Midnight Gerrymander is the Big Bang of recent CO redistricting history

( – promoted by Colorado Pols)

When it comes to redrawing Colorado’s congressional districts, there’s strategeric strategery, which you’d expect, and then there’s stratospheric subversion of rule of law.

Reporters covering the redistricting process should be sure not to confuse the two. And so far, they’ve done a good job.

The starting point for confusion at this point could come regarding the GOP bill, HR 1276, introduced last Friday to change a law passed by Democrats last year.

The temptation for a reporter might be to frame this year’s GOP bill (introduced by Sen. Ellen Roberts and Rep. J. Paul Brown) as a partisan response to the equally partisan law passed by Democrats last year. But the two are not equally partisan, if you know the history involved, which I’ll explain.

Last year’s Dem law, introduced by Sen. Weissmann, repealed a 2004 GOP law laying out prioritized criteria that courts should use to map out Colorado’s congressional districts, if the Legislature can’t agree on a congressional map.

But the 2004 Republican law was directly connected to what’s known as the 2003 “midnight gerrymander,” which, on balance, was not run-of-the-mill strategeric strategery but stratospheric subversion of rule of law and the spirit of fair elections.

So, to be fair, this year’s GOP bill (HR 1276) needs to be described as an outgrowth of the midnight gerrymander. Or at least this perspective should be offered, as it was in recent coverage in The Denver Post, the Colorado Statesman, and the Durango Herald.

Here’s the background, based on this and other reporting:

After the last census, when it was time to re-draw congressional districts, Republicans and Democrats in the state Legislature didn’t agree on new boundaries, and so District Judge John Coughlin selected one of several maps proposed in 2002. The map he selected was upheld by the Colorado Supreme Court.

Then, in 2003, after an election had occurred, GOP state legislators passed yet another election-map law with new boundaries that could have given the GOP six safe congressional seats in Colorado and just one to the Dems.

This brazen effort became known as the “midnight gerrymander” because GOP legislators rammed their election-mapping bill through the state legislative process during the last three days of the session, bypassing committees and ignoring normal rules.

Ken Salazar was Colorado’s Attorney General at the time, and he declared the GOP legislation unconstitutional, but Gov. Bill Owens signed it anyway in May of 2003.

The Colorado Supreme Court threw the “midnight-gerrymander” law out in December of 2003, and restored the congressional map that had originally been approved.

After this major setback, Republicans in the state legislature passed a law in 2004 aimed at forcing the courts to create congressional maps that look essentially identical to those that would have been created by, yup, the midnight gerrymander! They did this by specifying that cities and counties be given top priority among criteria used by a judge to evaluate congressional maps.

So last year, the Dems repealed this law, leaving the courts to use essentially the same criteria that were in place before the midnight gerrymander. The status quo, pre-gerrymander, was returned, in which the courts are asked to follow federal law and weigh other non-prioritized criteria as needed.

This brings us to last Friday, when state Republicans introduced yet another bill (1276) to bring back mapping criteria that would result in midnight-gerrymader-looking congressional districts.

The bottom line for reporters is to be clear that while both Dems and Republicans are pushing for an advantageous congressional map, the cuurent strategery on GOP side has its roots in the midnight gerrymander.

And the story of that stratospheric subversion of rule of law, which could have given the GOP a 6-1 advantage in CO congressional seats, should be explained to public in redistricting coverage, because the gerrymander is sort of like the Big Bang of Colorado’s recent redistricting history, setting in motion the elements (laws, bills, map criteria) that are spinning around us today.

24 Community Comments, Facebook Comments

  1. ohwilleke says:

    or the 2004 law, or its 2009 repeal, would  really be binding law in any meaningful sense.

    “Normally” Congressional redistricting maps are passed by the Colorado General Assembly and signed by the Governor as legislation.  As such, the later passed specific map would supercede any prior statutory limitations on its content.  Only federal law, the federal constitution, and the state constitution cn supercede the legislative decision made when a map is adopted.

    The statutes setting guidelines for how congressional redistricting maps are drawn therefore only come into play in a binding sense when there is a deadlock (generally, in situations like the one we have now where there is divided party control of the legislature), forcing a court to draw its own map because the legislature has failed to act.

    Thus, HR 1276 is to a great extent a way for Republicans to push for a situation in which a failure to agree on a map that forces a court to resolve the issue would be a better deal for them than any deal that Democrats and Republicans could both agree to legislatively.

  2. droll says:

    And thanks you ohwilleke for adding.

    One small correction: Weissmann hasn’t been a member of the other place in a really long time.

  3. Gardnerpath says:

    As droll said, thanks for breaking this down. Redistricting is one of those things I never have been able to completely wrap my brain around….

