Summary
noting technical violation of section 46 where deviation was 5.001 percent
Summary of this case from In re Reapportionment of the Colorado General AssemblyOpinion
No. 01SA386
January 28, 2002 Rehearing Denied February 11, 2002
Original Proceeding Pursuant to Colorado Constitution Article V, Section 48( 1)(e)
PLAN DISAPPROVED AND REMANDED WITH DIRECTIONS
No. 01SA386, In re Reapportionment of the Colorado General Assembly — Original Proceeding Pursuant to Colo. Const. art. V, § 48( 1)(e) — Reapportionment — General Assembly — Commission — Colo. Const. art. V, §§ 45-48 — Constitutional Criteria — Equal Population — County Considerations — Divisions of Counties and Cities — Senate and House Districts — Year 2000 Census — Community of Interest — Adopted Plan — Starting Point — Alternatives — Remand of Adopted Plan
In this original proceeding under Article V, Section 48 ( 1)(e) of the Colorado Constitution, the Colorado Supreme Court reviews the Colorado Reapportionment Commission's Adopted Plan for the reapportionment of Colorado General Assembly house and senate districts, based upon the year 2000 federal census. The Supreme Court holds that the Adopted Plan does not comply with the criteria of Article V, Sections 46 and 47, of the Colorado Constitution because: (1) it is not "sufficiently attentive to county boundaries to meet the requirement of section 47(2)," In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 195 (Colo. 1982); and (2) it is not accompanied by "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment of the Colo. Gen. Assembly, 828 P.2d 185, 195-96 (Colo. 1992). For example, the Adopted Plan denies whole senate districts to Boulder, Douglas, Jefferson, and Pueblo counties for which they qualify based on the year 2000 census data and the Commission's ideal district projection. In addition, the Commission has not advanced an adequate explanation for division of Adams, Arapahoe, and Mesa counties and the cities of Boulder and Pueblo between Senate Districts. The Supreme Court sets aside the Commission's action, disapproves the submitted Apportionment Plan, and returns it to the Commission for reconsideration and resubmission of a reapportionment plan by 5:00 p.m. on February 15, 2002 that complies with the substantive and procedural requirements of the Colorado Constitution, consistent with this opinion.
The Supreme Court reviews reapportionment provisions of the Colorado Constitution, as amended, since the State's founding in 1876. A consistent thread of reapportionment law in Colorado is the Constitution's prescription against the division of counties, unless necessary to meet equal population criteria. The citizen initiative of 1974 that formulated the Reapportionment Commission and the role of the Supreme Court in reviewing the Commission's adopted plan intended to "make it easier to avoid splitting counties between legislative districts" and reduce both "the impact that party politics can have on the drawing of legislative district boundaries" and "the gerrymandering of legislative districts."
Based on federal law and the text of Article V, Sections 46 and 47 of the Colorado Constitution and prior cases of the Colorado Supreme Court concerning the 1982 and 1992 reapportionment of General Assembly districts, the Supreme Court holds that the Commission's reapportionment plan actions are governed by six criteria to be applied in their preferential order. These are:
(1) the Fourteenth Amendment Equal Protection Clause and the Fifteenth Amendment; (2) section 2 of the Voting Rights Act; (3) article V, section 46 (equality of population of districts in each house); (4) article V, section 47(2) (districts not to cross county lines except to meet section 46 requirements and the number of cities and towns contained in more than one district minimized); (5) article V, section 47(1) (each district to be as compact as possible and to consist of contiguous whole general election precincts); and (6) article V, section 47(3) (preservation of communities of interest within a district).
Applying these criteria as the test for the Commission's reapportionment plan and the Supreme Court's role in reviewing it, the Supreme Court determines that the Commission's Adopted Plan denies whole senate districts for which the counties of Boulder, Douglas, Jefferson, and Pueblo qualify based on the year 2000 census data and the Commission's own projection of the ideal population for a senate district, 122,893 persons, with inadequate justification. Based on the record the Commission submitted to it, the Supreme Court determines that Boulder County's population qualified that county for two whole senate districts, whereas the Commission's Adopted Plan assigns it one. Douglas County qualified for one whole senate district; the plan assigned it none, dividing that county instead between senate districts shared with other counties. Jefferson County qualified for 4 whole senate districts; the plan assigned it 3. Pueblo County qualified for 1 whole senate district, the plan assigned it none, dividing that county instead among senate districts shared with other counties.
The Supreme Court also determines that Adams and Arapahoe County fall just short of qualifying for an additional senate district and Mesa County just short of qualifying for a senate district. Because the Supreme Court remands the Adopted Plan to the Commission to correct the Boulder, Douglas, Jefferson, and Pueblo county deficiencies, the Supreme Court requires the Commission to reexamine its denial of the Adams, Arapahoe, and Mesa county senate districts, when considering the revised reapportionment plan and applying the six criteria in their preferential order.
On remand, the Supreme Court holds that the Constitutional criteria require the Commission to "start with whole district assignment to counties that qualify for them." When necessary to meet equal population requirements or to comply with federal law, the Commission may make county and city divisions. These divisions involve policy choices as to which the Supreme Court defers if the Commission applies the six criteria in order of their preferential ranking and explains the decisions in accordance with these criteria.
In regard to reapportionment of Denver metropolitan senate districts on reconsideration, the Supreme Court observes, "We are aware that, in designing the Denver metropolitan area districts and complying with the constitutional criteria as set forth in this opinion, the Commission must make additional adjustments and determinations that most probably will involve some county and city splits."
In accordance with a statute the General Assembly adopted to guide the process for the Commission's and the Supreme Court's work in regard to the year 2002 final reapportionment plan, the Supreme Court directs the Commission to re-submit the plan for the court's review by Friday, February 15, 2002.
