Lead Opinion
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 2008 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 redistriet 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 Article V, Section 44, has always provided, as it does today, that the General Assembly shall redistrict the congressional seats "[wJhen a new apportionment shall be made by Congress." There is no language empowering the General Assembly to redistrict more frequently or at any other time. To reach the result that the Secretary of State and the General Assembly would have us reach, we would have to read words into Section 44 and find that the General Assembly has implied power to redistriect more than onee per census period.
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. Article V, Section 47, of the original 1876 Constitution addressed legislative redistricting, and originally stated that "[slenatorial and representative districts may be altered from time to time, as public convenience may require." The phrase "from time to time" means that an act may be done occasionally. Had the framers wished to have congressional district boundaries redrawn more than once per census period, they would have included the "from time to time" language contained in the legislative redistricting provision. They did not.
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 Seere-tary 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,
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 Colo. Const. art. V, § 48. The constitutional provision governing congressional redistricting, however, was not substantially changed. Colorado's congressional seats have been redistricted four times since the Lucas decision: twice, following the 1970 and 1990 censuses, by the General Assembly; twice, in 1982 and 2002, by the courts after the legislature failed to act. After the 1980 census, the federal court did the congressional redistricting. Carstens v. Lamm,
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 Article V, Section 44, of our constitution appears to grant redistricting power to the state "general assembly" acting alone, this language has been interpreted broadly to include the Governor's power to approve or disapprove the legislature's redistricting plan, and the voters' power to redistrict by initiative or by resort to the courts if the legislature fails to timely act. Finally, the second sentence of Article V, Section 44, of the Colorado Constitution says "when" Colorado may redistriet. The plain language of this constitutional provision not only requires redistricting after a federal census and before the ensuing general election, but also restricts the legislature from redistricting at any other time.
In short, the state constitution limits redistricting to onee 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 chanee 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 2 U.S.C. § 2e (2000); Beauprez, 42 P.8d at 646. Consequently, when the federal government released detailed, block-by-block redistricting data in March 2001, the state General Assembly began the task of drawing new congressional districts.
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 Beawpres,
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 2008 regular session, the newly elected General Assembly enacted a new redistricting plan, Senate Bill 03-352 ("SB 08-852"). See Ch. 247, see. 1, § 2-1-101, 2008 Colo. Sess. Laws 1645, 1645-58. The bill was introduced on May 5, 20083, passed by both houses on May 7, the final day of the session, and was signed into law on May 9.
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
On May 14, shortly after the District Court case was filed, the Attorney General filed an original action in this court pursuant to the Colorado Constitution, Article VI, Section 8, asking us to issue an injunction preventing the Secretary of State from implementing the General Assembly's 2008 redistricting plan and requesting a writ of mandamus requiring the Secretary of State to return to the 2002 redistricting plan. Subsequently, the Secretary of State filed her own original action with this court, asking us to dismiss the Attorney General's petition. She claims that the Attorney General cannot bring an original proceeding in this type of case and cannot name the Secretary of State as a respondent because he is ethically obligated to represent her. We issued a rule to show cause in both cases. We now make the rule absolute in the case brought by the Attorney General and we discharge the rule in the Secretary of State's case.
III. Jurisdiction
Both the Attorney General's case and Secretary of State's case are original proceedings pursuant to Article VI, Section 3, of the Colorado Constitution. Article VI, Seetion 3, states in relevant part: "The supreme court shall have power to issue writs of ... mandamus, ... injunction, and such other . writs as may be provided by rule of court. ..." Colo. Const. art. VI, § 8. Original proceedings are controlled by Colorado
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, "Inlo 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,
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 08-852'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 cru-clal 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. CAR. 21(a)(1). As noted above, there is now a case in the federal district court that also challenges SB 03-852. Keller, No. 08-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 Article V, Section 44, of the Colorado Constitution restricts congressional redis
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,
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,
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‘lthe Secretary of State
Before turning to the question of whether the General Assembly had the authority to redistrict in 2008, 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 08-8352. 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,
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. Colo. Const. art. VI, § 3. The constitutional separation of powers prevents the General Assembly from enacting any statutes that restrict this court's exercise of its original jurisdiction. Hence, it is irrelevant that no statute authorizes the Attorney General to file his petition.
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.
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 Too-ley, the district court ruled that the Attorney General and not the District Attorney could prosecute certain eriminal actions. The Denver District Attorney subsequently sought this court's review of that ruling by filing an original proceeding.
