A group says it wants to end partisan redistricting in Colorado. Would its plan really do that?
The proposal isn’t so new and is facing old foes.
A coalition that launched a revamped plan it says would take partisanship out of how state and federal political districts are drawn is facing suspicions about its motives in a state with a bitter history that has left its district maps stained with bad blood.
At issue is a group called Fair Districts Colorado and its effort to persuade voters through a package of proposed ballot measures in 2018 to change the way electoral maps are drawn. It’s happening in this swingy state where voters are nearly evenly balanced among Democrats, Republicans and those who are unaffiliated with a party. And it’s happening at a time when political frustration with gerrymandering— a term for drawing political boundaries for partisan gain— is sizzling on the national stage.
The U.S. Supreme Court will hear a case out of Wisconsin next month about whether partisan gerrymandering violates the Constitution.
In Colorado, this redistricting plan isn’t new— but readers could be forgiven for thinking so.
Initial write-ups on the proposal in mainstream newspapers and the alternative press did not point out that the effort isn’t new. The plan is similar to one put forward in 2015 and 2016 by some of the same people involved in this latest effort.
Some of those behind the campaign are political operatives who have been involved in redistricting for years. Some helped lead a similar— and controversial— campaign last year that fell apart when the Colorado Supreme Court blocked it on a technicality. Before that the effort faced harsh accusations that if it came to pass it would undercut the state’s large Latino vote. Critics in Colorado’s minority communities also said they didn’t have enough input into the plan.
Knocked down last year, the group — then called End Gerrymandering Now — vowed it would try again. It included former GOP House Speaker Frank McNulty and former GOP Senate Minority Leader Josh Penry, as well as former Democratic Secretary of State Bernie Buescher, PR pro Rich Coolidge, and ex-lawmaker Kathleen Curry, a Democrat who later became unaffiliated.
All of them are working on this new proposal in a campaign they are now calling Fair Districts Colorado. They launched a new website last week.
This time they say they tried to do more outreach to minority groups, and they beefed up language in the measures to add the words “racial” and “language group” to determine communities of interest, a criteria in redistricting that seeks to keep people who have similar interests together within voting lines.The redistricting effort also counts as a partner the League of Women Voters of Colorado, a group that carries plenty of neutral street cred— a kind of Red Cross on the battlefield of the partisan voting wars.
That hasn’t swayed critics.
After reading the fine print in the ballot measures, Denver lawyer Mark Grueskin, who has represented Democrats in redistricting fights, says he sees this latest effort as a way to actually embrace gerrymandering while saying it’s doing something else. It creates a system, he says, that is driven by political insiders and executed behind closed doors, making competitiveness a mere whisper in the process.
“The proponents are lucky that the initiatives aren’t subject to the jurisdiction of the Federal Trade Commission because I think there’s some misleading advertising that’s going on here about what this is, what it does, and how it’s going to hurt the goal of fair and effective representation in Colorado,” he says.
These are the first shots in what could be yet another bruising battle over how Colorado ensures its voters have fair representation.
So what is this plan anyway?
Fair Districts Colorado says its ballot measures, if passed, would dilute the influence of partisan politics when Colorado redraws its congressional and state legislative districts every 10 years after each U.S. Census. The next redistricting is coming up a year after the next Census in 2020.
Under Colorado’s current system, “voters don’t choose their politicians,” Fair Districts says on its website, “politicians choose their voters.” And that’s true in that elected officials currently appoint the majority of commissioners who vote on the maps that divide the state’s voters into federal and state districts.
Currently, Colorado’s seven congressional districts are drawn by the state legislature. The 100 puzzle pieces of Colorado’s state House and Senate districts are approved by an 11-member panel called the Colorado Reapportionment Commission, which is made up of appointees chosen by the governor, legislative leaders, and the chief justice of the state Supreme Court. Legislative staffers draw up maps, and they can and do get input from political parties and operatives with sophisticated software that tells them where voters of certain political persuasions live. Because the commission has an odd number of members, whichever party controls more votes on it holds sway over which maps they ultimately choose. A Democratic governor, a Democratic House Speaker and a Democratic Senate President, for instance, likely would mean more Democratic commissioners.
