In re REAPPORTIONMENT OF the COLORADO GENERAL ASSEMBLY.
No. 82SA6.
Supreme Court of Colorado, En Banc.
Feb. 19, 1982.
Rehearings Denied March 1, 1982.
647 P.2d 191
Gerald Dahl, Frisco, and Arnold Alperstein, Alperstein, Alperstein & Forman, P. C., Denver, for certain residents of Eagle, Grand, Jackson, Pitkin, Routt, Summit, Boulder, Gilpin, Jefferson and Clear Creek Counties.
Jac K. Sperling, Denver, for Raymond Bullock (Jefferson County Resident) and Jeanette Scotland (Boulder County Resident).
Gary Sandblom, Denver, for Michael T. Rabb and Jay Brizie (Boulder County Residents).
James R. Stitt, Rodney R. Nowadzky, Stitt, Wittenbrink & Nieman, Westminster, for City of Westminster.
Wyatt B. Angelo, Russell, Angelo & Wright, P. C., Gunnison, for Consolidated Gunnison County Group.
Charles M. Dosh, Denver, for Thomas P. Briggs and William G. DeGroot (Denver County Residents).
Stephen Davis, Denver, for Rae Hilbert and Kathryn L. Pride (Denver County Residents).
Durant D. Davidson, La Junta, for Consolidated Otero County Group.
Cile Pace, Asst. County Atty., Jefferson County, for Norman C. Allen, Jefferson County Clerk and Recorder.
Alfred J. Romano, Chairman, Larimer County Republican Party, Daniel A. Campbell, Jesse T. and Anne M. Kelsey, Eldorado Estates Homeowners Ass‘n, Inc. (Jeffrey Waller, Acting President), Charles L. Dunahue, Republican Captain, Dist. No. 1, Katherine E. Lillich, Republican Captain, Dist. No. 1, Lucio Rodriguez, Republican Captain, Dist. No. 2, Edna Shellhammer, Republican Captain, Dist. No. 2, Robert W. Terry, Phillip and Barbara Fresquez, Lila D. Greaves, pro se protestors.
Jon L. Holm, Holm & Christensen, Leonard M. Campbell, Gorsuch, Kirgis, Campbell, Walker & Grover, Denver, for Colo. Com‘n on Reapportionment.
PER CURIAM.
The sections of the Colorado Constitution establishing a system for reapportionment of the General Assembly to reflect population changes in the 1980 federal census require us to review the reapportionment plan.
The paramount criterion for testing the constitutional sufficiency of a reapportionment plan is substantial equality of population among the senate districts and among the house districts3 as required by
The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.4
Compactness as used in the constitutional sense ... concerns a geographic area whose boundaries are as nearly equidistant as possible from the geographic center of the area being considered, allowing for variance caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines.
Section 47(2) provides in pertinent part:
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. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.
By its express language, section 47(2) subordinates the importance of not dividing
The final test for the constitutional adequacy of legislative districts is the communities of interest standard in
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.
The language “Consistent with the provisions of this section and section 46 ...” as a preface to the communities of interest test in section 47(3) clarifies that maintenance of communities of interest is the least weighty of the requirements in sections 46 and 47.
Our role in this proceeding is a narrow one: to measure the present reapportionment plan against the constitutional standards.6 The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court. We emphasize, however, that a basic purpose of the constitutional standards is to assure equal protection for the right to participate in the Colorado political process and the right to vote. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, supra. Testimony before the Commission justifying districts of unequal population would not shield a plan allowing unequal districts from judicial invalidation; deference to Commission expertise and judgment would be inappropriate in such a case.
We recognize the difficulty the Commission faces in complying simultaneously with multiple constitutional criteria which may conflict in application. When the greatest potential for conflict exists, the constitutional provisions explicitly note which criterion takes precedence. Thus,
I.
Initially, we consider a general objection that the plan is void because the preliminary reapportionment plan was not published as required by
Within ninety days after the commission has been convened or the necessary census data are available, whichever is later, the commission shall publish a preliminary plan for reapportionment of the members of the general assembly and shall hold public hearings thereon in several places throughout the state within forty-five days after the date of such publication.
(Emphasis added.)
