Summary
discussing Voting Rights Act objections raised to the 1992 reapportionment plan
Summary of this case from In re Reapportionment of the Colorado General AssemblyOpinion
No. 92SA19
Decided March 13, 1992.
Original Proceeding Pursuant to the Rules Regarding Reapportionment.
Holme, Roberts Owen, Daniel S. Hoffman, Daniel J. Dunn, Stephen P. Ward; Colorado Reapportionment Commission, Rebecca C. Lennahan, for the Colorado Reapportionment Commission.
Charles H. Richardson, Christopher K. Daly, for the City of Aurora, Colorado.
Luis A. Corchado; Manuel I. Lopez; Motz, Gonzales and Martinez, Martin A. Gonzales, for the Hispanic League.
Holland and Hart, John C. Barajas, for the Colorado Hispanic Bar Association.
Steven R. Ruddick, Amicus Curiae.
Schmidt and Schmidt, Mark H. Schmidt, for Board of County Commissioners of Baca County, Colorado.
Steven G. Keppers, Pro Se, for Columbine Knolls South Homeowners' Association.
Menola N. Upshaw, Pro Se, for the National Association for the Advancement of Colored People, Denver Branch.
Dr. Lawrence E. Lewis, Pro Se, for the Colorado-Wyoming State Conference Branches of the National Association for the Advancement of Colored People.
Rev. Oscar S. Tillman, Pro Se, for the Legal Redress Staff.
Harden, Schmidt, Hass Haag, P.C., George H. Hass, Assistant Larimer County Attorney, for the Board of County Commissioners, Larimer County and Larimer County Clerk and Recorder.
Gerie Grimes, Pro Se, for the Colorado Black Roundtable, Inc.
Charles R. Duke, State Representative, Pro Se, for House District 20.
Jeanne M. Adkins, State Representative, Pro Se, for House District 40.
John M. Ely, Assistant Pitkin County Attorney, for Pitkin County Board of County Commissioners.
Fossum, Hatter Green, P.C., James Hatter, for Bipartisan Committee to Keep Montezuma County Whole.
James D. Robinson, Assistant Adams County Attorney, for the Adams County Clerk and Recorder, Robert Sack.
Zak, Fox, Pehr and Fuller, P.C., Richard L. Fuller, David W. Pehr, for Joan M. Johnson, Sheryl L. Pehr, and Amanda S. Pehr.
Rick DeWitt, Englewood City Attorney, for the City of Englewood.
Grant, Bernard, Lyons Gaddis, P.C., Daniel F. Bernard, Suzan D. Fritchel, for the Arapahoe County School District No. 1.
Martin R. McCullough, Westminster City Attorney, for the City of Westminster.
Davis, Graham Stubbs, Gale T. Miller, Richard A. Westfall; Pryor, Carney and Johnson, Pamela J. Fair, for Jennie Sanchez, Adeline Sanchez Esther Grant.
Wilma M. Taylor, Pro Se, for the Colorado Black Women for Political Action.
Peter Lawrence Vana, Arapahoe County Attorney, Darrel L. Matteson, Assistant County Attorney, Robert Lembke, Special Assistant County Attorney, for the Arapahoe County Commissioner.
Trimble, Tate and Nulan, P.C., Penfield W. Tate III, Penfield W. Tate II, Bernard L. Black, Jr., for the Blacks for Fair Reapportionment.
Hayes, Phillips Maloney, P.C., John E. Hayes, for the City of Sheridan, Colorado and the Individually Named Registered Electors and Elected Officials.
Miller Delay, P.C., Reese Miller, for the Sheridan School District.
Davis, Graham Stubbs, Stephen H. Kaplan, Dan Friesen, for Michael Henry, Selma Lock, Bob Dean, Fern Osborne, Doug Franssen, Maureen H. Loyacono, Pat Sullivan, Alvin J. Koops, Richard Newlon, Denver Democratic Party, Warren Weston, Helen C. Shreves, Jane Werner, Art Binkley, Joann Ortega, Gail Glover, Jane Craft, Betty Spindler, Bob Goss, Cecily Jones, Judy Mays, Mary Gibson, June Leonard Hurst.
H. Lawrence Hoyt, Boulder County Attorney, for Boulder County Clerk and Recorder.
Reta A. Crain, Douglas County Clerk and Recorder, Pro Se.
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Jan Michael Zavislan, Assistant Attorney General, for Natalie Meyer, Secretary of State of Colorado.
Larry W. Sarner, Pro Se.
This original proceeding under article V, section 48(1)(e), of the Colorado Constitution requires us to review the Final Plan submitted by the Colorado Reapportionment Commission (Final Plan) and determine whether the plan complies with sections 46 and 47 of article V. A number of formal objections to the Final Plan have been filed with this court. Except for the division of Pitkin County into House Districts 57 and 61 and that part of the plan which unnecessarily divides Perry Park, we conclude that the Final Plan satisfies the constitutional criteria. We disapprove the Final Plan and return the plan to the Commission for revision, modification, and resubmission to include the technical corrections to the Larimer County and Boulder County plans and the recommended revision of the plan for Perry Park and for reconsideration of House Districts 57 and 61.
