In Re Reapportionment of the Colorado General Assembly

*200LOHR, Justice,

concurring in part and dissenting in part.

I.

I agree with the majority opinion’s explication of the relative importance of the various constitutional constraints on reapportionment prescribed in Colo.Const. Art. V, §§ 46 and 47. The majority’s treatment of the publication issue has my approval as well. I also agree with the majority’s disapproval of the proposed election sequencing for senate districts 13 and 34, and I join in that part of the majority opinion. However, I do not in all instances agree with its determinations that the other specific provisions of the proposed reapportionment plan are constitutionally adequate, and to that extent I respectfully dissent.

I first elaborate upon the majority’s discussion of the scope of our review in this proceeding. While I am not in disagreement with what is said about our role, I believe there are additional points, perhaps implicit in the majority’s discussion, which should be made explicit. I then turn to a consideration of the specific features of the present reapportionment plan.

II.

The majority concludes that our role is in one sense narrow. It states, “The choice among alternate plans, each consistent with constitutional requirements, is for the Commission and not the Court.” With this I agree.

The majority also concludes that, in another sense, our role is not so deferential. Where there is an alleged or apparent constitutional deficiency in the reapportionment plan, we must exercise careful scrutiny. Our obligation under the constitution would not be satisfied by any less exacting review. Thus, the majority states, “Testimony before the Commission justifying districts of unequal population would not shield a plan allowing unequal districts from judicial invalidation; deference to Commission expertise and judgment would be inappropriate in such a case.” I also agree with this statement.

What I would make explicit is that our task is not fully satisfied by assuring that districts are of substantially equal population. Our state constitution imposes additional constraints upon the reapportionment process in Colo.Const. Art. V, § 47. Full discharge of our obligation requires that we also assure that these requirements are met. Further, as the majority recognizes, the standards prescribed by Colo.Const. Art. V, §§ 46 and 47 do not constitute an undifferentiated set of constraints that the Commission may freely balance against each other. Rather, a clear, if not rigid, hierarchy of precedence is contemplated.1 Thus, where it is not possible to satisfy all of the criteria prescribed by Art. V, §§ 46 and 47, our task is to insure that the Commission has resolved these conflicts in a manner which protects this constitutionally mandated hierarchy of precedence.

In this connection, I note that the findings of the Commission are entitled to deference. The complex task facing the Commission requires no less. However, when an objector demonstrates to the court, by alternative plan or otherwise, (1) that the Commission could have complied with all the reapportionment requirements where it did not, or (2) that the Commission unnecessarily failed to respect the constitutional hierarchy of precedence, deference to Commission expertise is no longer appropriate. At that point we would be remiss in our responsibility if we did not disapprove the non-complying feature of the plan or, at a minimum, require a further explanation of the Commission’s choice.

*201Moreover, as the majority concludes, our review of the plan is not limited to those districts which are the subjects of specific challenges. The constitution charges us with review of a reapportionment plan whether or not the issues are framed by opposing parties. Consequently, where our independent review indicates the availability of a constitutionally superior alternative, it may sometimes be necessary to the discharge of our responsibility that we require the Commission to support parts of its plan with findings or other justification. We must be mindful that our task is to determine independently whether the plan is constitutionally adequate.

With this framework in mind, I turn to a consideration of the specific provisions of the proposed reapportionment plan. As discussion of those provisions will demonstrate, the majority has inappropriately deferred to the Commission’s districting choices in several instances where an objector has shown that the Commission violated constitutional safeguards or that the Commission’s choice is so constitutionally suspect as to require disapproval pending further justification.

iil

I will first discuss those specific objections which in my opinion are clearly meritorious and require disapproval of certain features of the reapportionment plan. To facilitate an understanding of the specific districting problems discussed, maps of the senate districts and house districts as contained in the reapportionment plan are attached as Appendices A and B, respectively.

A. Otero County House Districts

The Otero County Democratic and Republican Party Chairmen, The Board of County Commissioners of Otero County, The City or Town Councils of La Junta, Cheraw, Swink, Rocky Ford, Manzanola, and Fowler, The Lower Arkansas Valley Council of Governments, and a number of individual citizens of Otero County have filed a joint statement of opposition protesting the division of Otero County between house of representatives districts 43 and 63. They contend that this division is not necessary to create substantially equal populations in the house districts and so violates Colo.Const. Art. V, § 47(2). I agree.

