GOP gets new life in redistricting suit

February 22, 2004

Rocky Mountain News

WASHINGTON - A U.S. Supreme Court decision Tuesday dropped the hot potato of redrawing Colorado 's congressional district map back in the lap of a federal district court, but it will take a rapid-fire decision for the case to affect the November election.

Justices ruled that a three-judge, federal panel erred last year when it tossed out a Republican-backed lawsuit challenging the map drawn by Democrats and approved by a judge in 2002.

Tuesday's ruling does not change the map, but it gives four Colorado plaintiffs their day in federal district court that could change the ultimate shape of Colorado 's seven congressional districts.

The plaintiffs' attorney, John -Zakhem, said he plans to file motions this week asking the judicial panel to put the case on a fast track.

For it to alter the political landscape for the 2006 elections, the panel would have to reach a decision within a few weeks, giving county clerks enough time to redraw precinct maps before the scheduled March 21 caucuses, Zakhem said.

"In all reality, the court here in Colorado will need to act quickly if it's going to be a case where we can affect the 2006 elections," said -Zakhem, general counsel for the state Republican Party.

"We're going to request they deal with this case with all due expediency."

U.S. Sen. Ken Salazar, a Democrat who was state attorney general when the legal squabbling began, said there was only a "very, very remote possibility" of the case affecting this year's elections.

"I think this is just another procedural step in this long litigation that should have been let go a long time ago," Salazar said.

State Democratic Party chairwoman Pat Waak called continuing the legal battle a "waste of taxpayers' money" and predicted "we're going to have the same result we had before."

But former state Senate President John Andrews, a force behind the Republican redistricting plan, called the high court's decision "one step closer to justice being done."

"From the outset, we in the legislature believed that - according to the Colorado and U.S. Constitution - we had the duty to draw the final map," Andrews said.

Regardless of when a final decision comes, the case could help decide the makeup of Colorado 's U.S. House delegation, which now includes four Republicans and three Democrats.

That's because the current map gives Democrats better chances to compete in western Colorado 's 3rd District and in suburban Denver 's 7th District, where the electorate is almost equal parts Democrat, Republican and unaffiliated voters.

Rep. Bob Beauprez, an Arvada Republican, won the 7th District by a 121 votes against Democrat Mike Feeley in 2002, but now the seat is up for grabs again with Beauprez's decision to run for governor.

"I would say that the 7th right now is clearly the nation's most competitive seat, with the Democrats having a clear chance to win it," Denver pollster Floyd Ciruli said.

If a Republican map takes effect, all bets are off, Ciruli said.

The fight is over a map approved in 2002 by a judge after the Republican-controlled state House and Democrat-controlled state Senate deadlocked on redistricting.

After the judge-approved map was used in 2002, the GOP-dominated state legislature passed a redistricting plan in early 2003.

That sparked a court fight between Democrats, represented by then-Attorney General Salazar, and Republicans, represented by then-Secretary of State Donetta Davidson.

The Colorado Supreme Court eventually ruled with Democrats to keep the judge-approved map in place, deciding that the state constitution limited redistricting to "once per decade." But that wasn't the end.

A group of citizens, including three Republicans and one Democrat, former state Rep. Carl Miller of Leadville, filed a separate lawsuit, arguing that the U.S. Constitution trumps the state constitution and provides that only legislators, not judges, have the right to decide redistricting.

Last year, the three-judge panel dismissed the case, deciding that lower federal courts do not have jurisdiction to overturn final state-court judgments.

In Tuesday's ruling, the U.S. Supreme Court took no action on the underlying map issue, but justices cited legal doctrines that say the citizen plaintiffs should not be denied their own day in court.

"The basic holding was because the Lance plaintiffs weren't party to the state court proceeding, they couldn't be bound to the state court proceeding," said Michael A. Carvin, one of the attorneys for plaintiffs Miller, Renee Nelson, Keith Lance and Nancy O'Connor. "Each litigant is entitled to his day in court."