Fair Districts Colorado wants to increase the board to 12 members with the requirement that four not be affiliated with a major political party, meaning Democrat or Republican. The goal is to have four be unaffiliated, but the ballot measure language allows them also to be members of minor parties like Libertarians, Greens, or members of the Unity or American Constitution parties. Fair Districts says it wants more competitive seats and believes this is a way to get there.
One of the proposed measures, Initiative #48, would change Colorado’s Constitution to create that 12-member commission. The commissioners must be spread across the state and can’t be lawmakers or candidates. And instead of the governor and chief justice choosing its members, the state’s two largest political parties would choose eight of the 12 members.
The four non-major-party members would be recommended by a panel of retired judges of differing political parties and appointed by the Secretary of State. The judges would have at least one public meeting before determining 20 potential members who the party-affiliated commissioners would then whittle down to four in a reverse-lottery process, kind of like picking a jury at a trial or being voted off the island on a reality TV show.
The measure would require that districts to be compact, preserve county boundaries, and ensure communities of interest, “including racial, ethnic, language group, cultural, economic, trade area, geographic, and demographic factors,” are preserved within a single district wherever possible. (Racial and language group are new terms that don’t already exist in current law, says attorney Bill Hobbs an election law attorney with the Denver-based Ireland Stapleton firm who worked on the ballot measure.) Once other requirements are met, and “to the extent possible,” the measure states, the commission “shall maximize the number of politically competitive legislative districts.”
Under the ballot measure, maps would still be drawn by nonpartisan staff at Legislative Council— lawyers who work at the Capitol in Denver— but those staff members wouldn’t be allowed to talk to anyone but each other about how the maps should be drawn unless authorized by the commission to speak with experts. Staffers would have to tell the commission if someone tries to influence them. They could take recommendations from commissioners or outside sources on map drawing only at public meetings, unless otherwise authorized by the commission.
Initiative #49 is similar except it wouldn’t change the state Constitution, it would change state law.
Initiative #50 deals with how congressional maps are drawn and would change state law to create a 12-member commission of similar makeup to the legislative one.
All maps would be drawn by staff at first— largely in a vacuum— and then would have to be made public and published online at least 24 hours before being considered by commissioners in a public meeting.
In the end, the State Supreme Court would get final review of all the maps.
And what’s wrong with that?
That depends on whom you ask. And how closely you look at the details.
Beyond concerns over lack of input from minority communities, critics are attacking the plan on other fronts— from standpoints of transparency to substance and language to charges of mischaracterization, and to just plain mistrust about who is behind it.
Grueskin, the election lawyer, sees a disconnect in what Fair Districts Colorado is saying publicly and what’s in the proposed ballot language of the ballot measures.
For instance, two thirds of the new 12-member commission would be chosen by the state’s two political parties instead of by the governor, chief justice and legislative leaders as is done now. In other words, he says it would put more power into the hands of political insiders who are accountable to partisan politics rather than voters.
He also points to provisions that say legislative staff members who draw up the maps can’t talk to commissioners about them until it’s time for the commissioners to consider the maps. That would be different than how it works now when commissioners and staff can communicate and get input from outside sources throughout the process, which is what has led to charges of influence by partisan professional mapmakers.
“I can’t imagine why you’d want commissioners to be unknowledgeable about the maps that staff is going to have them vote on,” Grueskin says.
He also takes issue with how the pitchmen for Fair Districts Colorado talk so much about competitiveness— which is not defined in the proposed ballot measure language— as a tenet of their reforms. “Let’s be honest, under their proposed amendments competitiveness is a sham,” Grueskin says. “Competitiveness is only considered once every other consideration that’s required by the initiatives has been satisfied … the very last thing to be addressed as a priority.” A supermajority— eight out of 12— commissioners can determine what competitiveness means, but they don’t have to, according to the proposal.
Meanwhile, some progressives worry that if Fair Districts Colorado passes its measures and gets its way the new proposed plan would make it easier to elect more Republicans in Colorado. The initiatives aim to preserve political boundaries like counties— which is currently the law of the land— instead of allowing mapmakers to break them up.
Preserving counties in Colorado, where large rural counties are primarily Republican, can mean more Republican maps, says Ellen Dumm, a consultant who advises progressive causes in Colorado and is rallying a coalition to oppose the ballot measures. Taking county-line preservation into more account than communities of interest, she believes, would mean more GOP-looking maps in the future.
Also, Dumm says she just doesn’t trust some of the GOP political operatives involved.