Holme Roberts Owen, LLP, Daniel J. Dunn, Manuel L. Martinez, Richard F. Rodriguez, Denver, Colorado
Colorado Reapportionment Commission, Rebecca C. Lennahan, Jeremiah B. Barry, Denver, Colorado, Attorneys for the Proponent Colorado Reapportionment Commission
Davis Graham Stubbs LLP, Gale T. Miller, Denver, Colorado, Attorneys for Proponents Jennie Sanchez, Adeline Sanchez and Debra Cassanova
Berenbaum, Weinshienk Eason, P.C., Michael J. Belo, Martin D. Buckley, Denver, Colorado, Attorneys for Proponent Colorado AFL-CIO
Berenbaum, Weinshienk Eason, P.C., Charles A. Bewley, Denver, Colorado, Attorneys for Proponent Colorado Metro Citizens for Fair Reapportionment
John H. Vigil, pro se, Arvada, Colorado, Representing Proponent John H. Vigil (Adams County Citizen)
Trimble, Tate Nulan, P.C., Penfield W. Tate III, Lydia M. Tate, Denver, Colorado, Attorneys for Proponent Blacks for Fair Reapportionment
Rothgerber Johnson Lyons LLP, James M. Lyons, Douglas B. Tumminello, Thomas M. Rogers III, Denver, Colorado, Attorneys for Proponents Stan Matsunaka, President of the Colorado State Senate; Ed Perlmutter, President Pro Tem of the Colorado State Senate; and Bill Thiebaut, Majority Leader of the Colorado State Senate
Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado
Burke Neuwirth, P.C., Dean S. Neuwirth, Denver, Colorado, Attorneys for Proponent Timothy D. Knaus, Chairman of the Colorado State Democratic Party
Ballard Spahr Andrews Ingersoll, LLP, Thomas Downey, Denver, Colorado, Attorneys for Proponent Dan Grossman, Colorado House Minority Leader
LeBoeuf, Lamb, Greene MacRae, LLP, Robert N. Miller, Stephanie E. Dunn, Michael D. Smith, Denver, Colorado, Attorneys for Opposers Jeffrey M. Wells, Senator Mark D. Hillman, Richard P. "Sandy" Hume, Representative Mark Paschall and Heather M. Witwer (Colorado Reapportionment Commission Members)
Bullock Law Office, LLC, James R. Bullock, La Junta, Colorado, Attorneys for Opposers Estelle Thaller and Dan Sandoval, Shawn Mitchell, Broomfield, Colorado, Mendenhall Malouff, LLP
H. Barton Mendenhall, Rocky Ford, Colorado, Attorneys for Opposers Steve Olstad, James Martinez and Karen, Nelson (Broomfield citizens)
John Martin, Chairman Commissioner, pro se., Walt Stowe, Commissioner, pro se., Larry McCown, Commissioner, pro se, Glenwood Springs, Colorado
Don K. Deford, Glenwood Springs, Colorado, Attorney for Opposer Garfield County Board of County Commissioners
Luis A. Corchado, Littleton, Colorado, Attorney for Opposer Colorado Hispanic Bar Association
Hale Hackstaff Tymkovich, LLP, Allan L. Hale, Richard A. Westfall, Richard W. Dailey, Scott E. Gessler, Denver, Colorado, Attorneys for Opposers Betty Chronic, Richard P. Hume, William Swenson and Betty Swenson
Hale Hackstaff Tymkovich, LLP, Allan L. Hale, Richard A. Westfall, Richard W. Dailey, Scott E. Gessler, Denver, Colorado, Attorneys for Opposers Richard P. Hume, Betty Chronic and William Berens (Boulder County Citizens)
Robert S. Gardner, Colorado Springs, Colorado, Attorney for Opposers Mark Sessions, Willie H. Breazell Sr., Lionel Rivera, Charles D. Broerman and Sarah Jack (El Paso County Citizens)
Susan Fey, pro se, Crestone, Colorado, Representing Opposers Towns of Crestone and Villa Grove
Friedlob Sanderson Paulson Tourtillott, P.C., Richard C. Kaufman, Christopher R. Paulson, Denver, Colorado, Attorneys for Opposers John Brackney, Andre Suharka and Citizens for Constitutional Maps
Cathie Zarlingo, President, pro se
Mary K. Kalenian, Secretary, pro se, Grand Junction, Colorado, Representing Opposer Mesa County Valley School District No. 51 Board of Education
Mesa County Attorney's Office, Maurice Lyle Dechant, Mesa County Attorney, Angela M. Luedtke, Assistant Mesa County Attorney, Grand Junction, Colorado, Attorneys for Opposer Mesa County Board of County Commissioners
Reid Scheffel, Mark H. Scheffel, Thomas J. Burke, Parker, Colorado, Attorneys for Opposer Douglas/Elbert Citizens for Fair State Senate Representation
Richard O. Schroeder, Highlands Ranch, Colorado, Attorney for Opposer Don Lee
Williams, Turner Holmes, P.C., Mark A. Hermundstad, Grand Junction, Colorado, Attorneys for Opposer Ute Water Conservancy District
R. Bruce Smith, Town Administrator, pro se, Collbran, Colorado, Representing Opposer Town of Collbran
Carter Sands, P.C., Stephen L. Carter, Rifle, Colorado, Attorneys for Opposer Town of Palisade, Carter Sands, P.C.
Stephen L. Carter, Rifle, Colorado, Attorneys for Opposer City of Fruita
Doyle, Zakhem, Suhre, Lilly, LLC, Brett R. Lilly, John S. Zakhem, Denver, Colorado, Attorneys for Opposer Beth Gallegos (Adams County Citizen)
Arthur LeMelle, pro se, Gateway, Colorado, Representing Opposer Arthur LeMelle (citizen of the Town of Gateway)
Phil Mueller, President, pro se, Franktown, Colorado, Representing Opposer Elbert/Douglas County Livestock Association
Joe Kline, Chairman, pro se, Glenwood Springs, Colorado, Representing Opposer Garfield County Republicans
Raymond E. Smith, Chairman, pro se, Kremmling, Colorado, Representing Opposer Grand County Republicans
John Ponikvar, Vice-Chairman, pro se, Craig, Colorado, Representing Opposer Moffat County Republican Central Committee
Shirley J. Black, Chairman, pro se, Walden, Colorado, Representing Opposer Jackson County Republican Central Committee
H. Olive Morton, Chair, pro se, Steamboat Springs, Colorado, Representing Opposer Routt County Republican Central Committee
Jack Taylor, Colorado State Senator, pro se, Steamboat Springs, Representing Opposer Jack Taylor
Don Davis, pro se
Ruby Davis, pro se, Clifton, Colorado, Representing Opposers Don Davis and Ruby Davis
JUSTICE BENDER dissents, and CHIEF JUSTICE MULLARKEY and JUSTICE MARTINEZ join in the dissent.
In this original proceeding under Article V, Section 48 ( 1)(e) of the Colorado Constitution, we review the decennial Apportionment Plan (Adopted Plan) the Colorado Reapportionment Commission (Commission) approved for the reapportionment of Colorado General Assembly house and senate districts, based on the year 2000 federal census. We hold that the Adopted Plan does not comply with the criteria of Article V, Sections 46 and 47, of the Colorado Constitution because: (1) it is not "sufficiently attentive to county boundaries to meet the requirement of section 47(2)," In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 195 (Colo. 1982) (hereinafter "In re Reapportionment 82"); and (2) it is not accompanied by "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment of the Colo. Gen. Assembly, 828 P.2d 185, 195-96 (Colo. 1992) (hereinafter "In re Reapportionment 92-I"). For example, the Adopted Plan denies whole senate districts to Boulder, Douglas, Jefferson, and Pueblo counties for which they qualify based on the year 2000 census data. In addition, the Commission has not advanced an adequate explanation for division of Adams, Arapahoe, and Mesa counties and the cities of Boulder and Pueblo between Senate Districts.
Because our role does not include redrawing the statewide apportionment map to comply with the applicable constitutional criteria, this being the Commission's responsibility, and because the Commission may choose to make other alterations in district boundaries on remand in redrawing the apportionment map, we set aside the Commission's action and remand the Adopted Plan to the Commission for further consideration, modification, re-adoption, and re-submittal by 5:00 p.m. on February 15, 2002.
