Almost 30 years later, I still recall vividly one of the strangest moments I ever witnessed as a lawyer. Standing before three federal judges, arguing about a case that would determine how congressional districts would be drawn in Colorado, I watched in horror as our witness (a prominent state legislator) turned casually to the judges and suggested that he and they retire to “the cloakroom” so we can work this out.”
He learned swiftly that there is no “cloakroom” in a federal courtroom and no one “works it out” with federal judges.
This memory leapt into my mind this past weekend when I read that delays in reporting U.S. Census data almost assuredly will prevent Colorado’s new independent citizen commission from submitting its proposed congressional district map to the Colorado Supreme Court by September 15.
As some may recall, voters amended the Colorado Constitution in 2018 to take this responsibility, as well as the re-drawing of state legislative districts, away from the Colorado General Assembly. These changes, marked as Amendments X and Y, passed overwhelmingly, perhaps because voters concluded that there had to be a better way to set up congressional districts.
Voters much earlier, in 1974, put in place a “reapportionment commission” to handle state legislative districts. The 2018 Amendments created two new and separate commissions in an effort to “depoliticize” and modernize the process.
As one newspaper article noted, “Though other states have been more egregious in gerrymandering their districts to maximize wins for one party, fighting over Colorado’s maps has often spilled into the courts.” Talk about an understatement!
As mentioned above, the 1991 efforts roared into the federal courts, and three federal judges, as well as the dean of the University of Colorado Law School acting as a “Special Master,” were required to find a solution. In 2002, one redistricting map was affirmed by a court, employed for the 2002 federal elections, and then the newly elected state legislators voted for a “new” map in 2003! Colorado Attorney Ken Salazar filed suit and many months later, after trips to state and federal courts as well as a failed certiorari petition to the U.S. Supreme Court, the original 2002 map was back in place.
And you would be right if you guessed that judges were required to “sign off” in 2011 on congressional and legislative reapportionment maps.
The new “commissioners” are being appointed even as I write these lines. Each commission must include an equal split of Democratic, Republican, and independent members, and state judges have been sorting through thousands of applicants, paying attention not only to voter registration but also to geographic, racial, ethnic, and gender diversity.
Yet despite the best efforts of Colorado’s voters, and the earnest applications of thousands, it appears quite possible that judges may yet again be called upon to determine which citizens end up in each of Colorado’s eight congressional districts.
And the stakes are particularly high this year since Colorado will add a new Member of Congress in 2022, thanks to the large influx of new citizens into our state in the past decade.
Cole Finegan served as city attorney for Denver and was chief of staff to former Mayor John Hickenlooper. He is currently managing partner for Hogan Lovells US LLP in Denver.