Section 48 of Article V of the Colorado Constitution provides, in part: " Section 48. Revision and alteration of districts — reapportionment commission. (1)(a) After each federal census of the United States, the senatorial districts and representative districts shall be established, revised, or altered, and the members of the senate and the house of representatives apportioned among them, by a Colorado reapportionment commission consisting of eleven members, to be appointed and having the qualifications as prescribed in this section. Of such members, four shall be appointed by the legislative department, three by the executive department, and four by the judicial department of the state. . . . . "(e) Within ninety days after the commission has been convened or the necessary census data are available, whichever is later, the commission shall publish a preliminary plan for reapportionment of the members of the general assembly and shall hold public hearings thereon in several places throughout the state within forty-five days after the date of such publication. Within forty-five days after the completion of such hearings, the commission shall finalize its plan and submit the same to the Colorado supreme court for review and determination as to compliance with sections 46 and 47 of this article. Such review and determination shall take precedence over other matters before the court. The supreme court shall adopt rules for such proceedings and for the production and presentation of supportive evidence for such plan. The supreme court shall either approve the plan or return the plan and the court's reasons for disapproval to the commission. If the plan is returned, the commission shall revise and modify it to conform the court's requirements and resubmit the plan to the court within twenty days. If the plan is approved by the court, it shall be filed with the secretary of state for implementation no later than March 15 of the second year following the year in which the census was taken." Colo. Const. art. V, § 48 (emphasis added).
I
The court's role in reapportionment proceedings is sui generis. Our review must be "swift and limited in scope so that elections from the new districts may proceed on schedule." In re Reapportionment of the Colorado General Assembly, 647 P.2d 191, 194 n. 6 (Colo. 1982) (" In re Reapportionment I"). "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. at 194 (footnote omitted).
The constitutional standards we must apply include the assurance of "equal protection for the right to participate in the Colorado political process and the right to vote." Id. In reviewing the Final Plan, therefore, we must necessarily take into account federal constitutional standards arising from the Fourteenth and Fifteenth Amendments. See Reynolds v. Sims, 377 U.S. 533 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964).
Section 1 of the Fourteenth Amendment provides in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
The Fifteenth Amendment provides in part that "[t]he right of citizens of the United States to vote shall not be abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. amend. XV.
In formulating and choosing among alternative plans for reapportionment, the Commission was significantly influenced by considerations arising from section 2 of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C. § 1973 (1988). Moreover, two separate objections have been raised by individuals and organizations that the Final Plan itself violates section 2 of the Voting Rights Act.
Article V, section 48(1)(e), does not explicitly authorize or require this court to determine if the Final Plan conforms to section 2 of the Voting Rights Act. However, the Voting Rights Act applies to state reapportionment or redistricting plans, Thornburg v. Gingles, 478 U.S. 30, 34 (1986), and the Commission concedes that the Final Plan must conform to section 2 as well as the equal protection provisions of the Fourteenth Amendment. We conclude, therefore, that our review of the Final Plan must necessarily consider Voting Rights Act concerns. Our evaluation of the Voting Rights Act issues is, however, strictly circumscribed by the narrow scope of the proceedings, the presumption of good faith and validity we must accord to the Commission, the nature of the evidentiary record before us, and our restricted ability to act as a fact finder when material facts are genuinely disputed.
We note that the makeup of the Commission was effectively nonpartisan in that neither Democrats nor Republicans commanded a majority of the Commission's eleven members. In addition, the Commission held twenty public hearings across the state and formulated numerous preliminary plans and alternate plans in response to suggestions made by members of the public.
"[I]f neutral decisionmakers developed the plan [to reapportion congressional districts] on the basis of neutral criteria, if there was an adequate opportunity for the presentation and consideration of differing points of view, and if the guidelines used in selecting a plan were explained, a strong presumption of validity should attach to whatever plan such a process produced." Karcher v. Daggett, 462 U.S. 725, 759 (1983) (Stevens, J., concurring).
In accordance with the Supremacy Clause, U.S. Const. art. VI, § 2, and our earlier decisions in In re Reapportionment I and In re Reapportionment of the Colorado General Assembly, 647 P.2d 209 (Colo. 1982) (" In re Reapportionment II"), the Final Plan must be consistent with six parameters (in the following hierarchy from the most to the least important): (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).
Colo. Const. art. V, § 46 provides: " 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." "The five percent deviation test means that 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 population falls short of the population of the ideal district must be less than five percent." In re Reapportionment I, 647 P.2d at 193 n. 4. The population of the ideal district for each house is determined by dividing the population of the state by the number of districts in that house. Id. There are thirty-five senators and sixty-five members of the House of Representatives. According to the 1990 federal census, the population of Colorado is about 3,294,400. The ideal senate district therefore contains 94,126 persons and the ideal house district is 50,683. In the Senate, the largest district is District 6 which contains 2.79% more persons than the ideal senate district. Senate District 24 is the smallest with 2.11% less population than the ideal district. The overall deviation is therefore 4.90%. House District 16 is the most populous with 2.45% more people than the ideal house district. House District 60 is the smallest with 2.51% less persons than the ideal district. The overall deviation for house districts is 4.96%.