The affidavit of the Commission‘s staff director reflects that the Commission held
The constitutional provision does not specify any particular method of publication of the preliminary plan. When newspaper publication is contemplated, the constitution makes it clear, directly or by reference. See
We conclude that the word “publish” in
II.
A.
Several opponents attack the plan claiming that, in failing to preserve intact Montezuma, Otero, Eagle, Gunnison and Fremont counties, the plan violates the requirement of
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.
We disagree. From our examination of the plan in conjunction with the Commission‘s Report, we conclude that the Commission was sufficiently attentive to county boundaries to meet the requirement of section 47(2).
Examining the plan as a whole, of the 53 counties in Colorado with populations less than that of an ideal senate district, only one, Delta County, was split in the plan. The Commission‘s justification for the division of Delta County between more than one senate district was the need to achieve sufficient population in Senate Districts 5 and 6 to meet the equal population requirement of section 46. The same number of counties—53—are too small to each comprise a single house district. Of these, only seven were divided between more than one house district. The Commission‘s justification for splitting six of the seven—Montezuma, Otero, Eagle, Delta, Gunnison and Elbert counties—was to add sufficient population so that house districts could be formed incorporating adjoining counties intact.
Of the small counties which were divided into more than one house district, only the division of Fremont County was justified on a basis other than equal population. The Commission placed northwestern Fremont County in a house district with several small mountain counties to preserve a “unique community of interest” and tied the Canon City portion of Fremont County to Pueblo because of “the U.S. 50 transportation corridor and major state facilities [providing] a common employment base.”
For the most part, the Commission justified this splitting of “large” counties in forming senate districts by the need to meet equal population requirements.8 In the metropolitan areas, where the Commission had to combine parts of counties which already contain one full district with adjoining counties, and the population is dense enough to allow the lines to be drawn in a number of ways without offending section 47(2), the Commission relied more often on the rationale of preserving communities of interest.
El Paso County‘s population requires that it be composed of more than three senate districts, but it must be combined with Elbert, Lincoln and Teller counties to support four senate districts. Because any changes in election laws or voting practices in El Paso County must be approved in accordance with the Voting Rights Act of 1965,
Turning to the house districts in the larger counties, we note that El Paso and Denver counties support their allotted house districts without the addition of population from outside their boundaries. However, portions of Adams, Arapahoe, Boulder, Jefferson, Larimer, Mesa, Pueblo and Weld counties were added to other counties or each other to form house districts. The only objections before us to the crossing of county boundaries to form house districts involving a larger county are those by Fremont and Otero residents to their inclusion with portions of Pueblo County. It is impossible for us to ascertain in larger counties whether different district configurations might result in a net reduction in the number of house districts which cross county lines.
Each detail of the reapportionment plan which we might disapprove would require the Commission to make changes which have a “ripple effect,” necessitating numerous other changes in the reapportionment scheme. In re Interrogatories by the General Assembly, 178 Colo. 311, 497 P.2d 1024 (1972). We are mindful that the time constraint in section 48 will not allow the Commission to conduct new hearings on the Commission‘s revisions resulting from a dis
The constitution allows the Commission to divide a county only if necessary to meet the equal population requirement. The Commission‘s justification for some of the county divisions in the plan before us is not as precise as it might be. Nevertheless, substantial equality of population and avoidance of splitting counties cannot always be met simultaneously. When they cannot, the avoidance of split counties must yield. The area of the state in which these conflicts occur is subject to adjustment, and the Commission must have the discretion to choose where the necessary and constitutionally permissible compromises are made. Here, the Commission substantially complied with the constitutional requirements. In re Interrogatories by the General Assembly, supra.
B.
Several objectors contend that the Commission violated the prohibition against splitting cities in
Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.
Two residents of the City of Boulder maintain that its division into more than one senate district and the division of Grand Junction into more than one house district, when the population of each is sufficient to support a single district, is unconstitutional. Officials of Westminster, although acknowledging the city‘s irregular boundaries and location in two counties, request that its division among seven house districts and four senate districts be reduced to five house districts and two or three senate districts. Neither challenge convinces us that the Commission failed to adhere to constitutional standards in the exercise of its discretion.
