Redistricting is ugly for sure, but a look back at the Midnight Gerrymander reveals a real donnybrook

(Image: Flickr/John Dalkin)

Redistricting happens every 10 years. It’s the law. It’s never pretty and it’s seldom fair, but it always gets done. Last time, it took until 2007 before the U.S. Supreme Court finally said enough is enough.

Will Colorado go down that road again this year? No one knows. Democrats and Republicans will either compromise or they can carry their briefcases from the Capitol to the Court House. It is up to them.

“The congressional redistricting fight won’t end when Gov. Bill Owens signs the bill that the House will presumably send him today. A court date awaits,” so begins a Rocky Mountain News article from May 7, 2003.

Things change, and yet they don’t. This time around, if Democrats and Republicans in the Legislature can actually compromise and pass a redistricting bill through both houses, the governor would probably sign it and that would probably be the end of it.

The odds of that happening are hard to calculate though. Some observers think redistricting will probably go back to the courts. Others think the legislature will get the job done, either now or in a special session.

On the one hand, you have Republicans in the House committed to a redistricting plan that would keep most district lines close to where they are now but would also tilt the deck ever so slightly to benefit Republicans and create several safer seats. Democrats on the other hand, say they are committed to competitive districts but at the price of moving lines more substantially.

“I would like to see the Legislature do it,” former legislator Ken Gordon told the Colorado Independent. Gordon is now a law professor.

“First of all, it’s their job. If they don’t do it, they look incompetent and political. On a good day, legislators have about a twenty percent approval rating. I’d like to see them rise above that and do their jobs.”

Gordon said he wants to see competitive districts, “where elections actually matter. Give people a reason to think their votes count.”

He said when you have non-competitive districts, then general elections no longer matter and only the primaries matter. “In primaries like that, it is people who push into the fringes who tend to win. Then you end up electing people who don’t just disagree with the other side, you elect people who think the other side is evil. When that happens it becomes hard to legislate.

“When you have competitive districts, then everyone is heard because elected representatives know they need to represent everyone in order to be re-elected.”

Finally, Gordon warned that legislators working on redistricting today need to listen to their constituents but should not give undue influence to elected members of congress or political parties.

“The people want competitive districts but political parties and sitting congress people have a conflict of interest. They want an advantage for themselves, but that is not what is in the interest of the people,” Gordon said.

From another May 7, 2003, Rocky article:

The debate was so rancorous that lawmakers met in face-to-face shouting matches, an upset staffer wept during a hearing and Democrats were barred from speaking.

The GOP is resolute in redrawing the district boundary maps in favor of Republicans – the first redrawing of congressional lines in mid-decade in 40 years.

The current congressional redistricting map was drawn by Denver District Court Judge John Coughlin last year after a Republican-controlled House and a Democrat-controlled Senate could not reach a compromise.

It’s possible that things have not gotten so out of hand yet this year, but the parallels are telling. There has already been plenty of name-calling, plenty of partisan accusations that each side cares more about creating advantage than about doing the right thing for the voters of Colorado.

The Legislature is charged with redistricting every ten years after the national census. Every decade, some states lose congressional seats and some states gain seats. Colorado gained a seat 10 years ago, but this time held steady at seven. On its face, then, redistricting this year is not quite as important politically as it was a decade ago. Still, some of the existing districts grew faster than others in the last 10 years and so adjustments to the lines need to be made to give each district roughly the same number of voters.

As always, both parties see the chance to gain an advantage. As always, both parties cloak their advantage seeking in the language of fairness, competitiveness and keeping communities of interest together.

“The problem is… you can very much effect future elections by how you draw the lines. If one party can control the process, they can really make a difference,” Colorado College political science professor Bob Loevy told the Colorado Independent.

He said both parties want to create one or two districts that the other party can win easily with something like 70-30 or 80-20 margins and then give themselves smaller majorities in the rest of the districts.

