Hall v. Moreno

Justice COATS,

concurring in the judgment.

1103 Although for different reasons, I would also affirm the district court's order, redrawing as it does the congressional districts in this state in time for the 2012 general election. I write separately not only to briefly explain my own reasons for doing so but also to make clear that the only issue before the court today is the validity of the district court's remedial redistricting plan, protecting the plaintiffs' constitutional right to what has come to be known as one person/one vote. While it is not my intention either to criticize the district court's plan or to invite further legislative action, in light of our prior opinion in People ex rel Salazar v. Davidson, 79 P.3d 1221 (Colo.2003), cert. denied, 541 U.S. 1093, 124 S.Ct. 2228, 159 L.Ed.2d 260 (2004) (Rehnquist, C.J., joined by Scalia and Thomas, JJ., dissenting from denial of certiorari), I feel obliged to note that I do not consider this court foreclosed from reconsidering the question whether the general assembly is precluded from fulfilling its constitutional obligation to redistrict, notwithstanding the existence of a valid court-ordered plan following the last census.

€104 I would affirm the district court's order in this case because redrawing the congressional map was indisputably made necessary by the population changes reflected in the 2010 census; the general assembly was unable to fulfill its obligation to

redistrict in time for the general election of 2012; and the district court's redrawn congressional map does not violate federal law. In fact, other than complying with the Fourteenth Amendment's substantial equality requirement and the mandates of the Voting Rights Act, none of which are challenged here, the only limitation imposed on the courts in drawing congressional boundaries appears to be that they should, as much as possible, follow the policies and preferences of the state. See Upham v. Seamon, 456 U.S. 37, 41-42, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). Unlike the majority, I do not believe our legislature's instructions for judicial redistricting, enacted following our Sala-zary decision, reflect such policies and preferences. In stark contrast to its elaborate provision for state senate and representative districts, see Colo. Const. art. V., §§ 46-48, the state constitution provides almost no guidance for or limitation on the general assembly's division of the state into congressional districts, see Colo. Const. art. V., § 44, other than requiring it do so. I do not believe the state constitution can be read to permit the delegation of that responsibility to the judicial branch of government. Because section 2-1-102, C.R.S. (2011), does not de-seribe any redistricting policies or preferences that govern the legislature itself, the body with the constitutional duty to redistrict, but only purports to place limitations on the courts should they be forced to intercede, I do not believe the considerations it identifies amount to a redistricting policy of the state as contemplated by United States Supreme Court jurisprudence; and since the general assembly has for so long failed to redistrict itself, it would also be difficult to describe any existing or recently past congressional map as reflecting any state redistricting policies.

1 105 Until a half-century ago, any role for the judiciary in the inherently political process of redistricting not only went unrecognized; it was in fact forbidden. See Baker v. Carr, 369 U.S. 186, 208-37, 82 S.Ct. 691, 7 LEd2d 663 (1962). In the intervening years, in combination with lifting its political-question ban, see id., the Supreme Court's determination that equal protection necessar-

*983ily includes a guaranty of one person/one vote has not only freed the courts, but has imposed upon them a duty, to ensure that the redistricting process itself does not result in a deprivation of constitutional rights. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). If it were not already implicit in the limited, remedial role allowed the judiciary in this process, the United States Supreme Court has, since we decided Salazar, unequivocally rejected the assertion that, as a matter of federal law, the existence of a valid court-ordered plan bars a state legislature from adopting a new congressional map. See League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 899, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); see also Justin Levitt & Michael P. MeDonald, Taking the "Re" Out of Redistricting: State Constitutional Provisions on Redistricting Timing, 95 Geo. L.J. 1247, 1248-49 (2007) ("(N)o Justice accepted the amici's invitation to strike the plan down based on the timing alone."); cf. In re Below, 151 NH. 185, 855 A.2d 459 (2004) (rejecting Salazar's reasoning in interpreting a similar congressional redistricting provision of the New Hampshire constitution). Rather than a complete bar to any further legislative redistricting, the Supreme Court split only with regard to the articulation of grounds upon which legislatively redrawing a valid court-ordered plan might be challengeable. See LULAC, 548 U.S. 899, 126 S.Ct. 2594 (containing multiple opinions disputing the justiciability and constitutionality of "political gerrymandering"). Because this court interrupted the lower court proceedings for injunctive and declaratory relief in Salazar, and immediately granted the attorney general's petition to consider the broader state constitutional challenge, neither the motive for, nor the internal validity of, the Colorado legislature's redrawn map was ever considered in that case.