Colo. Const. art V, § 47(2) provides: "(2) Except when necessary to meet 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(1) provides: "(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."
Colo. Const. art. V, § 47(3) provides: "(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."
No one has claimed that the Final Plan violates the Fourteenth Amendment Equal Protection Clause or the Fifteenth Amendment. Moreover, we conclude that the Final Plan is consistent with the equality of population requirements of article V, section 46. See footnote 4, above. The first objections to the Final Plan that we consider arise under the federal Voting Rights Act.
II
Section 2 of the Voting Rights Act of 1965
Two distinct groups of objectors have raised claims that the Final Plan violates section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 (1988), which provides:
"(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
"(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered. Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population."
42 U.S.C. § 1973 (emphasis added). The leading case interpreting section 2 after it was amended in 1982 is Thornburg v. Gingles, 478 U.S. 30 (1986). Gingles involved a vote dilution claim following redistricting and the creation of certain multimember districts in North Carolina. Analysis of a section 2 claim, based on the "totality of circumstances," 42 U.S.C. § 1973(b), is "fact-intensive," Gingles, 478 U.S. at 46. The Senate Judiciary Committee Majority Report which accompanied the bill amending section 2 contained a nonexclusive list of "typical factors," derived from White v. Regester, 412 U.S. 755 (1973), which were to be considered in the analysis of a section 2 claim:
"1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
"2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
"3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
"4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
"5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
"6. whether political campaigns have been characterized by overt or subtle racial appeals;
"7. the extent to which members of the minority group have been elected to public office in the jurisdiction.
"Additional factors that in some cases have had probative value as part of plaintiffs' evidence to establish a violation are:
"whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group.
"whether the policy underlying the state or political subdivision's use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous."
S. Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07 (footnotes omitted). Factor two, "the extent to which voting in the elections of the state or political subdivision is racially polarized," arose in Gingles as the single most important of these factors.
In Gingles, the Court held that a plaintiff must show the following preconditions in order to establish a violation of section 2 in the use of multimember districts:
"First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed, . . . — usually to defeat the minority's preferred candidate."
Gingles, 478 U.S. at 50-51. There are several limitations on actions brought under section 2. First, election devices, such as at-large elections, are not per se violations of section 2. Second, the combination of an electoral mechanism and lack of proportional representation does not by itself establish a section 2 claim. Third, the existence of racial bloc voting may not be presumed; the plaintiffs must prove it. Gingles, 478 U.S. at 45-46; Sanchez v. Bond, 875 F.2d 1488, 1492 (10th Cir. 1989), cert. denied, 111 S. Ct. 340 (1990).
One of the key lessons of Gingles is that the "ultimate finding of vote dilution" is a question of fact subject to appellate review only under the clearly erroneous standard. Gingles, 478 U.S. at 78-79. The evidentiary record before us in this original proceeding is sparse. The Commission's resolution of disputed factual issues in the determination of the claims under the Voting Rights Act was not made in an adversarial proceeding with the accompanying safeguards of cross-examination and a full record and should not be overturned because we would reach a different result. If facts material to the resolution of a section 2 claim are in genuine dispute, if it appears from the record that the Commission has made a good faith effort to resolve these disputed facts, and if the Commission has applied the correct legal standard to the facts it has found, we will not reject the Final Plan on Voting Rights Act grounds.
The first objectors, Blacks for Fair Reapportionment (BFFR), assert that their section 2 claims pertain to House Districts 7 and 8 in Denver. Their proposed plan would incorporate a portion of Adams County and Aurora, a home rule city, into House District 7. It would also shift the common boundary line between House Districts 7 and 8 further to the east. In order to compensate for the loss of population, a small enclave would be carved into Weld County at the northern border of House District 36. These changes would increase the black population in House District 7 from 44.58% (under the Final Plan) to 48.01% (under the objectors' plan), an increase of 3.43 percentage points. Under the objectors' plan, the black population in District 8 would increase from 43.10% to 43.42%, a gain of 0.32 percentage points. These changes are necessary, BFFR alleges, in order to maximize the voting power of blacks and minorities.
The objectors concede that blacks have had success in the past in electing minority candidates in House Districts 7 and 8 over the past approximately fifty years. Cf. Gingles, 478 U.S. at 77 (per Justice Brennan and one Justice concurring and four Justices concurring in part and concurring in the judgment) (persistent proportional representation in particular multimember district in last six elections demonstrated that the black voting strength in that district was not impermissibly diluted in violation of section 2). The Commission rejected the opponents' plan because it would require the crossing of county lines and city boundaries contrary to article V, section 47(2). In addition, a reply to the BFFR plan was filed which contends that the BFFR plan itself would violate section 2 because it disenfranchises northwest Aurorans and decreases the opportunity for minority Aurora citizens to participate in the political process.
In this court, the Commission first contends that BFFR has not shown that the Final Plan violates section 2 because they have not satisfied the first Gingles precondition, that "the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district," Gingles, 478 U.S. at 50. Under BFFR's plan, as under the Final Plan, blacks would remain a minority in House Districts 7 and 8. However, even if this first Gingles condition is found not to invariably apply when an objection is made to a single member rather than a multimember district as in Gingles, the Commission asserts that the sustained history of black electoral success in Districts 7 and 8 refutes any claim of vote dilution under section 2.