Dumm thinks Republicans might feel they got a raw deal in the last round of redistricting because Democrats were in control and this could be payback. “It sounds like sour grapes to me,” Dumm says of the plan. “But with all the nice dressing.”
So far, two in-state organizations that take an interest in redistricting have not signed on.
Elizabeth Steele, the elections director of Colorado Common Cause, says her group is “reviewing” Fair Districts Colorado’s proposals, but she wouldn’t say much more beyond that. Elena Nuñez, director of Colorado Common Cause, says her group offered feedback. The group is likely to take a position on the measures at some point, but hasn’t yet.
“I think [with] reforms that have a major impact on how the people of Colorado are represented it is important to ensure that there are a broad and diverse set of voices at the table,” Nuñez says.
The ACLU of Colorado, which advocates for independent commissions and opposes gerrymandering, says it didn’t have input on the Fair Districts plan. Denise Maes, who directs public policy for the ACLU here, says she worries about some aspects. “What you have is staff folks who are in charge of developing the maps and they’re really not accountable to the public.”
Rosemary Rodriguez, a Democrat who served as the Denver county clerk and recorder and chaired the Colorado Reapportionment Commission in 2000, says a representative of Fair Districts approached her about its plans, but she isn’t on board. Her primary hesitation is that the U.S. Supreme Court will hear a case this year on partisan redistricting.
“I feel like if we make really, really major changes to the process without that knowledge, knowing that they’re going to rule might be a mistake,” she says. “I would encourage everybody to wait until we can really dig into whatever their ruling is.”
Another sticking point for Rodriguez is that 2018 will be the first time unaffiliated voters can participate in party primaries and she would like to know to what extent they do that before making another major substantive change to the way Colorado decides how districts are drawn.
“I know it’s partisan, I hate gerrymandering— everyone does— but I’m not sure we should jump on the first train to fix things,” Rodriguez says.
Is Colorado actually gerrymandered?
Maybe not in the way you think.
At the congressional level Colorado isn’t all puzzle-pieced-out into those sawtooth, snake-looking districts that you see in, say, North Carolina. The seven districts are pretty compact. Still, only one is truly competitive, say backers of Fair Districts Colorado.
The 65 state House seats are where gerrymandering in Colorado has typically occurred, according to some Republicans who sat on the latest redistricting commission in 2011.
Colorado’s legislature has swung back and forth between the parties and is currently split with Democrats controlling the House by a handful of seats and Republicans controlling the Senate by one. Still, out of 65 seats in the Colorado House of Representatives, only a few are really competitive and only seven out of 35 are competitive in the state Senate, argued former Democratic Sen. Ron Tupa when announcing the launch of Fair Districts Colorado.
“It’s clear gerrymandered districts rig elections,” he said.
Mario Nicolais, an attorney who has practiced election law and who sat on the last Colorado Reapportionment Commission as a Republican, says a big mistake, though, when thinking about how political lines are drawn, is to focus on individual districts instead of looking at the state or legislative chambers as a whole. (Nicolais became an unaffiliated voter this year.)
And at the federal level, while you probably couldn’t make Colorado’s 5th District —which encompasses the heavily GOP Colorado Springs area— competitive for a Democrat, you could move around the lines of the state’s other six districts to more accurately reflect the state’s voters.
Colorado also has a messy history with redistricting.
Close watchers remember the “midnight gerrymander” of 2003 when the legislature, then run by Republicans, drew maps that the State Supreme Court later threw out. As Democrats made more inroads in the legislature it was Republicans who called foul after the latest redistricting following the U.S. Census in 2010.
Both sides have tried to gerrymander Colorado, Nicolais says, but only Democrats have been successful in the past decade, especially for state House seats.
In 1980, 2000 and 2010, the district maps landed in court and a judge ultimately made the final decision. After the latest round of redistricting, in 2011, a judge ruled in favor of a congressional map Democrats drew, which infuriated then-Republican Party Chairman Ryan Call who said the lines split counties to benefit Democrats.
That same year, a then-GOP lawmaker named B.J. Nikkel from the Loveland area accused Democrats of re-drawing her House district in a way that forced her to run against a sitting Republican colleague. At the time, she called such map-drawing, “the gold standard of gerrymandering.”
