Colorado Supreme Court Says Bipartisan Redistricting Bill Would Be 'Unconstitutional' If Passed
The biggest issue facing Colorado’s Independent Redistricting Commissions is a delay in Census count data typically used to draw electoral district maps. Lawmakers created a bipartisan bill (Senate Bill 247) to, in part, allow the commissions to use estimated data while waiting for the full data to come out without worrying about potential lawsuits that could invalidate their final maps. They used the bill to essentially ask the state Supreme Court to weigh in on this issue.
A majority of the state Supreme Court’s justices (5-2) said the bill would be “unconstitutional” in a ruling released on Tuesday. They argue the Colorado constitution solely leaves this kind of decision-making in the commissions’ hands and already allows them to choose to use estimated data while drawing rough draft maps.
“The Colorado Supreme Court affirmed that the independent commissions are just that -- independent,” Carlos Perez, chair of the Colorado Independent Legislative Redistricting Commission said in a statement released Tuesday afternoon. “The overwhelming support for Amendments Y and Z in 2018 unequivocally demonstrated that the voters are highly skeptical that a partisan process will yield fair maps. For our commission to earn the trust and confidence of the public in this important process of redistricting, we need to maintain a professional yet arms-length relationship with the General Assembly. I am pleased with the court's decision.”
The commissions were already starting to use estimated data when they came out against the bill in late May, citing similar concerns as the court. They began using the data because they need rough draft maps they can use in a constitutionally mandated, statewide road trip where they gather public comments on the maps from people in each congressional district. Waiting for final census count data would likely force them to miss deadlines and affect the 2022 election schedule.
The state legislature “by all accounts appears to be well-intentioned” in creating SB 247, Justice Monica M. Márquez wrote for the majority, but the bill would be constitutionally out of line because about 70% of voters passed Amendments Y and Z in 2018 to create the commissions.
“The Amendments were expressly intended to remove the General Assembly from the redistricting process, instead vesting all authority to draw district maps with independent commissions,” Justice Márquez wrote. “Under this new scheme, the General Assembly has a discrete and limited role in appropriating funds for the commissions and nominating a limited number of applicants for consideration as commission members.”
The majority also said the constitution already allows the commission to use estimated data because the amendments only required the use of “necessary census data” when drawing rough draft maps. That term is not defined by the amendment, leading the justices (and commissioners before them) to believe the commissions get to decide what qualifies as appropriate data for those maps.
If someone challenges the commissions’ final maps via lawsuit because they used estimates in preliminary maps instead of full count data, SB 247 would direct courts to rule that the commission was complying with the constitutional amendments.
The justices wrote they probably would approach that kind of lawsuit with the viewpoint the legislature wants them to have. However, they took issue with the legislature trying to dictate how courts review such cases. The two dissenting judges actually agreed with this point.
Justice William W. Hood wrote the dissenting opinion on behalf of himself and Justice Richard L. Gabriel. They first argue that “nothing in Amendments Y and Z explicitly prohibits the General Assembly” from influencing the methods of redistricting through legislation like SB 247. They go further by arguing this bill would likely ensure a fair redistricting process.
“So, SB 21-247 isn’t the first stop down the slippery slope back to gerrymandering,” Hood wrote. “It is a guardrail that guarantees that the commissions will use apolitical data about where we live when they exercise their discretion to sort us into districts of equal population size that preserve compact communities of interest and that maximize political competition.”