We conclude that resolution of the section 2 claim in favor of the objectors would necessarily involve the finding of material facts that are in genuine dispute. Our examination of the record discloses that the Commission attempted to apply the proper legal standards to the Voting Rights Act claims raised in Districts 7 and 8 and made a good faith effort to comply with section 2 of Act.
The Commission had a report from its own expert that there was very little racial bloc voting in Denver, and that districts in which minorities comprised between forty and fifty percent of the population had a reasonable opportunity to elect the representatives of their choice. The alternate plan submitted by BFFR would require "two or three" additional county splits. These splits could not be justified under article V, section 47(2) unless section 2 required them. Given the only marginal gains in minority population in Districts 7 and 8 under the BFFR plan, we decline to overturn the Commission's finding that House Districts 7 and 8, as drawn in the Final Plan, comply with section 2 of the Voting Rights Act.
The second objection to the Final Plan based on section 2 was filed by Jennie Sanchez and others and relates to a proposal to redraw the boundaries of House District 60 to include "a large and relatively compact group of Hispanic voters in Southern Colorado, including the San Luis Valley and parts of Pueblo and Las Animas Counties." The objectors contend that it would be possible to redraw District 60 "such that it would have an Hispanic voting-age population of 50+ percent."
In a plan suggested by the objectors, District 60 would contain a majority in the Hispanic voting-age population of 50.03%. The suggested plan, however, ignores natural boundaries and splits seven counties. Under the Final Plan, House District 60 preserves the San Luis Valley intact, includes seven whole counties and splits only one county, Las Animas. The Hispanic population in District 60 under the Final Plan is 45.31% of the total population. The Commission asserts that it drew the boundaries of District 60 with Voting Rights Act considerations always in mind and after paying close attention to the wishes of San Luis Valley residents to preserve the Valley intact.
Moreover, the Commission contends that in order to prevail on their claim under section 2, "the minority group must be able to show that it is politically cohesive." Gingles, 478 U.S. at 51. Cf. Sanchez v. Bond, 875 F.2d at 1492-97 (plaintiffs failed to demonstrate political cohesiveness among Hispanics in Saguache County and thus the electoral system used to elect Saguache County Commissioners did not violate section 2). The presence or absence of such political cohesion was hotly contested below at the Commission level and in this court. We conclude that the objectors have not made a showing that would enable us to reject the Commission's determination that District 60 as drawn under the Final Plan complies with section 2 of the Voting Rights Act.
III
Finding that the Final Plan complies with federal law and the equality of population requirement of article V, section 46, we now review the plan under article V, section 47. The most important concern under section 47 is whether the Final Plan unnecessarily divides counties or cities within counties. In re Reapportionment II, 647 P.2d at 210. Next in importance is "the requirement that each district be as compact in area as possible and the aggregate linear distance of all district boundaries as short as possible, Colo. Const. Art. V, § 47(1). In re Reapportionment II, 647 P.2d at 210-11. Also contained within section 47(1) is the mandate that "[e]ach district shall consist of contiguous whole general election districts." Colo. Const. art. V, § 47(1). The least weighty constitutional consideration is the "preservation wherever possible of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, Colo. Const. Art. V, § 47(3)." In re Reapportionment II, 647 P.2d at 211.
No objection has been raised that the configuration of senate districts in the Final Plan violates article V, section 47(2). Our review of the record reveals no violation of section 47(2) with respect to the senate districts. A number of objections have been raised, however, that the Final Plan for the house districts unnecessarily splits counties or cities, contrary to section 47(2).
Our examination of the Final Plan as a whole with respect to house districts reveals that, out of the fifty-two counties in Colorado with populations less than that of the ideal house district, six were split. The Commission's justification for each county split was the requirement of equality of population among house districts. The Commission states that Voting Rights Act concerns initially determined the order and manner in which the boundaries were drawn and population was equalized. As we said in In re Reapportionment I, 647 P.2d at 197:
The reapportionment plan for house districts which was ultimately approved by the court in 1982 split seven out of fifty-three counties that were too small to comprise a single district. In re Reapportionment I, 647 P.2d at 195.
"The constitution allows the Commission to divide a county only if necessary to meet the equal population requirement. The Commission's justification for some of the county divisions in the plan before us is not as precise as it might be. Nevertheless, substantial equality of population and avoidance of splitting counties cannot always be met simultaneously. When they cannot, the avoidance of split counties must yield. The area of the state in which these conflicts occur is subject to adjustment, and the Commission must have the discretion to choose where the necessary and constitutionally permissible compromises are made."
As in 1982, we conclude that the Commission complied with the constitutional requirement of article V, section 47(2). Similarly, we determine, with two exceptions, that the Final Plan drawn by the Commission complies with the dictates of article V, section 47(1) and section 47(3).
