COVER STORY | Drawing the line on gerrymandering
Author: Joey Bunch - August 14, 2018 - Updated: August 24, 2018
Democratic and Republican leaders in Colorado have at least one thing in common: Neither side trusts each other or the courts to be fairer to Colorado voters than Colorado voters would be to themselves.
That’s the idea driving amendments Y and Z on the state’s November ballot to allow independent commissions to draw electoral district maps for legislators and members of Congress. The legislature voted unanimously in May to send the questions to voters.
Amendment Y would create a commission to redraw congressional boundaries after the 2020 census; Amendment Z would do the same for state legislative redistricting.
Colorado is not the first state to take on gerrymandering, but its effort to end the partisan practice could be the most extensive and unified of any state.
Gerrymandering is the dark art of drawing political maps for political purposes. Every 10 years, after the census, Colorado lawmakers create congressional districts while a politically appointed commission draws legislative maps. The stated purpose is to reflect shifts in population.
Political self-dealing and rampant distrust, however, rain on the process like a dark cloud over the Rockies.
The party that has the majority can deliver safe districts to their candidates, taking the guesswork out of most elections in Colorado when one party is nearly certain to a win a district. Stacking the district that way, however, gives party leaders more power than voters over candidates, since those not faithful to party doctrine might face a primary without party support. That nearly ensures partisan gridlock on major issues. What’s needed in Washington takes precedent over what’s needed down the street.
Both sides admit that’s true, but neither side openly admits to gerrymandering.
In June, the U.S. Supreme Court offered little help in addressing what is and isn’t gerrymandering, by sending cases involving Wisconsin and Maryland political map-making back to the lower courts.
Colorado and a handful of other states aren’t waiting around on the courts anymore.
In Colorado, one of the main goals is to the keep the decisions out of the courts.
Courts pose new risks
Republicans are still grumbling about the maps the courts helped create in 2002 and 2011.
“Who drew those maps?” said state Senate President Kevin Grantham, a Republican from Canon City. “Judges. Who did it advantage? Not us.”
Democrats, however, see a shifting judicial landscape that might not be good for them in the future.
In office for 17 months, President Donald Trump is soon to seat his second appointee to the U.S. Supreme Court, the same number as Obama sent to the high court in eight years. Trump already has appointed 24 judges for the U.S. Courts of Appeals, while Obama seated 55 across his two terms.
Trump’s picks could affect judicial philosophy on political map-making for years to come, said Mark Grueskin, a prominent Denver lawyer who has represented the Democratic Party and Democratic causes.
“In the courts, both sides take a risk,” said Grueskin, who helped broker the difficult bipartisan compromises that led to amendments Y and Z.
Under the old system, other than a few basic ground rules, the legislature and the reapportionment commission “could use a dart board” to draw maps, Grueskin said. One of those ground rules was at least a slippery grasp on the 1965 Voting Rights Act, which protects against racial gerrymandering.
Under the proposed system in Colorado, the guidelines — including adherence to the Voting Rights Act and other agreed-upon rules — would be spelled out and deliberated in public and passed by a supermajority of the proposed 12-member commissions.
The commissions — one for the legislature, another for congressional districts — would be made up of four members each from the two major parties and four unaffiliated members. The district map would have to be approved by eight of the 12 members, including at least two of the unaffiliated members.
If a map did make it to court, a judge would have a defined statement of intent about what the maps were meant to do rather than a shell game of politics.
Four of the eight sitting U.S. Supreme Court justices have questioned in decisions and dissents whether the 1965 law is still a necessary part of redistricting. Just five years ago the court struck down major provisions of the Voting Rights Act that still required court approval for maps in nine Southern states and counties in five other states with a history of racial gerrymandering.
Fourteen years ago, however, the Supreme Court ruled 5-4 that redistricting was a matter of politics and an ill fit for the courts, except in the rare case that gerrymandering rose to the level of being unconstitutional.
The late Justice Antonin Scalia wrote for the majority then that the Constitution did not provide “a judicially enforceable limit on the political considerations that the states and Congress may take into account when districting.”
In June of this year, the Supreme Court declined to hear a case of alleged gerrymandering in North Carolina that was highly favorable to Republicans in a state that has seven redistricting lawsuits in the last decade. At the same time, the court let stand a map favored by Republicans in Texas.