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 cireumstances 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 ageney, 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 ageney or
In his role as legal advisor to the Seere-tary 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 08-352.
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 Article V, Section 44, of the Colorado Constitution, which prohibits congressional redistricting more than once per decade. More specifically, Article V, Section 44:(1) requires congressional redistricting after a national census and before the ensuing general election; and (2) prohibits redistricting outside of this window. We recognize and emphasize that the General Assembly has primary responsibility for drawing congressional districts. But we also hold that when the General Assembly fails to provide a constitutional redistricting plan in the face of an upcoming election and courts are forced to step in, these judicially-created districts are just as binding and permanent as districts created by the General Assembly. We further hold that regardless of the method by which the districts are created, the state constitution prohibits redrawing the districts until after the next decennial census.
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 cireumseribed 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. Article V, Seetion 44, of the Colorado Constitution does just that. It restricts the timeframe in which Colorado may redistrict. The plain language of this constitutional provision not only requires redistricting after a federal census and before the ensuing general election, but also prohibits the legislature from redistricting at any other time.
In conclusion, the state constitution limits redistricting to onee 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 Article I, Section 4, Clause 1, of the U.S. Constitution, which says: "The times, places and manner of holding elections for senators and representatives shall be prescribed in each state, by the legislature thereof...." U.S. Const. art. I, § 4, cl. 1 (emphasis added). The Secretary of State and General Assembly assert that the word "legislature" in this clause means that the General Assembly is the only body with authority to draw permanent congressional districts, and that the court may not "usurp" this absolute power.
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,
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 Ariz. Const. art. IV, part 2, § 1; Rhonda L. Barnes, Redistricting in Arizona Under the Proposition 106 Provisions: Retrogression, Representation, and Regret, 35 Ariz. St. L.J. 575, 578-81 (2003). Other states with redistricting commissions include Hawaii, Idaho, Montana, New Jersey, and Washington. Tim Storey, Redistricting Spats Unlikely to Spread, Denver Post, Sept. 28, 2003, at 1E, 8E.
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,
As these examples reveal, Article I, Section 4, Clause 1, of the U.S. Constitution delegates congressional redistricting power to the states to carry out as they see fit, and not exclusively to the state legislatures. Hence, the U.S. Constitution does not grant absolute redistricting authority to the General Assembly as the Secretary of State and the General Assembly claim, and when courts are forced to draw congressional districts, they are not usurping the state legislature's power.
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 l. 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,
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,
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, - U.S. -, - n. 2,
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." U.S. Const. art. I, § 4, cl. 1 ("The times, places and manner of holding elections for senators and representatives shall be prescribed in each State, by the legislature thereof, but the Congress may at any time, by law, make or alter such regulations... ."). ‘
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.
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,
Another limitation on the General Assembly's freedom to redistrict is the Voting Rights Act. See 42 U.S.C. §§ 1973 to 1973bb-1 (2002); Carstens v. Lamm,
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. 42 U.S.C. § 1973c (2002). The process of obtaining approval is known as "preclearance." See Branch,
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 Redistriet
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,
Article V, Section 44, has always been in the Colorado Constitution. It originally said, in full:
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.
Colo. Const. art. V, § 44. This original language meant that the state's single representative was to be elected from a state-wide district, but as the United States Congress assigned Colorado additional seats, the General Assembly was required to draw additional congressional districts.
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.
Colo. Const. art. V, § 44. The first sentence states who must redistrict-the "General Assembly"-and what the General Assembly must do-create single-member congressional districts. The second sentence of Section 44 establishes when this redistricting shall take place-after a new congressional apportionment. Because the Attorney General's case turns upon the interpretation of Section 44, we will examine each of Section 44's sentences in turn.
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 Section 44 says that the "General Assembly shall" draw congressional districts, the term "General Assembly," like the term "legislature" in Article I of the U.S. Constitution, has been interpreted broadly. The term "General Assembly" encompasses the entire legislative process, as well as voter initiatives and redistricting by court order.
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,
Standard lawmaking procedure in Colorado also includes voter initiative. In 1984, 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,
The term "General Assembly" in Section 44 also encompasses the courts, but only in the special instance when the General Assembly fails to provide constitutional districts
[Ilt is manifest that the trfunity 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.