The one exception is the unnecessary but inadvertent split of the community of Perry Park (population 1,000) in Douglas County into House Districts 20 and 64. The objectors propose first that all of Perry Park be included in House District 20, a configuration which they say will not unduly disturb equality of population. Their second alternative would redraw the line between Districts 20 and 64 so as to include most of the rural area of Douglas County in District 20 and the urban and suburban areas of the county in District 64. At oral argument, counsel for the Commission stated that redrawing the boundaries of Districts 20 and 64 in order to preserve intact the Perry Park community would not be a "hard problem" for the Commission. We, therefore, reject this portion of the Final Plan and return the plan to the Commission to redraw the boundaries of House Districts 20 and 64 to conform with article V, section 47(3).
Pitkin County
The second portion of the Final Plan that we disapprove is the division of Pitkin County and the City of Aspen into House Districts 57 and 61. The Pitkin County Board of County Commissioners objects to the division of Pitkin County into two house districts and the resulting division that "the City of Aspen and the economic-related and dependent communities of Aspen and Snowmass Village." The Commission asserts that the Pitkin County splits occurred as a result of the need to obtain the required population level in the districts involved.
District 61 is made up of five counties and two parts of counties, all located in a mountainous area of the state. It includes Lake County, with its county seat in Leadville; Park County, with its county seat in Fairplay; Chaffee County, having Salida as its county seat; and the northern part of Teller County, with Cripple Creek as its county seat. All these counties are on the eastern slope. The balance of District 61 consists of the western slope counties of Gunnison, with its county seat in Gunnison; Hinsdale, with Lake City as its county seat; and part of Pitkin, with Aspen as its county seat. It is the division of Pitkin County between House Districts 57 and 61 that concerns us.
Cripple Creek, however, is not in District 61.
District 61 contains 50,329 residents. Of these, 5,297 are from Pitkin County. The remaining 7,364 Pitkin County residents, including a small number of Aspen residents, are placed in District 57, including as well most of Garfield County (county seat in Glenwood Springs), and all of Rio Blanco County (county seat in Meeker) and Moffat County (county seat in Craig). The redistricting boundaries in Pitkin County adversely affect the explicit constitutional criterion of maintaining counties and cities intact. In addition, District 61 lacks compactness. It ranks seventh poorest under both the Schwartzberg test and the Reock test. Visual inspection of the map of District 61 shows that the inclusion of part of Pitkin County as a peninsula jutting out from the mainland of the district contributes to the lack of compactness of the district as a whole. The division of Pitkin County can only be defended on the basis that it is necessary to meet the paramount equal population requirement of section 46 of article V.
The materials submitted do not show the total population of Aspen. It appears likely, however, that the 5,297 persons in District 61 are almost entirely Aspen residents.
This same irregularity in district boundaries adversely affects the compactness of District 57 as well.
In addition, the preservation of communities of interest criterion of section 47(3) has been seriously compromised by combining the up-valley, eastern part of Pitkin County with other counties across the continental divide. Although this area of Pitkin County is contiguous to Gunnison County, Lake County, and Chaffee County, reference to any highway map discloses that there is no improved road directly connecting principal population centers in Gunnison County to Pitkin County, and the only access from Aspen to the eastern slope counties is across Independence Pass, which, as the Pitkin County objectors point out, is closed for about six months each year. See Colo. Const. art. V, § 47(3).
A road across McClure Pass connects Redstone, in Pitkin County, with Paonia, in Delta County, and crosses a remote part of Gunnison County.
The Pitkin County objectors also assert a strong community of interest between the residents of the resort City of Aspen and the all but contiguous recreational resort of Snowmass Village, and with other residents of the Roaring Fork Valley, from whom they will be separated by the district boundaries created by the Final Plan. The Commission states that if Pitkin County were not divided, it would be necessary to divide either Summit County or Eagle County in order to achieve substantial equality of population among districts. It does not suggest why such divisions would be equally or less adequate constitutionally than the one adopted.
We conclude that the Commission's explanation for dividing Pitkin County and the City of Aspen, and for the further division of Snowmass Village from Aspen, does 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. Furthermore, the explanation does not provide a basis for meaningful judicial review of the Commission's decision. We, therefore, disapprove that part of the Final Plan which divides Pitkin County and the City of Aspen into House Districts 57 and 61. We return that part of the plan for reconsideration, revision, modification, and resubmission. If, after considering alternatives, the Commission concludes that the present Final Plan for Districts 57 and 61 is still constitutionally preferable to the alternatives, it may resubmit the present plan. In that case, the Commission should provide the court with additional information detailing the alternatives considered and the reasons for their rejection.
IV
We now discuss the remaining specific objections which have been filed to the Final Plan.
Arapahoe County
A number of objections have been lodged with respect to the boundaries of House District 3. Under the Final Plan, District 3 includes a portion of Denver and then crosses the county line into Arapahoe County. It includes the City of Sheridan and divides the City of Englewood into two House Districts: 3 and 37. The objectors contend that District 3 need not cross the Arapahoe County line in the manner approved by the Commission and that it does so only for political concerns which would allow Denver to keep ten representatives in the House, rather than the nine to which Denver is entitled under the 1990 census.
The Commission points out, however, that even under the Final Plan, Arapahoe County residents comprise a majority in House District 3. Moreover, under both the Final Plan and the alternate Arapahoe County plan, Arapahoe County is split. The objectors have alleged that equal population requirements can be met without dividing cities located in Arapahoe County into more than one house district, but we note that their alternate plan divides at least as many cities within Arapahoe County as does the Final Plan.
