Colorado’s first-ever independent redistricting commissions are complete, after a lengthy commissioner selection process, and they are beginning to meet and prepare for their once-in-a-decade work of redrawing the state’s political lines.

It’s the bearing of fruit years in the works, following the drafting, legislative passage, then finally the voter approval of Amendments Y and Z in 2018, which distance the district-drawing process from the politicians whose careers could be helped or hurt by the shape of redrawn maps.

But the commission already faces a fundamental problem: The data needed to do the mapping is delayed by months. Politicians have already begun to pressure the commission on how to handle the problem, despite disagreements about the legal ramifications of their desired next steps.

And some of the commissioners have been criticized for their perceived political biases or close ties to political power structures, perhaps foreshadowing partisan struggles in the months ahead.

A new process

Traditionally, and in contrast to the independent commission process, redistricting has been done by state legislatures, without much in the way of transparency or public input. Colorado now joins a growing minority of states that have chosen to give the powers to independent commissions.

The new process being put into practice for the first time this year in Colorado is intended not only to put the duties into the hands of ordinary citizens who don’t have a political stake in the maps, but to open the process to the public and give opportunities for public input along the way.

Amendments Y and Z accomplish that part by requiring numerous public meetings around the state, where draft maps will be shown and discussed and where people can submit their own ideas about them. Then, after the statewide tour soliciting feedback from the public, transparently adjusting the maps in public hearings and creating a public record of all their work, the maps are to be approved by the state Supreme Court in the fall, giving state and county election officials the time they need to prepare for and administer the 2022 elections using the new maps.

Except one big problem has come up: The U.S. Census Bureau has delayed the data necessary to do the work for months. Instead of delivering the redistricting data to states at the end of March, the data won’t be ready until August or September. Initially the bureau told states the delay would mean data by Sept. 30. More recently, the bureau has said some initial redistricting data could be ready by late August.

The delay is one of the many aftershocks of the global coronavirus pandemic that shook the world in 2020. Because of social distancing measures aimed at slowing the virus, the Census Bureau had to shorten the time for their normal data collection efforts. The crunch caused problems with the data that are still being worked out.

Colorado’s new redistricting process, well-intentioned as the public input requirements and deadlines may have been, has been thrown into disarray, and there isn’t a clear answer yet for what’s going to happen next.

A place-holder estimate

The official reapportionment data, which exactly counts each state’s population, and which decides the gain or loss of congressional districts, is also delayed this time and would normally already be published, but the Census Bureau said the reapportionment data will be ready by April 30.

That would tell congressional redistricting commissioners how many districts to draw, but exactly where everyone is and where to draw the lines won’t be possible until the granular “block-level” data is ready.

Amendments Y and Z require the commissions to travel around the state during the summer with an initial set of draft maps to collect public input before adjusting the maps, voting to adopt them and submitting them to the Supreme Court for final approval by November. But there won’t be enough time for that, if mapping doesn’t begin until the end of September. The commissioners now must figure out what to do, but it will almost surely mean changes to the process.

One possibility, raised at the first congressional redistricting meeting on March 15, would be to use preliminary census survey data, which has a margin for error, to work on the maps until the official data are available for making final adjustments. The imperfect survey data comes from the American Community Survey, which is sent to about 2.7% of households each year.

The decennial census, in contrast, attempts to get a response from every household, allowing for exactly equal political redistricting, as is required for congressional districts.

Using the ACS data would allow the commissions to start redistricting sooner, but with the knowledge that the data and whatever maps the commissions might draw with the ACS will have to be adjusted later.

So far, this is the plan endorsed by state legislative leadership, Gov. Jared Polis and the co-chairs of Amendments Y and Z.

A bipartisan group of state legislative leaders supported the idea in a letter to the commissioners.

“While release of the final census population data has been delayed, it is our belief that the Colorado Congressional Redistricting Commission and its staff can use the best available information (referred to in Amendment Y as “necessary census data”) to begin the preliminary map-drawing and public engagement processes and to increase the likelihood of meeting constitutional deadlines for final approval,” the letter read. “Final adjustments for all districts could then be made once final census population figures are released, which is currently expected by Sept. 30.”

Polis, in his letter convening the congressional redistricting commission, backed the proposal, as well.

“I’m told that reapportionment data will be available as soon as April 30, meaning that we will be able to confirm then whether you are setting district lines for seven or eight congressional districts, although at this point initial projections show us solidly within the range of justifying 8 congressional districts. The fact that you will not have more granular census data until September 30 should not deter you from beginning the substantial public process you are charged to pursue.”

And the co-chairs of Amendment Y and Amendment Z, the voter-approved state constitutional amendments authorizing the new citizen redistricting commissions, said they like the idea, too.

“It is our belief that the amendments provide the Commission latitude with the process and sufficient data exist for the drafting and public discussion of ‘preliminary plans’ that can be adjusted once final data are available,” they wrote.

Delaying the process, they said, could limit or rush the public engagement components of the new process.

