6 thoughts on “Redistrictng Now in Court”

1. http://www.lawweekonline.com/2…

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2. Having each party submit the same basic complaint with the same supporting plaintiff spread?  Hope the judge tells them to fix it themselves, and in short order.

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   1. There is nothing particularly partisan about the problem that the parties are petitioning the court to remedy.  The legislature didn’t come up with a map and Colorado needs a constitutional map.  Everybody agrees that the current map is invalid and on the general rules of law that govern the judicial development of a map; after all, we’ve been there and done that before and know how to litigate it.  There is case law precisely on point.

      It is a bit like an interpleader action, where everybody agrees that the person who has property or money has no interest in it and wants the court to decide who gets what, or a divorce, where everybody agrees that the court should end a marriage, divide property and allocate parenting but disagree on how to go about doing it.  The dispute is over who gets what, not over the fact that there needs to be a division according to some univerally agreed fuzzy rules of law.

      In fact, even the evidence pertinent to resolving the matter, which mostly consists of 2010 Census data, voter registration and historical election information, and perhaps redistricting committee testimony, is mostly undisputed.

      Neither the relevant law nor the relevant facts are seriously contested.  There aren’t even deep disagreements between the parties over the likely consequences of particular maps.  But, the relevant law and facts don’t by themselves resolve a question that has multiple legitmate and lawful resolutions.  There isn’t one right answer.

      The partisan (and intraparty) part concerns the most appropriate remedy for the problem presented.  It is possible to evaluate what results different maps are likely to produce, and there are dimensions to the issue in addition to how many seats each party is most likely to win on average (such as the mix of competitive and safe seats).  There are half a dozen values to be considered in drawing maps, and no one of those values has a clear priority over another.  If the job facing the court had a predictable outcome, the Democrats and Republicans would have negotiated in the shadow of that outcome and reached a deal.

      The one saving grace of the process is that while there are, theoretically, a nearly infinite set of possible maps that would be constitutional, the number of possible  constitutional maps that have materially different electoral consequences is much smaller than it appears once you sit down to play with the possibilities.  For example, all (or almost all) of the Republican maps broke rural Colorado into two districts, while all (or almost all) of the Democratic maps broke rural Colorado into three districts.  There are probably no more than half a dozen clusters of solutions to resolving the puzzle that are legitimate constitutionally and under the case law and relevant statutes and materially different from each other in electoral consequences.  Each cluster has many dozens or even hundreds of slight variations, but that aren’t all that many clusters of solutions.

      Realistically, at the end of the day, the judge gets half a dozen representative options in front of him, hears testimony on each, and picks one that seems moderate and fair compared to the others. If the result is not illegal gerrymandering and there are not procedural missteps, that result is affirmed on appeal and everyone goes off to prepare for the dance in 2012.

      Honestly, this process is probably more likely to produce a moderate map than either party would have prepared if it had controlled the entire process, and maps are simply not easy things to agree upon.

      Also, if behind the scenes negotiations between Democratic and Republican leaders produce a deal away from the glare of the legislative process (and there is a reason that the plaintiffs on each side were chosen such that they meeting together is not subject to the Colorado open meetings act), we get something very similar to what the legislative process in a time of divided control would have reached if it could have (but, of course, failed to do in practice).  Indeed, if a behind the scenes deal is reached, the parties might very likely contact the Governor to call a special session which would be a choreographed Kabuki theater enactment of the deal and the lawsuits would be dismissed by both parties so the map could have an extra twinge of legitimacy.

      But, if the Colorado General Assembly didn’t reach a deal yet, they probably won’t unless something changes.

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3. Of course, all of the excitement has been about how the seven CDs will be divided up. But what about the state legislative districts? Are those hung up by some procedural rule that binds them to the outcome of the CD map? Have those maps been approved but don’t get the same attention? I suspect that it is the first issue but I don’t know.

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   1. They legislative maps are done by a separate process that is scheduled to start this Sunday.

      The Reapportionment Committee does this job and it is made up of the 4 legislative leader (or their appointees), 3 people appointed by the Governor, and 4 people appointed by the Chief Justice of the Supreme Court.

      The law has restrictions so there can not be a majority of one party, so there has to be at least two people who are either unaffiliated or from a third party. Also they have represent each congressional district. In this case they will be using the current CD’s since new ones have not yet been determined.

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      1. Here is the link ot the Reapportionment site.

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