Gerrymandering cases are pending in various courts for Alabama, Georgia, Louisiana, Virginia, Ohio and Pennsylvania.
The tide of judicial history might no longer be on the side of the left, but neither side seems eager to spend the money on lawyers anymore to take their chances.
The voter advocacy nonprofit Common Cause nationally has been a legal combatant on gerrymandering, and the left-leaning group was part of the Colorado compromise.
Amanda Gonzalez, the executive director of Colorado Common Cause, said she was stunned by the eagerness of long-time combatants over redistricting to work together to mark political maps “made in Colorado.” She found it hard to predict how future courts might rule.
“Not knowing how national politics play out, not knowing how various elections go, I think that’s why it was increasingly important that we have a good and transparent redistricting process that follows national best practices that’s good for Colorado,” she said when asked where the two sides found common ground.
Arkansas, Michigan and Utah will have ballot questions on redistricting in November, as well.
In February the legislature in Ohio, a swing state like Colorado, passed a plan to require approval of the minority party during redistricting in 2021. The aim was to shake loose partisan gridlock in Columbus, the state capital, and deliver more competitive races for Congress.
Ohio was the eighth state to find a separate commission for congressional races. Thirteen states use commissions for state legislative redistricting, as well.
Action is finally catching up to the words of politicians — usually as they leave office.
In 1987, nearing the end of his second term, President Ronald Reagan told the Republican Governor’s Club annual dinner about the risk of gerrymandering to the GOP.
“Few races could be more important, few campaigns more crucial, to the future of our country,” he said. “What happens in those elections will have repercussions that extend far beyond the state capitals and far beyond state lines — all the way, in fact, to Washington, D.C., and the House of Representatives on Capitol Hill.
“That’s because reapportionment comes up in 1991. That’s when the congressional districts will be redrawn. And in all too many cases, having a Republican governor is the only shot we have at getting a fair deal. And that’s all we’re asking for: An end to the anti-democratic and un-American practice of gerrymandering congressional districts.”
And when President Barack Obama left office last year, he began work with Eric Holder — his attorney general from 2009 to 2015 — on the National Democratic Redistricting Committee, which Holder chairs.
“In America, politicians shouldn’t pick their voters. Voters should pick their politicians,” Obama said last month in a video on gerrymandering.
Colorado has been here before. In 1974, voters saw the lunacy in letting lawmakers draw their own districts and passed a constitutional amendment with a 60 percent majority to create the Colorado Reapportionment Commission to draw state legislative boundaries.
That 11-member commission has been appointed every 10 years after each census by the governor, the legislature and the courts, with only a simple majority necessary to pass anything they wished. The only fail-safe was the courts.
Nonetheless, history indicates it worked without much complaint in 1981 and 1991, as maps were redrawn.
Technology and distrust changed the game. The majority could employ sophisticated software to create a map that was an Election Day Trojan horse.
Neither the minority on the commission nor judges had access to the granular data that went into drawing the maps pushed forward by the majority. The only people who knew for sure whether the maps were gerrymandered were those who engineered them, and they left that for the courts to determine. The first rule of gerrymandering is to never talk about gerrymandering.
While the 1974 amendment put legislative redistricting in the hands of a commission, as imperfect as that panel may be seen by some, the drawing of congressional boundaries was left in the hands of the legislature. New district maps are approved by a simple-majority vote like any other bill.
Under those rules came the “midnight gerrymandering” of 2003.
After Republicans and Democrats in the legislature couldn’t agree on congressional boundaries in 2002, the late Denver District Judge John Coughlin selected a map favorable to Democrats that was upheld by the Colorado Supreme Court.
Then, after an election seated more GOP state legislators, Republicans without much notice drew new boundaries in 2003 and passed them quickly. The courts threw out the map that could have given the Republicans six safe congressional seats in Colorado and just one to the Democrats.
In 2011, Republicans were in the minority, and it was their turn to claim the system was rigged in a dispute over “communities of interest,” meaning racial minorities, and respecting traditional borders, keeping cities and counties in the same districts as much as possible.
“Bitterness, a public outcry, and claims of favoritism are their enduring legacy,” Colorado Statesman op-ed contributor and former state Rep. Steve Tool wrote in 2016 about the last two maps. Tool, a Republican, served on the Reapportionment Commission in 2011.
