The U.S. Supreme Court on Tuesday granted a reprieve of sorts to Colorado Republicans defending their party’s 2003 attempt to change the state’s congressional boundaries to favor the GOP.
The court ruled that a federal three-judge panel erred when it applied a legal doctrine that prevented the case from being heard. The court ordered the panel to hear the case again.
While the decision leaves Colorado’s congressional boundaries in dispute, all sides agree a final decision is unlikely to come in time to affect November’s election.
The case, Lance vs. Dennis, is the Republicans’ last attempt to reinstate a redistricting plan drawn by the Republican-controlled legislature in the waning days of the 2003 legislative session. Democrats successfully challenged the 2003 map, which was intended to replace a 2002 map drawn by the courts.
“After being told that we’re crazy, that we’re just dragging things out, we’ve always felt like we had a legitimate issue and I think we’re still in the ballgame,” said Bob Martinez, the state Republican Party chair.
It was important to keep fighting, he said, “because of the advantage it will give us in the 7th (Congressional District) registration-wise.”
That district is being vacated by Republican Rep. Bob Beauprez, who is running for governor. It is widely considered the most competitive congressional seat in the country.
Pat Waak, chair of the state Democratic Party, said the appeals are “a waste of the taxpayers’ money” – a line Democrats have used throughout the court battles.
“They got a ruling in their favor for now and then it comes back and then it’s going to go back-and-forth and back-andforth,” she said. “I think it’s sort of a miscarriage of justice to spend this much time on it.”
Brett Lilly, the attorney representing the plaintiffs, most of them Republicans, said the Supreme Court ruled on a legal issue and did not discuss the merits of the case.
“They didn’t reach the ultimate question about whether we’re right or wrong on whether the map was proper or not,” Lilly said.
And it remains unclear whether Lilly’s arguments on the merits will ever be considered by a court.
The attorney general’s office will argue that a legal doctrine, called “issue preclusion,” prohibits the case from being heard, said Jason Dunn, deputy attorney general.
Attorney General John Suthers is representing Secretary of State Gigi Dennis in the suit. As secretary of state, Dennis oversees the state’s elections.
Because the redistricting issue had been settled by the Colorado Supreme Court in a separate case – Salazar vs. Davidson – a similar case cannot be brought to the federal courts, Dunn said.
The interests of the plaintiffs in the Lance vs. Dennis case, Dunn said, had already been adequately represented in court during the Salazar case. Therefore, the office will argue that the federal court should dismiss the case again, Dunn said.
In fact, Justice John Paul Stevens made a similar argument in his dissent from the majority opinion.
He agreed with his colleagues that the three-judge panel used flawed legal reasoning to dismiss the case.
But instead of sending the case back to the panel, he argued that the Supreme Court should dismiss the case based on issue preclusion.
Lilly said he will argue that issue preclusion should not apply because his plaintiffs were not represented by the government in the Salazar case.
“The government doesn’t have the final say on what the people’s rights are,” Lilly said. “The people have the final say.”
Staff writer Chris Frates can be reached at 303-820-1633 or cfrates@denverpost.com.