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 2 U.S.C. § 2c specifically for the purpose of foreing courts to draw valid redistricting plans rather than resorting to at-large districts. Branch v. Smith,
When a court is foreed 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,
In sum, the term "General Assembly" in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting. Regardless of which body creates the congressional districts, these districts are equally valid. Hence, judicially created districts are no less effective than those created by the General Assembly.
2. When Colorado May Redistrict
The second sentence of Article V, Section 44, says when redistricting may take place: "[when a new apportionment shall be made by congress."
The crucial question for us, however, is whether redistricting may occur more offen
Our decision turns upon the interpretation of the second sentence in Article V, Section 44. In construing our constitution, our primary task is to give effect to the framers intent. Grant v. People,
The second sentence of Section 44 places a temporal restriction on redistricting. In the sentence "[when a new apportionment shall be made by Congress, the general assembly shall divide the state into congressional districts accordingly," the word "when" is used as a subordinating conjunction. It indicates the relationship of redistricting and apportionment-redistricting "shall" take place "when" apportionment occurs. "When," in this context, means "just after the moment that," "at any and every time that," or "on condition that." Webster's Third New World International Dictionary of the English Language 2602 (Philip Babcock Gove ed., 1998) [hereinafter Webster's Dictionary ]. All of these definitions indicate that in Section 44, the word "when" means that redistricting may only occur after a new apportionment. Applying this language in the instant case: a new apportionment is a "condition" for redistricting; redistricting must take place "any and every time" a new apportionment occurs; and, redistricting must take place "just after" a new apportionment. Conversely, redistricting may not happen spontaneously or at the inducement of some other unspecified event; it must happen after and only after a new apportionment. Because section 2-2-901(1)(a) defines "new apportionment" to be synonymous with a federal census, redistricting must take place after and only after a census.
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,
We also look to the text of Section 44 as it was originally written to confirm our interpretation of the current language. When ratified in 1876, Section 44 said that although there was then only one United States Representative from Colorado, the General Assembly should create more districts "when" the state received more seats. This clear mandate did not give the General Assembly unfettered authority to create new districts. It is absurd to imagine the General Assembly drawing districts before Congress gave a see-ond seat in the House of Representatives. Instead, the second sentence requires that congressional apportionment be a necessary and logical trigger for the General Assembly to perform its task. Unfettered authority is especially unlikely in light of the limited authority the Colorado Constitution originally gave to Colorado's General Assembly.
In its brief and during oral argument, the General Assembly strongly asserted that the 1974 changes in Section 44 were technical changes intended to eliminate obsolete language. They assure us that no substantive changes were made in Section 44. Thus, the second sentence of Section 44, as it was
To read the second sentence to mean otherwise would render it superfluous. The first sentence of Section 44 says: "The General Assembly shall divide the state into as many congressional districts as there are representatives in congress ... for the election of one representative to congress from each district." The second sentence says: "When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly." If the second sentence did not place a time constraint upon redistricting, then all that would remain of this sentence would be a directive for the General Assembly to divide the state into single-member districts-exactly what the first sentence in Section 44 already requires.
We will not assume that the 1974 technical changes to Section 44 rendered the second sentence superfluous. See, e.g., Welby Gardens v. Adams County Bd. of Equalization,
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. Section 44 originally limited the timeframe for congressional redistricting, as it still does, to "when a new apportionment shall be made by Congress." Section 47, however, originally said. that "[slenatorial and representative districts may be altered from time to time, as public convenience may requare." Colo. Const. art. V., § 47 (amended 1974) (emphasis added). "From time to time" means "occasionally" or "once in a while." Webster's Dictionary at 2395. In Armstrong v. Mitten, this court assumed without deciding that this language allowed legislative redistricting more than onee per census period.
Our interpretation is supported by history and custom. We have never been called upon to interpret Section 44 in the past because the General Assembly has never before drawn congressional districts more than onee per decade. Just the opposite is true. As we discussed earlier in this opinion, the legislature has only redistricted six times when it should have done so thirteen times.
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,
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:
[There 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 section 2-2-901. See Ch. 170, sec. 1, § 2-2-901, 1999 Colo. Sess. Laws 559, 559-60. Subsection 2-2-901(1)(a) says that congressional redistricting "occurs after each federal decennial census." Subsection 2-2-901(1)(b), regarding legislative redistricting, similarly states that legislative redistricting occurs "after each federal census." It is undisputed that the state constitution now limits legislative redistricting to onee every ten years, so we find it significant that the Colorado General Assembly used the same language to describe the timeframe for both legislative and congressional redistricting.