Otero County is in the lower Arkansas River Valley east of Pueblo. The county seat and principal city is La Junta, situated on the Arkansas River, which runs through the northern part of the county. The reapportionment plan makes that river the dividing line between house districts 43 and 63 in the county. This boundary divides the city of La Junta as well as the county itself.

District 43 is comprised of eastern Pueblo County, and Huerfano, Las Animas and southern Otero Counties. District 63 contains Crowley, Kiowa, Bent, Prowers, and Baca Counties and northern Otero County.

In support of their argument, the Otero County objectors submit two alternate plans. In the first, Otero County would be included entirely within district 43 and eastern Pueblo County would be shifted into district 63. In the second, Otero County would be included entirely within districts 63, and Crowley and Baca Counties would be shifted to district 43. Each alternative plan requires no division of any county except Pueblo, which must be split in any event because it contains a larger popular tion than permissible within a single house district. Each would keep the city of La Junta whole. Although each of the alternatives, and particularly the second, sacrifices compactness to some extent, the more important constitutional requirement that counties not be divided unnecessarily is honored. Each suggested plan is more faithful to the constitution than is the plan adopted. These alternatives may not be the only ones available. Because the reapportionment plan violates Colo.Const. Art. V, § 47(2) in dividing Otero County unnecessarily, I would disapprove that portion of the plan.2

*202 B.Mesa County House Districts

Some objectors challenge the Mesa County house district plan on the basis that it unnecessarily places portions of the city of Grand Junction in two different house of representatives districts, 54 and 55. District 54 includes the southern part of Grand Junction and western Mesa County as well as a portion of Delta County. District 55 is made up of the remainder of Mesa County. One alternative which would keep the city of Grand Junction within a single district would create a doughnut configuration, with Grand Junction and adjacent areas as the hole and the remainder of districts 54 and 55 as the doughnut. The Commission’s negative response to this suggestion is based on citizens’ wishes and a perceived undesirability of splitting urban and rural areas. The constitutional injunction against dividing cities overrides these concerns.

I agree with the objectors that Grand Junction cannot be split between two house districts consistent with Colo.Const. Art. V, § 47(2). Therefore, I would disapprove the boundaries of house districts 54 and 55 as presently drawn.3

C. Boulder County Senate Districts

Boulder County is included in three senate districts, 13, 17, and 18. Districts 17 and 18 are entirely within Boulder County, and the City of Boulder, in rough terms, is bisected by the boundary between those two districts. The remainder of Boulder County is in senate district 13, which extends westerly across the continental divide to include Pitkin, Eagle, and Summit Counties as well as Clear Creek and Gilpin Counties on the eastern slope. Senate district 13 will be discussed in a later section.

Certain objectors contend that by splitting the city of Boulder the Commission violated the requirement of Colo.Const. Art. V, § 47(2) that when it is necessary to include territory of a county 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.” I agree with the objectors.4

D. Adams County Senate Districts

Adams County is divided into three senate districts, 23, 24, and 25. District 24 is a heavily populated area made up of the *203northeastern portion of the Denver metropolitan community, whereas districts 23 and 25 contain the more rural portions of the county, as well as some populous areas. Certain objectors contend that there are a number of alternatives which keep all the cities that lie wholly within the county from being split. This objection is directed to a split of the cities of Federal Heights, North-glenn, and perhaps others. It appears to be well taken, for the boundaries of the three districts could be adjusted within the county to include at least some, and perhaps all, of the cities in question entirely within a single district, while still complying with the equal population requirement. Accordingly, because this plan does not comport with the requirement that 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, I would disapprove the boundaries drawn for senate districts 23, 24, and 25.

IV.

I now discuss certain districts to which objections having probable merit have been directed. Were this dissenting opinion to prevail I would disapprove the reapportionment plan as to these districts, and require the Commission to pursue and adopt alternatives or to submit a further explanation establishing the constitutional adequacy of the presently proposed districting scheme.