Within Denver, objectors questioned the compactness of House Districts 6, 9, 10 and 11 and the communities of interest in House Districts 6, 7 and 9 and Senate Districts 31, 32 and 35. Preservation of communities of interest is a constitutionally recognized ideal which may not always be achievable. Again, after reviewing the objections, we conclude that the Commission acted within the bounds of its authority and discretion in drawing house district boundaries in Denver. Other objections based on lack of compactness or failure to preserve communities of interest, primarily in the inclusion of western Larimer County in Senate District 8 and the inclusion of mountain and suburban residents in House District 53, while not without some logical basis, also fail to demonstrate that the Commission improperly applied constitutional criteria.
As several objectors called to our attention, the plan draws the boundaries of Senate District 34 to encompass the residences of two incumbent state senators, while no state senator resides within Senate District 13. The term of one of the incumbents expires in 1982, the term of the other in 1984. As part of the plan, and under section 2-2-503, C.R.S.1973 (1980 Repl.Vol. 1B) (1981 Supp.), the Commission designated the senate districts in which state senators shall be elected in the November 1982 general election, and every four years thereafter, and the senate districts in which state senators shall be elected in the November 1984 general election, and every four years thereafter. That designation sets an election in district 34 in 1982 but no senatorial election in district 13 until 1984. The result is that until 1985 no senator will reside in district 13, but two will reside in district 34. We agree with the objectors that such a result violates constitutional guarantees of legislative representation.11
At the outset, we note that equal protection is not denied because district 13 is scheduled to elect a state senator in 1984, whereas, in the absence of reapportionment, some residents of that district would have voted for a state senator in 1982. Although reapportionment and election scheduling should preserve wherever possible the opportunity of all citizens to vote for a state senator every four years, the complexities of the reapportionment process may result occasionally in a six-year delay of the opportunity of some persons to vote for a senator. Where this result is absolutely necessary, it does not constitute a constitutional deprivation unless the change is shown to be the result of an invidious discrimination. See Ferrell v. Hall, 339 F.Supp. 73 (D.C.Okla.1972) aff‘d mem. 406 U.S. 939, 92 S.Ct. 2045, 32 L.Ed.2d 328 (1972); Stout v. Bottorff, 249 F.Supp. 488 (D.C.Ind.1965); McCall v. Legislative Assembly, 291 Or. 663, 634 P.2d 223 (1981). But see Schaefer v. Thomson, 251 F.Supp. 450 (D.C.Wy.1965), aff‘d mem. 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966).
The complaint of the objectors, however, is not directed merely to the six-year lapse between senatorial elections for some of the citizens of district 13, but to the constitutionally significant fact that during the last two years of this period the residents of district 13 will not have an identifiable senatorial representative. Such a result cannot be sanctioned consistent with the requirements of our state constitution.
Our conclusion is also buttressed by reference to the recall power reserved to the people in
The election sequencing in these two districts is particularly unjustifiable in light of a constitutionally preferable and easily implemented alternative. The election schedules established by the Commission provide for a senatorial election in district 34 in November 1982. As a result, two senators, a holdover senator and the victor in the 1982 election, will represent district 34 from 1983 to 1985.13 This is the same period during which district 13 will not be represented. If the Commission were to switch the election dates for districts 13 and 34, each district would be represented by a single senator from 1983 to 1985. We simply note this as a preferable solution. It is not our role to mandate a particular solution and we leave that for the Commission‘s decision, guided by the reasons we express for disapproval.
We reject one feature of the reapportionment plan, the sequencing of elections in Senate Districts 13 and 34, and return the plan to the Commission for revision, modification, and resubmission to this Court as required by
LOHR and QUINN, JJ., concur in part and dissent in part.
HODGES, C. J., does not participate.
I.
I agree with the majority opinion‘s explication of the relative importance of the various constitutional constraints on reapportionment prescribed in
I first elaborate upon the majority‘s discussion of the scope of our review in this proceeding. While I am not in disagreement with what is said about our role, I believe there are additional points, perhaps implicit in the majority‘s discussion, which should be made explicit. I then turn to a consideration of the specific features of the present reapportionment plan.
II.