In sum, the plain language of Section 44, the General Assembly's past redistricting customs, and the General Assembly's own interpretation of Section 44 all demonstrate that the framers of the Colorado Constitution intended that congressional districts must only be drawn onee per decade.
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. Seq, eg., Ariz. Const. art. IV, part 2, § 1. Other states simply require redistricting in the legislative session immediately following a decennial census. See, eg., Utah Const. art. IX, § 1. Still others allow congressional redistricting "at any time" or "from time to time." See, eg., S.C. Const. art. VII, § 18; Wyo. Const. art. III, § 49. Finally, some state constitutions do not address congressional redistricting at all. See generally, e.g., Tex. Const. Despite the differences in state approaches to congressional redistricting, we have found no decision by any state's highest court that has interpreted its constitution to allow redistricting more than onee per decade. To the contrary, many have concluded that congressional redistricting may only occur once per census period.
For example, in 1983, California emphatically reinforced its prior holdings that the state constitution prohibits redistricting more than once per decade. Legislature v. Deukmejian,
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,
The second authority was from a federal district court in Florida. Johnson v. Mortham,
Before reaching its conclusion, the court acknowledged three federal cases that have adopted "permanent" redistricting plans. Id. In the first, Commor v. Coleman, the United States Supreme Court ordered a district court to adopt a permanent reapportionment plan for the Mississippi Legislature.
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 Hawail 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.
Our decision today is based upon Article V, Section 44, of the Colorado Constitution. Because Wise and Burns do not interpret any state constitution or statute involving redistricting, we do not find these cases persuasive or even relevant to our analysis. Even if we assume without deciding that the federal Constitution does not prohibit mid-decade congressional redistricting, our state constitution does not allow it and this is a question of state law. '
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 1. 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,
Our interpretation of Article V, Section 44, of the Colorado Constitution supports these notions of accountability and fairness. Limiting redistricting to once every ten years maximizes stability. In its brief, the General Assembly, however, argues that it should be allowed to redistrict two, or even ten times in a single decade. If the districts were to change at the whim of the state legislature, members of Congress could frequently find their current constituents voting in a different district in subsequent elections. In that situation, a congressperson would be torn between effectively representing the current constituents and currying the favor of future constituents.
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 "[al boundary that is continually moving is one that is unlikely to serve as any kind of imaginative focal point for communal identity ..." and "[rledistricting thus flattens identity within a jurisdiction by preventing subcom-munities 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.
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 2008 redistricting plan is not permitted by Article V, Section 44, of the Colorado Constitution because it is the see-ond redistricting plan after the 2000 census. Hence, Senate Bill 08-852 is unconstitutional and void.
VIH. 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.
Notes
. The terms "redistricting" and "reapportionment" are often used interchangeably. To re
. Plaintiffs in that case allege that the General Assembly violated a variety of state laws regarding the procedure by which the lawmakers must introduce, read, debate and pass bills. Those issues were not raised in this case, and so we do not consider them in today's decision.
. The criteria are different if the case is the equivalent of an interlocutory appeal, or the result of an alleged abuse of discretion in a lower court proceeding that cannot be cured on appeal. See People v. Braunthal,
. The Attorney General's authority to bring an original proceeding in matters involving the public good is also consistent with Colorado's broad conception of taxpayer standing, which is grounded in this court's recognition of taxpayers' interest in living under a constitutional government. See Howard v. City of Boulder,
. The Secretary of State also makes an historical argument to support her position, placing great emphasis upon the fact that Colorado adopted the English common law of 1607 into its body of laws. § 2-4-211, 1 C.R.S. (2002); Bieber v. People,
. Other states have considered the Attorney General's ethical obligations in inter-executive disputes, and their decisions accord with ours today. See Perdue v. Baker,
. The at-large scheme does not violate the one-person, one-vote doctrine because all representatives are elected from the state as a whole, and hence, represent equal numbers of voters. Wesberry,
. Section 2¢ exempted states that had always elected all of their representatives at large. These states could continue the at-large elections. Section 2¢ states in full:
In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).