For an issue with such a contentious history, amendments Y and Z have no formal opposition yet.
Rob Witwer, a former state legislator who was appointed to the 11-member reapportionment commission in 2011, is a Republican who was in the minority on the commission. His wife, Heather Witwer, the chief counsel to then-Gov. Bill Owens, was appointed to it in 2001.
“How can you possibly oppose improving a process that is just so manifestly broken?” said Witwer, another lawyer on the right who worked on the compromise before voters in November.
Witwer said courts are weakened when they are drawn into partisan disputes, because they are a place where politics are not supposed to tilt the blindfold of justice.
“Let’s come up with a system that is balanced, fair and transparent, so that whoever is in power limited and who is out of power can influence the outcome, so our outcomes will be more balanced, so they’re more reasonable and they’re a produce of compromise,” Witwer said. “We should look at this as what’s best for citizens, not what’s best for Republicans or what’s best for Democrats, but what’s best for everyone over the long term. Either party is only one election away from gaining power or losing power.”
Times have changed in a decade. Witwer and the late Democratic state Sen. Ken Gordon of Denver ran a Colorado redistricting bill in 2008, but it died in committee on a 9-2 bipartisan vote.
Toni Larson, president of the Colorado League of Women Voters, is neutral on parties but passionate about voting. She is glad to see others, including politicians, who are coming around to that way of thinking
Amendments Y and Z would improve democracy because they would give “the people themselves more of a chance to draw the lines,” Larson said. “It includes unaffiliated voters, so that they’re not disenfranchised in this part of the process, so those two things are basic to ensure fairness to independent voters.”
Webb: Where’s the beef?
Former Denver Mayor Wellington Webb is not enthusiastic about the measures, but he won’t openly shoot holes in them. He thinks his fellow Democrats have “caved in” to the national fears that Republicans are gaining an advantage in the courts.
“I will probably support it, but I don’t think it’s necessary,” said Webb, a Democrat who was vice chair of the 2011 Reapportionment Commission.
The two safest congressional seats in Colorado are the 5th District in El Paso County (served by Rep. Doug Lamborn) for the Republicans and the 1st District 1 in Denver (served by Rep. Diana DeGette). To draw those lines any other way would be gerrymandering in itself and probably would rely on going beyond county borders, which mapmakers try to avoid, Webb said.
“I don’t have a problem with some districts that are primarily Republican or some that are primarily Democratic, because it’s based on where people live; it’s based on demographics,” Webb said.
Gerrymandering exists, especially in other states and especially, historically, in the Deep South, he said.
“It’s always existed,” Webb said. “But I’m saying there are varying degrees of it, and there always will be. There’s no such thing as absolute parity in politics.”
In practice, the new system won’t be much different than the old one, Webb figures.
So why would he support ballot initiatives he doesn’t think are necessary?
“I think all of the young ones out there believe this is the way to go,” said Webb, who is 77 years old. “I don’t agree, but I’m willing to give them the benefit of the doubt. And then if I vote on their side, I’m in a better position to say, ‘I told you so.’”
Amendments Y and Z: How they would work
- Create separate 12-member commissions for legislative and congressional redistricting each with four Republicans, four Democrats and four unaffiliated members.
- Set up a three-member panel of retired judges to narrow the pool of applicants. Six of the 12 members — two Republicans, two Democrats and two unaffiliated members — would be chosen by the panel of judges to reflect Colorado based on statewide geography and demographics.
- Block commission members who are lobbyists, officeholders, party officials or anyone paid by a member of Congress within the last three years, as well as any candidate for federal office within the last five years.
- Require proposed maps subject to any deliberation to be drawn by nonpartisan staff members.
- Require deliberations for each change to the map to be in public meetings and require a supermajority that includes at least two votes from unaffiliated members for passage.
- Require districts that “focus on communities of interest and political subdivisions, such as cities and counties, and then to maximize the number of competitive congressional seats to the extent possible; and prohibiting maps from being drawn to dilute the electoral influence of any racial or ethnic group or to protect any incumbent, any political candidate, or any political party,” according to legislation authorizing the ballot measure.
- Allow judicial review of the final map is required, but the state Supreme Court is limited to determining whether the commission or its nonpartisan staff abused discretion.