The majority concludes that our role is in one sense narrow. It states, “The choice among alternate plans, each consistent with constitutional requirements, is for the Commission and not the Court.” With this I agree.
The majority also concludes that, in another sense, our role is not so deferential. Where there is an alleged or apparent constitutional deficiency in the reapportionment plan, we must exercise careful scrutiny. Our obligation under the constitution would not be satisfied by any less exacting review. Thus, the majority states, “Testimony before the Commission justifying districts of unequal population would not shield a plan allowing unequal districts from judicial invalidation; deference to Commission expertise and judgment would be inappropriate in such a case.” I also agree with this statement.
What I would make explicit is that our task is not fully satisfied by assuring that districts are of substantially equal population. Our state constitution imposes additional constraints upon the reapportionment process in
In this connection, I note that the findings of the Commission are entitled to deference. The complex task facing the Commission requires no less. However, when an objector demonstrates to the court, by alternative plan or otherwise, (1) that the Commission could have complied with all the reapportionment requirements where it did not, or (2) that the Commission unnecessarily failed to respect the constitutional hierarchy of precedence, deference to Commission expertise is no longer appropriate. At that point we would be remiss in our responsibility if we did not disapprove the non-complying feature of the plan or, at a minimum, require a further explanation of the Commission‘s choice.
With this framework in mind, I turn to a consideration of the specific provisions of the proposed reapportionment plan. As discussion of those provisions will demonstrate, the majority has inappropriately deferred to the Commission‘s districting choices in several instances where an objector has shown that the Commission violated constitutional safeguards or that the Commission‘s choice is so constitutionally suspect as to require disapproval pending further justification.
III.
I will first discuss those specific objections which in my opinion are clearly meritorious and require disapproval of certain features of the reapportionment plan. To facilitate an understanding of the specific districting problems discussed, maps of the senate districts and house districts as contained in the reapportionment plan are attached as Appendices A and B, respectively.
A. Otero County House Districts
The Otero County Democratic and Republican Party Chairmen, The Board of County Commissioners of Otero County, The City or Town Councils of La Junta, Cheraw, Swink, Rocky Ford, Manzanola, and Fowler, The Lower Arkansas Valley Council of Governments, and a number of individual citizens of Otero County have filed a joint statement of opposition protesting the division of Otero County between house of representatives districts 43 and 63. They contend that this division is not necessary to create substantially equal populations in the house districts and so violates
Otero County is in the lower Arkansas River Valley east of Pueblo. The county seat and principal city is La Junta, situated on the Arkansas River, which runs through the northern part of the county. The reapportionment plan makes that river the dividing line between house districts 43 and 63 in the county. This boundary divides the city of La Junta as well as the county itself.
District 43 is comprised of eastern Pueblo County, and Huerfano, Las Animas and southern Otero Counties. District 63 contains Crowley, Kiowa, Bent, Prowers, and Baca Counties and northern Otero County.
In support of their argument, the Otero County objectors submit two alternate plans. In the first, Otero County would be included entirely within district 43 and eastern Pueblo County would be shifted into district 63. In the second, Otero County would be included entirely within districts 63, and Crowley and Baca Counties would be shifted to district 43. Each alternative plan requires no division of any county except Pueblo, which must be split in any event because it contains a larger population than permissible within a single house district. Each would keep the city of La Junta whole. Although each of the alternatives, and particularly the second, sacrifices compactness to some extent, the more important constitutional requirement that counties not be divided unnecessarily is honored. Each suggested plan is more faithful to the constitution than is the plan adopted. These alternatives may not be the only ones available. Because the reapportionment plan violates
Some objectors challenge the Mesa County house district plan on the basis that it unnecessarily places portions of the city of Grand Junction in two different house of representatives districts, 54 and 55. District 54 includes the southern part of Grand Junction and western Mesa County as well as a portion of Delta County. District 55 is made up of the remainder of Mesa County. One alternative which would keep the city of Grand Junction within a single district would create a doughnut configuration, with Grand Junction and adjacent areas as the hole and the remainder of districts 54 and 55 as the doughnut. The Commission‘s negative response to this suggestion is based on citizens’ wishes and a perceived undesirability of splitting urban and rural areas. The constitutional injunction against dividing cities overrides these concerns.