2 U.S.C. § 2c (2002).
. In fact, as Colorado grew, the legislature did redistrict six times: 1891, 1913, 1921, 1964 (after the one-person, one-vote Supreme Court decision), 1972, and 1992. 1891 Colo. Sess. Laws 89 § 1; 1913 Colo. Sess. Laws 517 § 1; 1921 Colo. Sess. Laws 170 § 1; 1964 Colo. Sess. Laws 11 § 1 (First Extraordinary Session); 1972 Colo. Sess. Laws 184 § 1; 1974 Colo. Sess. Laws 40 § 19; 1992 Colo. Sess. Laws 593 § 2. In 1900, Congress gave Colorado a third seat, and in 1910 a fourth, but the legislature did not redistrict between 1891 and 1913. Thus, the third and fourth members of Congress were elected at large from 1902 to 1912. Kenneth C. Martis, The Historical Atlas of United States Congressional Districts: 1789-1983 (1982). The General Assembly did not redistrict in the more than forty years between 1921 and 1964 either. After the
. We neither examine nor decide whether federal law prohibits redistricting more than once per decade.
. Until SB 03-352, the General Assembly had redrawn congressional districts only in 1891, 1913, 1921, 1964, 1971, and 1992.
. In 1900, Congress allocated a third seat to Colorado, and in 1910 a fourth. The legislature did not redistrict, however, between 1891 and 1913. Kenneth C. Martis, The Historical Atlas of United States Congressional Districts: 1789-1983 (1982).
. The statistics cited above were compiled from the front of the Colorado Session Law books, which have listed party affiliations since 1915.
. See Colo. Const. art. V, § 48 (as amended by voter initiative in 1974) (requiring that a bipartisan reapportionment commission draw state legislative districts, and specifying in detail that the redistricting take place after the federal census results and before the precinet caucuses of the following election year); Legislative Council of the Colo. Gen. Assembly, An Analysis of 1974 Ballot Proposals 29 (Research Publication No. 206, 1974) ("Adoption of the proposal would mean that reapportionment of legislative districts would occur only once every 10 years...").
. The Johnson court clarifies: "It is clear that 'permanent,' in the context of reapportionment and redistricting, means until the next decennial census." Johnson,
. Of course, additional redistricting may become necessary if existing districts are declared unconstitutional on grounds such as racial discrimination. In that case, the legislature or ultimately the courts must create constitutional districts no matter when it occurs.
Dissenting Opinion
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 Article V, Section 44, of the Colorado Constitution to the "General Assembly" includes the courts and specifically imbues the courts with independent authority to undertake such redistricting. Further, the majority reads the word "when" in Article V, Section 44, of the Colorado Constitution to limit the exercise of all redistricting authority, by the General Assembly or the courts, to a window of time between a new apportionment by Congress and th next general election. '
I fundamentally disagree. Courts cannot be lawmakers under Article V of the Colorado Constitution. Courts do not enact
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 pre-cinet 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
Article I, Section 4, of the United States Constitution provides that "[the times, places and manner of holding elections for senators and representatives shall be prescribed in each state, by the legislature thereof, but the congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators". (emphasis added).
Article V, Section 44, of the Colorado Constitution implements that responsibility as follows:
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 Article I, Section 4, of the U.S. Constitution by operation of state law, citing Smiley v. Holm,
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,
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,
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 determine what constitutes that process of lawmaking.
That cireuitous 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,
Article V embodies just such breadth. Section 1 of Article V reserves to the people the power of initiative and referendum. Section 39 sets out the condition that before a law may take effect, it shall be approved by the Governor, or re-passed by two-thirds of both houses. Article V is, therefore, a self-contained and complete description of the lawmaking processes and legislative powers in Colorado.
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.
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,
Because the constitution assigns redistricting to the legislative branch of government under Article V, Section 44, Article III mandates that the judiciary may only exercise that power if expressly so directed or permitted by the constitution. Implied exceptions are not sanctioned; this is the plain meaning of Article III, Denver Bar Ass'n v. Public Util Comm'n,
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,
Prior to 1964, courts played only an anee-dotal role in the process, in part because redistricting was perceived to be a non-justi-ciable, political issue,
In 1962, the U.S. Supreme Court issued Baker v. Carr,
The following year, the U.S. Supreme Court announced a decision in Wesberry v. Sanders,
The third case in this trilogy was announced in 1964. In Reynolds v. Sims,
Lastly, in 1965, Congress passed the Voting Rights Act, 42 U.S.C. § 1978 (2003), which recognized the need in redistricting to protect minority voters. Under that Act, courts have been called upon to undertake additional supervisory authority. Hence, since the mid-1960's, there have been numerous cases around the nation where courts have become involved in redistricting issues.