“You want your opponent’s districts to have 80 percent majorities, so Republicans want to cram as many Democrats as possible into one or two districts and then give themselves 55-45 or 60-40 margins in the rest of the districts. The Democrats want the opposite, naturally.

“It is very much a high-stakes game,” he said. “That’s why the gunfire.”

Loevy said he thought Judge Coughlin did a great job in creating the maps last time and thinks letting the judiciary create the maps is an ideal solution to the problem of partisan gerrymandering.

Ten years ago, when the Legislature couldn’t agree on a set of maps, both sides were told to submit their best, fairest map to the judge. According to Loevy, who sat in on the hearings then, the Democrats submitted the better, fairer maps and theirs were largely adopted by the judge.

“I thought the voters were well-served by Coughlin. He did as good a job as could be done. I think we should institutionalize that. Let each side submit their best map to the Chief Justice and let the courts decide.

“The fairness of that map was borne out by the 2010 election, where Republicans gained two seats in Colorado. That’s how swing districts are supposed to work. When the mood swings from one party to another, swing districts change hands,” Loevy said.

This year, he said, it looks like the Democrats are pushing for an advantage a little harder than the Republicans. “And that makes sense. Republicans now have four of seven seats, so they like the status quo. They are content to make adjustments on the edges, whereas it looks like the Democrats would like to gain a little edge in the 3rd district.”

He said he thinks that ultimately the Legislature will get the job done this year, avoiding another court case. He says there just isn’t that much to be worked out this time.

If legislators know their history, if they remember what happened last time, it might give them pause as they consider their options this time.

It wasn’t just that legislators failed to do their jobs after the last census. It was that after the courts stepped in, Republicans, once they got control of both houses, were unwilling to leave well enough alone and engineered what has come to be known as the Midnight Gerrymander.

It happened at the end of the 2003 session, in the middle of a night that some Democrats still remember as one of the worst of their lives.

“It was one of the worst days of my life,” recalls Matthew Moseley, who was an aide to Senate Democrats at the time. He is now putting the finishing touches on a book, “The Midnight Gerrymander”, due out soon. “It was one of the defining moments of my life,” he adds.

“It was pretty awful,” agreed Joan Fitz-Gerald who was a Democrat in the Legislature at the time. “I’ve never felt so vulnerable,” she said about the night that a Republican majority suspended the rules and pushed new maps through in the middle of the night.

She says Colorado was one of a handful of states that Republicans targeted nationally for the creation of GOP-friendly seats. “They thought if they could change just a few seats nationally they could create a permanent majority.”

She and Moseley both say Bush strategist Karl Rove was on the phone with Republican lawmakers through the night, though some of them deny it to this day.

From a Rocky Mountain News editorial of May 8, 2003:

The history of this sorry episode is the following: The 2001 General Assembly failed in its constitutional duty to redraw congressional districts after the 2000 Census gave Colorado a seventh seat. Legislators’ partisan inability to agree on a map meant that Denver District Court Judge John Coughlin picked one so last November’s election could proceed. The one he picked, though largely drawn by Democrats, was a pretty good one. It established three “safe” Republican districts, two in which Democrats are likely to prevail, and a couple that are competitive – based upon voter registrations. That’s about as much competition as can be expected in a state in which one party has a wide registration edge.

Those who see merit in competitive districts, as we do, should oppose any redrawing of the boundaries.

GOP lawmakers see matters differently, since redrawing boundaries could produce five safe Republican seats rather than three. Hence the drama at the Capitol (still under way as we wrote this): With this year’s General Assembly no longer paralyzed by split party control, Republicans decided to draw the congressional map after all.

From a Rocky Mountain News article published the same day:

“It was all a charade,” said (Joan) Fitz-Gerald, who complained on the final day that it was a plot engineered, in part, by the White House and Karl Rove, President Bush’s top behind-the-scenes man. “And we violated our own state constitution in the process.”

Not so, argued (state) Sen. Doug Lamborn, R-Colorado Springs, whose map caused the furor. He said the legislature was only doing its duty – replacing a court-ordered map crafted when a Senate controlled by Democrats and a House controlled by Republicans couldn’t reach accord in the 2002 session.