The Arapahoe County objectors also assert that the Final Plan does not preserve communities of interest as required under article V, section 47(3). Our examination of the Final Plan and the Arapahoe County alternate plan, however, convinces us that the Commission complied with constitutional requirements when it drew House District 3.
City of Westminster
The City of Westminster has filed a statement of opposition to the Final Plan on a number of grounds. The crux of Westminster's argument is that the City, which lies in both Adams and Jefferson Counties, has been subdivided into seven house districts, contrary to article V, section 47. Westminster also objects to House District 62 which runs from the Jefferson County portion of Westminster through Gilpin, Clear Creek, and Summit Counties.
The Commission explains that it began drawing the boundaries of house districts in the south central portion of the state including the San Luis Valley. The Commission started here primarily out of concern for the Voting Rights Act. It then worked its way west and north, completing districts with whole counties where possible. Summit, Clear Creek, and Gilpin Counties do not have a combined population sufficient for one house district, so the Commission crossed into Jefferson County, and included the western edge of Westminster in House District 62. The Commission explicitly subordinated concerns arising under article V, section 47 (unnecessary crossing of county lines or splitting of cities, compactness, and preserving communities of interest) to achieve equality of population under article V, section 46.
The Commission also asserts that a number of reasons made it necessary to place Westminster into seven house districts in apparent violation of article V, section 47(2). First, since Westminster's population exceeds that of an ideal house district, at least one split was required. Second, since Westminster lies in both Adams and Jefferson Counties, the Commission had to split the City in order to honor the prohibition against unnecessarily crossing county lines. Third, because of concerns under the Voting Rights Act, the Commission initially fixed the boundaries of two districts in the eastern part of Adams County and worked west. Simultaneously, the Commission was moving east out of the mountains in creating District 62. Because of the Commission's choices of where to begin drawing house districts, and in order to bring "closure" to the Final Plan and preserve equality of population, Westminster was split into more parts than if the Commission had proceeded differently.
Placing portions of Westminster into seven house districts is not per se unconstitutional. See In re Reapportionment I, 647 P.2d at 197 (court approved 1982 reapportionment plan which split Westminster among seven house districts).
The Commission's explanation of why it was necessary to split Westminster into so many house districts could have been stronger and more detailed. However, we accord the Final Plan a presumption of validity when the Commission purports to follow the proper constitutional criteria and we will not "substitute our judgment for that of the Commission's unless we are convinced the Commission departed from constitutional criteria." In re Reapportionment I, 647 P.2d at 197. Although not absolutely dispositive, we deem it significant that the Westminster objectors have failed to come forward with a concrete alternative plan for house districts in Westminster. Although the question is close, we conclude that the Final Plan for House District 62 and for the City of Westminster does not violate article V, section 47.
Montezuma County
The Bipartisan Committee to Keep Montezuma County Whole asserts that the Final Plan unnecessarily divides Montezuma County into two house districts, contrary to article V, section 47(2), and splits communities of interest, in violation of article V, section 47(3). The alternate plan for rural counties, including Montezuma County, that the objectors have submitted is called the "Shaw/Whole Rural County Plan." Under this plan, which does not address reapportionment in the "Front Range Metropolitan Corridor," the largest deviation in population that is created is 3.73%. The objectors present "mathematical verification" that it would be theoretically possible to reapportion the Front Range districts so that the largest population deviation from the ideal district would be -0.58%, thus preserving the 5% constitutional deviation cap of article V, section 46. As the Commission has pointed out, however, adoption of the Shaw/Whole Rural County Plan would require state-wide reapportionment, an unacceptably large "ripple effect."
Although not dispositive of the objection now before the court, we note that Montezuma was split into two house districts in the 1982 plan that we ultimately approved. See In re Reapportionment I, 647 P.2d at 195. The Commission also states that its Voting Rights Act concerns in drawing the boundaries of District 60 had a "profound influence on the plan for the Western slope," and that once District 60 was fixed a split of Montezuma County was inevitable.
La Plata and Archuleta Counties have a total population of 37,629. The population of Montezuma County is 18,672. These three counties thus have a combined total population of 56,301, approximately ten percent higher than the population of the ideal house district. The Commission contends that if it created a house district comprising La Plata and Montezuma Counties, Archuleta County would have to be combined with Hinsdale and other counties to the north, which would impact the population balances of House Districts 58 and 61. The Montezuma County objectors have not presented an acceptable alternate plan which disproves the Commission's assertions. We find that the Montezuma County split does not offend article V, section 47.
Baca County
The last specific objection to the Final Plan under article V, section 47(2) is brought by officials of Baca County. They have objected to the Final Plan as it pertains to House Districts 47 and 63. In the Final Plan, House District 47 is comprised of Crowley, Otero, Bent, and Baca Counties, and portions of Las Animas and Pueblo Counties. House District 63 is made up of Elbert, Lincoln, Kiowa, Cheyenne, Kit Carson, Yuma, and Prowers Counties, and the eastern part of Arapahoe County. Thus, three counties are split under the Final Plan.
