The High Court punted on partisan gerrymandering. Colorado’s new redistricting laws could offer a model for the nation

Colorado is gearing up to implement Amendments Y and Z to change the way we draw political maps

Students work on a redistricting project in GIS lab on the campus of Colorado College on July 2, 2019 )Photo by Corey Hutchins)
Students work on a redistricting project in GIS lab on the campus of Colorado College on July 2, 2019 )Photo by Corey Hutchins)

COLORADO SPRINGS — Earlier this week, in a Colorado College library computer lab, three students and a math professor hovered over a glowing screen that showed a map of Colorado looking a bit like a shattered windshield, broken up into its thousands of tiny individual voting precincts.

The question on their minds: Fairness.

Following next year’s Census, Colorado will launch a new way of drawing its political maps— the boundaries for state and Congressional districts that determine who represents the interests of state residents in Washington, D.C. and at the statehouse. 

Voters last year agreed to a process intended to take partisanship out of the complicated once-in-a-decade map-drawing process, and to provide public input. 

In the computer lab, Beth Malmskog and her students were crunching data, busy at work on a project to create a public-access tool to help assess the fairness of potential redistricting plans for Colorado as the state implements its new laws. 

For Malmskog, the concept of fairness in the context of redistricting is complicated and intriguing. “What does fair even mean?” she asks. “Using mathematical tools to get at a sort of philosophical question like that in some way is very exciting to me.” 

In the wake of a U.S. Supreme Court ruling last week that determined federal courts can’t block states from using partisanship as a measure to drawing district lines, Colorado’s new way of drawing maps is attracting attention from across the country. 

Depending on how the process ends up working in practice, the Colorado way could wind up a model for the nation. Redistricting begins in earnest after the 2020 Census figures come out. 

The concept of how to draw political lines in a fair way has confounded states for years, and here in Colorado, Democrats have accused Republicans of drawing unfair maps to favor their party, and Republicans have blamed Democrats for doing the same. 

Last week, the U.S. Supreme Court dealt a major blow to efforts to combat politicized redistricting when it issued a high-profile 5-4 opinion finding that courts couldn’t settle such disputes. 

Now, state-level efforts to combat partisan gerrymandering, including here in Colorado, are moving forward in what some advocates see as a new era of reform. 

“Now that the Supreme Court has walked away from its constitutional responsibility, it’s even more important … to fight this on a state-by-state basis,” said Dan Vicuña, manager of the national redistricting program at Common Cause, a democracy reform group. We’ve seen “incredible momentum” over the last few years and “we fully expect that momentum to continue.”

The Supreme Court’s decision overturns lower-court decisions that heavily gerrymandered maps in North Carolina and Maryland were unconstitutional and the ruling will likely lead to the dismissal of similar lawsuits in Michigan, Wisconsin and Ohio. 

But Chief Justice John Roberts pointed out in his 5-4 majority opinion that voters can take political routes to redistricting reform.

“Our conclusion does not condone excessive partisan gerrymandering,” Roberts wrote. “Nor does our conclusion condemn complaints about districting to echo into a void. The states, for example, are actively addressing the issue on a number of fronts.”

 

Last November, voters in five states – Colorado, Michigan, Missouri, Ohio, and Utah – put restrictions on partisan gerrymandering. Michigan and Colorado approved initiatives to create independent redistricting commissions; Utah created an advisory commission; Missouri strengthened redistricting rules and created a new position – state demographer – charged with drawing maps; and Ohio approved a constitutional amendment banning partisan gerrymandering.

In his ruling, Roberts specifically mentioned the Centennial State, noting how “voters in Colorado” approved constitutional amendments that “will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.” 

So, what are those new laws in Colorado?

If you filled out a ballot last fall, you might remember voting for or against two constitutional amendments, both of which passed overwhelmingly. 

Called Amendment Y and Amendment Z, these new laws change the way we’ll draw our next political maps. 

Broadly, the new laws seek to reduce the power of politicians and political parties in the redistricting process by creating two independent panels that will approve maps for members of Congress and the state legislature. In previous decades, the legislature drew the political boundaries for Colorado’s members of Congress. An 11-member panel chosen by the governor, the state Supreme Court chief justice, and legislative leaders approved maps for state House members and senators.

Critics of the old ways decried how members of one party or another could dominate the board, allowing partisanship to infect the process. 

Perhaps the biggest change under the new laws is that the separate commissions drawing congressional and legislative maps will have 12 members — four Democrats, four Republicans, and four unaffiliated voters. To approve a map, a supermajority of eight commission members, including two who are unaffiliated, would have to sign off.

What else do our new laws do beyond creating a super commission?

For one thing, they seek to inoculate Colorado from the worst of partisan gerrymandering that could happen given the Supreme Court’s recent ruling that “partisan gerrymandering claims present political questions beyond the reach of the federal courts.” The ruling essentially declared that federal courts are powerless to stop states from using partisanship as a measure when drawing district lines.

