By David Fine
The State of Colorado’s recently completed legislative reapportionment is a case study in a difficult political and legal process that gets relatively little attention, but is critical to representation around the country.
Just as at the federal level, state reapportionment happens once per decade following the census. Often, as in Colorado, state commissions are appointed, which include a balance of members from both parties and a non-affiliated member who are selected as representatives from the executive, judicial and legislative branches. In Colorado, the Commission had a short life span and the pressure was on outside counsel to find a pathway to an agreement to settle the issues in a timely manner. All the while, outside political operatives were swirling about, trying to influence the outcome. While the Commission was initially able to craft a plan that garnered strong majority votes, the plan was attacked, successfully, on legal grounds. State constitutional law, the rights of minorities, and the presence of technology in crafting alternative plans each played a significant role, as did the ultimate decision by the Colorado Supreme Court.
STATE REAPPORTIONMENT: A CASE STUDY
State legislative reapportionment, like its national analogue congressional redistricting, happens once per decade following the census. We were fortunate to have represented the Colorado Reapportionment Commission in the most recent reapportionment of Colorado’s state legislative seats.
Our firm was uniquely qualified to represent the Commission. Both my colleague Dick Kaufman and I had significant experience representing Republicans and Democrats respectively in congressional redistricting. Dick had represented Republican interests in the last reapportionment. I was the City Attorney of Denver. Our colleague David Skaggs had been a United States Representative for twelve years. All three of us are litigators. While we were well-versed in politics, we were first and foremost lawyers who understood that our job was to represent our client, and guide the client to its desired outcome.
Certain principles are fundamental to the representation of any client in any type of complex legal matter. Counsel must get to know the client and its organization as well as possible, and must establish trust and credibility with key client representatives. A strong relationship is developed by prompt, efficient, and thoughtful service, and by forming a partnership with the client that allows for vibrant give and take as the legal process unfolds and proceeds to its conclusion.
Reapportionment was one of my most challenging legal engagements. Although our client was the Commission, the Commission consisted of five Republicans, five Democrats, and one unaffiliated voter. Members, appointed by the Governor, the Chief Justice of the Colorado Supreme Court, and legislative leadership, included two lawyers, a college professor, the former Mayor of Denver, and past and present legislators. Each was extremely bright. The Commission would only exist for about six months and only for purposes of this reapportionment. In turn, we would only represent this client once, in an extremely concentrated fashion. The commissioners would be under great pressure and great public scrutiny, as would we as their counsel. The commissioners had a short amount of time to understand the complexity of their task: create a reapportionment plan that accounted for a myriad of interests, often in competition with each other, consistent with state law. It would also have to survive scrutiny by the Colorado Supreme Court, which, by the state Constitution, was required to approve the plan.
Out of the public eye (but very much central to the process) were political operatives and expert map drawers connected to both the Democratic and Republican parties. Their job was to maximize their respective party’s chances of controlling the legislature for the next decade.
The aforementioned combination signified a sophisticated and demanding client, which would operate under a number of levels of scrutiny: the public, the press, the political parties, and ultimately the Court. Fortunately for both the commissioners and outside counsel, extremely dedicated and talented non-partisan staff from the Office of Legislative Legal Services staffed the Commission. They had the primary task of drafting the reapportionment plan and supporting reports, and gave objective assistance at every step of the process.
This engagement was the quintessential blend of law and politics. Politics drove the process, yet any reapportionment plan had to conform to standards set forth in the Colorado Constitution. As the Commission’s counsel, we had to understand the reapportionment process both legally and politically. We had to help the Commission navigate the Court’s prior opinions and attempt to discern how the present Court would approach the matter. While understanding the realpolitik motivating the commissioners, we needed to play it straight down the middle politically to ensure that we remained politically unbiased, maintained our credibility, and gave legally sound advice. Moreover, we had to accept the fact that politics would drive the creation of the alternative plans; only after the battle over drawing the plan was finished would counsel be called upon and given a relatively short period of time to craft the plan’s legal defense. We knew that whatever plan was adopted would be attacked legally by multiple unhappy parties, such as the “losing” political party and counties, cities, and others dissatisfied with the outcome.
As if this challenge weren’t sufficient, this reapportionment was unique. The Chair of the Commission, Mario Carrera, was an unaffiliated voter appointed by the Chief Justice of the Colorado Supreme Court. He was a telecommunications executive who, while quite involved in the community, lacked direct political experience. Carrera worked tirelessly to build a bipartisan consensus around a plan that would have created numerous competitive districts and recognized the significant increase in minority population by creating more districts that gave minority voters the chance to elect candidates of their choice. Carrera succeeded and the initial reapportionment plan passed by a vote of 8-3 for the Senate portion of the plan and 9-2 for the House portion.
In my opinion, the plan was a civic triumph, but it was more difficult to defend legally than a plan that hewed to the Colorado Supreme Court’s recent strict interpretation of the state Constitution. Various organizations vigorously opposed the plan and urged the Court to reject it under a strict reading of the Constitution. In a 4-2 opinion (with the Chief Justice authoring the dissent), the Court did so. On remand, the Commission passed a more partisan plan that adhered more strictly to constitutional guidelines. The Court approved the resubmitted plan.