PEOPLE of the State of Colorado, ex rel. Ken SALAZAR, in his official capacity as Attorney General for the State of Colorado, Petitioner, v. Donetta DAVIDSON, in her official capacity as Secretary of State for the State of Colorado, Respondent, Colorado General Assembly, Respondent-in-intervention.
Nos. 03SA133, 03SA147
Supreme Court of Colorado, En Banc.
Dec. 1, 2003.
79 P.3d 1221
v.
Donetta DAVIDSON, in her official capacity as Secretary of State for the State of Colorado, Respondent,
Colorado General Assembly, Respondent-in-intervention.
Donetta Davidson, in her official capacity as Secretary of State for the State of Colorado, Petitioner,
v.
Ken Salazar, in his official capacity as Attorney General for the State of Colorado, Respondent.
Ken Salazar, Attorney General, Alan J. Gilbert, Solicitor General, Anthony Navarro, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent Ken Salazar in Case No. 03SA147.
Ken Salazar, Attorney General, Alan Gilbert, Solicitor General, Renny Fagan, Deputy Attorney General, M. Terry Fox, Assistant Attorney General, Anthony Navarro, Assistant Attorney General, Monica Marquez, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner Ken Salazar in Case No. 03SA133.
Christopher G. Seldin, Assistant Pitkin County Attorney, Aspen, Colorado, Attorney for Petitioner-in-Intervention Board of County Commissioners of the County of Pitkin.
Brownstein, Hyatt & Farber, P.C., Stanley L. Garnett, Lynne M. Hufnagel, P. Cole Finegan, Scott A. Sundstrom, Denver, CO, Attorneys for Petitioner-in-Intervention Mark Udall.
Hale Hackstaff Friesen, LLP, Allan L. Hale, Richard A. Westfall, Scott E. Gessler, Denver, Colorado, Attorneys for Respondent-in-Intervention Colorado General Assembly.
Britt I. Weygandt, Jonathan M. Anderson, Denver, Colorado, Attorneys for Governor Bill Owens.
Thurbert E. Baker, Jeff L. Milsteen, Atlanta, Georgia, Lawrence E. Long, Attorney General of South Dakota, Roxanne Giedd, Assistant Attorney General of South Dakota, Pierre, South Dakota, Attorneys for Amici Curiae Thurbert E. Baker, Attorney General of Georgia; Lawrence E. Long, Attorney General of South Dakota; and the Attorneys General of 42 other States and Territories.
Jenner & Block, LLC, Sam Hirsch, Washington, D.C., Pendleton, Friedberg, Wilson & Hennessey, P.C., Edgar L. Neel, Michelle M. Merz, Denver, Colorado, Attorneys for Amicus Curiae Congresswoman Diana DeGette, the elected member of the United States House of Representatives for the First Congressional District of the State of Colorado.
Burt Neuborne, Deborah Goldberg, J.J. Gass, New York, New York, O‘Melveny & Myers, LLP, Ronald A. Klain, Charles E. Borden, Washington, D.C., Attorneys for Amicus Curiae Brennan Center for Justice.
Brenda L. Jackson, Fremont County Attorney, Canon City, Colorado, Attorney for Amicus Curiae Fremont County, through its Board of Commissioners, Norma J. Hatfield, in her official capacity as the Clerk and Recorder for Fremont County.
Schwarz McNab & Bailey, P.C., Christopher M. Kamper, Denver, Colorado, Attorneys for Amicus Curiae Colorado Common Cause.
Davis & Ceriani, P.C., Patrick J. Kanouff, Denver, Colorado, Attorneys for Amici Curiae Gail Schwartz and Cindy Carlisle.
Berenbaum, Weinshienk & Eason, P.C., Michael J. Belo, Timothy D. Knaus & Associates, Timothy D. Knaus, Foster, Graham & Huttner, LLP, Michael Huttner, Denver, Colorado, Attorneys for Amicus Curiae Christine Baca.
McDermott Law Firm, Daniel B. Slater, Canon City, Colorado, Attorneys for Amici Curiae Fremont County Democratic Party and Roberto Costales.
Ballard Spahr Andrews & Ingersoll, LLP, A. Thomas Downey, Denver, Colorado, Attorneys for Amicus Curiae Colorado House Minority in Support of Attorney General Salazar‘s Original Petition.
Kenneth L. Smith, Pro Se, Golden, Colorado.
Chief Justice MULLARKEY delivered the Opinion of the Court.
I. Introduction
The cases before us are matters of great public importance involving the fundamental rights of Colorado citizens to vote for their representatives in the United States Congress. In the closing days of the 2003 legislative session, the General Assembly enacted a bill to redraw the boundaries of Colorado‘s seven congressional districts. With this new law, the General Assembly intended to supplant the court-ordered 2002 redistricting plan, which governed the 2002 general elec
The Secretary of State and the General Assembly interpret the state constitution as an unlimited grant of power from the People of Colorado to the General Assembly to draw and redraw congressional district boundaries. Under this view, the General Assembly may change the congressional districts as frequently as it likes, even if an earlier General Assembly or the courts have already redrawn congressional districts since the most recent census. At the same time, these parties contend that the Attorney General has no power to ask this court to exercise its original jurisdiction to review the constitutionality of the General Assembly‘s districts.
The Attorney General presents a very different understanding of Colorado law. He argues that although our constitution directs the General Assembly to draw congressional boundaries, it limits the timeframe and frequency within which the General Assembly may do so. Specifically, the General Assembly may redistrict only once every ten years, and this must occur immediately after each federal census. Accordingly, the General Assembly loses its power to redistrict if it does not act within the window of time beginning after each federal census when Congress apportions seats for the U.S. House of Representatives and ending with the next general election. The Attorney General also maintains that he may petition this court to exercise its original jurisdiction to decide state constitutional issues of public importance. Similarly, the Attorney General does not oppose the Secretary of State‘s ability to petition this court for relief in an appropriate case.
Because of the importance of the issues raised, we exercise our discretion to decide two cases. The first is the Attorney General‘s constitutional challenge to the General Assembly‘s congressional redistricting bill. The second is the Secretary of State‘s separate challenge to the Attorney General‘s authority to bring the first case. We decide both issues as a matter of state law.
Since our constitution was ratified in 1876, the congressional redistricting provision found in
We cannot do that, however, because another section of the original Colorado Constitution makes it clear that the framers carefully chose the congressional redistricting language and that this language gives no implied power to the General Assembly.
In addition to the plain language of our constitution, Colorado has had 127 years of experience in applying the congressional redistricting provision. It has never been given the interpretation advanced by the Secretary of State and General Assembly.
Congressional redistricting, like legislative redistricting, has had a checkered history in Colorado, marked by long periods of time when the General Assembly failed to redistrict even though the state population grew dramatically and Colorado received more congressional seats. The federal government has conducted thirteen federal censuses since Colorado became a state, but the General Assembly has redrawn congressional districts only six times. The legislature‘s failure to redistrict meant that urban areas were systematically underrepresented, and
This era of inaction came to an abrupt end when the United States Supreme Court announced its “one-person, one-vote” principle and ordered Colorado to comply. See generally Lucas v. Forty-Fourth Gen. Ass‘y, 377 U.S. 713 (1964). In the cases leading up to Lucas, this court, as well as a federal district court in Colorado, held that the legislature‘s inaction violated both the Colorado and the U.S. Constitutions. See generally In re Legislative Reapportionment, 150 Colo. 380, 374 P.2d 66 (1962); Lisco v. McNichols, 208 F.Supp. 471 (D.Colo.1962). These and other better-known cases ushered in a new era in which there can be no doubt that the state must redistrict both its legislative and congressional seats after every new census. See generally, e.g., Wesberry v. Sanders, 376 U.S. 1 (1964); Baker v. Carr, 369 U.S. 186 (1962).
