|View From a Height
Commentary from the Mile High City
Monday, December 01, 2003
Surprise, surprise, the Colorado Supreme Court declared the Republican redistricting plan against the state's constitution. This was one of the two major redistricting cases on the country's docket, the other being in Texas. There are at least three angles to this case, as usual, and I would argue that it is neither good law nor good policy, either in principle or in practice. Nor is it over.
Colorado is lucky enough to have this.
I've read the Attorney General's brief. Ken Salazar(D), employed by the state he sued, argued essentially from silence. That for much of the state's history, the issue never came up at the Congressional level, since the state only had one congressman. He also argued that when the Constitution was re-worded, that rewording was done specifically assuming that only one redistricting per decade would be allowed. Naturally, he cited no legislative history. He also argued that court-ordered districts superseded the legislature's right to redistrict.
Here's the original language, before Colorado got a second representative, from the original state constitution:
Salazar interprets "When...shall" to imply "only," a word that appears nowhere in the section. He also argues that getting rid of the archaic language was a deliberate attempt to prevent redistricting at any other time. As though elections would take place at a time not prescribed by law?
Moreover, the original state court was choosing between two rival redistricting plans it ignored the standards set out in Carstens v. Lamm, 1982. Here is what that case specifically set forth as the parameters for redistricting:
The court's plan, also known as the Democrats' plan preserves population equality, but that's about it. The Democrats' plan sends the 7th District curving around the city of Denver, specifically as a partisan gerrymander. There was never any serious claim of racial discrimination. The Democrats' plan violently attacks existing municipal boundaries than does the Republican plan. None of the standards of a "community of interest" is a partisan one.
So, having won that case, it fell to Salazar to argue that the court's plan pre-empted a new legislative plan. As you can see from above, there is nothing, nothing in that language which pre-supposes that if a legislature fails to act, that it automatically cedes that right to the courts. Partisan composition of the court aside, this is as much a case of another judicial power grab. If this were a case of the legislature seeking rights for itself over the citizens of the state, or regulatory authority not granted to it, I would agree that some restraint is in order, but the Court simply asserts language that does not exist, in order to maintain its newfound authority.
The Court also wants to have it both ways with regards to Federal law. It claims that even if the state constitution didn't prevent this, federal law would. And then it argues that its ruling applies to the state constitution, so whatever the pending federal case decides doesn't matter, anyway. This is the language of a litigator, not a responsible court.
The ruling is also bad policy in the specific case. There's a reasonable chance that Republicans could win a substantial majority of votes statewide next year, and win only 3 of the state's 7 Congressional districts. Naturally, the Democrats interpret this as a victory for popular democracy.
But the results of the general case are far more disturbing. The Court argues that "stability" dictates preventing mid-term redistricting, as though "stability" were in and of itself a virtue. The fact is, the General Aseembly and the State Senate need to agree on a redistricting plan. From 2000-2002, the Democrats controlled the State Senate, blocked a plan, and then went to a judge. A quick look at the National Conference of State Legislature website shows that divided power is far more the norm than the exception. I think it extremely unlikely that a party, having gained control of both a legislature and a governor's mansion, would seek to overturn a bipartisan plan. In a case where one party had completely supplanted the other, taking both houses and the governorship away, it's likely that a major change in the state's congressional partisan composition would also have occurred, and that a party would be unlikely to pick a partisan fight so quickly.
In short, the only two cases I can see where a mid-term redistricting is likely to happen are the two in Colorado and Texas. In the one, a court stepped in when the legislature couldn't agree, and in the other, the ruling party's abuse of power was so extreme that it resulted in over 10-point gap between the partisan vote and the state's representation.
In fact, there is every reason to believe that the Court has created an incentive for the parties not to work together, and then for one party or the other to go judge-shopping for one of its own party. This tends to increase the importance of the courts, placing them much closer to the center of a process that should only involve them rarely, if at all. Which is, of course, what they really want.
There is some sanity left on the Court. The minority opinion contains some pointed words for the majority: