It’s not over yet. There probably will be an appeal to the U.S. Supreme Court of one of the most unappealing things the Colorado General Assembly has ever done.
It’s “more than likely,” says Denver attorney John Zakhem, who represents defenders of the legislature’s last-minute, surprise congressional redistricting in May 2003. “The odds are overwhelming,” he added.
Of course, there’s no guarantee the nation’s highest court will continue to beat this dead horse.
There have been three lawsuits so far, and all of them have been thwarted at all levels of the judiciary. The most recent thwarting was by a three-judge panel in Denver’s federal court.
None of the courts found sufficient reason to throw out a congressional redistricting plan that was approved by a Denver district judge in early 2002. The most recent decision said it would be “absurd” to keep redrawing congressional district boundaries every time someone has an objection.
Or, one might add, every time the political winds blow from a different direction. The 2003 redistricting plan was purely political. It was introduced in the last three days of that year’s legislative session, taking Democrats – and the press – by surprise.
There already had been an election using the court’s 2002 congressional boundaries. But another outcome of that election was that Republicans regained a state Senate majority after two years of Democrats in charge. That gave the GOP control of both houses of the legislature plus the governor’s office.
Aha! The perfect time to throw out the year-old map and replace it with one more favorable to the Republicans – one giving them a voter majority in five congressional districts, conceding only two to the Democrats.
As it was, the Republicans had won a 4-3 advantage in 2002 congressional elections – much more reflective of actual voter registration figures statewide.
But that’s not the point, the Republicans say. It’s the principle of the thing, separation of powers. You don’t want “activist judges,” to borrow their phrase, doing things that are the legislature’s responsibility.
“Maps can come and go without lasting damage,” says Republican John Andrews, who was Senate president in 2003, “but fundamental liberties are lost when judicial tyranny overrides the democratic process as it has done here.”
House Speaker Andrew Romanoff agrees that “the principle is important.”
But Andrews also argues the Democrats were “far more partisan” in 2003 because the Republican bill passed “in the open and with due process,” while the other map “was done by stealthy politicization of the court system.”
Yes, but it was only three days of openness and due process, and the Republican map was more openly political.
“It was nothing more than partisan bullying,” says the current Senate president, Joan Fitz-Gerald, who was minority leader in 2003.
And so what if it’s political? asks House Minority Leader Joe Stengel, R-Littleton. “Congressional redistricting is purely political.”
“Just as water is wet,” adds Andrews.
This protracted squabbling has spawned several efforts to take away the legislature’s crayons and delegate the job of map-making to an independent commission, as is done for legislative redistricting.
Senate Majority Leader Ken Gordon and his Republican counterpart, former Sen. Mark Hillman, offered a proposal last year to have a single commission do both legislative and congressional redistricting.
It died in committee – badly. And then Hillman left the Senate to become acting state treasurer. Gordon is looking for a replacement Republican cosponsor.
But so far the only reliably bipartisan element is the skepticism.
“I highly doubt whether a commission, especially one chosen by legislative leaders, would be any less partisan, though the partisanship might be less visible to the public,” says Stengel.
“You can remove it from the legislature and say it is less partisan, but the fact of the matter is, it’s always going to be a partisan process,” says Fitz-Gerald.
Fred Brown, retired Capitol Bureau chief for The Denver Post, is also a former national president of the Society of Professional Journalists.