  4. and to ohwilleke.  It’s good to stand back and get a sense of perspective on just what led up to the law, and just why it has the impact that it does.

    Given Dan Willis’s excellent redistricting map, the bill doesn’t necessarily mean doom for Democrats or a 6-district sweep by Republicans.  But it might make a judge more amenable to an unfair map if it happens to be more aligned to the county/city boundaries than the others put in front of him.

  5. dmindgo says:

    this legislation makes sense.  Nothing would be more offensive than to split a county up out here.  Having Congressional lines run along county lines makes complete sense.  I haven’t seen a report that really addresses this difference in perspective.

    • Looking at the current district map, it appears the westernmost split county was Park, and that only because the judge in 2002 was looking for an exact representation between the districts.

      Dan’s proposed map also doesn’t split any of the West Slope counties, nor would any other map I could envision.

      • dmindgo says:

        But not the point.  From this perspective, it’s a lot of noise about something unimportant.  There are some very nuances that are not remotely obvious for people in small counties.  In fact, not splitting counties sounds like a good idea.  

      • Dan Willis says:

        There is a legal belief that the districts have to be cut so that the deviation is +/-1 person. To me that seems unreasonable and I am going to research it this weekend to see if that is a legal reality.

        But if it is, a small corner of some other county would have to be added to my proposed CD3 to get to that standard. The small corner would have to include 456 people.

        • It’s somewhat shortsighted.  By the time the numbers are tallied and sent to the states I can pretty much guarantee they’ll be invalid.  A ±1 standard is an illusion.

          Your standard of ±500 is lower than 0.1%, which is more accurate than the constantly changing population will maintain for more than a year in many districts.

        • Awen says:

          they will draw a map to within 1 person per district. (It’s in the story I wrote on the Loveland hearing, I think)

          It’s based on one person, one vote, a requirement under the US Constitution, or so they think.

          • The illusion that redistricting done to ±1 vote is actually going to result in districts with that population accuracy even in the first election after the redistricting may be comforting to some people – even to some courts – but it’s just an illusion.

            • Awen says:

              The judge in 2001 drew the maps to +/- 1…it’s not only possible, it’s been done.

              • to the numbers he had from the census.  What do you think were the chances that the maps he drew (a) reflected that ±1 accuracy at the time the map was drawn, or (b) were even close halfway through the decade?

                People move, die, and are born all the time.  The accuracy of the census – assuming it was ever really exact, which it isn’t – is good for a single point in time some 6 months prior to its publication and no more.

                I’m not arguing that you can’t get that accuracy in drawing a map, just that the population is too fluid for it to be anything other than an approximation anyway.  Dan’s ±500 standard is statistically valid IMHO.

                • Ralphie says:

                  My experience is that as much as 25 percent of the population can move within a year.  Whether they move between districts or within them is not in the control of the people who draw district lines.

          • Dan Willis says:

            I promised I would research this issue this weekend and have begun to do so.

            What I am finding so far is that the US Supreme Court has purposely NOT put an exact numerical value on the level of deviation allowed. They have pointed out that very precise sich as the +/- 1 person is not always practical and, in previous years, has not always been possible.

            In one ruling, they accepted a +/- 1% rule adopted by a state (In Colorado, that would be over 50,000 people). In other rulings they rejected very tight numbers, but not because the numerical deviation. In those cases, there were bigger problems such as cutting ethnic groups out of the political process or over-aggressive partisanship.

            The Court went so far as to say that some degree of numerical deviation may be necessaery to achieve legitimate state objectives (such as not dividing cities or counties).  The rule of thumb they seem to be following is, if you deviate from the ideal number, that is okay as long as you can justify doing so.

            Given those guidelines, I feel I would be on very solid ground arguing for CD’s that allow a variation of +/- 500 people if that amount of deviation prevented dividing cities in the metro area and counties in the rest of the state.

  6. DaftPunk says:

    Is to propose incendiary legislation which has no chance of passing.  This isn’t the house defunding Planned Parenthood or NPR, it’s wonky crap that no-one outside this website gives a damn about (and I’m referring to the 200K or whatever who lurk.)  

    This won’t get past the Senate or the Governor, so why torch any semblance of bipartisanshippiness that might exist on the redistricting committee to score points with wonks?

  7. MADCO says:

    1) Was the bill “late”? Or does it matter?

    If it was, it appears that there was some….gamesmanship?  or nonbipartisanishippiness.

    2) Why isn’t this a federal law anyway since it’s federal representation?

    3) What would it take to get back to the 1:50,000 representation ratio, or less?  

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