Most recently, in Branch,
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,
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,
In Growe v. Emison,
Other courts around the nation have similarly recognized the supervisory, temporary and interstitial character of court-ordered redistricting plans. In Johnson v. Mortham,
The plaintiffs argued that the "DeGran-dy" 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 "[tlo 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,
Thus, in my view, the U.S. Supreme Court ushered in the era of court involvement in redistricting by clarifying that the Fourteenth Amendment protects voters' rights and the courts are charged with enforcing that protection. When districts are not constitutionally adequate, courts may fashion a remedy to protect aggrieved voters in an upcoming election. However, never has the U.S. Supreme Court held that a court-ordered plan preempts a legislature from attempting to correct a deficiency by passing its own redistricting plan.
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,
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 Article V for the majority's definition of "when," which restricts not only legislative authority but also court supervisory authority. The Article does contain time frames for action in great detail in some sections, such as those imposed upon the Reapportionment Commission in Section 48. The absence of such time limits in Section 44 is telling. If the framers of Section 44 had intended to start the ticking of a time clock that would govern the redistricting process, they had language at their command with which to accomplish such an end.
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,
In State v. Weatherill,
Other courts agree that the legislature's duty to reapportion continues until performed. See Harris v. Shanahan,
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.,
IV. 2002 Redistricting
In Beauprez v. Avalos,
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, 2008, the same day on which Governor Owens signed Senate Bill 08-352 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, 2008). The plaintiffs in that case contend that the General Assembly's 2003 redistricting plan violates: Colorado's GAVEL amendment (Colo. Const. art. V, § 20); Colorado's Sunshine Law (§ 24-6-101, et seq., 7B CRS. (2002)); the Colorado State Senate Rules; plaintiffs' equal protection rights; and the Colorado Constitution art. V, § 22, and art. II, § 10. In short, that case includes, but is not limited to, the constitutional issues raised in this case.
Because of the additional claims, there were numerous issues of disputed fact, and an evidentiary hearing would have been nee-essary 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 grounds are raised and may be dispositive.
In order to satisfy the electoral time frame of this case, precinets must be established by March 15, 2004, which is 29 days prior to the precinet 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 the Keller case.
A. Other Relief Was Clearly Available
Under C.A.R. 21, the exercise of original jurisdiction is "extraordinary in nature and is a matter wholly within the discretion of the Supreme Court. Such relief shall be granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, is available." This relief is not a substitute for appeal from a lower court proceeding and is not to be granted when it will supersede the functions of such appeal. See Fitzgerald v. Dist. Court,
In People v. McClees,
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 Commrs.,
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 he 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—as-suming 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.
. See Branch v. Smith,
. Although the majority indicates that it relies only upon state law to define the power to redistrict, it nonetheless acknowledges the importance of federal law in shaping the court's role in that process. Maj. op. at 1226, 1231, 1232, and 1235. That acknowledgement, from my perspective, is a telltale indication of the premise that court authority does truly stem from federal law and is not here independently created by operation of the state constitution.
. We have held that the constitutional assignment in Article V, Section 48, to the Chief Justice of the Colorado Supreme Court of the duty of appointing four members to the state legislative reapportionment commission is not a violation of separation of powers because it is specifically required by the constitution. In re Interrogatories Propounded by the Senate Concerning House Bill 1078,
. See Colegrove v. Green,
. See Armstrong,
. See also Ramos v. Koebig,
. The majority goes even further in concluding that redistricting can only occur once each decade. In my view, we need not reach that question because it is not before us. From my perspective, redistricting by the General Assembly has only taken place once-in Senate Bill 03-352-and I would not opine further. To the extent, however, that the majority relies upon federal law for the conclusion that redistricting is limited to once per decade, I read the cases differently. Georgia v. Ashcroft, - U.S. -, - n. 2,
. I also note that if we were addressing the appeal of the district court case, we would not need to resolve the issue concerning the Attorney General's authority, because he is not a party to the lower court case. Hence, in addition to joining issues of constitutional magnitude in the first instance, rather than only as a last resort, we are inviting still another constitutional issue which we would never have needed to reach.
. The case was later removed to federal court, where it has been stayed awaiting this opinion. See Keller v. Davidson, No. 03-Z-1482 (CBS) (D.Colo. Sept. 25, 2003). It is speculation at this point to try to unravel the process and guess what might have occurred had we not taken the original proceeding.