I agree with the objectors that Grand Junction cannot be split between two house districts consistent with
C. Boulder County Senate Districts
Boulder County is included in three senate districts, 13, 17, and 18. Districts 17 and 18 are entirely within Boulder County, and the City of Boulder, in rough terms, is bisected by the boundary between those two districts. The remainder of Boulder County is in senate district 13, which extends westerly across the continental divide to include Pitkin, Eagle, and Summit Counties as well as Clear Creek and Gilpin Counties on the eastern slope. Senate district 13 will be discussed in a later section.
Certain objectors contend that by splitting the city of Boulder the Commission violated the requirement of
D. Adams County Senate Districts
Adams County is divided into three senate districts, 23, 24, and 25. District 24 is a heavily populated area made up of the
IV.
I now discuss certain districts to which objections having probable merit have been directed. Were this dissenting opinion to prevail I would disapprove the reapportionment plan as to these districts, and require the Commission to pursue and adopt alternatives or to submit a further explanation establishing the constitutional adequacy of the presently proposed districting scheme.
A. Senate District 13
Objectors residing in and near senate district 13 contest the composition of that district as violative of the requirement that communities of interest “be preserved within a single district wherever possible.”
Senate district 13 includes the western slope counties of Pitkin, Eagle, and Summit, the front range mountain counties of Gilpin and Clear Creek, and the western parts of Boulder and Jefferson Counties. It is a long, generally narrow district, extending from the northwest corner of Pitkin County to the northern boundary of Boulder County. The district meets the substantial equality of population requirement and contains no partial county except for Boulder and Jefferson, whose county populations exceed those permissible in a single senate district. It is necessary to determine, however, whether the district impermissibly divides communities of interest, lacks compactness, or has excessively lengthy boundaries.
It cannot be doubted that the interests of the mountain communities and those of the suburbs in the metropolitan area are not the same and sometimes are in tension. Similarly, western slope and eastern slope citizens have divergent interests in some areas appropriate for legislative action. Mining, water, and tourism exemplify subjects in which the residents in senate district 13 could be expected to have strongly held and widely disparate views. A senator predictably will be confronted with dilemmas in efforts to represent citizens with such different interests. The Commission, however, points out the common interests of the mountainous areas, including the skiing industry community of interest bonding western and eastern slope mountain communities. This commonality cannot obscure the other basic differences.
The objectors propose three alternate plans, utilizing various combinations of counties to achieve a senate district 13 limited to the western slope and having a more compact configuration and a shorter periphery. They have no proposal, however, to cope with the “ripple effect” of their suggested changes. That effect could be widespread.
I am mindful of the fact that senate district 13 satisfies the two principal constitutional criteria of substantial equality of population and, except where necessary to achieve equal population, avoidance of split counties. Nevertheless, when the communities of interest are so divided, the district is so lacking in compactness, and its border is
My review of the supporting materials reflects that senate district 13 was created toward the end of the redistricting process, when the options were narrowest unless lines for other districts, tentatively established earlier, were to be redrawn. While recognizing the difficulty of the Commission‘s task, I am not persuaded that senate district 13 is “as compact in area as possible,” that the “aggregate linear distance [of its boundaries is] as short as possible,” see
The constitutional sufficiency of senate district 8, which adjoins district 13, and which shares a similar west slope-east slope combination is discussed in the immediately following section. I would direct the Commission to consider revision of both districts 8 and 13 to combine western Larimer County with the east slope areas in district 13, recognizing that whether such a combination would be feasible and whether it would ameliorate the constitutional difficulties in the present senate district configuration are matters for the Commission to decide in the first instance. The Commission should not be limited to this possible revision in considering alternatives to remedy the constitutional frailties in districts 8 and 13.
Finally, I would not preclude the Commission from readopting senate districts 8 and 13 in their present configurations if exploration of alternatives should reflect that it is the best compromise available. If this course were adopted, I would direct the Commission to detail the alternatives tested and the reasons it considers other alternatives inferior to the one selected.
B. Senate District 8
Certain objectors invite our attention to the inclusion of western Larimer County in senate district 8, contending that it violates the compactness and preservation of communities of interest standards of our constitution.