Within ten years of the Lucas decision, the voters of Colorado passed an initiative putting the power to redistrict the legislature into the hands of a constitutionally created reapportionment commission. See
In this opinion, we conclude that the General Assembly does not have the unprecedented power it claims. Federal law grants the states the authority to redistrict, and federal law defines and limits this power. Our state constitution cannot change these federal requirements. Instead, it can only place additional restrictions on the redistricting process. Therefore, even though the first sentence of
In short, the state constitution limits redistricting to once per census, and nothing in state or federal law negates this limitation. Having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census.
II. Background
In 2000, the United States census reflected Colorado‘s rapid growth of the 1990s and prompted Congress to assign Colorado one additional seat in the United States House of Representatives, bringing our total seats to seven. Because federal law requires each state to have the same number of congressional districts as it does representatives, the old redistricting plan, which contained only six districts, became illegal. See
The district court considered more than a dozen competing maps during a seven-day trial, and ultimately settled upon a new seven-district plan. See Beauprez, 42 P.3d at 645-46. The court, however, delayed issuing its decision in order to give the legislature yet another chance to pass its own plan during the 2002 session. Finally, after the General Assembly again was unable to act, the court announced its redistricting plan in time for the precincts to be set before the November election.
This court unanimously affirmed the district court decision, saying that the plan was “thorough, inclusive, and non-partisan.” Id. at 647, 653. The plan did indeed end up being non-partisan. From six districts, the voters reelected the incumbent or a replacement from the incumbent‘s party, and the new seventh district was highly competitive. In fact, in 2002, the seventh district voters elected their congressional representative by only 121 votes out of 170,000 voters—the narrowest margin in the nation.
In the closing days of the 2003 regular session, the newly elected General Assembly enacted a new redistricting plan, Senate Bill 03-352 (“SB 03-352“). See
On the same day that the Governor signed SB 03-352 into law, a group of citizens filed suit in Denver District Court, asking the court to enjoin implementation of the plan.2 Keller v. Davidson, No. 03CV3452 (Denv. Dist. Ct. filed May 9, 2003). That case has since been removed to federal court, and is now on hold by order of the federal district court pending this decision. Keller v. Davidson, No. 03-Z-1482(CBS) (D. Colo. filed Sept. 25, 2003).
On May 14, shortly after the District Court case was filed, the Attorney General filed an original action in this court pursuant to the
III. Jurisdiction
Both the Attorney General‘s case and Secretary of State‘s case are original proceedings pursuant to
There can be no question that the Attorney General‘s case involves an extraordinary matter of public importance. Congressional redistricting implicates citizens’ right to vote for United States Representatives. This right to vote is fundamental to our democracy. According to the United States Supreme Court, “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
The frequency of redistricting affects the stability of Colorado‘s congressional districts, and hence, the effectiveness of our state‘s representation in the United States Congress. When the boundaries of a district are stable, the district‘s representative or any hopeful contenders can build relationships with the constituents in that district. Furthermore, the constituents within a district can form communities of interest with one another, and these groups can lobby the representative regarding their interests. These relationships improve representation and ultimately, the effectiveness of the district‘s voice in Congress.
Furthermore, the specific outcome of the Attorney General‘s case resolves the debate over the shapes of the congressional districts for the 2004 elections. Until this dispute is settled, Colorado citizens and their representatives in Congress will not know whether the 2004 elections will take place under the same districts as the 2002 elections or according to SB 03-352‘s new districts. The uncertainty surrounding the 2004 congressional districts has forced some voters, local officials, and interest groups to act as if they could be in either one of two districts, and, thus, to expend unnecessary money and effort building relationships with both of their potential representatives and districts. Moreover, this uncertainty carries over to other elected and appointed officials, such as the University of Colorado Board of Regents, whose districts follow the congressional map. In sum, congressional redistricting is a crucial issue, which warrants a decisive and expedient resolution from this court.
The second factor in considering whether to exercise our original jurisdiction is whether the parties have an adequate alternative remedy. The remedy may be an action in a trial court or an appeal in an ongoing proceeding. C.A.R. 21(a)(1). As noted above, there is now a case in the federal district court that also challenges SB 03-352. Keller, No. 03-Z-1482(CBS). The Secretary of State urges that this federal case is an adequate remedy to the Attorney General‘s claims. We disagree.
The federal case is not an adequate form of relief for several reasons. An appellate court will often defer to a trial court when a case can be resolved on a ground that makes it possible to avoid reaching a constitutional issue. Here, however, the constitutional question cannot be avoided. In Keller, the plaintiffs did not raise the question of whether
Also, the federal court is not the appropriate forum to decide the frequency of redistricting. The United States Supreme Court has made it clear that states have primary responsibility in congressional redistricting and that federal courts must defer to states. Growe v. Emison, 507 U.S. 25, 34 (1993) (saying “reapportionment is primarily the duty and responsibility of the State“); see also Branch v. Smith, 538 U.S. 254 (2003).
Most importantly, this case turns on the Colorado Constitution. The United States Supreme Court “repeatedly has held that state courts are the ultimate expositors of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). Consequently, even if the Keller court were to address the issue of how frequently the General Assembly may draw congressional districts, the federal court would have to turn to this court to answer that question. See S.C. State Conference of Branches of NAACP v. Riley, 533 F.Supp. 1178, 1180 (D.S.C.1982) (redistricting case in which a federal district court said that only the South Carolina Supreme Court could interpret the state constitution‘s redistricting provision). Hence, it is illogical for this court to defer to the federal court. In sum, the Attorney General‘s petition presents an issue uniquely suited for resolution in an original proceeding.
In the second case that we decide today, the Secretary of State raises an issue that is also appropriately resolved in an original proceeding. The Secretary is the named respondent in the Attorney General‘s petition, and she challenges the Attorney General‘s authority to file such an original proceeding. The Attorney General‘s authority to sue the Secretary of State is a matter of public importance. Both are constitutional officers of the executive branch, and this is the proper vehicle to resolve their dispute. Thus, we exercise our discretion to decide both original proceedings.
IV. The Attorney General‘s Authority to Sue the Secretary of State
Before turning to the question of whether the General Assembly had the authority to redistrict in 2003, we first address the question of whether the Attorney General has the authority to petition this court to enjoin the Secretary of State from conducting the elections under SB 03-352. The Secretary of State contends that the Attorney General has no constitutional, statutory, or common law power to petition this court for the relief requested and that, by filing the petition, the Attorney General violates his ethical duty to represent the Secretary. We reject both arguments. We see no reason to depart from our long-established practice allowing the Attorney General to petition this court in an appropriate case.
We have always recognized the ability of the Attorney General and other public officials to request original jurisdiction in matters of great public importance. The case closest to the one before us today is People v. Tool, 35 Colo. 225, 86 P. 224 (1905). In Tool, we explicitly recognized the common law power of the Attorney General to bring an original proceeding in order to protect the integrity of the election process. The Attorney General was the appropriate person to institute such an action, because “it is the function of the Attorney General ... to protect the rights of the public....” Id. at 236, 86 P. at 227; see also People ex rel. Graves v. Dist. Court, 37 Colo. 443, 461, 86 P. 87, 92 (1906).4
Despite this precedent, the Secretary of State argues that the Attorney General is limited to his express statutory powers. We reject this argument. The Colorado Constitution vests original jurisdiction in the Supreme Court.
