Two groups that were readying for a major battle on your ballot in November over how Colorado draws its political lines have laid down their swords and joined forces in a grand bargain they say will end partisan gerrymandering.
The March 27 announcement of this negotiated pact between a group called Fair Districts Colorado and another called People Not Politicians is a stunning turnabout after six months of saber-rattling, and, at times, accusations of bad faith.
The compromise means the two groups have joined behind two new proposed ballot measures they say could end gerrymandering by changing the state Constitution.
“It’s truly a remarkable story of cooperation and good will,” says Bernie Buescher, a former Democratic Colorado secretary of state and a lawyer who worked on the deal. “Everybody had to put aside their lack of trust based on history and expectations.”
At issue is the way Colorado draws its political boundaries for members of Congress and the legislature, which takes place after each 10-year census. If conservatives, progressives, voting rights groups and minority communities back this effort and work successfully to pass it, Colorado could be seen as yet another test tube for state policy nationwide.
Right now, gerrymandering— the practice of drawing political boundaries for partisan gain—is flaring up on the national stage. The practice can have an institutional effect of diluting voting power. If you’re a Democrat packed into a district drawn in all directions and created to cram in so many Republicans as to keep a seat safe, you might wonder if your vote really counts. If you’re a Republican living in a district that was drawn to make it nearly impossible for a Republican to win, you might feel the same.
That’s why in Michigan, a group called Voters not Politicians proposed a ballot measure it says would create a more independent redistricting commission. And progressives and union groups in Missouri have their own ballot measure they say would make drawing political lines less partisan. In Ohio, a group called Fair Districts = Fair Elections started up, and Fair Districts PA is on the ground in Pennsylvania.
The U.S. Supreme Court is also currently deciding whether partisan gerrymandering violates the Constitution. Pennsylvania’s Supreme Court recently tore up a congressional map there that was drawn to help Republicans. A similar court case out of Maryland is pending where Democrats stand accused of gerrymandering. Meanwhile, Barack Obama, along with his former attorney general Eric Holder, has made redistricting reform his post-presidency cause.
Here in Colorado, four potential measures were on a collision course for this fall’s ballot with campaigns gearing up to fight each other over whose plan would best kill gerrymandering forever in a state with a bitter history on the subject and where each major political party has accused the other of drawing lines to better serve its members.
But after roughly 70 drafts, countless phone calls, and months of give-and-take meetings— many held at the offices of Kent Thiry, the uber-wealthy CEO of the Denver-based kidney dialysis company DaVita— the two groups pulled their competing measures from consideration and got behind two new ones on which they both agree.
The two groups, Fair Districts Colorado, and People Not Politicians, make a strange bedfellows coalition.
On one end of the political spectrum are Frank McNulty, Allen Philp, and Josh Penry who led an unsuccessful redistricting campaign in 2016 that collapsed amid criticism and was blocked by the State Supreme Court on a technicality. Philp, a Fair Districts pitchman, has been described as a “veteran Republican utility player — who among his many callings has been regional political director for the Republican National Committee and for Mitt Romney’s presidential campaign.”
On the other end of this new coalition is Ellen Dumm, a consultant for progressive causes, who wrangled initial opposition to the Fair Districts Plan and counted groups on her side like the ACLU of Colorado, Together We Will Colorado, Colorado People’s Alliance, Servicios De La Raza, COLOR, Mi Familia Vota, NAACP Colorado Montana Wyoming State Area Conference, and One Colorado.
In the middle are unaffiliated voters like Kathleen Curry, a former Democratic lawmaker who became unaffiliated and speaks out for independent voters, and helped spearhead the Fair Districts effort. Then there’s Thiry, who lately has been styling himself as something of a voice for the state’s 1.2 million unaffiliated voters. In 2016 he bankrolled a successful ballot measure to allow unaffiliated voters to participate in party primaries. The new redistricting proposals make sure unaffiliated voters are represented in the process of drawing new district maps.
“This is a victory for compromise and common sense over partisanship and the broken status quo to the benefit of all Coloradans,” Thiry said in a statement. “This was a tough issue with high stakes, but we are proud to have worked through a tough negotiation and built a smart and balanced plan.”
If passed, the measures would change the way political lines are drawn for Colorado’s seven members of Congress and its 100 state lawmakers. After each 10-year Census, a process begins of re-carving up these districts based on population growth. Because of our booming population, Colorado might even get a new congressional seat with the 2020 redistricting.
So, what would these ballot measures actually do? First, it’s a game of commissioner Survivor
The measures marry parts of ballot measures that were earlier proposed by Fair Districts and People Not Politicians.
Currently, the legislature draws congressional maps, not an independent commission. A panel that approves legislative maps in Colorado is made up of 11 members. These people are appointed by the governor, the state Supreme Court chief justice, and legislative leaders. That means members of one party or another can dominate the board, which critics say allows partisanship to become a big part of the process.