I. Reapportionment Law and Process
We commence our analysis by reviewing Colorado's reapportionment law and process. Reapportionment of the state's house and senate districts has always been a matter of great moment to Colorado citizens. Citizen-initiated statutes and constitutional amendments have shaped the law the Commission and this Court must follow to accomplish the 2002 reapportionment.
The basic purpose of the constitutional standards for reapportionment is to assure equal protection for the right to participate in the Colorado political process and the right to vote. In re Reapportionment 82, 647 P.2d at 194.
1. Provisions of the Colorado Constitution
The Colorado Constitution as adopted in 1876 provided for twenty-six senate members and forty-nine house members until 1890, at which time the General Assembly could increase that number, not to exceed an aggregate of one hundred, with the ratio of senate to house seats being preserved as near as possible. Colo. Const. art. V, § 46 (amended 1950). The constitution allowed the General Assembly to alter district boundaries to include two or more counties but prohibited any county divisions: "No county shall be divided in the formation of a senatorial or representative district." Colo. Const. art. V, § 47 (amended 1962). The constitution provided for the apportionment of senators and representatives on the basis of federal and state census data "according to ratios to be fixed by law." Colo. Const. art. V, § 45 (amended 1962). The ratios did not include an equal population basis.
In Armstrong v. Mitten, 95 Colo. 425, 37 P.2d 757 (1934), we upheld a reapportionment statute the voters enacted after the General Assembly failed to adopt a reapportionment bill after the 1930 census. This act provided for thirty-five senate members and sixty-five house members, set the boundaries for the districts, and determined the number of senators and house members assigned to the districts. We rejected the argument that the people could not initiate a reapportionment statute. Id. at 430, 37 P.2d at 759.
In 1950, the voters approved a General Assembly-referred measure amending the constitution to limit the number of senators to thirty-five and the house to sixty-five members. Colo. Const. art. V, § 46 (amended 1962); 1951 Colo. Sess. Laws 553. Section 47 continued to provide that:
Senatorial and representative districts may be altered from time to time, as public convenience may require. When a senatorial or representative district shall be composed of two or more counties, they shall be contiguous, and the district as compact as may be. No county shall be divided in the formation of a senatorial or representative district.
(Emphasis added.)
In 1962, through a General Assembly-referred measure, the voters amended the constitution to fix the General Assembly's membership at thirty-nine senate members and sixty-five house members, one to be elected for each senate and house district. Colo. Const. art. V, § 45 (amended 1966); ch. 312, 1963 Colo. Sess. Laws 1045. The prohibition on dividing counties continued, with its wording slightly revised:
In 1961, the Legislative Council recommended increasing the number of General Assembly members in light of Colorado's growth. See Report to the Colorado General Assembly: Reapportionment of the Colorado General Assembly, Colorado Legislative Council Research Publication No. 52 (December 1961).
Districts of the same house shall not overlap. All districts shall be as compact as may be and shall consist of contiguous whole general election precincts. No part of one county shall be added to another county or part of another county in forming a district. When a district includes two or more counties they shall be contiguous.
Id. The voters amended Section 46 to provide that the sixty-five house districts "shall be as nearly equal in population as may be." Colo. Const. art. V, § 46 (amended 1966); ch. 312, 1963 Colo. Sess. Laws 1045. Section 47 added an additional senator to Adams, Arapahoe, Boulder and Jefferson Counties and provided that the population in districts apportioned more than one senator "shall be as nearly equal in population as may be," but did not provide for equal population in the bulk of Colorado's senate districts. Colo. Const. art. V, § 47 (amended 1966); ch. 312, 1963 Colo. Sess. Laws 1045-46.
In 1964, the United States Supreme Court invalidated Colorado's reapportionment law for its allowance of an unequal population basis for senate districts, requiring instead that both houses reflect representation on a substantially equal population basis. See Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713 (1964). The Court held that Colorado's overall apportionment scheme was not "sufficiently grounded on population to be constitutionally sustainable under the Equal Protection Clause." Id. at 735. The Court observed that adherence to a strict population basis was not a federal constitutional requirement; some deviation from a strict population basis is allowable, but Colorado's variation in population between districts was too substantial. Id. at 734-75.
In 1956, the Colorado League of Women Voters had pointed out the wide divergence between populations of senate and house districts:
In 1950, for example, a senator from Jefferson county represented almost 56,000 persons . . . while the senator from the Fremont-Custer County District . . . represented less than 20,000 persons . . . [T]he state representative from the Cheyenne-Lincoln county district represented less than 9,500 persons . . . [I]n that year a state representative from Jefferson County represented almost 28,000 persons.
Reapportionment of the Colorado General Assembly, League of Women Voters of Colorado, Inc. 3 (September 1956). The League of Women Voters was instrumental in bringing the subsequent 1974 constitutional amendments for reapportionment to the ballot.
The General Assembly in 1964 attempted to comply with one person/one vote federal constitutional requirements. It adopted an act that divided counties into multiple senate and house districts. We held that Section 47 prohibited county divisions thus triggering the necessity of changing the Colorado Constitution for compliance with federal equal population requirements. "`No county' cannot be construed as meaning that one county, or two counties, or three counties may be divided; it plainly directs that there is not one county in the state of Colorado that may be divided in the formation of a senatorial or representative district."White v. Anderson, 155 Colo. 291, 297-98, 394 P.2d 333, 336 (1964).
For the first time in Colorado, the 1966 citizen-initiated amendments to the constitution introduced: (1) a requirement of single member districts; and (2) allowed the General
Assembly to add part of one county to all or part of another county in the formation of senate and house districts, if necessary to meet equal population requirements. See An Analysis of 1966 Ballot Proposals, Legislative Council of the Colorado General Assembly, Research Publication No. 110 at 9-10 (1966).
By the 1966 initiative, voters amended Section 45 to provide for not more than thirty-five senate members and sixty-five house members, one to be elected for each senatorial and each representative district. Colo. Const. art. V, § 45; ch. 456, 1967 Colo. Sess. Laws 11. The voters amended Section 46 to provide that each district in each house shall have "a population as nearly equal as may be, as required by the constitution of the United States." Colo. Const. art. V, § 46 (amended 1974); ch. 456, 1967 Colo. Sess. Laws 11. The voters reworded Section 47 to provide that the General Assembly could add one part of a county to all or part of another county in forming districts when declared by the General Assembly to be necessary to meet the equal population requirements of Section 46:
Each district shall be as compact in area as possible and shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap. Except when declared by the general assembly to be necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. When county boundaries are changed, adjustments, if any, in legislative districts, shall be as prescribed by law.
Colo. Const. art. V, § 47 (amended 1974) (emphasis added).
Objectives of the 1966 amendments included making the members of the General Assembly more directly responsible to local constituencies.
The 1960s were a key period for Colorado reapportionment law. A 1967 report of the Legislative Council to the General Assembly chronicles the court decisions, General Assembly bills, and constitutional amendments between 1961 and 1967. See Summary of Congressional Districting and Legislative Reapportionment Action in Colorado: 1961-1967, Legislative Council Report to the Colorado General Assembly, Research Publication No. 125 (May 1967).