The Secretary of State also reads our decision in People ex rel. Tooley v. District Court to stand for the principle that the Attorney General has no common law powers. 190 Colo. 486, 549 P.2d 774 (1976). We reject such a sweeping interpretation. Tooley is consistent with the well-settled principle that the Attorney General has common law powers unless they are specifically repealed by statute. Colo. State Bd. of Pharmacy v. Hallett, 88 Colo. 331, 335, 296 P. 540, 542 (1931); see also Kane v. Town of Estes Park, 786 P.2d 412, 415 (Colo.1990). In Tooley, the legislature expressly abrogated the Attorney General‘s common law power to institute criminal actions in a trial court in favor of other constitutional officers, the district attorneys. Id.5
The Secretary of State misses the true significance of Tooley, which in fact supports the Attorney General‘s ability to file an original proceeding in this court. In Tooley, the district court ruled that the Attorney General and not the District Attorney could prosecute certain criminal actions. The Denver District Attorney subsequently sought this court‘s review of that ruling by filing an original proceeding. 190 Colo. at 488, 549 P.2d at 776. Although we decided that the Attorney General did not have that power, the outcome is not relevant. What is important here is that we accepted jurisdiction and heard the District Attorney‘s case. Had the district court ruled the other way, we would have heard the Attorney General‘s petition instead because this was a matter of public importance—a conflict between two officers of the state. Therefore, Tooley actually supports the Attorney General‘s position in this case.
The Secretary of State also asserts that the Attorney General has violated the Colorado Rules of Professional Conduct by naming her as the respondent. We find no ethical violation. The Secretary of State is named as a party in her official capacity because she administers the election laws.
The Colorado Rules of Professional Conduct explicitly recognize that government lawyers may “have authority to represent the ‘public interest’ in circumstances where a private lawyer would not be authorized to do so.” Colo. R.P.C., Scope. The Rules say that a government lawyer‘s client may in some circumstances be a specific agency, but “it is generally the government as a whole.” Colo. R.P.C. 1.13 cmt. Therefore, the Attorney General must consider the broader institutional concerns of the state even though these concerns are not shared by an individual agency or officer.6
In his role as legal advisor to the Secretary of State, the Attorney General must advise the Secretary of State on the implementation of the election laws. Consistent with his ethical duties and his oath of office, if the Attorney General has grave doubts about the constitutionality of the impending 2004 general election, he must seek to resolve these doubts as soon as possible. A prompt resolution of the case will aid both the Secretary of State and the Attorney General in fulfilling their oaths to uphold the Colorado Constitution. For these reasons, we find that the Attorney General has the authority to file this original action challenging the constitutionality of SB 03-352.
V. The General Assembly‘s Power to Redistrict
We now turn to the question of whether SB 03-352 violates the Colorado Constitution. We hold that it does. We base our holding on
We base our decision on the Colorado Constitution, but to put state law in context, we begin with a discussion of federal law. First, the U.S. Constitution does not grant redistricting power to the state legislatures exclusively, but instead, to the states generally. The state may draw congressional districts via any process that it deems appropriate. Second, the states’ redistricting authority is not “unfettered.” Rather, it is circumscribed by federal law. Each state must draw congressional districts immediately after each federal census and before the ensuing general election. There must be one district per representative, and the resulting districts in any given state must be equal in size and comply with the Voting Rights Act.
Third, like the U.S. Constitution, the Colorado Constitution does not grant the General Assembly exclusive authority to draw congressional districts. Redistricting can be accomplished by enacting a bill subject to gubernatorial approval, by voter initiative, and through litigation.
Finally, the Colorado Constitution cannot relax the federal laws pertaining to redistricting; our constitution can only impose more stringent restrictions.
In conclusion, the state constitution limits redistricting to once per census, no matter
A. The U.S. Constitution‘s Grant of Power to the States
The Secretary of State and General Assembly argue that both the United States and Colorado Constitutions grant the General Assembly the exclusive authority to draw congressional districts. In support of this argument, they point to
This argument is flawed. The United States Supreme Court has interpreted the word “legislature” in Article I to broadly encompass any means permitted by state law, and not to refer exclusively to the state legislature. A state‘s lawmaking process may include citizen referenda and initiatives, mandatory gubernatorial approval, and any other procedures defined by the state. See Smiley v. Holm, 285 U.S. 355 (1932) (gubernatorial approval); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) (referenda).
The word “legislature” also extends to special redistricting commissions. Arizona, for instance, has a special commission that draws congressional districts and then submits the plan directly to the Secretary of State, thus bypassing the Arizona legislature entirely. See
Most importantly for our purposes, the word “legislature,” as used in Article I of the federal Constitution, encompasses court orders. State courts have the authority to evaluate the constitutionality of redistricting laws and to enact their own redistricting plans when a state legislature fails to replace unconstitutional districts with valid ones. See generally Growe, 507 U.S. 25 (1993); Carstens v. Lamm, 543 F.Supp. 68 (D.Colo.1982). In fact, courts are constitutionally required to draw constitutional congressional districts when the legislature fails to do so. Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 1441 (2003). In such a case, a court cannot be characterized as “usurping” the legislature‘s authority; rather, the court order fulfills the state‘s obligation to provide constitutional districts for congressional elections in the absence of legislative action.
As these examples reveal,
B. The U.S. Constitution‘s Restrictions on the General Assembly‘s Authority to Redistrict
Next, the Secretary of State and General Assembly argue that the U.S. Constitution grants the General Assembly absolute, “unfettered” redistricting authority that the states cannot curtail. This is not so. Instead, this authority is limited by both federal and state law. Before turning to state law, we first describe the federal case law and statutes that control redistricting to il
Although the U.S. Constitution grants the power to draw congressional districts to the states, the states have often abused their broad redistricting authority. Historically, some state legislatures have used redistricting to enhance the power of the majority (racial and/or political), and to suppress minorities. See generally Andrew Hacker, Congressional Districting: The Issue of Equal Representation 30-70 (1963) [hereinafter Hacker, Congressional Districting]. The legislatures primarily disenfranchised voters either by gerrymandering or by neglecting redistricting duties altogether, thus allowing the sizes of the districts to become more and more unbalanced as populations shifted over time. The resulting size disparities were unfair because the representatives from larger population districts represented more citizens than representatives from smaller districts.
This disparity among districts meant that the citizens in the smaller population districts had a relatively more powerful voice in Congress. As an example, in 1962, Colorado‘s largest congressional district had 3.3 times the population of the smallest district. Thus, one vote in the smallest district was the same as 3.3 votes in the largest district. Hacker, Congressional Districting at 3. Even though the population of Colorado was shifting from rural to urban and suburban areas, the rural counties still elected more than their proportional share of representatives. Lisco v. McNichols, 208 F.Supp. 471, 478 (D.Colo.1962); see also Hacker, Congressional Districting at 22-26. Yet the Colorado legislature neglected its duty to draw new congressional districts for more than forty years between 1921 and 1964. Id. at 3.