Under the new proposed ballot measures that would drastically change. One has to do with Congress, the other has to do with the legislature, but both follow similar criteria.
Under the new proposals, instead of 11 members, a commission for drawing the congressional maps would have 12 people on it and would be made up of four Democrats, four Republicans, and four unaffiliated voters. To approve a map, a supermajority of eight commission members, including two unaffiliated members, would have to agree.
Anyone, with some restrictions, could apply to become a commissioner. Commissioners would be selected by a panel of three retired judges of different political backgrounds (who, in turn, would be selected by the chief justice of the State Supreme Court). The three-judge panel is responsible for screening the applicants and basically deciding who gets kicked off the island in a civic rendition of the reality TV show Survivor. (Anyone who ran for or served in Congress or the Statehouse in the past five years or was paid by a campaign committee in the past three years, could not apply, depending on the commission, nor could someone who has been a lobbyist or a federal, state or local public official within the past three years.)
By the way, the folks who came up with this plan must really think people will want to be on this commission. The judges will start with a pool of 300 applications from members of the Democratic Party, 300 from the Republican Party, and 450 from those who are unaffiliated.
The retired judges would then whittle those down to 50 apiece.
These 150 lucky Coloradans who make the cut must show the judges they have analytical thinking skills, an ability to be impartial and to promote consensus, and have experience as active participants in civic groups and organizations.
From each group of 50, the judges then pick six totally at random. Two must be Democrats, two Republicans, and two unaffiliated. These six must live in different congressional districts.
The remaining six on this panel of 12 come with some input from politicians— but only a little. Colorado’s Senate Majority and Minority Leaders, along with the House’s Majority and Minority Leaders, get to peek at the applicants and choose 10 apiece for four pools of qualified partisan applicants and who provide diversity on the commission. The judges choose one from each pool — two Democrats and two Republicans— to be on the commission.
The judges decide on the final two unaffiliated commissioners from the applicant pool. In the end, the goal is to ensure the commission is as diverse as possible. Judges can also interview applicants before appointing them. At least one commissioner must live west of the continental divide.
Once the commission is chosen, nonpartisan legislative staff would assist it and help draw maps, taking input from anyone. The commission would have to hold at least three public hearings in each congressional district. If someone is being paid to come up with an idea for a map for the commission to review, he or she would have to register as a lobbyist and disclose it.
Commission staff members would not be allowed to talk about potential maps outside of public hearings except with each other.
Commissioners and staff would be subject to Colorado’s open records laws.
Beyond creating this super commission, what else would these measures do?
They would protect minority groups in Colorado in a way that could outlive the Voting Rights Act if the federal law is further chipped away by the courts or Congress by enshrining VRA language in Colorado’s Constitution.
“That is something no state has done,” says lawyer Mark Grueskin who worked on the measure on behalf of People Not Politicians.
The measures also define competitiveness as a district having a reasonable potential for its member of Congress or its legislative representative to flip political parties at least once every 10 years based on past election results, voter registration data, and evidence-based analysis.
Staff for the new independent commission must also come up with a report that explains how they determined competitiveness in a map. “No other state in the country has anything like that,” Grueskin says.
Districts lines would have to preserve communities of interest, political subdivisions, and cities and towns as much as possible.
The Colorado Supreme Court would have to approve all maps.
OK so are these bipartisan-backed plans a slam dunk at the ballot box?
Both Grueskin, the lawyer for People Not Politicians, and Beuscher, who lawyered for Fair Districts, said if voters pass the measures Colorado could be a model for the nation.
But getting constitutional questions passed in Colorado is harder than it used to be since voters passed a new law in 2016 that threw up hurdles to the process.
To get these measures on the ballot will take a lot of money, time and on-the-ground activism. The new coalition, which doesn’t have a name yet, might have to gather enough signatures in all 35 Senate districts to get the question on the ballot. Then voters would have to pass it by 55 percent— a supermajority.
We say “might,” because of a federal judge’s order that struck down a part of the law that deals with petition-gathering in all Senate districts. The state has appealed, so it currently sits in legal limbo.
Also, it should be noted not everyone who opposed the Fair Districts Plan is on board with the compromise. A disagreement at the nonpartisan League of Women Voters of Colorado about whether to support the original Fair Districts Plan led to the departure of then-president Nancy Crow, who felt the League was being used to lend credibility to a redistricting idea she worried could be part of a national strategy to turn more state legislatures red.
Crow is not sold on the new compromise, either, saying she’s still concerned it could further the goals of a national right-wing plot. A book by Salon.com editor David Daley called “Ratfucked: The True Story Behind the Secret Plan to Steal America’s Democracy” detailed a Republican strategy, funded by conservative causes, to dominate the redistricting process and turn more legislatures red.
The party in power in Colorado should get to draw the maps, she says, as happens now, and she worries more unaffiliated participation will just hurt Democrats.
So, she says, “I will fight against it.”