4. A single-member district system will enable a legislator to be aware of the sentiments of his constituents much more than a multi-member district system. In the urban areas, it will also mean that legislative candidates can concentrate their campaigns within a specific district area and can devote their time and attention to the people living within their district.
5. The single-member district system will mean that voters within a given area will have more effective control over the actions of their senator and representative. In other words, legislators may be held more directly accountable to their constituents under the single-member district system.
6. Under the provisions of Amendment No. 4, minority groups living in concentrated population areas should be better able to obtain representation in the General Assembly commensurate with their population. Under the system of at-large elections in multi-member counties, it is possible for many or all of the members to be elected, for example, from merely a few areas within a district or from generally the same economic strata.
An Analysis of 1966 Ballot Proposals, Legislative Council of the Colorado General Assembly, Research Publication No. 110 at 18 (1966).
Though reworded to comply with equal population criteria, Section 47 continued Colorado's historic preference for county-based local constituencies; counties were to remain whole except as necessary for compliance with equal population requirements. "The Constitution just as strongly expressly prohibits a part of one county being added to all or part of another county except when necessary to meet the equal population requirements of Article V, Section 46 of the
Colorado Constitution." In re Interrogatories H.R. 1020, 178 Colo. 311, 313, 497 P.2d 1024, 1025 (1972). In 1972, we also held that inclusion of enclaves in a district is a direct violation of the constitutional requirements of contiguity and compactness. See In re Interrogatory H.J.R. 1011, 177 Colo. 215, 217-18, 493 P.2d 346, 347 (1972) (prohibiting inclusion of Glendale and Holly Hills — portions of Arapahoe County surrounded by the City and County of Denver-into the Arapahoe County senate district).
A Legislative Council Committee construing the 1966 constitutional amendments formulated guidelines for General Assembly redistricting bills. In regard to counties, one of the guidelines stated:
County boundaries should remain intact except where necessary to achieve equal population representation goals.
1967 Legislative Research Publication No. 125 at 12.
In 1974, the voters approved a citizen-initiated constitutional amendment creating the Reapportionment Commission to perform the work of reapportionment the constitution had formerly consigned to the General Assembly. The basic purpose of the initiative was to accomplish reapportionment through the work of an independent body of Colorado citizens appointed by leaders of Colorado's legislative, executive, and judicial branches. The initiative designed a process for the Commission's work, criteria for carrying out that work, and review by this court of the Commission's product. The Legislative Council Analysis of this proposal stated that it would accomplish the following, if adopted:
Remove from the General Assembly the power to reapportion itself or to revise legislative district boundaries. After each federal census (presently conducted every ten years), an eleven member commission would assume responsibility for establishing district boundaries for the General Assembly. The commission would consist of: (a) the Speaker and Minority Leader of the state House of Representatives and the Majority and Minority Leaders of the state Senate (or the designees of these legislative leaders); (b) three appointees of the Governor; and (c) four appointees of the Chief Justice of the Colorado Supreme Court.
Allow no more than a five percent deviation between the most populous districts in each house of the General Assembly.
Require that ". . . the aggregate linear distance of all district boundaries shall be as short as possible."
Encourage the preservation of communities of interest (including ethnic, cultural, economic, trade area, geographic, and demographic factors) within a single district whenever possible, and discourage the splitting of cities and towns between districts.
Require publication of a preliminary reapportionment plan and public hearings on this plan in several areas of the state.
Provide for automatic review and ultimate approval of the reapportionment plan by the Colorado Supreme Court.
Concerning Amendment No. 9, Legislative Council of the Colorado General Assembly, An Analysis of 1974 Ballot Proposals, Research Publication No. 206 (1974) at 26-27.
Arguments for the Proposal explained the amendment's provision for a maximum allowable five-percent deviation between the district with the greatest population and the least population in each house. It would (1) "allow greater flexibility in the location of small cities and towns within single legislative districts and . . . make it easier to avoid splitting counties between legislative districts," and (2) "permit more consideration of the ethnic, cultural, economic, and other aspects of reapportionment. . . ." Id. at 29.
The maximum population deviation of five percent between districts is a reasonable standard which will allow greater flexibility in the location of small cities and towns within single legislative districts and which will make it easier to avoid splitting counties between legislative districts. The use of a five percent deviation would also permit more consideration of the ethnic, cultural, economic, and other aspects of reapportionment called for in the proposal.
Id. at 29 (emphasis added). Objectives of the proposed constitutional amendment included reducing both partisan politics and gerrymandering:
The proposal would reduce the impact that partisan politics can have on the drawing of legislative district boundaries, through the placement of the commission outside the legislative branch and through the requirements for appointment of commission members by all three branches of state government. The proposal's more stringent requirements for consideration of communities of interest, for compact districts, and for minimization of the splitting of cities and towns, and the public visibility of the activities of the reapportionment commission would tend to reduce the gerrymandering of legislative districts.
Id. at 29-30 (emphasis added).
The Colorado voters approved the citizen proposal, and we upheld it over a competing General Assembly-referred measure that received a lesser number of votes in the 1974 election. See In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 189 Colo. 1, 536 P.2d 308 (1975). The 1974 constitutional amendments built on prior Colorado reapportionment law, most particularly on the 1966 citizen-initiated constitutional amendments. The 1974 amendments carried forth the prohibition in Section 47 against addition of parts of one county to another in establishing districts, except as necessary to meet the equal population requirements of Section 46.
The current constitutional requirements applicable to the Commission's work, Adopted Plan, and our review of it, are set forth in Sections 46 and 47 of Article V as follows:
Section 46. Senatorial and representative districts. The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.
Section 47. Composition of districts.
(1) Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible. Each district shall consist of contiguous whole general election precincts. Districts of the same house shall not overlap.
(2) Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.
(3) Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible.
(Emphasis added.)
Since the adoption of the 1974 initiative, we have reviewed the Commission's 1982 and 1992 reapportionment plans. See In re Reapportionment 82, 647 P.2d at 198 (returning plan to Commission based upon unconstitutional sequencing of elections in two senate districts, because one senate district encompassed residences of two incumbent state senators while a second senate district lacked a state senator); In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 209 (Colo. 1982) (rejecting resubmitted plan as less consistent with the hierarchy of constitutional criteria than the previously submitted plan and ordering the Commission to submit the original plan with the court-ordered election sequencing modifications); In re Reapportionment 92-I, 828 P.2d at 185 (returning plan to Commission because it divided Pitkin County and the City of Aspen, and the Commission's explanation "did not rise to the level of an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution." The court also disapproved the Commission's division of the Perry Park community and its failure to incorporate requested technical changes to Larimer and Boulder County districts); In re Reapportionment of the Colo. Gen. Assembly, 828 P.2d 213 (Colo. 1992) (approving the resubmitted plan because it incorporated all of the court's requested changes except for the division of Pitkin County, which was found constitutional because the Commission provided the court with "a sufficient basis for judicial review of its actions and reasons for the necessity that Pitkin County be divided."). On both occasions, in applying the constitutional criteria, we found a significant deficiency in the Commission's action that required remand for plan modification, factual demonstration, and articulated rationale. Upon revision and resubmission, we approved both reapportionment plans and they became final.