But “that won’t be happening here [in Colorado] because [partisanship is] not one of the criteria established by Y and Z,” says Martha Tierney, a Denver politics and elections lawyer who chairs the national board of Common Cause that focuses on voting rights.

The criteria established in the new laws includes maximizing “the number of politically competitive districts,” protecting voting rights of minorities, and preserving communities of interest, which means groups of people who share a common interest, typically one that legislation could affect. 

In Tierney’s view, some of the best aspects of the new laws include protecting communities of interest where possible while also preserving county and municipal boundaries. That’s a change from the status quo in that, now, constitutionally the two must be balanced. 

“What often gets lost when legislatures draft districts is that piece of it,” she says. “They’re more focused on county and municipal boundaries, geographical boundaries, then other less tangible but no less compelling communities of interest like water, like outdoor recreation, like oil and gas— there are all kinds of them that might rise to the level of something that a commission would want to draw a district around.” 

As the U.S. Supreme Court has chipped away at the Voting Rights Act— in 2013 it allowed nine states to make changes to voting laws without seeking approval from the feds— Colorado’s new laws protect Colorado’s minorities by enshrining language from the federal Voting Rights Act in the Colorado Constitution, said lawyer Mark Grueskin, who worked on the measure on behalf of a group called People Not Politicians. “That is something no state has done.”

Related: Amendments Y and Z aim to take politics out of redistricting: Here’s how they’d work 

Staff for the new independent commissions must also come up with a report that explains how they determined competitiveness. That’s also a first in the nation, Grueskin said. 

The Colorado Supreme Court would have to approve all maps unless it finds the commission abused its discretion in applying — or not applying — the criteria.

The process for getting on these two 12-member super commissions is a chore, one we’ve previously likened to a game of “commissioner Survivor” where applicants get voted off the island.  

What’s happening now since these new laws passed?

Much of the heavy lifting will come after the 2020 Census. And that lifting will be heavy. 

In the meantime, state workers inside the Capitol are busy hammering out some behind-the-scenes bureaucratic infrastructure. Last week some of them attended a redistricting seminar in Rhode Island held by the National Conference of State Legislatures about how to gear up for the Census and what kind of technology is available to help with map drawing. 

One of the first orders of business will be to decide on a software vendor, says Jessika Shipley, a team leader at the Statehouse’s Legislative Council. In the digital age, map-drawing technology has become particularly advanced and companies likely will compete for the Colorado contract. 

Next spring, staffers will start hunting for office space to house the new super commissions— likely away from the Capitol building to reinforce the perception of independence. They’ll need equipment and a secure Internet server. So far, staff is working within its existing budget. Any adjustment in the budget the office might need next year will be handled through the legislative process in the 2020 session. 

Eventually, they’ll start taking applications from anyone who might want to be on the commission. 

Related: Colorado’s grand bargain to create a national model for redistricting

A major tenet of the new redistricting laws is that it gives a lot of power— and new tasks— to the nonpartisan Legislative Council staff, which will help come up with initial maps. “Whoever does this is going to have to skip the ‘21 session completely,” Shipley says, adding they have talked about hiring contractors because of the extra work. All that should be in place by next summer. 

During early debate over the new redistricting proposal, some critics worried about how much map-making power would shift to a faceless bureaucracy. Shipley says Legislative Council staff has been through redistricting before and she isn’t worried about the workload. 

“The thing about nonpartisan staff that I think can be difficult for people to believe is that we’re truly interested in giving the best information possible,” Shipley adds. “We don’t have a dog in the fight. So it’s really important for us to do things factually, accurately, and just get it right according to the instructions that were provided by the voters.”

Kathleen Curry, a former Democratic lawmaker from Gunnison who dropped her party affiliation in 2009 and now champions the interests of unaffiliated voters, says she hopes recent news coverage of the Supreme Court’s decision on gerrymandering will get people thinking more about it— and potentially spark interest in serving on one of the new redistricting commissions.

Application forms for commissioners will be published by August 2020. A panel of three retired judges of different political backgrounds is tasked with picking commissioners in January 2021. Those judges will start with a pool capped at 300 applications from members of the Democratic Party, 300 from the Republican Party, and 450 from those who are unaffiliated. Whether that many will actually apply remains to be seen; some who worked on the ballot measures said they aren’t yet aware of any major education campaign effort to raise awareness this early, but one could emerge. 

Curry was a major advocate for the new laws in part because of how much weight the process gives to unaffiliated voters who make up Colorado’s largest voting population with more than 1.2 million registered. 

“The outcome was really fair for unaffiliated participants,” she says about the new redistricting laws. “I just think we have to make sure that when the process is implemented that the unaffiliated folks are aware of it and can submit their applications in a timely manner.” 

What about the upcoming Census?