A. Senate District 13

Objectors residing in and near senate district 13 contest the composition of that district as violative of the requirement that communities of interest “be preserved within a single district wherever possible.” Colo.Const. Art. V, § 47(3). Other objectors urge that senate district 13 does not satisfy the compactness and minimum boundary distance tests. See Colo.Const. Art. V, § 47(1).

Senate district 13 includes the western slope counties of Pitkin, Eagle, and Summit, the front range mountain counties of Gilpin and Clear Creek, and the western parts of Boulder and Jefferson Counties. It is a long, generally narrow district, extending from the northwest corner of Pitkin County to the northern boundary of Boulder County. The district meets the substantial equality of population requirement and contains no partial county except for Boulder and Jefferson, whose county populations exceed those permissible in a single senate district. It is necessary to determine, however, whether the district imper-missibly divides communities of interest, lacks compactness, or has excessively lengthy boundaries.

It cannot be doubted that the interests of the mountain communities and those of the suburbs in the metropolitan area are not the same and sometimes are in tension. Similarly, western slope and eastern slope citizens have divergent interests in some areas appropriate for legislative action. Mining, water, and tourism exemplify subjects in which the residents in senate district 13 could be expected to have strongly held and widely disparate views. A senator predictably will be confronted with dilemmas in efforts to represent citizens with such different interests. The Commission, however, points out the common interests of the mountainous areas, including the skiing industry community of interest bonding western and eastern slope mountain communities. This commonality cannot obscure the other basic differences.

The objectors propose three alternate plans, utilizing various combinations of counties to achieve a senate district 13 limited to the western slope and having a more compact configuration and a shorter periphery. They have no proposal, however, to cope with the “ripple effect” of their suggested changes. That effect could be widespread.

I am mindful of the fact that senate district 13 satisfies the two principal constitutional criteria of substantial equality of population and, except where necessary to achieve equal population, avoidance of split counties. Nevertheless, when the communities of interest are so divided, the district is so lacking in compactness, and its border is *204so long, it must be especially clear that the district boundaries adopted reflect the only feasible districting solution consistent with satisfying the principal constitutional criteria. It is no answer to the complaints of a citizen in district 13 that the division of communities of interest to which he is subjected is a rare and isolated occurrence when the reapportionment plan is viewed as a whole. It is constitutionally permissible only if no solution less destructive of constitutional values is reasonably possible.

My review of the supporting materials reflects that senate district 13 was created toward the end of the redistricting process, when the options were narrowest unless lines for other districts, tentatively established earlier, were to be redrawn. While recognizing the difficulty of the Commission’s task, I am not persuaded that senate district 13 is “as compact in area as possible,” that the “aggregate linear distance [of its boundaries is] as short as possible,” see Colo.Const. Art. V, § 47(1) or that communities of interest could not have been better preserved. See Colo.Const. Art. V, § 47(3). Accordingly, I would disapprove the senate district 13 feature of the reapportionment plan.

The constitutional sufficiency of senate, district 8, which adjoins district 13, and which shares a similar west slope-east slope combination is discussed in the immediately following section. I would direct the Commission to consider revision of both districts 8 and 13 to combine western Larimer County with the east slope areas in district 13, recognizing that whether such a combination would be feasible and whether it would ameliorate the constitutional difficulties in the present senate district configuration are matters for the Commission to decide in the first instance. The Commission should not be limited to this possible revision in considering alternatives to remedy the constitutional frailties in districts 8 and 13.

Finally, I would not preclude the Commission from readopting senate districts 8 and 13 in their present configurations if exploration of alternatives should reflect that it is the best compromise available. If this course were adopted, I would direct the Commission to detail the alternatives tested and the reasons it considers other alternatives inferior to the one selected.

B. Senate District 8

Certain objectors invite our attention to the inclusion of western Larimer County in senate district 8, contending that it violates the compactness and preservation of communities of interest standards of our constitution.

Larimer County has its county seat in Fort Collins. That city and the southeastern part of the county contain the largest population concentration. Fort Collins and its environs comprise senate district 14, while the rest of southeastern Larimer County is part of senate district 15. The remainder of the county extends westward to the crest of a mountain range dividing Larimer and Jackson Counties and is part of senate district 8.