Because of this growing inequality among districts, the Supreme Court and Congress stepped in to protect the voters’ rights. In 1964, the United States Supreme Court established the one-person, one-vote doctrine, requiring that every state make a good-faith effort to elect all representatives from districts of equal populations. Wesberry v. Sanders, 376 U.S. 1 (1964) (interpreting
When evaluating constitutionality under the one-person, one-vote doctrine, a court uses the national decennial census figures. The United States Supreme Court has recognized the legal fiction that these figures remain accurate for the entire ten years between censuses. Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 2516 n. 2 (2003). Consequently, according to this legal fiction, when states create same-size districts that adhere to one-person, one-vote standards at the beginning of the decade, these districts remain constitutionally valid on equal population grounds until the next census, even though the states’ populations actually shift and change in the intervening years. Id. Conversely, new decennial census figures generally render the old districts unconstitutional, and states must redistrict prior to a subsequent election. Id. In sum, under federal constitutional law, each state must draw new congressional districts after a decennial census or risk having its districts declared unconstitutional prior to the next congressional election.
C. Federal Statutory Restrictions on the General Assembly‘s Authority to Redistrict
Federal statutes also restrict how the states may redistrict. The states’ authority to regulate the “times, places and manner” of congressional elections is not absolute. Instead, the United States Constitution gives Congress the power to “make or alter” election regulations “at any time.”
Even so, the Constitution was silent regarding whether states were required to draw single-member districts, or whether they were allowed to elect their representatives in at-large, statewide elections.7 Hacker, Congressional Districting at 40. After the states ratified the United States Constitution, many elected all of their members of Congress at large. Id. But in 1842, Congress exercised its authority to regulate elections and passed the Apportionment Act, which prohibited the “winner-take-all,” at-large elections, and required that states elect members of Congress from contiguous, single-member districts. Id. Congress allowed this requirement to lapse, however, and by 1962, many representatives were once again elected at large. Id. at 41.
Shortly after the United States Supreme Court announced the one-person, one-vote doctrine in 1964, many lower courts began to implement that decision by replacing unconstitutional, disproportionate districts with at-large elections. Branch v. Smith, 538 U.S. 254, 123 S.Ct. 1429, 1439 (2003). These courts did so because they found they had no authority to draw new districts. Id. at 1439-40. Congress disagreed, and in 1967 enacted
Another limitation on the General Assembly‘s freedom to redistrict is the Voting Rights Act. See
Section 5 of the Act requires jurisdictions with a history of discrimination to obtain federal approval before making any changes to voting laws or procedures.
As these examples demonstrate, the General Assembly has never had “unfettered” authority to create congressional districts. Under federal law, Colorado must redistrict after each federal census and before the ensuing election, must create single-member districts, must create racially neutral districts, and at certain times in the past, was required to obtain federal preclearance for its plan. Moreover, because the United States Constitution grants redistricting authority to the states, and not exclusively to the legislatures of the states, Colorado has the authority to further limit the power of its General Assembly through its laws or constitution. As we illustrate below, Colorado has done just that.
D. Colorado‘s Constitutional Restrictions on the General Assembly‘s Authority to Redistrict
The Secretary of State and General Assembly argue that the Colorado Constitution grants the General Assembly unfettered power to redistrict. We are not persuaded. As discussed above, the federal Constitution, not the state constitution, is the source of the states’ authority to redistrict, and the federal Constitution and federal statutes restrict the states’ authority to redistrict.
The Colorado Constitution can only further restrict the General Assembly‘s authority to draw congressional districts; it cannot expand it. We know this is true because the Colorado Constitution is not a grant of power, but an additional limitation upon all forms of state power, including the authority of the General Assembly. Reale v. Bd. of Real Estate Appraisers, 880 P.2d 1205, 1208 (Colo.1994) (“The Colorado Constitution, unlike the federal Constitution, does not comprise a grant of but rather, a limitation on power.“). Indeed, when our state constitution was ratified in 1876, there was a deep public distrust of the legislature due to Colorado‘s territorial history of scandal and corruption. Dale A. Oesterle & Richard B. Collins, The Colorado State Constitution: A Reference Guide 1-2, 20 n. 7 (2002). As a result, the delegates created a very detailed document specifically for the purpose of severely restricting the legislature‘s discretionary powers. Id. Given that the state constitution adds to the federal limitations on congressional redistricting, the crucial question is: “Exactly how does
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.
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.
1. Who May Redistrict
The Secretary of State and the General Assembly argue that three words in the state constitution grant the General Assembly exclusive power to draw Colorado‘s congressional districts: “General Assembly shall.” At first blush, this logic seems persuasive; however, this argument is not consistent with existing Colorado law. Although the first sentence of
The term General Assembly does not simply refer to the lawmakers who must pass a bill. Instead, it is a shorthand method of referring to the entire standard lawmaking procedure set forth in the Colorado Constitution. Carstens, 543 F.Supp. at 79 (“Congressional redistricting is a law-making function subject to the state‘s constitutional procedures.“). These procedures require a majority quorum, approval by a committee, and reading of the bill at length on two different days in each house. See, e.g.,
Standard lawmaking procedure in Colorado also includes voter initiative. In 1934, this court upheld a legislative redistricting plan that was created by voter initiative and also rejected a subsequent plan adopted by the General Assembly. Armstrong v. Mitten, 95 Colo. 425, 430, 37 P.2d 757, 759 (1934). Armstrong involved state legislative redistricting, which now is performed by a special commission. At that time, however, the relevant section of the state constitution called for the General Assembly to “revise and adjust the apportionment for senators and representatives” during the “session next following” a census. Id. at 426-27, 37 P.2d at 758. The legislature failed to enact a redistricting plan in the session following the 1930 census. As a result, the voters initiated and passed a plan in 1932. Then, in 1933, the General Assembly enacted its own plan. In Armstrong, we held that the initiated plan was valid and enforceable. In so holding, we reasoned that “[t]he people are sovereign” and they created the General Assembly as “their agent.” Id. Consequently, we rejected a literal interpretation of the term “General Assembly,” and instead held that “General Assembly” broadly encompassed all legislative processes, including voter initiative. Armstrong‘s holding applies to congressional redistricting as well.
The term “General Assembly” in
[I]t is manifest that the triunity of our government is not invaded by acceptance of this litigation for decision. If by reason of passage of time and changing conditions the reapportionment statute no longer serves its original purpose of securing to the voter the full constitutional value of his franchise, and the legislative branch fails to take appropriate restorative action, the doors of the courts must be open to him.
150 Colo. 380, 384-85, 374 P.2d 66, 68-69 (1962) (quoting Village of Ridgefield Park v. Bergen County Bd. of Taxation, 31 N.J. 420, 157 A.2d 829, 832 (1960)). Prior to the 1960s, the United States Supreme Court refused to interfere with redistricting issues. See, e.g., Colegrove v. Green, 328 U.S. 549 (1946). Instead, the Court deemed redistricting a political issue that was nonjusticiable. Id. In 1962, in Baker v. Carr, the United States Supreme Court reversed Colegrove and held that redistricting was a justiciable issue. 369 U.S. 186, 208-09 (1962). Accordingly, in In re Legislative Reapportionment, the Colorado Supreme Court said that it would draw districts, but only if the legislature failed to act. 150 Colo. at 385, 374 P.2d at 69.