Threat of lawsuits

But using the ACS data comes with risks, according to Jerry Barry, the Legislative Council staff attorney working with the commission.

Amendments Y and Z have precise language about the process, including the prescribed use of “necessary census data,” so if the commission chooses to use preliminary survey data, Barry said, the commission might want to get the state Supreme Court to approve it.

Jessika Shipley, the lead Legislative Council staff member working with the commission and who worked on the 2011 redistricting, said the crux of the matter is what “necessary census data” means.

“I think we will get sued if we just go ahead and start using estimated data,” Barry said during the congressional redistricting commission’s March 15 meeting. “I believe the use of data besides the redistricting data will require someone to say that we can do that, and I think that ought to be the Colorado Supreme Court.”

Redistricting lawsuits, often filed by whichever partisan group sees themselves as the losers in a new district plan, can take aim at the process, and the precise adherence to legal requirements. In Arizona, following the 2011 redistricting, Republicans filed a lawsuit over the decision to first draw the peripheral rural districts, then later filling in what they called the “doughnut hole” map’s central urban districts. They argued that a doughnut hole map was not permitted. The lawsuit was eventually dropped as the state’s Republicans continued to litigate over more substantive matters.

Danny Moore, one of the Republican congressional redistricting commissioners and the recently selected chair of the commission, said during their March 15 meeting that shifts in housing trends could have been caused by the coronavirus pandemic, meaning the 2019 ACS survey data could be significantly different from the 2020 Census data, and the adjustments to the maps would be significant. It’s still too early to know whether Moore is right, but if so, it could lend credence to a procedural lawsuit arguing the commission didn’t have the authority to use the ACS data.

But if the commissions don’t change the procedures to get started right away, they could end up with legal attacks for delaying.

“I still think the possibility of us getting sued is out there, if we don’t meet our deadlines,” Shipley said.

Just as pressing as the public hearings required in the new process, and just as legally ripe for lawsuits, are the deadlines to get state Supreme Court approval so state and county elections officials can prepare for 2022.

If the commissioners wanted to simply put the process on hold until the decennial census data is ready, instead of using preliminary ACS data, those election officials could file lawsuits of their own to compel the commissions to do whatever it takes to provide maps by the deadlines specified in Amendments Y and Z.

So far, the congressional commission has not begun to substantively discuss what they intend to do about the delayed data.

On March 30, the legislative redistricting commission met for the first time and began the same procedural and administrative actions that the congressional commission began two weeks earlier. They have roughly the same the process to follow.

Complaints of partisanship

Colorado’s political players have not only begun to pressure the commission about what to do about the census data delay, they’ve also cried foul about some of the commissioners’ perceived allegiances.

During the selection process, the state Republican Party wrote a petition, asking for dozens of unaffiliated commission applicants to be booted from consideration for a seat. The letter included social media posts or campaign finance records that, they argued, showed that applicants registered as party-unaffiliated actually favored one party, specifically the Democratic Party.

Another letter from a group of unaffiliated former elected officials and political players raised similar concerns, highlighting similar hints that unaffiliated applicants might be partisans in sheep’s clothing.

A letter from All On The Line, a Washington, D.C.-based Democratic-leaning advocacy group that focuses on redistricting, wrote a letter, urging the selection of more women and people of color to the state’s legislative redistricting commission, after the first round of selections heavily favored white men.

And while the various groups have voiced concerns about some of the applicants’ perceived biases, or lack of diversity among some of the commissioners, a couple of the commissioners with deep political backgrounds so far haven’t raised concerns, even though independent redistricting is intended to remove the remapping duties from entrenched political players.

Amendments Y and Z prohibit “professional lobbyists, federal campaign committee employees, and federal, state, and local elected officials” from serving as commissioners. And they require that commissioners cannot have run for a state legislative office in the past five years, been paid by a candidate campaign within the past three years or been an elected political party official above the precinct level or a political party employee within the past three years.

The rules don’t prohibit someone like now-commissioner Bill Leone, a former U.S. attorney for Colorado, former member of the Colorado Independent Ethics Commission and partner at the prestigious Norton Rose Fulbright law firm, from serving on the commissions.

They also don’t stop someone like now-commissioner Blanca O’Leary, a longtime Democratic power player and the chair of Boldly Forward, a 501(c)(4) nonprofit group that served as Gov. Jared Polis’ transition committee and later financially supported Democratic-aligned ballot measures. 501(c)(4) nonprofit groups can accept unlimited donations without ever disclosing who supports them. When they spend in elections, they’re often called “dark money” groups, because of their lack of transparency.

Kent Thiry, the co-chair of the group that designed Amendments Y and Z, said he’s not bothered by the political connections of some of the commissioners.

“We were intentional on wanting to allow, and to even look favorably on people who have a history of civic engagement, people who will then bring that intensity and passion and experience to the table.”

The fact that a panel of judges reviewed the applicants before selecting them should be reassuring, Thiry added, because that means the commissioners have been vetted.

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