1106 In Salazar, this court held that the term "General Assembly" can be interpreted, for purposes of the redistricting mandate of the state constitution, so broadly as to include even an emergency map drawn by the courts in the absence of any action by the general assembly whatsoever. In light of the uniquely federal development of the judiciary's role in congressional redistricting, in particular, I continue to consider this construction untenable. See Salazar, 79 P.3d at 1248-58 (Kourlis, J., joined by Coats, J., dissenting). While I accord the principle of stare decisis the highest respect, see, e.g., Friedland v. Travelers Indem. Co., 105 P.3d 639, 651-53 (Colo.2005) (Coats, J., dissenting), it is clearly not to be understood as an immutable law. Whether the highest court of any jurisdiction will choose to follow or depart from its own prior decisions is ultimately a matter of discretion. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 398, 405-13, 52 S.Ct. 448, 76 L.Ed. 815 (1982) (Brandeis, J., dissenting). Not least among the many reasons militating against a bar to the reconsideration of our holding in Salazar are the facts that it involves an interpretation of the state constitution, not subject to further refinement or modification by either the legislature or even the United States Supreme Court, see id., and that, due to its formal nature, affecting only the respective roles of the legislature and the courts, there can be no danger that a departure from the rule of Salazar might work a hardship or inequity on voters as the result of any reliance upon and ordering their behavior around it. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854-55, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

T 107 I therefore concur in the judgment of the court to the extent that it affirms only the district court's plan for the 2012 general election. I would reject, however, any suggestion that the general assembly is, for that reason alone, precluded from yet fulfilling its constitutional obligation following the most recent census and congressional apportionment of representatives among the states.

Justice EID, dissenting.

1 108 The district court's plan in this case moves nearly one-third of Colorado's total population-almost 1.4 million people-to a different congressional district. This seismic shift is all the more astonishing given that Colorado did not gain or lose a congressional seat in the last census, and considering the *984fact that three of Colorado's seven congressional districts remain virtually unchanged under the plan. In my view, the district court abused its discretion by failing to give adequate weight to "the minimization of disruption of prior district lines," contrary to section 2-1-102(1)(b)(IV), C.R.S. (2011). Because the majority similarly disregards this factor, I respectfully dissent.

1 109 Section 2-1-102(1)(b) provides that a court "[mlay, without weight to any factor, utilize factors including but not limited to:"

(I) The preservation of political subdivisions such counties, cities, and towns.... [;]
(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors;
(III) The compactness of each congressional district; and
(IV) The minimization of disruption of prior dastrict lines.

(Emphasis added). Section 2-1-102(1)(b) gives the district court broad discretion to consider the listed factors-and others-in drawing congressional boundaries. Maj. op. at TT 41, 55. But the district court does not have unbounded discretion to draw boundaries in any manner whatsoever. The text of section 2-1-102(1)(b) makes clear that the district court must, at the very least, consider and give some weight to all of the factors, including minimization of disruption of existing district lines, together with other factors it finds relevant. In my view, the district court abused its discretion by giving virtually no weight to the minimization factor in four of the seven districts.

1110 The district court's lengthy order gives minimization more than passing consideration on only two occasions. First, the district court's order suggests that, because the boundaries of CD1, CD3, and CD5 remain essentially unchanged under the plan, the minimization factor had been given adequate weight. Dist. Ct. Order at 62 ("The changes to the 1st, 3rd, and 5th Congressional District thus reflect the Court's attempt to give effect the statutory criterion of minimizing disruption of current lines."). Yet at no point did the district court pause and consider the actual disruption that the plan caused overall-that is, the movement of almost one-third of Colorado's population to different districts. The court's "minimization in three districts is enough" rationale actually works against the adequacy of the plan, in that the huge shift of population to different districts was borne almost entirely by the four congressional districts that did change. Of course the addition (or loss) of a congressional seat may require significant shift of lines, see, e.g., Beauprez v. Avalos, 42 P.3d 642, 653 (Colo.2002) (affirming significant shift in lines after Colorado gained seventh congressional district), but that did not occur here; Colorado still has seven congressional districts.