In 1996, the United States Court of Appeals for the Tenth Circuit ordered the adoption of a remedial plan to redraw the boundaries of a House District for the San Luis Valley, in order to provide its substantial Hispanic population with a fair opportunity to elect representatives of their choice. See Sanchez v. Colorado, 97 F.3d 1303 (10th Cir. 1996). In 1998, the General Assembly approved the redrawing of house districts in the south central portion of the State to comply with Sanchez. See § 2-2-208, 1 C.R.S. (2001).
These legal developments in the course of Colorado's growth have shaped the Commission's 2002 reapportionment responsibilities, as well as our own.
The 2002 Reapportionment Process
In carrying out its 2002 reapportionment responsibilities, the Commission held fourteen meetings from May 11, 2001 through August 30, 2001 to arrive at its Preliminary Plan. The 2002 federal census, which propels reapportionment, reported a Colorado population of 4,301,261 persons. Based thereon, the Commission determined that the ideal population for a senate district is 122,893 persons and for a house district 66,173 persons.
The Commission convened twenty-two public hearings throughout the State to receive public comment on its Preliminary Plan. The Commission met four times to draft the final plan and completed the Adopted Plan on November 27, 2001. The Commission approved the house component of the Adopted Plan on a 10-1 vote. It approved the senate component of the Adopted Plan on a 6-5 vote. On a 7-4 vote, the Commission agreed to submit a comparison alternative to us, at the request of five commissioners.
Pursuant to our scheduling order, the Commission and proponents of the Adopted Plan filed their opening briefs and supporting material by December 17, 2001. Opponents of the Adopted Plan answered by December 27, 2001. The Commission and proponents replied by January 3, 2002. We heard oral arguments for and against the Adopted Plan on January 7, 2002.
The Constitution provides that our review and determination shall take precedence over other matters. In the event we disapprove the Adopted Plan, the Commission shall revise and resubmit the plan consistent with our opinion. Colo. Const. art. V, § 48( 1)(c).
II.
We hold that the Adopted Plan does not comply with the criteria of Article V, Sections 46 and 47, of the Colorado Constitution because: (1) it is not "sufficiently attentive to county boundaries to meet the requirement of section 47(2)," In re Reapportionment 82, 647 P.2d at 195; and (2) it is not accompanied by "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment 92-I, 828 P.2d at 195-96. For example, the Adopted Plan denies whole senate districts to Boulder, Douglas, Jefferson, and Pueblo counties for which they qualify based on the year 2000 census data and the Commission's ideal district projection. In addition, the Commission has not advanced an adequate explanation for division of Adams, Arapahoe, and Mesa counties and the cities of Boulder and Pueblo between Senate Districts.
A. Standard of Review
Our role in reviewing the Commission's reapportionment action is narrow. In re Reapportionment 92-I, 828 P.2d at 189. We must determine whether the Commission followed the procedures and applied the criteria of federal and Colorado law in adopting its reapportionment plan for Colorado General Assembly house and senate districts. We do not redraw the reapportionment map for the Commission. In re Reapportionment 82, 647 P.2d at 194. "Our role in this proceeding is a narrow one: to measure the present reapportionment plan against the constitutional standards. The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court."Id. (footnote omitted).
We uphold the adopted plan if it meets the applicable federal and Colorado standards. Id. at 197. "Although we might make different choices were we in the Commission's place, we should not substitute our judgment for the Commission's unless we are convinced the Commission departed from constitutional criteria." Id.
The Fourteenth Amendment, Fifteenth Amendment, and section 2 of the Voting Rights Act, superimpose federal requirements on the Colorado constitutional criteria. In order of priority, we have set forth the federal and state criteria as follows:
(1) the Fourteenth Amendment Equal Protection Clause and the Fifteenth Amendment; (2) section 2 of the Voting Rights Act; (3) article V, section 46 (equality of population of districts in each house); (4) article V, section 47(2) (districts not to cross county lines except to meet section 46 requirements and the number of cities and towns contained in more than one district minimized); (5) article V, section 47(1) (each district to be as compact as possible and to consist of contiguous whole general election precincts); and (6) article V, section 47(3) (preservation of communities of interest within a district).
In re Reapportionment 92-I, 828 P.2d at 190 (footnotes omitted). Substantively, the Commission is to apply all six of the criteria; procedurally, the Commission is to apply the criteria in order of their stated preference in adopting the final reapportionment plan for the state of Colorado. Id. (describing the listing of these criteria as a "hierarchy from the most to the least important"); see also In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 209, 210 (Colo. 1982) ("The Colorado Constitution lists a hierarchy of criteria for measuring the adequacy of a reapportionment plan.").
The Adopted Plan achieves constitutional compliance and becomes the Final Plan when it reflects the above-listed criteria. The plan becomes final after we have completed our review and approve it. Colo. Const. art. V, § 48( 1)(c). The Commission may not apply the lesser criteria over the greater criteria, but it may use the lesser criteria after satisfying the greater criteria. In re Reapportionment 92-I, 828 P.2d at 194. The Commission resolves conflicts by applying the criteria in preferential order, articulating on submittal to us how the Adopted Plan reflects the criteria. In re Reapportionment 82, 647 P.2d at 194.
The six criteria set forth the context in which the Commission works, from the proposal of a Preliminary Plan for public comment to formulation of its Adopted Plan. If the Commission faces actual or probable federal law violations, its starting point for the Approved Plan is compliance with federal law. In re Reapportionment 92-I, 828 P.2d at 193. The Commission then proceeds to apply the Colorado constitutional criteria. If federal law issues are not present, the Commission proceeds directly to the Colorado criteria and applies them according to their preferential order. The process of drawing maps to comply with the constitution is reiterative in nature, leading to the Adopted Plan being submitted to this court.
1. Equal Population
Obtaining substantial equality of population among districts, as required by Article V, Section 46, is the "paramount criterion for testing the constitutional sufficiency of a reapportionment plan." In re Reapportionment 82, 647 P.2d at 193; see Reynolds v. Sims, 377 U.S. 533 (1964) (holding that the Equal Protection Clause requires that both houses of a bicameral state legislature must be apportioned substantially on a population basis, also known as the "one person, one vote" rule); Lucas, 377 U.S. at 736 (holding that the Fourteenth Amendment demands substantial equality of population between districts so that each person's vote is substantially equal to another person's vote). Article V, Section 46, of the Colorado Constitution sets forth the equal population criteria for reapportionment of the Colorado General Assembly:
The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.
Colo. Const. art. V, § 46 (emphasis added).
The five percent deviation allowance of Section 46 between the most populous district and the least populous district in each house allows the Commission to work towards keeping counties intact, if possible, in shaping a final reapportionment plan through application of the Section 47 criteria. The equal population requirement is satisfied if the "sum of the percent by which the largest district's population exceeds that of the ideal district and the percent by which the smallest district's population falls short of the population of the ideal district" is less than five percent. In re Reapportionment 82, 647 P.2d at 193 n. 4.