The alternate plan for District 63 places Baca County with Otero, Bent, Prowers, Kiowa, and Cheyenne Counties and thus splits no counties in that district. The alternate plan fails to demonstrate that the total number of county splits in the state will necessarily be reduced and that the "ripple effects" will not require numerous other changes in the reapportionment scheme. See In re Reapportionment I, 647 P.2d at 196 ("It is impossible for us to ascertain in larger counties whether different district configurations might result in a net reduction in the number of house districts which cross county lines."). The Commission explains the districting of eastern Colorado as follows:
"The Commission followed the same basic process in defining [house] districts in eastern Colorado as it did for western Colorado, proceeding east and north from the San Luis Valley and Pueblo area, and completing districts with as many whole counties and as few county splits as possible."
We determine that the Commission complied with article V, section 47, when it placed Baca County in House District 47.
V
Several objectors challenged the Final Plan under article V, section 47(1)'s requirements of compactness and contiguity. This provision is subordinate to section 47(2). In re Reapportionment II, 647 P.2d at 210-11. The constitutional compactness requirement "concerns a geographic area whose boundaries are as nearly equidistant as possible from the geographic center of the area being considered, allowing for variances caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines." Acker v. Love, 178 Colo. 175, 177, 496 P.2d 75, 76 (1972). We discussed two objective, quantitative tests for compactness in In re Reapportionment II:
"One method of measurement involves comparing each district's perimeter to its area. A smaller perimeter/area ratio indicates compactness. . . . The second method involves measuring the polar moment of inertia of each district. This method quantifies the distribution of the points in a region around its geographic center. A smaller polar moment of inertia indicates a region in which the points are more closely grouped around the region's geographic center and which is thus more compact."
647 P.2d at 212. In determining the degree of compactness within the Final Plan, the Commission used two somewhat different tests: the Reock test and the Schwartzberg test. According to the Commission, in the Reock Test,
"the computer first determines the two points on the district's boundary that are farthest apart and calculates the area of a circle that would have the line between these two points as its diameter. The polygon area of the district is then divided by the area of that circle to produce a ratio between zero (0) and one (1). The closer the ratio is to one, the more compact the district."
"Polygon area" is defined by the Commission as "[t]he sum of the areas of all census units (tracts and blocks) assigned to each district. Polygon area is stated in square miles."
See Ernest C. Reock, Jr., Measuring Compactness as a Requirement of Legislative Apportionment, 5 Midwest J. Pol. Sci. 70 (1961). The second test for compactness the Commission used is the Schwartzberg Test, and the Commission described the test as follows:
The Reock test has been criticized for "giv[ing] a high rating (near 1) to an arbitrarily misshapen district so long as it meanders around within a confined area." H.P. Young, Measuring the Compactness of Legislative Districts, XIII Legis. Stud. Q. 105, 106 (1988).
"Under the Schwartzberg Test, the computer divides the adjusted perimeter of the district (adjusted in accordance with a formula which straightens the boundary by connecting points where three or more units from any district meet) by the perimeter [circumference] of a circle having the same area as the polygon area of the district. The closer the quotient is to one, the more compact the district."
See Joseph E. Schwartzberg, Reapportionment, Gerrymanders, and the Notion of "Compactness", 50 Minn. L. Rev. 443 (1966).
The Schwartzberg Test also has its critics. "The Schwartzberg measure is defective in that it places too much emphasis on the perimeter and not enough on the overall shape." H.P. Young, Measuring the Compactness of Legislative Districts, XIII Legis. Stud. Q. 105, 108 (1988).
Senate District 24
An objection was filed to Senate District 24 as drawn in the Final Plan on the ground that its configuration violates the compactness and contiguity requirements of section 47(1). As accurately described by the objectors, Senate District 24 consists of two somewhat rectangular areas, plus a "flag pole" waving a small "flag."
We need not delve into the Reock and Schwartzberg factors of the alternative plan submitted by the objectors, however, because the alternate plan splits the populations of Thornton and Westminster and the Final Plan does not. The shape of Senate District 24 was thus determined by the configuration of Thornton. Restrictions against the splitting of cities take precedence over compactness concerns under article V, section 47(1). We also find that Senate District 24 does not violate the requirement of contiguity. The "flag" is included in Senate District 24 because it is a contiguous portion of Thornton, joined with the rest of Thornton by measuring the "pole." Contiguous whole general election districts may, therefore, be drawn in Senate District 24, conforming with the requirement of article V, section 47(1).
Senate Districts 32 and 35
The next objection is made to the boundaries of Senate Districts 32 and 35 in Denver. The Commission states that it "was concerned about compactness as well in Denver, although it recognized that its Voting Rights Act obligations were superior to considerations of compactness. The Commission drew the three minority districts (districts 31, 33 and 34) and then divided the rest of Denver [between] districts 32 and 35 in the most compact way possible."
According to the objectors, their alternate plan, the "1-11 Preliminary Denver Senate Plan," was rejected by the Commission for political reasons at the last minute, and the boundary between Districts 32 and 35 was drawn to avoid placing more than one incumbent senator in a senate district.