Larimer County has its county seat in Fort Collins. That city and the southeastern part of the county contain the largest population concentration. Fort Collins and its environs comprise senate district 14, while the rest of southeastern Larimer County is part of senate district 15. The remainder of the county extends westward to the crest of a mountain range dividing Larimer and Jackson Counties and is part of senate district 8.
Senate district 8 is a large, sparsely populated district made up of Moffat, Rio Blanco, Garfield, Routt, Jackson, and Grand Counties, in addition to western Larimer County. It stretches eastward from the Utah border and along the Wyoming border to include more than three-quarters of Larimer County. The lack of common interests—indeed, the probable conflict of interests on subjects such as water policy—between Larimer County and the rest of district 8 is apparent.
The objectors, however, have proposed no alternate plan. If western Larimer County were removed from senate district 8, the ripple effect could be great. As discussed in Section IV A, above, a possible solution is to shift a western slope area now in senate district 13 into senate district 8 and place western Larimer County in senate district 13. Whether such an approach is feasible would require exploration by the Commission, utilizing detailed population information.
In recognition of the difficulties which senate district boundary revision would involve, and the possibility that further efforts might demonstrate that the existing configuration of senate district 8 is constitutionally the best available alternative, I would not foreclose the Commission from readopting the present district boundaries after diligently attempting to remedy the
C. Montezuma County House Districts
Objections have been raised to the division of Montezuma County to include it in two house districts, 58 and 59. The population of Montezuma County itself is not large enough to require the split. House district 59 consists of La Plata, San Juan, and Archuleta Counties, and the southern part of Montezuma County. House district 58 lies north of district 59 and includes the counties of Dolores, San Miguel, Ouray, Montrose, and parts of Delta and Montezuma Counties. The objectors demonstrate that the entire counties of Montezuma, La Plata, and San Juan could be combined in district 59; Archuleta County could be transferred to district 60, the San Luis Valley district; and, with adjustments of district lines in the already-split counties of Delta in district 58 and Gunnison in district 60, the constitutionally-mandated substantial equality of population of the affected districts could be maintained.
The Commission justifies the boundaries it selected on the basis of the need to maintain substantial equality of population. Although the objectors present total district population figures which apparently refute this justification, they do not detail the precise district boundary adjustments contemplated in their plan to shift district boundaries in Gunnison and Delta Counties in order to maintain constitutionally appropriate populations in districts 61 and 55, respectively. The objectors’ proposal shows promise of closer adherence to the constitutional requirements than does the Commission‘s proposed plan. Rather than accepting the Commission‘s undetailed conclusion that the objectors’ plan would not be adequate to maintain substantial equality of population, and thus rejecting the challenge to the split of Montezuma County, I would disapprove this feature of the plan unless and until the Commission presents additional information and justification for splitting Montezuma County. Of course, the Commission is not required to accept some particular alternative proposal so long as the plan ultimately adopted meets constitutional requirements.
D. Gunnison County House Districts
The Gunnison County Chamber of Commerce, the City of Gunnison, the Town of Mt. Crested Butte, the Town of Crested Butte, the Board of County Commissioners of Gunnison County, the Gunnison Chapter of the League of Women Voters, the Gunnison County Republican Central Committee, and the Gunnison County Democratic Central Committee have filed a consolidated statement of opposition, objecting to the division of Gunnison County into two separate house of representatives districts, numbers 60 and 61. They claim that the division is unnecessary and offends the requirements of
Gunnison County has the continental divide as its eastern boundary. One major highway, U. S. 50, passes through the county, east to west, providing access to Salida on the east and Montrose on the west. The city of Gunnison is the major population center and county seat and is located on U.
House district 60 includes the city of Gunnison. Crested Butte and Mt. Crested Butte are in district 61, as are Marble and Somerset. District 60 is made up of the San Luis Valley counties of Saguache, Alamosa, Conejos, Rio Grande, and Costilla; the mountain counties of Mineral and Hinsdale; and a fractional portion of Gunnison County. House district 61 is made up of the upper Arkansas River Valley Counties of Lake, Chaffee, and a portion of Fremont; the mountain counties of Park, Teller, and Custer; and the remaining section of Gunnison County.