“What we’re doing right now is buying us a big expensive lawsuit,” said Senate Assistant Minority Leader Ken Gordon, D-Denver, as the bill was debated on the floor.

He was right, of course. No sooner had Republicans pushed new maps through than Gov. Bill Owens signed the legislation to change the court-ordered maps to something more palatable to Republicans. This over the objections of state Attorney General Ken Salazar who let the governor and the Legislature know that he would not defend their actions in court.

Democrats immediately filed suit. Republicans authorized the state to hire private counsel to defend the Republican maps. The case went all the way to The United States Supreme Court, where hundreds of thousands of dollars in legal fees later, the original court drawn maps were upheld and the Republican gerrymander was tossed out.

From the Rocky Mountain News, May 10, 2003:

Ninety minutes after the governor signed into law a contentious new congressional redistricting plan Friday, Democrats retaliated by asking the courts to declare it unconstitutional.

In a lawsuit filed at 4:35 p.m. in Denver District Court, Democrats allege that the plan, which strengthens Republican voting margins in at least two of seven state districts, violates the Colorado Constitution, the Colorado Open Meetings Law, First Amendment guarantees and “numerous Colorado legislative rules and regulations.”

We know how poorly the gerrymander and subsequent court battle turned out for Republicans. Virtually every major newspaper in the state editorialized against the GOP power grab.

All of this was going on at a time when the state budget was in roughly the same shape it is in today–charged with making up huge shortfalls every year.

Here, the Rocky Mountain News of December 2, 2003 reports on the court case:

The Colorado Supreme Court handed Democrats a major political victory with potential national overtones Monday by striking down a Republican-drawn congressional map.

GOP lawmakers violated the state constitution in May when they replaced a map approved last year by the courts with one of their own, the state’s highest court ruled in a 5-2 decision.

“The state constitution limits redistricting to once per census, and nothing in state or federal law negates this limitation,” said Chief Justice Mary Mullarkey in writing the majority opinion.

“Having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census.”

The Rocky reported that outside legal expenses to that point were about $600,000. Additionally, of course, were expenses incurred by the Attorney General’s office and numerous other state agencies.

But, they weren’t done. Driven by what they saw as the rightness of their cause, Colorado Republicans pressed on all the way to the United States Supreme Court, which ruled unanimously for the original court drawn districts and against the Republican re-do.

That outcome was preordained by decades of legal precedent, going back to similar cases in the 1930s and on into the 1990s. For anyone to think this would be the case that got a different result is mind boggling, especially given the money invested.

As the Denver Post’s Bob Ewegen wrote in 2006, “They can’t be thinking.”

Well, according to Senate President at the time John Andrews, they were thinking plenty. In a column he published in the Rocky on June 9, 2003, he wrote this:

What kind of Congress do you want? That’s the question behind all the noise in recent weeks about boundary lines between Colorado’s seven congressional districts.

I want the kind of Congress that keeps our taxes down, respects our values as Westerners, and stands up for America against our enemies. I don’t want a Congress that agrees with the New York liberals on bigger government and with the Hollywood left on blaming America.

Most Coloradans feel the same. People in our state have generally liked Congress’ decision-making a lot better in the past eight years, with the heartland Republicans in charge, than they did in the previous 40 years with the tax-and-spend Democrats in charge. It’s been a welcome change.

There are only two kinds of Congress to choose from – one where Scott McInnis and other Republicans hold the majority, or one where Diana DeGette and other Democrats do. Nonpartisanship is not an option. And that’s why SB 352 is the right map for Colorado’s congressional delegation in this decade.

As is usually the case with redistricting, it was not then about fair lines or communities of interest. It was about engineering the lines to give one side an advantage, to allow one side to decide what kind of congress we’ll have.

While there are obvious lessons to be drawn from the last go-around, it is hard to tell at this point how things will shake out this year.

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