In the forty years since Baker v. Carr, court involvement in redistricting has become more common. Although courts continue to defer to the legislatures, the courts must sometimes act in order to enforce the one-person, one-vote doctrine. Indeed, Congress enacted
When a court is forced to draw congressional districts because the legislature has failed to do so, the court carries out the same duty the legislature would have. Redistricting involves prospective rules for elections, rather than a retrospective decision based on past events. Thus, when redistricting, the court‘s task closely resembles legislation. See Saul Zipkin, Judicial Redistricting and the Article I State Legislature, 103 Colum. L.Rev. 350, 379-80 (2003). In so doing, the court gathers information regarding alternative plans, hears expert advice, weighs alternatives, and ultimately adopts the plan it deems the best for the state. See generally, e.g., Beauprez v. Avalos, 42 P.3d 642 (Colo.2002). In the end, the court‘s plan is just as effective as a law passed by the legislature: it supercedes the prior districts, and remains in effect until legally replaced at a later date.
In sum, the term “General Assembly” in the first sentence of
2. When Colorado May Redistrict
The second sentence of
The crucial question for us, however, is whether redistricting may occur more often per decade. The Secretary of
Our decision turns upon the interpretation of the second sentence in
The second sentence of
Furthermore, as other states have found, when the constitution specifies a timeframe for redistricting, then, by implication, it forbids performing that task at other times. People ex rel. Mooney v. Hutchinson, 172 Ill. 486, 50 N.E. 599, 601 (1898) (“Where there are provisions inserted by the people as to the time when a power shall be exercised, there is at least a strong presumption that it should be exercised at that time, and in the designated mode only; and such provisions must be regarded as limitations upon the power“); Denney v. State ex rel. Basler, 144 Ind. 503, 42 N.E. 929, 931-32 (1896) (“The fixing, too, by the constitution, of a time or a mode for the doing of an act, is, by necessary implication, a forbidding of any other time or mode for the doing of such act.“). Here,
We also look to the text of
In its brief and during oral argument, the General Assembly strongly asserted that the 1974 changes in
To read the second sentence to mean otherwise would render it superfluous. The first sentence of
We will not assume that the 1974 technical changes to
The framers’ intent to limit the frequency of congressional redistricting is evident when the congressional redistricting language in the original 1876 Constitution is compared with the legislative redistricting language from 1876.
Our interpretation is supported by history and custom. We have never been called upon to interpret
This reluctance to redistrict is even more significant in light of the fact that state political control has changed hands many times over the years. Since 1915, when the Colorado session laws began listing the party affiliation for the state legislators,13 political control of the General Assembly and governorship has been in the hands of a single political party quite often. The state was entirely in Republican hands in 1915-16,
This is the tradition in many other states as well. As one author put it, politicians understand that a census is a necessary prerequisite for redistricting:
[T]here is no denying that when a new party gains a legislative majority in mid-decade it does not redistrict the state‘s congressional delegation right away but waits until the next Census. This is another of the “rules of the game” in legislative life, for everyone wants to avoid violent seesaws in policy.
Hacker, Congressional Districting at 66.
The 1999 General Assembly also interpreted the state constitution to limit congressional redistricting to once per decade when it enacted
In sum, the plain language of
E. Other Jurisdictions
Although certainly not binding authority, we have looked to other states for guidance. The constitutions of our sister states vary. Some set forth detailed schedules for redistricting immediately following each decennial census. See, e.g.,
For example, in 1983, California emphatically reinforced its prior holdings that the state constitution prohibits redistricting more than once per decade. Legislature v. Deukmejian, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17 (1983). Article 21, Section 1, of the California Constitution provided: “In the year following the year in which the national census is taken ... the Legislature shall adjust the boundary lines of the Senatorial, Assembly, Congressional, and Board of Equalization districts....” In Deukmejian, the California Supreme Court recounted over seventy-five years of cases consistently up-
holding the “once-a-decade rule.” Id. at 22-24. The first California case so holding was Wheeler v. Herbert, 152 Cal. 224, 92 P. 353 (1907). Wheeler also cited and discussed similar holdings from several other states, including New York, Massachusetts, Michigan, Ohio, Wisconsin, Virginia, and North Carolina. Deukmejian, 194 Cal. Rptr. 781, 669 P.2d at 23. Since Wheeler, California courts have been consistently emphatic in holding that congressional redistricting can only occur once per decade.There are only two authorities to the contrary that we have found or that were noted in the numerous briefs filed in this redistricting case. The first case was from South Carolina, which has a constitutional provision very different from Colorado‘s. In 2002, the South Carolina General Assembly was unable to pass a congressional redistricting bill. Colleton County Council v. McConnell, 201 F.Supp.2d 618 (D.S.C.2002). Because the redistricting plan in effect in 2002 had been enacted prior to the 2000 census, the Federal District Court for South Carolina declared the existing plan unconstitutional and drew its own districts. Id. The federal court, however, was careful to say that its plan was only effective until and unless the state General Assembly enacted a plan. Id. at 670-71. This reasoning was in light of the specific language in the South Carolina Constitution saying that the “General Assembly may at any time arrange the various Counties ... into Congressional Districts....”
The second authority was from a federal district court in Florida. Johnson v. Mortham, 915 F.Supp. 1529 (N.D.Fla.1995). Prior to Johnson, the Florida legislature had failed to pass a congressional redistricting plan for the 1992 election, so a federal three-judge panel created a plan instead. Id. at 1533; DeGrandy v. Wetherell, 794 F.Supp. 1076 (N.D.Fla.1992). Subsequently, the Johnson court held that the three-judge panel had no authority to create a permanent redistricting plan,15 and that the state legislature had authority to replace the judicial plan with its own plan at any time. 915 F.Supp. at 1544.
Before reaching its conclusion, the court acknowledged three federal cases that have adopted “permanent” redistricting plans. Id. In the first, Connor v. Coleman, the United States Supreme Court ordered a district court to adopt a permanent reapportionment plan for the Mississippi Legislature. 425 U.S. 675, 96 S.Ct. 1814, 48 L.Ed.2d 295 (1976). Then, in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.1990), the Ninth Circuit upheld a lower court‘s adoption of a permanent plan for county supervisor districts. Finally, in Kimble v. County of Niagara, a federal court in New York adopted a permanent plan for elections to the county legislature. 826 F.Supp. 664 (W.D.N.Y.1993).
Notwithstanding these cases, the Johnson court held that two opposing cases constituted the “clear weight of authority” that courts cannot create permanent districts. Neither of these two cases is relevant to the case at hand, however. Neither involved the question of whether a legislature could redistrict in the same census period after a prior court-imposed plan; neither is factually similar to the instant case; neither examined a state constitution; and certainly neither interpreted constitutional provisions similar to Colorado‘s.
Instead, both cases involved legislatively adopted plans. In Burns v. Richardson, the Hawaii senate redistricting plan was expressly adopted to bridge the time gap until a constitutional convention could be convened to amend state constitutional provisions regarding redistricting. 384 U.S. 73, 80, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). We have no similar issue here. In the other case, Wise v. Lipscomb, there is no majority opinion. 437 U.S. 535, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978). The plurality opinion states that a federal court may “devise and
Our decision today is based upon
F. Public Policy Considerations
Our holding today not only is consistent with custom, precedent, and other states’ laws, but also rests upon solid policy foundations. The framers of the United States Constitution intended the House of Representatives to “have an immediate dependence upon, and sympathy with the people.” Joseph Story, Story‘s Commentaries on the Constitution § 291 (1833) [hereinafter Story‘s Commentaries]. Unlike the Senate, the House should “emanate directly from” the American people and “guard their interests, support their rights, express their opinions, make known their wants, redress their grievances, and introduce a pervading popular influence throughout all the operations of the government.” Id. For this to be true, according to Justice Story, the representatives’ power, influence, and responsibility must be directly tied to the constituents. Id. at § 292. A “fundamental axiom of republican governments,” he said, is that there must be “a dependence on, and a responsibility to, the people, on the part of the representative, which shall constantly exert an influence upon his acts and opinions, and produce a sympathy between him and his constituents.” Id. at § 300.