The house district lines in Gunnison County do not maintain the county whole, even though the population of Gunnison County is not large enough to require division. They divide the community of interest that has developed in the Gunnison-Crested Butte areas as a result of the relationships promoted by the topography. The central question is whether the division of the county can be justified as necessary to meet the equal population requirements of
The Gunnison County objectors, claiming that the house districting in their county violates the constitution, propose alternate plans which they assert would be more consistent with constitutional criteria. One alternative is to include all of Gunnison County in district 61, and to make the compensating adjustment in the population of district 61 by eliminating Custer County, Fremont County, and part of Park County. The division of Park County is reasonable, they argue, because Park County extends east of Kenosha Pass, and the portion east of the pass has a natural community of interest with the mountainous areas of western Jefferson County.
To make up the population lost to district 60, Custer County and the part of Fremont County dropped from district 61 could become part of district 60. A second suggested alternative to make up the loss in district 60 is to add Huerfano County and to compensate for the loss of that county to district 43 by including Fremont and Custer Counties with the Pueblo County districts, and transferring necessary amounts of the Pueblo County districts to district 43.
Another proposal by the objectors to unify Gunnison County would include it in district 60, move Costilla County into district 43, and make unspecified compensating adjustments in the Pueblo County districts and in Fremont County to maintain substantial equality of population in all affected districts.
The unfortunate division of Gunnison County house districts in the reapportionment plan, and the proposals offered to unite the county, vividly illustrate the difficulties of the task which the Commission has accomplished, the deviations from the constitutional ideal necessary in redistricting this state, and the ripple effect of proposed changes. Even so, I conclude that the alternatives proposed by the Gunnison County groups indicate that the house redistricting in Gunnison County could be accomplished in a way more faithful to the constitutional criteria. In view of the substantial adverse effect of the plan on Gunnison County, I would disapprove this feature of the reapportionment plan. Again, I would not preclude the Commission from readopting the present plan if upon further study and consideration it were to determine that constitutional standards are more adversely affected by the alternative possibilities and by any other alternative which the Commission could devise to remedy the defects of the present proposal. In such
E. Fremont County House District
The principal area of Fremont County has been included in house district 61 with Lake, Park, Teller, Chaffee, and Custer Counties and part of Gunnison County. A small segment, containing Canon City, Fremont County‘s principal population center and county seat, has been included in district 44 with western Pueblo County, including part of the city of Pueblo. The objectors illustrate that Fremont County could be left whole and combined with Custer County and the northwestern part of Pueblo County to make up district 44. District 61 could then be made up of Park, Teller, Lake, Chaffee, and a larger part of Gunnison County than now included, all while maintaining populations within the required standards. The Commission does not respond specifically to this proposal. Its argument reflects an impermissible preference for maintenance of perceived communities of interest over the constitutionally preferred value of maintaining counties whole. Because of the ripple effect, it is again unclear whether the objectors’ plan is indeed workable. Whether it is the best alternative is not for us to determine in the first instance. It indicates, however, that splitting Fremont County between two house districts was unnecessary, and so constitutionally impermissible. I would disapprove this portion of the reapportionment plan.5
V.
The majority notes, and properly so, that our review of the reapportionment plan under
VI.
Finally, I am aware that some suggested means of obtaining closer adherence to constitutional districting standards, as set forth in this opinion, may be inconsistent with others. Were my views to prevail, I would require no more than that, when confronted with conflicting choices in revising and modifying the plan, the Commission adopt the alternatives most faithful to constitutional standards, guided by the reasons expressed for disapproval of features of the plan as originally submitted, and that it explain the bases of its choices.
For the reasons stated, I would reject certain features of the reapportionment plan, as more particularly described above, and return the plan to the Commission for revision, modification, and resubmission to this Court as required by
QUINN, J., joins in this concurring and dissenting opinion.
COLORADO REAPPORTIONMENT COMMISSION
PLAN B
HOUSE DISTRICTS
In re REAPPORTIONMENT OF the COLORADO GENERAL ASSEMBLY.
No. 82SA6.
Supreme Court of Colorado, En Banc.
March 12, 1982.
Rehearing Denied March 15, 1982.