Senate district 8 is a large,.sparsely populated district made up of Moffat, Rio Blan-co, Garfield, Routt, Jackson, and Grand Counties, in addition to western Larimer County. It stretches eastward from the Utah border and along the Wyoming border to include more than three-quarters of Lar-imer County. The lack of common interests —indeed, the probable conflict of interests on subjects such as water policy — between Larimer County and the rest of district 8 is apparent.

The objectors, however, have proposed no alternate plan. If western Larimer County were removed from senate district 8, the ripple effect could be great. As discussed in Section IV A, above, a possible solution is to shift a western slope area now in senate district 13 into senate district 8 and place western Larimer County in senate district 13. Whether such an approach is feasible would require exploration by the Commission, utilizing detailed population information.

*205Although I recognize that preservation of communities of interest, while of constitutional significance, is subordinate in importance to other criteria, I am not satisfied that senate district 8 as presently constituted represents the alternative most faithful to all the constitutional standards. Therefore, I would disapprove this aspect of the reapportionment plan.

In recognition of the difficulties which senate district boundary revision would involve, and the possibility that further efforts might demonstrate that the existing configuration of senate district 8 is constitutionally the best available alternative, I would not foreclose the Commission from readopting the present district boundaries after diligently attempting to remedy the Colo.Const. Art. V, § 47(3) problem created by the present plan. If it were to do so, I would require that it detail the reasons prompting the choice.

C. Montezuma County House Districts

Objections have been raised to the division of Montezuma County to include it in two house districts, 58 and 59. The population of Montezuma County itself is not large enough to require the split. House district 59 consists of La Plata, San Juan, and Archuleta Counties, and the southern part of Montezuma County. House district 58 lies north of district 59 and includes the counties . of Dolores, San Miguel, Ouray, Montrose, and parts of Delta and Montezuma Counties. The objectors demonstrate that the entire counties of Montezuma, La Plata, and San Juan could be combined in district 59; Archuleta County could be transferred to district 60, the San Luis Valley district; and, with adjustments of district lines in the already-split counties of Delta in district 58 and Gunnison in district 60, the constitutionally-mandated substantial equality of population of the affected districts could be maintained.

The Commission justifies the boundaries it selected on the basis of the need to maintain substantial equality of population. Although the objectors present total district population figures which apparently refute

this justification, they do not detail the precise district boundary adjustments contemplated in their plan to shift district boundaries in Gunnison and Delta Counties in order to maintain constitutionally appropriate populations in districts 61 and 55, respectively. The objectors’ proposal shows promise of closer adherence to the constitutional requirements than does the Commission’s proposed plan. Rather than accepting the Commission’s undetailed conclusion that the objectors’ plan would not be adequate to maintain substantial equality of population, and thus rejecting the challenge to the split of Montezuma County, I would disapprove this feature of the plan unless and until the Commission presents additional information and justification for .splitting Montezuma County. Of course, the Commission is not required to accept some particular alternative proposal so long as the plan ultimately adopted meets constitutional requirements.

D. Gunnison County House Districts

The Gunnison County Chamber of Commerce, the City of Gunnison, the Town of Mt. Crested Butte, the Town of Crested Butte, the Board of County Commissioners of Gunnison County, the Gunnison Chapter of the League of Women Voters, the Gunni-son County Republican Central Committee, and the Gunnison County Democratic Central Committee have filed a consolidated statement of opposition, objecting to the division of Gunnison County into two separate house of representatives districts, numbers 60 and 61. They claim that the division is unnecessary and offends the requirements of Colo.Const. Art. V, § 47 that counties not be divided, that districts be compact, and that communities of interest be preserved intact.

Gunnison County has the continental divide as its eastern boundary. One major highway, U. S. 50, passes through the county, east to west, providing access to Salida on the east and Montrose on the west. The city of Gunnison is the major population center and county seat and is located on U. *206S. 50. Highway 135 goes north from Gun-nison to Crested Butte and Mt. Crested Butte, the areas having the second and third largest populations in the county. There is no paved road beyond these communities. The line describing the northwest boundary of the county was drawn without reference to topography, for the small communities of Marble and Somerset are divided from the rest of the county by mountains and lack direct highway access to the county seat of Gunnison.