2. County Considerations
Article V, Section 47( 2) of the Colorado Constitution favors matching districts to county boundaries and not crossing county boundaries unless necessary to comply with Section 46. "The most important concern under section 47 is whether the Final Plan unnecessarily divides counties or cities within counties." In re Reapportionment 92-I, 828 P.2d at 194. Colorado's apportionment law since 1876 has been consistent in this regard. Counties are a basic structural unit of local government for carrying out state purposes. Counties and the cities within their boundaries are already established as communities of interest in their own right, with a functioning legal and physical local government identity on behalf of citizens that is ongoing. Counties have a preferential status under Section 47 over those communities of interest the Commission postulates during its decennial reapportionment process when it must divide a county and join a part of it to another county, or part of another county, to form a district in order to comply with the equal population criteria of Section 46.
A direct line of accountability between citizens, their elected city councils and county commissioners, and their elected state representatives is at the heart of responsive government in Colorado and is built into the county-oriented design of the Constitution's reapportionment provisions. "The constitution allows the Commission to divide a county only if necessary to meet the equal population requirement." In re Reapportionment 82, 647 P.2d at 197 (emphasis added). "By its express language, section 47(2) subordinates the importance of not dividing counties to the substantial equality of population mandate of section 46." Id. at 193-94. Article V, Section 47(2) states as follows:
Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible. When county, city, or town boundaries are changed, adjustments, if any, in legislative districts shall be as prescribed by law.
Colo. Const. art. V, § 47( 2) (emphasis added).
These provisions contemplate that the integrity of county constituent representation in the General Assembly will be respected whenever possible. We therefore construe Section 47(2) as requiring the Commission to assign whole districts to counties whose population qualifies for them based on the decennial census population and the Commission's ideal district population projection. The Commission's Adopted Plan must be: (1) "sufficiently attentive to county boundaries to meet the requirement of section 47(2)," In re Reapportionment 82, 647 P.2d at 195; and (2) accompanied by "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution," In re Reapportionment 92-I, 828 P.2d at 195-96. The requirement of a factual showing guards against creating unnecessary county divisions.
In complying with the Section 46 criteria, the Commission projects an ideal equal population figure for Colorado house and senate districts. The Commission divides Colorado's total population by the number of legally allotted districts to be created: sixty-five house districts and thirty-five senate districts. Colo. Const. art. V, § 45 ("The general assembly shall consist of not more than thirty-five members of the senate and of not more than sixty-five members of the house of representatives. . . .").
In formulating the apportionment map, the Commission's actions thus include: (1) determining the ideal population for Senate and House districts; (2) identifying those counties that qualify for whole Senate or House districts based upon their population; and (3) preserving to them their number of whole districts throughout the process unless this is not possible. In regard to the other counties and portions of counties that do not qualify for a whole district, the Commission then employs the further criteria of Article V, Section 47 in making county divisions to form districts: keeping divisions of cities and towns between districts to a minimum, compactness, contiguity and preservation of communities of interest, in that order. In Re Apportionment 92-I, 828 P.2d at 190.
Because of the necessity to meet federal equal population requirements, we have recognized that "perfection is not obtainable" in regard to the Final Plan for reapportionment; "[a]n addition or deletion in one area of the state necessarily causes alteration in another." In re Interrogatories H.R. 1020, 178 Colo. at 313, 497 P.2d at 1025 (commenting on the General Assembly's 1972 apportionment plan that contained county divisions). The "if necessary" exception of Section 47(2) permits the Commission to add a portion of a county to another county or portion of another county to form a district upon "an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution." In re Reapportionment 92-I, 828 P.2d at 195-96; see also In re Interrogatories H.R. 1020, 178 Colo. at 313, 497 P.2d at 1025 (observing, "[T]he General Assembly made findings when it was necessary to cross county lines to meet the command of Section 46 in forming the districts.").
We emphasized in In re Interrogatories H.R. 1020, 178 Colo. at 313, 497 P.2d at 1025, that the General Assembly had kept counties intact where it could meet population requirements and, in doing so, "some degree of compactness was permissibly sacrificed."
Guided by the constitutional criteria, we now turn to the Commission's Adopted Plan. Our review focuses on the senate portion of the Adopted Plan, for it presents issues of constitutional compliance that either are not present in the house portion of the plan or will be addressed in rectifying the non-complying county divisions.
B. The Adopted Plan
1. Douglas, Pueblo, Boulder, and Jefferson Counties
Based upon the 2000 census, the ideal population for each house district is 66,173 persons and for each senate district is 122,893 persons. The Adopted Plan denies Douglas, Pueblo, Boulder and Jefferson Counties whole senate districts within their boundaries for which they qualify based upon the Commission's ideal population projection. We have prepared the following chart to illustrate this.
The chart depicts only those counties qualifying for whole senate districts within their boundaries. The chart arrays the number of whole districts these counties qualify for, in comparison to the number of whole counties the Commission allotted them. Underscoring in the chart shows the discrepancy between the number of whole senate districts the county qualified for based on its population, in contrast to the number the Adopted Plan allocates to it. The materials before us on review contain two alternatives that the Commission had before it. The chart portrays the number of whole districts the alternative plans would allocate to each of these counties. Because we cannot draw the apportionment map for the Commission, we employ the alternative plans only for comparison purposes to show the availability of less drastic alternatives to the Adopted Plan in regard to county divisions.
Whole Senate District Allocations:
The 2000 Census column reflects the number of whole senate districts a county would be entitled to based upon the Commission's ideal population projection for a senate district. The Adopted Plan column reflects the number of whole senate districts the Adopted Plan allots to these counties. The Rodriguez 5 alternative and Wells 37 alternative columns reflect the number of whole senate districts these plans would allot.
County Total 2000 Adopted Rodriguez Wells 37 Population Census Plan 5 Alt. Alt.
Adams 363,857 2.96 2 2 2
Arapahoe 487,967 3.97 3 4 4
Deducting the population of the newly-created City and County of Broomfield, Boulder County is entitled to 2.20 senate districts based on the ideal population projection for a senate district.
Denver 554,636 4.51 4 4 4
Douglas 175,766 1.43 0 1 1
El Paso 516,929 4.21 4 4 4
Jefferson 527,056 4.29 3 3 4
Larimer 251,494 2.05 2 2 2
Pueblo 141,472 1.15 0 1 1
Weld 180,936 1.47 1 1 1
The Adopted Plan divides Douglas County between Senate Districts 2 and 30. Senate District 2 combines part of Douglas County with Elbert, Kit Carson, Lincoln, and Washington Counties. Senate District 30 combines part of Douglas County with part of Arapahoe County. The Adopted Plan divides Pueblo County between Senate Districts 3 and 4. Senate District 3 combines part of Pueblo County with Baca, Bent, Cheyenne, Crowley, Kiowa, Las Animas, Otero, and Prowers Counties. Senate District 4 combines part of Pueblo County with part of El Paso County.