Retired Colorado College political scientist Bob Loevy is a Republican who wrote a book about his time on the 2011 Colorado Reapportionment Commission where he helped draw the state’s legislative districts. He says Colorado is “completely” gerrymandered, particularly in the House.
Both parties have been to blame since the 1970s, he says.
Loevy supports the Fair Districts Colorado plan because based on his experience, he says it would lead to more swing seats with more unaffiliated members choosing maps.
What’s the political context?
Right out of the gate, some who opposed last year’s movement started rattling the sabers. The week Fair Districts launched, progressive activists were talking about cranking up a pushback campaign.
“My biggest concern is that it’s just a repackaging and polishing of a turd,” says Thornton Democratic Rep. Joe Salazar who is running for attorney general and led the opposition to last year’s movement to change the way Colorado draws political maps.
To understand why, you have to understand what happened last year when minority groups and leaders said they did not have enough input into the effort. The group leading redistricting last time was called End Gerrymandering Now. Like this time around, the plan would have established a 12-member map-making commission that includes four unaffiliated voters, and would require nonpartisan legislative staff to draw political boundaries, not political operatives or partisan sources.
But critics pointed to red flags they saw in the ballot language.
For instance, recognizing “communities of interest,” including “ethnic, cultural, economic trade area, geographic and demographic factors” came last in a list of priorities. That led opponents like former Denver Mayor Wellington Webb to make an attention-getting charge that the plan was “clearly an effort to destroy the Latino vote in Colorado.”
A narrative gelled: What if the supposedly bipartisan redistricting effort in Colorado was actually a nefarious Trojan Horse plot to tint Colorado red?
There was also the money.
Progressive critics suspicious about a right-wing redistricting effort pitched as a bipartisan plan point to who partially funded End Gerrymandering Now. The campaign took $162,000 from a group called Citizens for a Sound Government, a Denver-based dark money group that gets involved in GOP elections, according to filings with the secretary of state. A group called Colorado Citizens Protecting Our Constitution, which has donated to causes opposing Democrats in recall elections over gun rights and against a minimum wage hike, gave $50,000. A group called Colorado PRFRS, run by Cameron Lynch, a man who helped Republicans draw redistricting maps in in the past, gave $17,500.
Kathleen Curry, who is leading Fair Districts, says there isn’t a paper trail to follow the money for this latest effort yet, and hopes the campaign will raise funds through grassroots organizing.
Though End Gerrymandering Now carried support from three Democrats including ex-House Speaker Mark Ferrandino and political consultant James Mejia who is a former director of the Denver Hispanic Chamber of Commerce, Democratic leaders said the bipartisanship was a smokescreen.
Democrats urged other Democrats not to support the plan. Then-Democratic Party chairman Rick Palacio said he didn’t trust the process because his party hadn’t had input. “We don’t feel the voice of the minority community has been heard,” said Denver Democratic Rep. Angela Williams who is black. Representatives from the NAACP spoke out.
By January 2016, Ferrandino was saying if there couldn’t be a compromise to satisfy enough people he might back out. Those involved tweaked the language, but some Latino lawmakers called it too little too late and said the effort was doomed to fail.
When summer rolled around it didn’t really matter. The Colorado Supreme Court tossed the proposal because by state law a ballot measure can’t contain more than one subject, and the High Court ruled the redistricting measure did.
For his part, Mejia is not involved in the latest effort, saying he was burned last time around.
He initially got involved, he told The Colorado Independent, because he had hope in the idea of bipartisan cooperation to end gerrymandering. Instead, he says, he found an unwillingness from people in both major political parties to listen to those in opposing parties with whom they did not like.
“For me, this process exemplifies what is wrong with the two party system,” Mejia says.
Now, like last time, this latest effort faces similar charges, and more.
Former Democratic Sen. Jessie Ulibarri, a vocal opponent of last year’s effort, says he worries communities of color were again not engaged enough in the process of creating the new redistricting proposals.
“It’s 2017, and in no way shape or form is it oversight to exclude more than 20 percent of the state population that’s Latino, more than 10 percent of the state population which is African-American, more than five percent of the state population which is Asian,” he says.
On its website, Fair Districts Colorado initially listed more than two dozen supporters. None were black, but four were Latino, including ex-Democratic Lt. Gov. Joe Garcia, GOP Rep. Clarice Navarro-Ratzlaff, former lawmaker Larry Trujillo, and former Sen. Abel Tapia. (UPDATE, Oct. 5: Since this story was published, Garcia and Tapia had their names removed as supporters.)