111 In the only other significant discussion of the minimization factor in the order, the district court rejected the Hall Plaintiffs' map on the ground that the only interest it took into account was minimization. Dist. Ct. Order at 46. The district court, however, misperceived the argument that the Hall Plaintiffs make regarding minimization. The Hall Plaintiffs argue that current communities of interest oftentimes align with existing boundaries because those boundaries were drawn to reflect communities of interest at the time. See, eg., Corstens v. Lamm, 548 F.Supp. 68, 72 (D.Colo.1982) (adopting redistricting plan after 1980 census); Beauprez, 42 P.3d at 653 (affirming district court's redistricting plan drawn after 2000 census). As the majority properly recognizes, communities of interest may change over time, and a district may no longer reflect communities of interest as they currently exist. Seq, eg., maj. op. at 168 (noting that Rocky Flats no longer is an essential issue reflected in CD2). But existing districts provide the appropriate place to start.

{112 Following the lead of the district court, the majority marginalizes the minimization factor throughout its opinion. It repeatedly dismisses the tremendous shift of population in the four changed districts as simply a necessary byproduct of the redistricting process. Maj. op. at M131, 57. In fact, according to the , the minimization factor "is nothing more than one of the many factors that may be considered," and plainly should not cutweigh the communities *985of interest factor, which it finds compelling. Id. at 150. In a similar vein, the majority applauds the district court for "placing its concern for present communities of interest above a mechanistic attempt to minimize the disruption of existing district boundaries." Id. at 169; see also id. at ¶ 53 (same).

1113 Importantly, the majority and the district court fail to recognize the significant interest that the minimization factor is designed to protect. Obviously, the interest is not the straw man that district lines should always remain the same. Nor is it only that existing district lines are likely to reflect communities of interest now because they did so in the past. It is that district lines, once drawn, reflect and encourage important relationships among constituents, community leaders, and the congressional representative surrounding particular issues-relationships that are lost when district lines change, or in this case, shift dramatically.

f 114 One striking example is the fact that Fort Collins in Larimer County has been a major population center for CD4 during the past three decades, and most of the congressional staff for the district is located there. Under the district court's plan, however, Fort Collins is no longer in CD4 but rather cecupies the northernmost portion of CD2. It may be difficult to quantify the loss in constituent relationships caused by the move to CD2, but there is undoubtedly a loss.

{115 Douglas County provides another case in point. Most Douglas County residents pay taxes to support the metro Scientific and Cultural Facilities District, the Stadium District, and the Regional Transportation District. Sixty percent of them commute to jobs in Denver., The county is part of the Denver Regional Council of Governments ("DRCOG"), a metropolitan planning organization ("MPO") mandated by federal law for urban areas with populations exceeding 50,-000. See 49 U.S.C. § 5808 (2006). DRCOG, which includes Douglas County and eight other counties tied to the metro area, unites local and state officials to address regional transportation issues and to foster economic development, all with an eye toward obtaining federal funding. Under the district court's plan, most of Douglas County has been moved to CD4. Thus, most of the county will lose long-standing relationships with metro Denver communities fostered by its presence in CD6, and instead, Douglas County finds itself in the overwhelmingly agricultural CD4. The fact that Highlands Ranch was carved out from the move to CD4 at the last minute, maj. op. at 186, simply highlights, rather than solves, the problem.

{116 It is true that, as the majority suggests, it is possible to identify interests that Douglas County shares with CD4, and that Larimer County shares with CD2. See maj. op. at 1 81-85 (noting that Douglas County and CD4 share an interest in issues arising from water use and energy development); id. at 160 (noting that the new CD2 includes Fort Collins and Boulder, both home to major state universities). Indeed, it is undoubtedly possible to draw similarities in interest between virtually any two geographic points in Colorado. The bottom line is that districts should be drawn in a manner that takes into account all of the factors listed in section 2-1-102(1)(b), including the minimization of disruption to existing districts. Because the district court's plan failed to do so, I respectfully dissent.