They argue state lawmakers no longer get to influence the redistricting process in any way, since voters chose to enshrine the commissions in the state constitution to take on those responsibilities. The bill would “undermine” the voter-backed amendment that created the commissions, making them “a hollow shell of meaningless words,” commission lawyers told the state Supreme Court on Monday.
This is an important time for the future of politics in Colorado. For the first time, voting districts for the state legislature and congress will be drawn by two independent commissions instead of state lawmakers. That once-a-decade responsibility is magnified because the state’s getting a new, eighth representative in the U.S. House based on the 2020 census count.
Unexpected difficulties in last year’s census count forced the Census Bureau to delay releasing population data for counties, cities, zip codes and other localities to reduce errors. The commissions need those local population numbers to draw evenly populated districts.
The commissions’ timeline was created with the assumption that data would be available in March, as federal law dictates. Now, those numbers could come out as late as Aug. 16, Bureau officials said in April.
If commissioners wait for census data, they could be forced to miss deadlines, potentially resulting in lawsuits and throwing off the 2022 election schedule. At one point, the Colorado Secretary of State was considering filing a “friendly” lawsuit to prevent this possibility.
The other option is to use population data estimates while awaiting the full count data. But doing so could also result in lawsuits that may invalidate the maps that commissioners must submit in September.
“Regardless of what we do, we're going to be sued,” Congressional Redistricting Commissioner Danny Moore said during one of the group’s meetings last month. “This is why we're seeking legal counsel to do this.”
For now, both the state legislative and congressional districting commissions voted to take the latter path after deciding that the words “necessary census data” in the constitution are open-ended enough to allow them to make such a decision.
A big, constitutionally-mandatedpart of the commissions’ work is to hit the road with some rough draft maps created by nonpartisan staff to get input from various communities throughout the state. They’re supposed to holdat least three meetings in each of the seven existing congressional districts.
But it’s a time-consuming process and the public can’t comment on a map that doesn’t exist. District maps can’t be drawn without some kind of population data.
So both commissions decided to use estimate data to get moving on these public comment meetings (which they’re already behind schedule on.) The use of estimate data only applies to these preliminary maps. The final map will likely still use the full census count data when that comes out.
A very bipartisan bill that the commissions do not want
Lawmakers are using Senate Bill 247 primarily to ask the state Supreme Court an important question: Can the state’s independent redistricting commissions use estimates to draw district maps? The idea is to answer that question before someone asks it through a potentially map-killing lawsuit.
“We think it's the best, most efficient, most collaborative, least political way to answer this question so the independent commissions can get on with their work and do what the people of Colorado asked them to do,” Democratic Senate Majority LeaderStephen Fenberg said when the bill was first introduced.
Republican Senate Minority Leader Chris Holbert echoed support, urging his colleagues to vote for it too. And they have. At every stage so far, the bill has passed almost unanimously.
It’s still awaiting a vote in the full House, but the state Supreme Court is already considering arguments on the main question. However, the commissions oppose the bill.
“If voters had wanted the legislature to dictate how things were going to be redistricted, there would not be an independent commission,” said Congressional Redistricting Commissioner Bill Leone, a consistent critic of General Assembly involvement during commission meetings.
The last time Colorado had to create new district lines, that responsibility fell to the state legislature, as it always had.Parties couldn't agree on how to draw districts, lawsuits were filed and ultimately the state Supreme Court had to step in and choose the map Colorado has today.
The voter-backed state constitutional amendmentsY and Z that created these commissions aim to avoid these kinds of partisan issues. In briefsto the Colorado Supreme Court on Monday, lawyers for both commissions make similar arguments against SB 247.
They argue it represents “unconstitutional infringements and interference by the legislative branch of state government with the constitutional duties assigned to the Legislative Commission when Amendment Z was enacted by 70% of the electorate in the 2018 general election.”
“While the Legislative Commission understands the General Assembly’s desire to ensure that redistricting will be completed before the end of the year,” lawyers for the legislative redistricting commission wrote. “It fails to recognize that it no longer controls redistricting.”
Democratic House Majority Leader Daneya Esgar was “disappointed” by the commissions’ opposition to the bill.
“The governor, the secretary of state, the attorney general, leadership of both parties and both chambers agree that this is our best path forward,” she said. “We're not trying to change the process. We're not trying to intervene. We're just trying to make sure that what our constituents voted on is actually able to happen now.”
There is more to the commissions’ opposition. Some amendments and provisions in the bill create extra rules for the commission that weren't in the original amendment voters passed.
One requires commission staff toadjust populations by having all incarcerated people count in the communities they came from rather than the communities where they are imprisoned within five days of receiving full census count data.
Another required commissioners to hold an extra public comment hearing in each district after they create a map using the final census data.
Commissioners, their lawyers and staff worry those requirements could make existing timing issues worse, and argue those requirements are not within the legislature’s scope of influence.
While the court considers the question posed by the bill, commission staff have already started using estimate data from the state demographer’s office and Census Bureau to draw preliminary maps. The plans are expected to be finished by the end of June.
Lawsuits are a time-honored tradition of redistricting. While the commissions were created to relieve some of that tension, commissioners and staff seem to expect plenty of challenges to their maps.
“The new amendments and some of the actions of the General Assembly may have still created some questions that the court at some point would need to resolve,” said commission nonpartisan staff managing attorney Jerimiah Barry. “But not the sort of the breadth and extent of the ones that we're facing because of the delay.”
KUNC's Scott Franz contributed reporting to this story.