Over the past week, Salazar, the state lawmaker, says he has been reaching out to some listed supporters to make sure they know the details of the plan and who is behind it.
Because of the stinging charges last time, the group says it made a good-faith effort to engage minority leaders and communities on the new push. Its members reached out to at least 180 community leaders and organizations in Colorado, including 25 from minority communities, its representatives say, but the group just didn’t get much feedback.
Toni Larson of the League of Women Voters of Colorado helped spearhead outreach for Fair Districts Colorado, she says, and she’s disappointed by the early criticism.
Her group over the summer sent the redistricting proposal to all 100 lawmakers— twice, she says, once in an email and again in hard copy. She says she personally sent one to at least one black business group.
“We tried really hard,” Larson says about outreach. “We went to the minority communities and we asked them for comments … they could have responded.”
Larson acknowledges the plan won’t be perfect and it will have political elements by nature.
“I’m surprised that they didn’t respond if they’re going to be that adamant,” she says.
How is Fair Districts Colorado responding to early criticism?
Well, for one, its backers expected it.
On a Sept. 6 conference call with reporters about the new plan, former GOP House Speaker Frank McNulty said he anticipated some “partisans on both sides” to oppose their effort, or “those who have a vested interest in the current process where partisans get to control” how legislative districts are drawn.
“When you talk about putting transparency measures in place, when you talk about competitiveness, when you talk about opening the process, the public benefits,” McNulty said. “But those who currently have power lose it— and those are the ones who will fight most fiercely against this.”
In the days after his group’s launch, McNulty found himself defending the plan from charges that involve race. The debate spilled out on social media almost immediately. Ulibarri, the former Democratic senator and a progressive voice in Colorado, aired some of his concerns about lack of input from minority communities in the project on Facebook, and then it moved to Twitter.
Which ones signed on? Where is the NAACP? Mi Familia Vota? Common Cause? Any former progressive electeds of color? I'll wait…
— Jessie Ulibarri (@jessie4CO) September 7, 2017
— Frank McNulty (@SpkrMcNulty) September 7, 2017
Ulibarri works for the progressive activist group Wellstone, and progressives, just like those on the far right, will be the “ones who lose” if Fair Districts Colorado gets its way, McNulty says.
That the effort doesn’t yet carry public support on its webpage from a single black person in Colorado is “not for lack of outreach,” he says. “It’s not for lack of invitation to participate.”
Curry, the former Democratic lawmaker turned independent whose name is on the proposed ballot measures as a designated representative, is pushing back against Grueskin’s critiques. She says having political parties make appointments rather than elected officials is the best way save for perhaps a lottery-type system. “We assumed that the parties would want to do their own appointments,” she says.
As for legislative staffers drawing the maps without input from commissioners, she says the idea is to make sure individual commissioners don’t put pressure on the map makers outside of a public meeting. “The thought was that any direction to the staff had to be done in public,” she says.
Responding to why competitiveness isn’t defined in the ballot language, Curry says a sticking point is that litigation is pending before the U.S. Supreme Court in the case out of Wisconsin. Leaving competitiveness undefined would allow commissioners to react to however the High Court rules.
Curry understands the criticism and skepticism from some on the left about the Republican operatives and previous funding for the redistricting efforts she has led for the past three years. Her interest, she says, has always been to involve more unaffiliated voters and commissioners in redistricting, and she has received support from those willing to help, even if they are Republicans getting financial help from conservative organizations. She says she has not seen such willingness from the other side to involve unaffiliated voters in the process.
She says there are several redistricting reform efforts around the country right now. In Michigan, for instance, a group called Voters not Politicians proposed a ballot measure it says would create a more independent redistricting commission. Progressives and union groups in Missouri are working on a ballot measure they say would make drawing political lines less partisan. A group called Fair Districts = Fair Elections launched in Ohio and Fair Districts PA is on the ground in Pennsylvania.
“Some of them are being led by Republicans and some are being led by Democrats,” Curry says. “And because the way the pendulum swings back and forth … I think it’s really shortsighted for either party to dig their heels in and say ‘I don’t want to move forward on this’ because I don’t want to relinquish anything.’”
Photo by Kevin Dooley for Creative Commons on Flickr
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