The framers knew that to achieve accountability, there must be stability in representation. During the debates over the frequency of congressional elections, James Madison said: “Instability is one of the great vices of our republics, to be remedied.” I 1787: Drafting the U.S. Constitution 212 (Wilbourn E. Benton ed., 1986) (notes of Mr. Madison). At the same time, the framers recognized that as the new union evolved, the population of the states would shift and grow and require changes in the distribution of congressional seats. Id. at 376. This fundamental tension between stability and equal representation led the framers to require ten years between apportionments. Armstrong v. Mitten, 95 Colo. 425, 433-34, 37 P.2d 757, 761 (1934) (citing with approval People ex rel. Snowball v. Pendegast, 96 Cal. 289, 31 P. 103, 105 (1892), which says the framers of the state constitution must have consciously balanced the upheaval associated with redistricting with the need for equal representation). This ten-year interval was short enough to achieve fair representation yet long enough to provide some stability.
Our interpretation of
Moreover, the time and effort that the constituents and the representative expend getting to know one another would be wasted if the districts continually change. See James A. Gardner, One Person, One Vote and the Possibility of Political Community, 80 N.C. L.Rev. 1237, 1242 (saying that “[a] boundary that is continually moving is one that is unlikely to serve as any kind of imaginative focal point for communal identity ...” and “[r]edistricting thus flattens identity within a jurisdiction by preventing subcommunities from enjoying the kind of stability and sense of permanence that are necessary
VI. The Holding in This Redistricting Case
Having held that the Colorado Constitution limits redistricting to once per decade, we now turn to the facts of the redistricting case at hand. Here, the Colorado General Assembly failed to create new congressional districts before the 2002 general elections, despite one regular session and two special sessions. In lieu of a legislative plan, the state district court was obligated to set forth its own carefully considered plan. This court upheld the district court‘s plan in Beauprez v. Avalos, 42 P.3d 642 (2002). Then, in 2002, seven U.S. Representatives were elected under this new plan. In May of 2003, however, the General Assembly passed a new congressional redistricting plan of its own.
Under our holding today, the General Assembly may only create a redistricting plan after the federal census (and the resulting congressional apportionment to the states) and before the ensuing general election. In this case, that would have been between April 1, 2001, when the U.S. Congress notified Colorado that it would gain an additional representative, and March 11, 2002, when the election process began. As we know, the General Assembly failed to act within this time frame. The fact that the courts were forced to create the 2002 redistricting plan in the absence of a valid legislative plan makes no difference. Congressional districts created by a court are equally effective as those created by the General Assembly and disruption of those districts triggers the same policy concerns. Consequently, the General Assembly‘s 2003 redistricting plan is not permitted by
VII. Conclusion
We make our rule to show cause absolute in case number 03SA133, and discharge our rule to show cause in case number 03SA147. Until Congress apportions seats to Colorado after the next federal census, the Secretary of State is ordered to conduct congressional elections according to the plan approved in Beauprez v. Avalos.
Justice KOURLIS and Justice COATS join as to Part IV, and dissent as to the remainder of the Opinion.
Justice KOURLIS dissenting:
Although I join in part IV of the majority opinion in its conclusion that the Attorney General may initiate an original proceeding to contest the constitutionality of legislative action, I respectfully dissent from all other portions of the opinion.
The majority concludes that the delegation of redistricting power in
I fundamentally disagree. Courts cannot be lawmakers under
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 preempt the legislature from reclaiming its authority to redistrict.
The majority also determines that redistricting must occur within the narrow window of time between Congressional approval of a reapportionment and preparation of precinct information for the next general election. According to the majority, if the General Assembly fails to act within that time, it abdicates the responsibility to the courts for a decade. I find nothing in our Constitution that so provides. To the contrary, I would read the Colorado Constitution, as a whole, as abhorring such a transfer of legislative power to the judicial branch.
Therefore, since, in my view, the authority remains vested in the Colorado General Assembly, to be exercised after a reapportionment by Congress, but within no specific time limits, I would discharge the Rule to Show Cause issued in this case. In that regard, I also note that I do not believe that this court should ever have chosen to accept original jurisdiction in this case. At the time this court did so, there was a case pending in the Denver District Court that raised all of the issues before us now, plus a variety of other legal and factual issues. If that case had been allowed to proceed, the trial court would not only have addressed all disputed issues of fact but would also have ruled on all legal theories presented by the plaintiffs. In that situation, we would be in a position to resolve the issues with a full factual record. By taking this case when we did, we unnecessarily circumvented the normal process of case resolution, and limited ourselves to addressing the constitutional issues first rather than as a last resort.
I. Article V Does Not Grant the Courts Authority to Redistrict the State
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.
(emphasis added).
The majority determines that the reference to “General Assembly” in Article V includes the courts. For that unusual proposition, the majority argues that the United States Supreme Court has assigned to the states the right to define “legislature” under
In Smiley, the U.S. Supreme Court did hold that the term legislature in the U.S. Constitution refers to a state‘s lawmaking process, which is then defined by state law. Id. at 372, 52 S.Ct. 397 (discussing Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916)). In Smiley, the Minnesota legislature attempted to implement a redistricting bill without gubernatorial approval or overturn of gubernatorial veto. The Supreme Court of Minnesota interpreted
The Supreme Court stated:
As the authority is conferred for the purpose of making laws for the state, it follows, in the absence of an indication of a contrary intent, that the exercise of the authority must be in accordance with the method which the state has prescribed for legislative enactments. We find no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted. Whether the Governor of the state, through the veto power, shall have a part in the making of state laws, is a matter of state polity. Article 1, s 4, of the Federal Constitution, neither requires nor excludes such participation.
Smiley, 285 U.S. at 367-68, 52 S.Ct. 397 (emphasis added). The Supreme Court then analyzed Minnesota‘s Constitution and concluded that the lawmaking process, as defined by that state, included the participation of the governor. Id. at 372-73, 52 S.Ct. 397.
Thus, Smiley does stand for the proposition that the term “legislature” in the U.S. Constitution encompasses more than just the General Assembly acting alone, and refers instead to the general process of lawmaking in a given state. Furthermore, Smiley clarifies that it is a matter of Colorado law to 2 determine what constitutes that process of lawmaking.
That circuitous process avails the majority little. Colorado law could not be clearer with respect to the meaning of the term “General Assembly.” Article V itself defines the General Assembly as “the senate and house of representatives, both to be elected by the people.” The term neither needs nor permits any further semantic gymnastics.
Under the mandate of Smiley, however, “General Assembly” cannot just mean that the two houses may independently exercise the redistricting authority. In Colorado, we reached that same conclusion shortly after the Smiley decision was announced. See Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757, 758 (1934) (a case in which this court approved redistricting by initiative). Together, then, Armstrong and Smiley dictate that the narrow reference in
Article V embodies just such breadth.
Redistricting is a lawmaking function, and is to be, in my view, accomplished within the rubric of Article V—which, of course, contains no reference to the courts.3 Similarly,
The separation of powers concept is fundamental to our free system of government, and accordingly, this court is “unalterably opposed to any attempt by one branch of the government to assume the power of another.” In re Interrogatories, 536 P.2d at 318.