Because of Colorado’s booming population in the past decade— from about 5 million to about 5.7 million— the state could very likely gain a new congressional seat, bringing its total number of members of Congress to eight. 

That would scramble existing political lines all over the map. Where the new district would be, and what it would look like will be a major undertaking for Colorado’s new map-drawers. 

For that reason and others, redistricting watchers want to make sure the state sends an accurate count to the federal government in the upcoming Census, which takes place in April 2020. 

During the last Census, in 2010, 18,000 primarily black and Hispanic children under the age of 4 weren’t counted, according to Rosemary Rodriguez, who runs a census-engagement project called “Together We Count.” The Colorado Independent previously reported how one of Colorado’s poorest counties, Saguache County, had a 2010 return rate of just 56% in the last Census count— “at least 20 percentage points below Colorado as a whole, though some measurements peg Colorado’s return rate as low at 72 percent. Nationally, it was 74 percent in 2010.”

Meanwhile, Republican President Donald Trump has been pushing for a question on the Census that asks whether someone is a citizen or not, something critics worry could lead to a massive undercount of the population nationally and at the state level. (As of July 3, the U.S. Commerce Department’s secretary said the question won’t be on the Census, but Trump, without citing details, said he was “moving forward” with the question.) 

The U.S. Supreme Court in June ruled the Commerce Department couldn’t put the question on the Census. Colorado was one of more than a dozen other states that sued the Trump administration over the citizenship question. The Census Bureau is already printing forms without the question on it. 

“I think the citizenship question would have been a disaster for Colorado because we have a significant population of undocumented folks and we have already districted based on total population,” says Tierney, the Common Cause board chair and lawyer. “If you start not counting citizens, Colorado would be at a significant disadvantage in terms of federal dollars flowing to the state and possible congressional delegation numbers.” 

In the lead-up to the next redistricting, some Coloradans are busy making sure the state’s population is counted accurately. 

During the last legislative session, lawmakers passed a bill that sets aside $6 million in grant money that local governments, nonprofits and other groups can apply for to help count members of hard-to-reach communities like, say, in rural areas with poor Internet service or non-English-speaking households. 

The Durango Herald reported the committee in charge of dispersing the funds met for the first time this week. 

Power to the public

Once members are chosen to sit on two of Colorado’s new redistricting commissions, nonpartisan legislative staff will assist them and help draw new maps on which the commissioners will vote. 

The commission must hold at least three public hearings in each congressional district. 

The new laws say 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. Members of the public— anyone— could draw their own maps and submit them for the commissioners to review. 

While an earlier version of the proposed redistricting laws required limited public input to legislative staff during the map-making process, “the door was kicked open for public participation” in the version voters approved, says Grueskin, the elections lawyer in Denver who worked on the laws. “Any person in Colorado has the right to present comments to the commissions about a map or to suggest a map,” he says. 

Back in the computer lab on the Colorado College campus, math professor Beth Malmskog explains how she and her students hope to be able to have some impact in that public-input process. 

The small group at Colorado College is part of a larger effort stemming from the Metric Geometry and Gerrymandering Group at Tufts University in Boston. Students and a professor at the University of Colorado in Boulder are also working on the same project. 

The idea is to create randomly generated valid maps to compare to ones that already exist or are proposed in new plans. A computer will generate these random maps by combining actual Colorado precincts and considering population data. An algorithm will then create districts of near equal population and reasonable geography while splitting as few county lines as possible. 

The researchers will then use real voting data to simulate elections in these randomly generated districts to see if the outcomes in districts that currently exist— or any future proposed ones— are unusual, or at least if the outcomes are extremely unlikely in the realm of possibility for Colorado district maps.

“Our goal is to create a tool that can be used for people to analyze any of these in the lead up to the next redistricting,” Malmskog says. “When plans are presented, you can bet we’re going to get in there and run our analysis and see how they work out. So if the people who are making the maps haven’t done that already, we’re definitely going to be in there doing it, too, and then maybe analyzing them using our own criteria.”

Haley Colgate, a senior Colorado College math major working on the project, says she’s excited for the opportunity to use what she’s learning in school to actually have a chance to make a real-world difference, and to play a role “in what counts as fair in how this process kind of pans out.”

Her classmate, Edgar Santos, says he’s bringing his perspective as a Race, Ethnicity and Migration studies minor to the work. 

“While doing this I know that we’ll get to see how this will affect different populations and … ethnic populations especially,” he said. “Just knowing how this small thing can affect what is going on in the future is really exciting to see.” 

Allison Stevens of The Newsroom contributed to this report from Washington, D.C.

2 COMMENTS

  1. We have lived 1/2 block north of the Adams/Weld county line for 33 years. In only 2 of those years have we had a representative that our household voted for. Our address is Brighton, we shop in Brighton and Denver where we worked, yet we are totally dismissed by former and current (Ken Buck, Lori Saine, John Cook) representatives. Before I die, could you please give me the dignity of being represented by people who give a damn?

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