In In re Reapportionment II, 647 P.2d at 213, we disapproved a portion of the 1982 reapportionment plan because extra-constitutional political considerations had entered into the Commission's deliberations. The districts that we disapproved in 1982 were, therefore, not drawn as compactly as possible and did not preserve communities of interest wherever possible, contrary to article V, section 47(1) and (3). Political considerations are not per se improper, however. It is only when partisan factors are allowed an importance equal to or greater than the proper constitutional criteria that a plan is defective. As we said in In re Reapportionment II:
"While it is not improper for the Commission to attempt to resolve political conflicts engendered by our disapproval of the election sequencing in the original plan, `[p]roblems created by partisan politics cannot justify an apportionment which does not otherwise pass constitutional muster.'" Kirkpatrick v. Preisler, 394 U.S. 526, 533 (1969).
In re Reapportionment II, 647 P.2d at 213. The objectors assert that "[w]hile the 1-11 is not quite as compact in 32, it is much improved over the Final Plan's 35." Calculations under the Reock and Schwartzberg tests belie the objectors' assertion. The Final Plan's Reock and Schwartzberg factors for District 32 are 0.1951 and 3.2673, respectively. The 1-11 Plan's factors for District 32 are 0.1990 and 3.2909, respectively. Id. Thus, District 32 under the Final Plan is somewhat more compact than the 1-11 Plan according to the Schwartzberg Test, and somewhat less compact under the Reock Test.
Under the Final Plan, Senate District 35 is a little more compact measured by the Reock Test (0.4803 as opposed to 0.4708 for the 1-11 Plan), and a little less compact measured by the Schwartzberg Test (2.4324 against 2.3110 for the 1-11 Plan).
The objectors have also submitted a second alternate plan for Districts 32 and 35 called the "Pascoe Plan." The Pascoe Plan's District 32 is slightly more compact than the Commission's District 35 under the Reock and Schwartzberg tests. On the other hand, under the Pascoe Plan, Senate District 32 is less compact under the same tests. Since the results of the objective tests for compactness are inconclusive between the Final Plan and either of the objectors' alternate plans, we determine that the Final Plan does not violate article V, section 47(1).
The objectors also assert that while their Pascoe Plan is similar to the Final Plan with respect to population equalization and compactness, it is superior in preserving communities of interest within Denver. They contend that central Denver is much more aligned with east Denver and parts of southeast Denver than it is with southwest Denver, and that southeast Denver has more in common with the southwest than with central Denver. The Commission has responded that these claims are unsubstantiated and that the geographic distance between southeast and southwest Denver makes the objectors' community of interest claim untenable. Moreover, the Pascoe Plan's Senate District 32, which links southeast and southwest Denver, is less compact than the Final Plan's District 32. We conclude, after a comparison of the overall differences between the two plans, that the Final Plan does not violate article V, section 47(3), which in any event is subordinate to the compactness requirements of article V, section 47(1). Since the proposed Final Plan passes constitutional muster, political considerations that may have been involved in the final determination should not vitiate the plan.
Columbine Knolls South
The final constitutional objection is brought under article V, section 47(3), by the Columbine Knolls South Homeowner's Association, which consists of 680 families. The homeowners state:
"We are presently in Senate District 22, but under the proposed reapportionment we would be moved into Senate District 13. As part of District 13 we would be included in a district that is primarily mountain and rural. We feel that it would be in the best interest of our community to remain in District 22 as this would best meet the reapportionment criteria `Preservation of communities of interest.'"
The Commission states that placing the Columbine Knolls South area in District 13 was necessary in order to meet the equality of population requirements of article V, section 46. Since preservation of community interest under article V, section 47(3), must yield to equality of population, we find no constitutional violation in this part of Final Plan.
VI
Requests for Technical Changes to the Plan
Requests for technical changes in the boundaries of the Final Plan were filed by Boulder, Larimer, and Adams Counties. None of the requested modifications are based on the Colorado Constitution or federal law, and are, therefore, outside the scope of this court's review of the Final Plan which is "to measure the present reapportionment plan against the constitutional standards." In re Reapportionment I, 647 P.2d at 194; see also Colo. Const. art. V, § 48(1)(e).
The Commission views the changes requested changes by Larimer County and Boulder County as minor, technical, and meritorious. We, therefore, conclude that the Commission should incorporate the technical changes requested by Larimer and Boulder Counties into the Final Plan when it resubmits the plan to this court.
VII
Accordingly, we disapprove the Final Plan and return the plan for modification or revision of House Districts 57 and 61 to conform to the requirements set forth in this opinion and for resubmission to the court. In addition, the Perry Park portion of the Final Plan should be corrected and the plan is returned to the Commission to redraw the boundaries of House Districts 20 and 64 to conform with article V, section 47(3). The Commission shall also incorporate the technical changes requested by Larimer and Boulder Counties into the Final Plan when it resubmits the plan to this court.
JUSTICE LOHR concurs in part and dissents in part. JUSTICE QUINN concurs in part and dissents in part, and JUSTICE MULLARKEY joins in Parts I and IIA of the concurrence and dissent. JUSTICE VOLLACK concurs in part and dissents in part. JUSTICE MULLARKEY concurs in part and dissents in part, and JUSTICE QUINN joins in the concurrence and dissent.