Because the constitution assigns redistricting to the legislative branch of government under
II. The Limited Role of the Courts in Redistricting
The courts do have the ultimate responsibility of reviewing redistricting plans, just as we may review all other laws, to determine whether they comport with the constitution. In re Interrogatories, 536 P.2d at 316 (citing to Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803)).
Prior to 1964, courts played only an anecdotal role in the process, in part because redistricting was perceived to be a non-justiciable, political issue,4 and in part because constitutional issues seldom arose.5 Further, many legislatures, like our own, chose not to redistrict for long periods of time.
In 1962, the U.S. Supreme Court issued Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In that case, the Court confirmed that voters in Tennessee, who claimed that the congressional districts in effect in that state deprived them of equal protection of law under the
The following year, the U.S. Supreme Court announced a decision in Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). There, the Court held that the mandate of
The third case in this trilogy was announced in 1964. In Reynolds v. Sims, 377 U.S. 533, 568-69, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court held an Alabama legislative redistricting plan unconstitutional under the Equal Protection Clause because the apportionment was not made on
Lastly, in 1965, Congress passed the
Most recently, in Branch, 538 U.S. 254, 123 S.Ct. 1429, 155 L.Ed.2d 407, the U.S. Supreme Court dealt with the interrelationship between federal and state courts, specifically in connection with a redistricting plan covered by the Voting Rights Act of 1965. The Court held that the Federal District Court in that case properly enjoined enforcement of the state court plan because the state court plan had not been pre-cleared under the Voting Rights Act. Id. at 1437. The Court further held that the Federal District Court plan was required to comply with the statutory requirement to draw single-member districts whenever possible. Id. at 1441. By so holding, the Court determined that the reference in
Indeed, the Supreme Court has previously stated that courts should make every effort to avoid preempting the exercise of legislative authority. And, in Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978), it specifically held that even when a federal district court had declared an existing redistricting scheme unconstitutional, the court must then give the legislative body a reasonable opportunity to adopt a substitute plan rather than for the court to devise its own plan. The Supreme Court stated:
The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution. [A] state‘s freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.
Id. (quoting Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966)); see also Connor v. Coleman, 440 U.S. 612, 613, 99 S.Ct. 1523, 59 L.Ed.2d 619 (1979) (ordering a federal district court in Mississippi to file a court-ordered redistricting plan, but expressing the clear expectation that if the legislature acted in time, the legislative plan would supercede the court plan).
In Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993), the Supreme Court reviewed a congressional redistricting debacle in Minnesota. Ultimately, the Supreme Court concluded that the “[Federal] District Court erred in not deferring to the state court‘s timely consideration of congressional reapportionment.” Id. at 37, 113 S.Ct. 1075. Justice Scalia, writing for the majority, called the state court‘s intervention “precisely the sort of state judicial supervision of redistricting we have encouraged.” Id. at 34, 113 S.Ct. 1075 (emphasis added). Again, the Court did not imply that either the federal or state court could preempt the legislative prerogative.
Other courts around the nation have similarly recognized the supervisory, temporary and interstitial character of court-ordered redistricting plans. In Johnson v. Mortham, 915 F.Supp. 1529 (N.D.Fla.1995), the Federal District Court for the Northern District of Florida faced a controversy similar to the one before our court today. As a result of the 1990 census, Florida was entitled to four additional members in the House of Representatives. On the first day of the 1992 Florida legislative session, members of the State House of Representatives and other voters filed suit in federal court challenging the constitutionality of Florida‘s congression-
The plaintiffs argued that the “DeGrandy” order was a temporary solution interposed at a time when the state legislature had insufficient time to enact a new plan before the elections, which did not deprive the legislature of the authority to act after the elections. The District Court recognized that the language “and congressional elections thereafter” had one of two results: either that the court had intended its plan to be permanent, or that the legislature had interpreted it in that fashion and had thereby been dissuaded from enacting its own plan. Id. at 1543-44. The District Court then held that “[t]o the extent that the first result occurred, the DeGrandy plan is unconstitutional. To the extent the second result occurred, the law is clear that a state legislature always has the authority to redistrict or reapportion, subject to constitutional restraints.” Id. at 1544. While recognizing that some authority would permit federal court plans to serve as permanent redistricting plans, the court found that the “clear weight of authority” was to the contrary. Id. Specifically, the District Court emphasized that the U.S. Supreme Court in Wise went to great lengths to point out that federal courts must “devise and impose a reapportionment plan pending later legislative action.” Id. (quoting Wise, 437 U.S. at 540, 98 S.Ct. 2493). The District Court also relied on Burns, 384 U.S. at 85, 86 S.Ct. 1286, where the Supreme Court stated: “[t]he State remains free to adopt other plans for apportionment, and the present interim plan will 6 remain in effect no longer than is necessary to adopt a permanent plan.” Mortham, 915 F.Supp. at 1544. The court felt constrained by the twin principles of federalism and separation of powers from usurping the state legislature‘s authority to adopt a constitutional redistricting plan, and concluded that it would violate both principles to enshrine the DeGrandy plan as permanent. Id. at 1545.
Thus, in my view, the U.S. Supreme Court ushered in the era of court involvement in redistricting by clarifying that the
Courts act in the first instance only because an existing apportionment of districts is constitutionally deficient. In order to have the capacity to remedy that deficiency, we must be able to issue remedial orders. Yet, neither the federal nor the state constitution supports a conclusion that such emergency relief can supplant the later exercise of legislative authority. Quite simply, the judiciary cannot legislate. See Springer v. Gov‘t of Phil. Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72 L.Ed. 845 (1928); Speer v. People, 52 Colo. 325, 122 P. 768, 771-72 (1912);
In no other circumstance could it be debated that a court order should be published in the Colorado Revised Statutes as an enforceable statute. The court order is interstitial—a temporary remedy in place to satisfy the needs of the electoral system until the Gen-
III. Redistricting Is Not Time-Limited
The majority also concludes that Article V, Section 44‘s use of the term “when” is an independent basis under Colorado law upon which to delimit the authority to redistrict—whether exercised by the General Assembly or by the court. Thereby, the majority concludes that the brief window of time within which redistricting could occur came and went, with only the court-ordered plan in place, which operated to divest the General Assembly of its authority. Maj. op. at 1226.
In response to this argument, I first take issue with the majority‘s assignment of this issue to state law. Indeed, the U.S. Supreme Court has afforded broad discretion to the states to define the process whereby districts are created. However, in my view, the involvement of the courts—absent some express provision in a state constitution delegating a role to the courts (which Colorado does not have)—continues to be predicated, in large part, upon the duty to enforce federal constitutional rights. Hence, the duration of a court order protecting those rights, or the jurisdiction of a court to review existing districts when constitutional infirmities exist, must be governed by an intermixed application of state and federal law.
Colorado‘s Constitution neither assigns a specific function in redistricting to the courts, nor a specific time within which to complete that role. I find no support in
Various other state constitutions do mandate the time within which reapportionment must occur. For example, the California Constitution provided that the reapportionment must take place at the “first session after each census,” which the California Supreme Court construed to mean immediately after the new census figures are available, and not again thereafter until the next census. See Leg. of the State of Cal. v. Deukmejian, 34 Cal.3d 658, 194 Cal.Rptr. 781, 669 P.2d 17, 22 (1983) (interpreting
In State v. Weatherill, 125 Minn. 336, 147 N.W. 105 (1914), the Minnesota Supreme Court interpreted a reference to the “first session after each (census)” in the predecessor to its current constitutional provision as a duty to reapportion in the first session, but not a prohibition to reapportionment at a later time. The court noted that “[i]t seems clear that, had there been any intention to restrict or limit the time when a reapportionment might be made, those framing the Constitution had language at their command which, if employed, would not have left that intention shrouded in doubt or uncertainty.” Id. at 106. Thus, that court held “the Constitution should be construed as imposing a duty of reapportionment, and that the duty so imposed continues until performed.” Id. at 107.