House district 60 includes the city of Gun-nison. Crested Butte and Mt. Crested Butte are in district 61, as are Marble and Somerset. District 60 is made up of the San Luis Valley counties of Saguache, Ala-mosa, Conejos, Rio Grande, and Costilla; the mountain counties of Mineral and Hins-dale; and a fractional portion of Gunnison County. House district 61 is made up of the upper Arkansas River Valley Counties of Lake, Chaffee, and a portion of Fremont; the mountain counties of Park, Teller, and Custer; and the remaining section of Gun-nison County.

The house district lines in Gunnison County do not maintain the county whole, even though the population of Gunnison County is not large enough to require division. They divide the community of interest that has developed in the Gunnison-Crested Butte areas as a result of the relationships promoted by the topography. The central question is whether the division of the county can be justified as necessary to meet the equal population requirements of Colo. Const. Art. V, § 46.

The Gunnison County objectors, claiming that the house districting in their county violates the constitution, propose alternate plans which they assert would be more consistent with constitutional criteria. One alternative is to include all of Gunnison County in district 61, and to make the compensating adjustment in the population of district 61 by eliminating Custer County, Fremont County, and part of Park County. The division of Park County is reasonable, they argue, because Park County extends east of Kenosha Pass, and the portion east of the pass has a natural community of interest with the mountainous areas of western Jefferson County.

To make up the population lost to district 60, Custer County and the part of Fremont County dropped from district 61 could become part of district 60. A second suggested alternative to make up the loss in district 60 is to add Huerfano County and to compensate for the loss of that county to district 43 by including Fremont and Custer Counties with the Pueblo County districts, and transferring necessary amounts of the Pueblo County districts to district 43.

Another proposal by the objectors to unify Gunnison County would include it in district 60, move Costilla County into district 43, and make unspecified compensating adjustments in the Pueblo County districts and in Fremont County to maintain substantial equality of population in all affected districts.

The unfortunate division of Gunnison County house districts in the reapportionment plan, and the proposals offered to unite the county, vividly illustrate the difficulties of the task which the Commission has accomplished, the deviations from the constitutional ideal necessary in redistricting this state, and the ripple effect of proposed changes. Even so, I conclude that the alternatives proposed by the Gunnison County groups indicate that the house redistricting in Gunnison County could be accomplished in a way more faithful to the constitutional criteria. In view of the substantial adverse effect of the plan on Gun-nison County, I would disapprove this feature of the reapportionment plan. Again, I would not preclude the Commission from readopting the present plan if upon further study and consideration it were to determine that constitutional standards are more adversely affected by the alternative possibilities and by any other alternative which the Commission could devise to remedy the defects of the present proposal. In such *207event, I would require that the Commission detail the reasons it has chosen to readopt the present plan for our independent evaluation.

E. Fremont County House District

The principal area of Fremont County has been included in house district 61 with Lake, Park, Teller, Chaffee, and Custer Counties and part of Gunnison County. A small segment, containing Canon City, Fremont County’s principal population center and county seat, has been included in district 44 with western Pueblo County, including part of the city of Pueblo. The objectors illustrate that Fremont County could be left whole and combined with Custer County and the northwestern part of Pueblo County to make up district 44. District 61 could then be made up of Park, Teller, Lake, Chaffee, and a larger part of Gunnison County than now included, all while maintaining populations within the required standards. The Commission does not respond specifically to this proposal. Its argument reflects an impermissible preference for maintenance of perceived communities of interest over the constitutionally preferred value of maintaining counties whole. Because of the ripple effect, it is again unclear whether the objectors’ plan is indeed workable. Whether it is the best alternative is not for us to determine in the first instance. It indicates, however, that splitting Fremont County between two house districts was unnecessary, and so constitutionally impermissible. I would disapprove this portion of the reapportionment plan.5

V.