Justice John Paul Stevens filed a dissenting opinion.

"Even though the District Court mistakenly believed it had no jurisdiction to hear the matter, its judgment dismissing the cause with prejudice was correct and should be affirmed," Stevens wrote.

Both Republicans and Democrats expressed confidence going into the case's next chapter.

"This case could affect many people's voting rights," state Republican Party chairman Bob Martinez said. "It's urgent, from that perspective, that a decision be made quickly."

But Salazar said it's time to move on.

"The districts we currently have in place have already been used for multiple elections," Salazar said. "The campaigns are defined in a significant way already for the 2006 elections for these districts. We have a Colorado Supreme Court decision . . . and nothing in this U.S. Supreme Court decision changes that."

Timeline

• Jan. 25, 2002: District Judge John Coughlin redraws congressional map after lawmakers can't agree on one.

• Feb. 26, 2002: Colorado Supreme Court upholds map after GOP challenge.

• May 5, 2003: Senate Republicans OK plan to redraw congressional boundaries. Attorney General Ken Salazar declares legislation unconstitutional.

• May 7: House and Senate give final OK.

• May 9: Gov. Owens signs redistricting plan into law. Democrats file challenge. Secretary of State Donetta Davidson and the General Assembly named as defendants.

• May 12: Salazar, who normally would defend Davidson, says he won't represent her.

• May 14: Salazar files lawsuit in state Supreme Court to stop the plan.

• May 21: Davidson asks high court to stop Salazar from suing her.

• May 22: Supreme Court agrees to hear arguments but refuses to throw out Salazar's lawsuit.

• Sept 17: Lawmakers get a $429,000 bill for legal costs in the court battle over congressional redistricting.

• Sept. 29: U.S. District Judge Zita Weinshienk puts a hold on a U.S. District Court fight until the Colorado Supreme Court issues a ruling.

• Dec. 1: The Colorado Supreme Court throws out GOP map.

• July 28, 2005: A three-judge panel rejects the last piece of a lawsuit filed by Republicans unhappy with how Colorado 's seven congressional districts are drawn.

• Feb. 21: U.S. Supreme Court rules that the three-judge panel erred by tossing out the challenge.

• What's next: Lawyers representing four Colorado plaintiffs plan to file motions asking a three-judge federal panel to expedite their decision so that it could take effect for the November elections. For that to happen, the decision would have to be made in time for county clerks to adjust precinct maps prior to the scheduled March 21 caucuses. Several observers said a speedy outcome is a long shot, including former state attorney general and current U.S. Sen. Ken Salazar, who called it a "very, very remote possibility."

Candidates in 7th District react to high court's decision.

• State Rep. Ed Perlmutter - Democrat:

"The bottom line is, this is probably the most competitive district in the United States of America , and it gives voters a significant say in how their representative conducts himself or herself. I think people like compet- itive districts."

• Rick O'Donnell, director of the Colorado Commission on Higher Education - Republican running unopposed in the primary:

"From a practical standpoint, today's ruling doesn't change one thing about what we're doing. I think the U.S. Constitution is clear that it's the legislature's job to draw districts. I think that any time the courts usurp the legislature's authority, that's problematic. I think the Supreme Court today saying they have a right to their day in court is a good thing."

• Herb Rubenstein, an attorney and consultant - Democrat (photo not available):

"This is depriving Americans of the certainty they need that for at least 10 years this is the way districts are going to be. I do not expect ultimately these plaintiffs will be successful, but it is clogging up the courts and it is a raw fight for political power."

• Former State Rep. Peggy Lamm - Democrat:

"I'm a big believer in swing seats and tend to think you get better representation in those. If we had more true moderate districts in Congress across the country, we probably wouldn't be in some of the dire straits we are in now in Wash- ington."

Contact M.E. Sprengelmeyer at SprengelmeyerMSHNS.com .