Other courts agree that the legislature‘s duty to reapportion continues until performed. See Harris v. Shanahan, 192 Kan. 183, 387 P.2d 771, 795 (1963) (holding that “the duty to properly apportion legislative districts is a continuing one“); see also Selzer v. Synhorst, 253 Iowa 936, 113 N.W.2d 724, 733 (Iowa 1962) (same); Lamson v. Sec‘y of the Commonwealth, 341 Mass. 264, 168 N.E.2d 480, 483 (1960) (same).
This court has a duty to interpret constitutional and statutory provisions as written. Constitutional provisions should be given their plain and ordinary meaning. Bolt v. Arapahoe County Sch. Dist., 898 P.2d 525, 532 (Colo.1995). The plain and ordinary meaning of “when” is that it must follow the condition precedent, which in this instance is the new apportionment by Congress. Although “when” might well be read as imposing a duty upon the legislature to act as soon as possible after the predicate event, it does not in any way imply the imposition of a back-end limitation upon that duty. In my view, burdening the word “when” in the Colorado Constitution with the implied intention that the right to redistrict is abrogated if not exercised within a narrow 7 time frame seems heavy freight indeed.
IV. 2002 Redistricting
In Beauprez v. Avalos, 42 P.3d 642 (Colo.2002), we affirmed the decision of the Denver District Court declaring the then current congressional districts as set out in
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.
V. Original Jurisdiction Is Improper
Lastly, I suggest that this court should not have accepted original jurisdiction over this case, but should have allowed the Denver District Court action to proceed to completion.
On May 9, 2003, the same day on which Governor Owens signed Senate Bill 03-352 into law, two plaintiffs brought an action in Denver District Court challenging its constitutionality. Keller v. Davidson, No. 03 CV 3452 (Denver District Court, May 9, 2003). The plaintiffs in that case contend that the General Assembly‘s 2003 redistricting plan violates: Colorado‘s GAVEL amendment (
Because of the additional claims, there were numerous issues of disputed fact, and an evidentiary hearing would have been necessary to resolve those disputes. The disputed facts relate to certain claims, such as the
In taking this case as an original proceeding, our court has violated two bedrock rules. First, this court does not interfere in the normal process of a case when the issues can be properly resolved below and the rights of all parties preserved. Second, this court does not resolve cases on constitutional grounds when non-constitutional 8 grounds are raised and may be dispositive.
In order to satisfy the electoral time frame of this case, precincts must be established by March 15, 2004, which is 29 days prior to the precinct caucus day in 2004. (Affidavit of Secretary of State Davidson). Thus, at the time the case was filed in district court, there was ample time to conduct an evidentiary hearing, await a trial court ruling, and appeal 9 the Keller case. These proceedings could have been completed on an expedited basis well in advance of the March 14, 2004 deadline, and would have resulted in a full resolution of the issues.
A. Other Relief Was Clearly Available
Under
In People v. McClees, 20 Colo. 403, 38 P. 468 (1894), various plaintiffs sought an injunction against the secretary of state and others preventing certain claimants from taking judicial office. The plaintiffs asked this court to assume original jurisdiction for purposes of resolving the controversy, and this court declined, stating:
We are urged to entertain the present proceeding for the purpose of reaching an early decision of the controversy between the rival claimants to judicial positions, and thus prevent confusion in the administration of justice. This proceeding is commended as a ‘short cut’ to a determination of the controversy. But short cuts in legal controversies are seldom satisfactory....
Id. at 472. I suggest that the original proceeding here is a short cut, which reaches out to address the seminal issue without allowing the case to proceed in due course.
B. Resolution of Cases on Non-Constitutional Grounds Preferred
Furthermore, when a constitutional question is not essential to the resolution of the issue before us, we will not address it. Town of Orchard City v. Bd. of Delta County Comm‘rs, 751 P.2d 1003, 1006 (Colo.1988); Ricci v. Davis, 627 P.2d 1111, 1121 (Colo.1981) (It is well settled that a court will not rule on a constitutional question which is not essential to the resolution of the controversy
Our system of government relies upon courts as the final arbiters of disputes—sometimes even disputes that have a distinctly political character. I suspect that many courts charged with the duty of resolving a divisive political issue would prefer not to be in that position, but our tri-partite system of government contemplates the exercise of that duty as part of the necessary judicial power.
However, being pressed into service is quite a different matter from volunteering. In this case, I view our court as having volunteered for the task of resolving the question at issue—on the grounds that we would ultimately have to resolve it in any event and time is of the essence. The same could be true in many litigated matters, in which we decline to exercise original jurisdiction for all of the reasons appearing in the legions of cases. Furthermore, the time constraints could have been satisfied in the normal course of events, if each of the involved courts had proceeded expeditiously.
Thus, I suggest that this case is a particularly inappropriate one in which to accept jurisdiction on an original basis, and that by proceeding in this fashion, we have inserted ourselves further than necessary into the political process.
VI. Conclusion
By exercising original jurisdiction in this case, the court has foreclosed any inquiry into the propriety of the General Assembly‘s redistricting process or the constitutional validity of the congressional district boundaries themselves.
Instead, the court has seized upon the underlying constitutional issue, and has reached a conclusion predicated upon two alternate, but, in my view, equally flawed, theories. First, the majority quite remarkably equates the judiciary with the legislature, thereby concluding somehow that the General Assembly has already redistricted once since the last census and may not do so again. Second, the majority imputes to the word “when” an absolute time limitation, thereby transforming a constitutional requirement for the General Assembly to account for changes in the state‘s federal representation by redistricting into a prohibition against its doing so during nine out of every ten years. For both of those propositions, the majority states that it relies upon state law in an effort to insulate this case from federal review, when, in fact, the whole analysis is and must be permeated by a reliance upon federal, as well as state, law.
Whether or not the parties to this controversy were motivated in part or in whole by partisan advantage, the court‘s resolution of this issue has implications that transcend partisanship and are far-reaching. With its holding today, the court significantly alters our form of government. For the first time in the state‘s history, the court restricts the redistricting authority of the General Assembly to a narrow window, and mandates that if the General Assembly fails to act within that time frame, the court will exercise that power for it.
While eliminating political considerations from redistricting may or may not be a laudable goal, redistricting is an inherently political activity, and rests with the democratically elected branch of government for good reason. Absent express constitutional authority granting a role to the judiciary—which I suggest is wholly absent from our constitution—the courts should serve only to protect constitutional interests in redistricting: not to commandeer the process.
Accordingly, I construe the Denver District Court‘s and this court‘s prior involvement in the redistricting matter as judicial supervision, holding then-existing congressional districts illegal and imposing a temporary plan in order to allow the 2002 election to go forward. That violation has potentially been remedied by Senate Bill 03-352—assuming that no other infirmities as alleged by the Keller plaintiffs exist in the legislation. Thus, I would discharge the rule issued in this case and allow the Keller case to go
I am authorized to state that JUSTICE COATS joins in this dissent.
Laura FINNIE, Petitioner,
v.
JEFFERSON COUNTY SCHOOL DISTRICT R-1, Respondent.
No. 02SC598.
Supreme Court of Colorado,
En Banc.
Dec. 1, 2003.