The Commission explains that the Douglas County and Pueblo County divisions are the product of drawing the Adopted Plan starting with plains counties at Colorado's eastern border to form three senate "plains districts," then working west. When the Commission arrived at the populous front range, "equal population requirements" drove the Douglas County and Pueblo County divisions. The Commission's starting point thereby had the effect of painting the Commission into a corner when it arrived at district line drawing of the populous Eastern Slope counties:
One hallmark of the Final Plan for the Senate is the creation of three Senate districts on the eastern plains. All three districts keep rural counties whole and extend from the Kansas border to the growing communities of the Front Range. Equal population requirements drive the split of Weld County in district 1, Douglas County in district 2, and Pueblo County in district 3. . . .
Having finished district 3 in Pueblo county and having made the decision to keep all counties whole in district 5, the only choice left for the Commission to achieve equal population in district 4 was to add a portion of El Paso County to the remaining portion of Pueblo County. District 4 preserves the many common interests shared by northwestern Pueblo and southern El Paso counties (such as the I-25 transportation corridor, the growth issues facing front range communities, and their similar socio-economic characteristics). . . .
The portion of Douglas County left over after completing district 2 was too small to form its own district and therefore it was added to the remaining population in Arapahoe County to from district 30.
Legal Memorandum and Explanatory Materials in Support of Final Plan for Districts in the Senate and House of Representatives, 16-21 (emphasis added). The Commission justified the Douglas County and Pueblo County divisions on a community of interest extending from Colorado's eastern border into portions of urban and suburban front range populations.
The Adopted Plan divides Boulder County between Senate Districts 18 and 19. Senate District 18 combines part of Boulder County with parts of Adams, Jefferson, and Weld Counties. Senate District 19 combines part of Boulder County with part of Jefferson County, Clear Creek and Gilpin Counties. The Commission again relied on a community of interest rationale to justify the Boulder County division:
The Final Plan honors the boundaries of Broomfield by keeping it whole in district 18. Since Broomfield's population of approximately 40,000 is far lower than the ideal, part of a neighboring county had to be added to complete the district. The Commission decided to draw from Boulder County for this purpose and combined Broomfield with Superior and the southern portion of the City of Boulder. These communities are all located along the Denver-Boulder Turnpike and share transportation and growth concerns. . . .
Boulder County's population, prior to the creation of Broomfield, entitled it to 2.37 Senate seats. After deducting the Boulder County population used to finish district 18, Boulder County is entitled to 1.5 districts. The full district is district 17, which unites the east Boulder County communities of Longmont, Louisville, Lafayette, and Erie. The Commission combined the remainder of Boulder County with Clear Creek and Gilpin counties and the unallocated portion of Jefferson County to form district 19. District 19 encompasses many of the foothills communities.
Id. at 18-19(emphasis added).
The Adopted Plan divides Jefferson County between Senate Districts 19 and 23. Senate District 19 combines part of Jefferson County with part of Boulder County, Clear Creek and Gilpin Counties. Senate District 23 combines parts of Jefferson and Adams Counties. The Commission justified the Jefferson County division on the basis of equal population constraints and the need to minimize division of the City of Westminster:
Districts 22, 21, and 20 work their way from south to north along the Douglas/Arapahoe/Denver boundary shared with Jefferson County. The northernmost district, district 23, crosses into Adams County to achieve equal population and to make it possible to include Westminster in only two Senate districts (districts 23 and 26). The irregular boundary on the north side of district 23 is caused by the boundary of the City and County of Broomfield.
Id. at 18.
It therefore appears from the Commission's rationale that it considered itself at liberty to start the cartography of reapportionment at any point of Colorado geography it might choose. Because of this approach, the Commission faced the consequence of county divisions that appear inevitable to meet equal population requirements. But, the constitutional criteria instead contemplate the Commission taking an overview of Colorado's population by county, then generating a map that respects the state's legal preference for county integrity, then applying minimization of city divisions, compactness, contiguity, and community of interest criteria to add portions of counties to other counties in forming districts, when necessary.
The Commission relies on a community of interest rationale to support denying whole county seats to counties that qualify for them, but this is the least weighty of the Section 46 and 47 criteria. The Commission's reordering of the criteria offends the constitution. In re Reapportionment 82, 647 P.2d at 194. While the Commission has discretion to make necessary compromises, In re Reapportionment 92-I, 828 P.2d at 195-96; In re Reapportionment 82, 647 P.2d at 197, it cannot advance the lesser community of interest criteria over the greater requirement not to make county divisions unless necessary to meet equal population requirements.
That the Final Plan — yet to be established — can more certainly conform to the constitutional criteria than the Adopted Plan is demonstrated by the Rodriguez 5 senate alternative and the Wells 37 senate alternative. Each reveals the availability of less drastic county division alternatives. Both illustrate that Douglas and Pueblo Counties can have one whole senate district entirely within their boundaries, apparently within the Section 46 equal population no more than five percent deviation criteria. The Wells 37 senate alternative also illustrates the availability of providing Boulder County with two whole senate districts and Jefferson County with four whole senate districts.
2. Adams, Arapahoe, and Mesa Counties
Adams and Arapahoe Counties are very close to qualifying for an additional senate district located entirely within their boundaries. The above chart demonstrates that Adams qualified for .96 of an additional senate district. Arapahoe County appears to qualify for .97 of an additional senate district; however, the Arapahoe County figure must be adjusted downward because Glendale and Holly Hills are Arapahoe County enclaves within the City and County of Denver's boundaries and are not contiguous to the rest of Arapahoe County. In re Interrogatory H.J.R. 1011, 177 Colo. at 218, 493 P.2d at 348 (1972). Mesa County qualifies for .95 of a senate district.
Whole Senate District Allocations:
Instead of allotting these counties an additional senate district, the Adopted Plan divides the counties to form districts with other counties. Given Colorado's constitutional preference for keeping counties intact in a district, if possible unless equal population considerations require otherwise, the Commission on remand should attempt to create an additional district for Adams County and for Arapahoe County, and a district for Mesa County.
The Rodriguez 5 senate alternative would provide Arapahoe County with four senate districts, the number of whole senate districts it nearly qualifies for based upon population. The Rodriguez 5 senate alternative and Wells 37 senate alternative both keep Mesa County whole by adding a portion of Delta County in order to complete this district. Alternative plans illustrate how these counties can be divided in a constitutionally preferred manner. Because we remand the Adopted Plan for other reasons, we also require the Commission to reexamine the Adams, Arapahoe, and Mesa County divisions. If it is still necessary to make one, some, or all of them, then the Commission must make an adequate factual demonstration and articulate its rationale for the divisions, upon resubmission.
3. City of Boulder and City of Pueblo
The Adopted Plan divides the City of Boulder into Senate Districts 18 and 19 and the City of Pueblo into Senate Districts 3 and 4. The Commission relied on a preservation of communities of interest and equal population rationale in justification of these city divisions. The argument is not persuasive. Article V, Section 47(2) states in part:
The Preliminary Plan distributed to the public at the hearings throughout Colorado, and in the City of Pueblo, showed the City of Pueblo as being within a single senate district.
Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.
(Emphasis added.)
It is apparent from the alternative plans that less drastic alternatives exist that would keep the cities intact, as illustrated by the Rodriguez 5 and Rodriguez 6 senate alternatives and the Commission's Preliminary Plan it took to public hearing. In re Reapportionment 92-I, 828 P.2d at 195-96. In addressing whole senate districts for Boulder and Pueblo Counties on remand, the Commission should avoid these city divisions, if possible.
