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 He also argued that court-ordered districts superseded the legislature's right to redistrict.

The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to this state by the congress of the United States for the election of one representative to congress from each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly. Colorado Constitution, Article V, Section 44.

Here's the original language, before Colorado got a second representative, from the original state constitution:

One Representative in the Congress of the United States shall be elected from the State at large at the first election under this Constitution, and thereafter at such times and places and in such manner as may be prescribed by law. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly. Colorado Constitution, Article V, Section 44.

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 primary goal of an acceptable congressional redistricting plan should be fair and effective representation of all citizens.

Population equality standard is the pre-eminent, if not the sole, criterion on which to adjudge the constitutionality of congressional redistricting plans.

The second constitutional criterion used in analyzing redistricting plans is the absence of racial discrimination.

Additional nonconstitutional criteria may be used in evaluating congressional redistricting plans. These criteria can be grouped into three categories: (1) Compactness and contiguity; (2) preservation of county and municipal boundaries; and (3) preservation of communities of interest.

Compactness and contiguity, as criteria for redistricting, were originally designed to represent a restraint on partisan gerrymandering.

County and municipal boundaries should remain undivided whenever possible, because the sense of community derived from established governmental units tends to foster effective representation

Concept of "community of interest" applies to congressional redistricting, since formulating a plan without any such consideration would constitute a wholly arbitrary and capricious exercise

"Communities of interest" represent distinctive units which share common concerns with respect to one or more identifiable features such as geography, demography, ethnicity, culture, socio-economic status, or trade.

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:

The only authority that courts have to intervene in this purely political, legislative process is to review the constitutionality of existing districts, as we would review the constitutionality of any law, in order to protect the voting rights of aggrieved claimants. Within that limited framework, courts may enter emergency or remedial orders for the purpose of allowing elections to go forward. Such court orders are interstitial, and cannot then serve to pre-empt the legislature from reclaiming its authority to redistrict.

I would read the Colorado Constitution, as a whole, as abhorring such a transfer of legislative power to the judicial branch ... The Denver District Court acted only after the General Assembly failed to act in sufficient time to allow the November 2002 election to proceed. There is no question but that the court-ordered redistricting governed that election by virtue of the legislative abdication. In my view, that court order was a temporary, emergency order - to be honored until such time as the legislature acted to create districts that are constitutionally sufficient."

In other situations, if a court declares a statute unconstitutional, the court would never presume to replace the statute with a constitutional version. That is not our function.