, some of which are being corrected, it does provide useful context and historical background on past restricting battles.  As with any Wiki site - contributions come from a variety of sources and are frequently edited - proceed with some skepticism)

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone -  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.