C.
Opposers make several other objections to the Adopted Plan. The Douglas/Elbert Citizens for Fair State Senate Representation argue that, if the mathematical deviation between the most and least populous senate district contained in the Adopted Plan is calculated to three decimal places, the deviation is 5.001 percent, 0.001 above the Colorado constitutional limit. On remand, the Commission has the opportunity to address this technical infraction; thus, we do not reach this issue here.
The following arguments have already been addressed by this opinion: Jeffry M. Wells, Sen. Mark D. Hillman, Richard P. "Sandy" Hume, Rep. Mark Paschall, and Heather M. Witwer argue that the Adopted Plan unnecessarily divides Arapahoe, Douglas, Boulder, and Jefferson Counties, unnecessarily divides the Cities of Boulder and Pueblo, and fails to preserve ethnic and rural communities of interest; John Brackney, Andre Suharka and Citizens for Constitutional Maps request that four whole senate districts be located within Arapahoe County; Estelle Thaller and Dan Sandoval object to the Adopted Plan's division of the City of Pueblo, and argue that Senate Districts 2 and 3 fail to protect rural communities of interest; Beth Gallegos objects to the Adopted Plan's division of Adams County and Thornton between senate districts, and argues that the Adopted Plan is not as compact as possible and does not preserve ethnic communities of interest; Steve Olstad, James Martinez, and Karen Nelson object to Senate District 18 of the Adopted Plan because it divides Boulder County and the City of Boulder; Richard P. Hume, Betty Chronic, and William Berens object to the Adopted Plan's division of the City of Boulder between Senate Districts 18 and 19; the following individuals and communities objected to the division of Mesa County between Senate Districts 7 and 8 in the Adopted Plan: City of Fruita, Town of Palisade, Mesa County Valley School District 51 Board of Education, Town of Collbran, Ute Water Conservancy District, Mesa County Board of County Commissioners, Don Davis and Ruby Davis.
The remaining arguments raised in opposition to the Adopted Plan concern decisions which are within the Commission's discretion. "Our role in this proceeding is a narrow one: to measure the present reapportionment plan against the constitutional standards. The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court." In re Reapportionment 82, 647 P.2d at 194 (footnote omitted). Issues concerning compactness, communities of interest, and which plan is preferred by a certain group of citizens, must remain within the scope of the Commission's discretion. We do not redraw the reapportionment map for the Commission. Id.
The Colorado Hispanic Bar Association objects to House Districts 63 and 65 of the Adopted Plan. It argues that the boundary between House Districts 63 and 65 divides a large Hispanic community located across the border between Weld and Morgan Counties. Susan Fey objected to the Adopted Plan's failure to include Crestone and Villa Grove in House District 60. John H. Vigil requests that his portion of unincorporated Adams County should be included with the rest of unincorporated Adams County in Senate District 24, rather than with Arvada in Senate District 19. The Elbert/Douglas County Livestock Association requests that Elbert and a portion of Douglas County be contained in a single senate district. Douglas/Elbert Citizens for Fair State Senate Representation object to the division of the Highlands Ranch community and the inclusion of Elbert County in Senate District 2.
Mark Sessions, Willie H. Breazell, Sr., Lionel Rivera, Charles D. Broerman, and Sarah Jack object to the addition of a portion of El Paso County to a portion of Pueblo County in order to form Senate District 4. These opposers also argue that Senate District 11 violates compactness and community of interest criteria, and House District 18 fails to preserve communities of interest. Betty Chronic, Richard P. Hume, William Swenson, and Betty Swenson object to the Adopted Plan's division of the City of Boulder between House Districts 10, 11, and 13.
The Commission should address this objection on remand in curing the Boulder County and City of Boulder divisions.
The Garfield County Board of County Commissioners objected to the Adopted Plan's realignment of House Districts 57 and 61. Garfield County Republicans object to the division of Garfield County between House Districts 57 and 61 in the Adopted Plan. Grand County Republicans prefer the "Wells 35 Plan" and "Preliminary House District 57" to the Adopted Plan. Jackson County Republican Central Committee prefers the "Wells 35 Plan" and the "Preliminary House Plan" to the Adopted Plan. Routt County Republican Central Committee prefers the "Preliminary House Plan" for House District 57, rather than the Adopted Plan.
We hold that all of the above listed challenges, presented either pro se or through attorneys, do not present constitutionally significant issues, although the Commission may consider one or more of them on remand when it addresses redrawing the reapportionment map.
Opposer Don Lee argues that the Commission held meetings which violated the Colorado Open Meetings Law, §§ 24-6-401 et seq, 7 C.R.S. (2001). This argument is not within our limited scope of review in reapportionment proceedings and is without merit. The Commission followed the Open Public Meetings requirements.
D.
Drawing Districts On Remand
On remand, the Commission must start with whole district assignment to counties that qualify for them. When necessary to meet equal population requirements, the Commission may make county and city divisions. When divisions of counties must be made, the Commission may employ the other criteria of Section 47 in their preferential order: minimizing city divisions (Article V, Section 47(2)), compactness and contiguity (Article V, Section 47(1)), and preservation of communities of interest (Article V, Section 47(3)). See Colo. Const. art. V, § 47; In re Reapportionment 92-I, 828 P.2d at 190. While these criteria are "neutral," they do involve policy choices that we will defer to if accompanied by an articulated reasonable rationale. Because we remand the Adopted Plan for other reasons, we also require the Commission to reexamine the Adams, Arapahoe, and Mesa County divisions. If it is still necessary to make one, some, or all of them, then the Commission must make an adequate factual demonstration and articulate its rationale for the divisions, upon resubmission. We are aware that, in designing the Denver metropolitan area districts and complying with the constitutional criteria as set forth in this opinion, the Commission must make additional adjustments and determinations that most probably will involve some county and city splits.
The Commission should continue Colorado's compliance withSanchez in the affected state area.
"[T]he constitution provides the additional neutral criteria designed to minimize gerrymandering." In re Reapportionment 92, 828 P.2d at 211 (Mullarkey, J., concurring in part and dissenting in part).
We hold that the Adopted Plan does not comply with the substantive and procedural requirements of the Colorado Constitution. The Commission shall formulate an Adopted Plan which does so and resubmit it to us with supporting materials by 5:00 p.m. on February 15, 2002. See § 2-2-506 (1)(a.5)(I).
Section 2-2-506(1)(a.5)(I) states in part that "[t]he general assembly therefore urges the commission and the Colorado supreme court to make every effort to complete the redistricting process no later than February 15, 2002."
III.
Accordingly, we set aside the Commission's action, disapprove the Adopted Plan, and return it to the Commission for reconsideration and resubmission of a reapportionment plan by 5:00 p.m. on February 15, 2002 that complies with the substantive and procedural requirements of the Colorado Constitution, consistent with this opinion.
JUSTICE BENDER dissents, and CHIEF JUSTICE MULLARKEY and JUSTICE MARTINEZ join in the dissent.
In re Reapportionment of the Colorado General Assembly, 01SA386