Jerry Kopel

KOPEL: REAPPORTIONMENT BY INEXPERIENCED LAWMAKERS?

Redistricting: What legislators don’t know about the past can hurt Colorado

Reapportionment of the Legislature? Too early to discuss? Not really.
 
The 65-member House and the 35-member Senate will have new boundary lines in 2012, and there won’t be a large experienced group of legislators from 2001 to provide insight in 2011.
 
None of the senators from 2001 will be part of the 2011 senate. Some House members from 2001 might be part of the Senate, but no House members from 2001 will likely be in the lower chamber in 2011.

Thanks to term limits, experienced players will be on the sidelines, voteless unless appointed by the governor or the Supreme Court chief justice. So it is up to the legislators now in office to learn as much as they can about what happened in the past, and benefit from prior success and past failure.
 
In this column and the next two, I will lay out the process, history and possible future.
 
An 11-member reapportionment commission will be appointed in 2011, following the 2010 census. The speaker of the House and the House minority leader, plus the majority and minority leaders of the Senate, or their House and Senate legislative designees, will serve on the commission.
 
That’s two Democrats and two Republicans, regardless of how one-sided the makeup of the Legislature. The appointments must be made by April 15, 2011.
 
The governor has a 10-day window, April 15-25, 2011, to appoint three members, none of whom may come from the Legislature. They can be all Democrats, all Republicans or a mix. Assuming Gov. Ritter is re-elected in 2010, he could assure that the commission contains five Democrats and two Republicans.
 
The Supreme Court chief justice, between April 25 and May 5, 2011, appoints four members, none of whom may be from the Legislature. He or she could appoint three Republicans bringing that total to five and five, and choose someone unaffiliated as the 11th member. That might cool criticism, but there’s nothing to keep the chief justice from giving control to either party. And nothing in the constitution denies the governor and chief justice the right to give majority control of the commission to unaffiliated voters, Libertarians or members of other minor parties.
 
Each congressional district must be represented, and one of the seven members has to reside west of the Continental Divide. No congressional district can have more than four residents on the commission.
 
A preliminary plan should be available by September 2011. Within 45 days of the plan’s publication, a legislative committee or committees will hold public hearings on it.
The reapportionment commission can adopt or refuse changes suggested during these hearings. When the hearings are complete and the plan is adjusted (or not), it will be submitted to the state Supreme Court. The Court can then approve the plan or send it back to the commission for revision, with a date for final action. The process before the Supreme Court is close to what would happen in a regular trial in District Court in providing evidence for or against the plan.
 
Every legislator who “might” be around in 2011 ought to get, keep and reread many times In Re Reapportionment of Colorado General Assembly, 45 P. 3rd 1237 (2002) and 46 P. 3rd 1083 (2002) and review Part 5 of Article 2, Title 2 of the Colorado Revised Statutes.
 
While the court can find “hedge room” and still hold a plan constitutional, Section 46 and 47 of Article Five of the state constitution permits for no more than a 5 percent deviation between the most populous and least populous district in the House and Senate, and “each district shall be as compact in area as possible.”
                                  
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Before the 1982 reapportionment, all decisions were in the hands of the Legislature. That meant the party in control of the House and Senate controlled reapportionment  ¬¬– as the Republicans did in 1963-64.
 
In 1962, Colorado actually amended the constitution to provide for 104 legislators, 39 in the Senate and 65 in the House, for 1,753,947 residents of Colorado in the 1960 census.
 
If based on one person, one vote, that would have been 26,984 per House seat and 44,400 (or 39 senators) per Senate seat.
 
Of course, the increase in senators was part of a plan to use factors other than equality in population for Senate and House districts, such as language in the constitution immunizing from change a state statute which provided numerical disparity by that named statute as to senators. This was a major concession to rural Colorado’s desire for continued power.
 
A statute adopted in 1963 for the 1964 election provided for Senate districts ranging in population from 19,983 in Las Animas County to 73,340 for a Senate seat in El Paso County. House seats ranged from 20,302 for Logan County to 35,018 for a House seat in Pueblo County.
 
The 104-seat Legislature was adopted in every Colorado county and was approved by the U.S. District Court. However, the U.S. Supreme Court threw out the 1962 constitutional amendment. It held a civil right is a civil right no matter how many people vote to disallow it.
 
A complicated process followed, including further federal district court hearings. The 1962 “Amendment 7” was held not severable and all of it, including the increase to 39 senators was “null and void.”
 
Gov. John Love (R) called the Legislature into special session, and a new reapportionment law was adopted July 8, 1964, with 65 in the House and 35 in the Senate. (That is when I first ran and won a House seat representing northeast Denver.)
 
Although districts were still somewhat unequal, the U.S. District Court approved the planned election. The Colorado Supreme Court also allowed the election to proceed, but retained jurisdiction.
 
In 1966 a constitutional amendment was adopted stressing equality in representation. The state Supreme Court then gave up jurisdiction.
 
Next column: The last reapportionment by the Legislature in 1972 and the adoption of the reapportionment commission.
 
Jerry Kopel served 22 years in the Colorado House.