The majority notes, and properly so, that our review of the reapportionment plan under Colo.Const. Art. V, § 48 is not limited to districts which are the subjects of specific objections. My examination of the plan, however, reflects that the Commission had an awareness of the governing criteria and adopted district boundaries by application of those criteria. No departure from the constitutional requirements is apparent from the face of the plan as it relates to those districts which were not the subject of specific challenges, although it appears that in certain instances some constitutional ideals were forced to yield in favor of adherence to standards of greater constitutional significance. (E.g., the Commission split Elbert County between house districts 40 and 64 to maintain substantial equality of district populations.) For present purposes, I accept the majority’s conclusion that the uncontested districts were properly constituted.

VI.

Finally, I am aware that some suggested means of obtaining closer adherence to constitutional districting standards, as set forth in this opinion, may be inconsistent with others. Were my views to prevail, I would require no more than that, when confronted with conflicting choices in revising and modifying the plan, the Commission adopt the alternatives most faithful to constitutional standards, guided by the reasons expressed for disapproval of features of the plan as originally submitted, and that it explain the bases of its choices.

For the reasons stated, I would reject certain features of the reapportionment plan, as more particularly described above, and return the plan to the Commission for revision, modification, and resubmission to this Court as required by Colo.Const. Art. V, § 48(1)(e).

QUINN, J., joins in this concurring and dissenting opinion.

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COLORADO REAPPORTIONMENT COMMISSION PLAN B

. The paramount criterion is substantial equality of population among the senate districts and among the house districts. Colo.Const. Art. V, § 46. Subordinated only to this requirement is the proscription contained in Colo.Const. Art. V, § 47(2) against the division of counties and cities among districts. Next in order of importance are the standards of compactness and minimum linear boundary distance found in Colo.Const. Art. V, § 47(1). The least weighty of the constitutional requirements is the prescription for preservation of communities of interest. Colo.Const. Art. V, § 47(3). By its terms, this requirement is subordinated to the requirements of section 46 and the other requirements of section 47.

. The majority suggests that the division of Otero County is constitutionally permissible because it is necessary to achieve districts of equal population, a requirement that takes pre*202cedence over the proscription against splitting of counties, see n.l, supra. However, I view this reasoning as question begging. If the choice is limited to achieving equal population districts or the division of Otero County, then Otero County must be divided. The choice is not, however, so limited. As the alternatives proposed by the objectors demonstrate, it is possible to achieve both equal population districts and preservation of the territorial integrity of Otero County. Consequently, this is a situation where the Commission could have complied with multiple reapportionment requirements but did not. Where a constitutionally superior alternative exists, the Commission’s proposal cannot be insulated from review simply by invoking the paramount criterion of equal population districts. If that were so, any reapportionment plan would be proper so long as it guaranteed equal population districts, and the additional criteria of Colo.Const. Art. V, § 47 would be rendered a nullity.

. The majority states, “Each detail of the reapportionment plan which we might disapprove would require the Commission to make changes which have a ‘ripple effect,’ necessitating numerous other changes in the reapportionment scheme.” As the question of Grand Junction demonstrates, this is not the case. Moreover, while some “ripple effect” is inevitable because of the interdependent nature of district boundaries, that difficulty cannot by itself insulate the plan from review. It is a relevant but not necessarily controlling consideration. I am aware that reapportionment is a complex and interdependent process, and I believe that, as the majority opinion states, the Commission has on the whole performed admirably. However, our task is not to assess the overall performance of the Commission, but its compliance with the specific constitutional mandates of Colo.Const. Art. V, §§ 46 and 47. In response to the objection to division of Grand Junction, the majority states that the challenge does not “[convince] us that the Commission failed to adhere to constitutional standards in the exercise of its discretion.” It is not a question of discretion, and it is clear that, in the case of Grand Junction, the Commission did not adhere to constitutional standards.

. The majority opinion disposes of the division of the City of Boulder on the same basis that it rejects the challenge to the division of Grand Junction. My criticism of that rationale is equally applicable here. See n.3, supra.

. The majority states that Fremont County was divided to preserve a community of interest. This is an impermissible inversion of the hierarchy of constitutional requirements which the majority itself articulates. While the division of Fremont County might ultimately prove necessary to secure districts of equal population, that division cannot constitutionally be justified simply to maintain a perceived community of interest. See n.1, supra.