The redistricting process in Colorado is a case of the Constitution versus the coronavirus. And recent news suggests the virus could be victorious.
Coloradans can’t let that happen.
The state is poised to undertake its once-every-decade process of drawing new boundaries of districts for members of Congress and the Colorado Legislature, a high-stakes activity that determines who can represent which parts of the state and the political composition of each district. Colorado is expected to gain its eighth congressional seat. Redistricting will determine where it goes.
But the process has been completely upended.
The main culprit is the coronavirus. The pandemic last year scrambled the census count, but misguided Trump administration policies, such as its attempts to exclude noncitizens, exacerbated the problems. The Census Bureau typically releases redistricting numbers by April 1. But this month it announced those figures will not be available until Sept. 30.
That puts Colorado in a bind, because the state Constitution says new district maps, which can’t be crafted without the census figures, are due Sept. 1 and 15, for congressional and legislative districts, respectively.
Those deadlines are now impossible to meet.
Colorado’s redistricting system is new, and it was supposed to be a model for transparency and nonpartisan fairness. When it was adopted, no one could have anticipated the subsequent challenges posed by COVID-19. But though the letter of the law appears impossible to uphold, the state must work toward fulfilling its spirit. With creative efforts on the part of state lawmakers, the Supreme Court, and, most importantly, the people of Colorado, this can be done.
In 2018, Coloradans voted to implement two amendments — Y and Z — that reformed the way the state conducts legislative and congressional redistricting. The amendments created two independent commissions — each with 12 members — tasked with redrawing the state’s political maps in a way that focuses on fairness and minimizes gerrymandering. The amendments were referred to the ballot with unanimous, bipartisan support in the Legislature. Voters adopted them with 71% majorities. They were national bright spots in redistricting reform.
That’s why the commissions should proceed with their work and extraordinary accommodations should be made for their success. Half of the commission members have so far been chosen. Once the rest of the seats are filled by mid-March, the commissions should go about their work to the extent possible, given unexpected disadvantages. One possibility is that they could fashion preliminary district maps based on figures in the Census Bureau’s American Community Survey, though ACS information is limited, and this option appeared more viable before commission staff learned that precise census data wouldn’t be available until late September.
State lawmakers can play a crucial role. They can pass legislation that shifts commission deadlines. The Legislature normally doesn’t have the power to override provisions in the Constitution, but these are abnormal times, and lawmakers can ask the Colorado Supreme Court to weigh in on the matter and affirm proactively that the greater constitutional interest lies in the commissions completing their work, regardless of what the pre-pandemic language of Amendments Y and Z had to say about deadlines.
It’s hard to imagine the court rejecting such a request. The justices ruled on a similar coronavirus-related question when the legislative session adjourned early last year due to the public health emergency. The General Assembly asked the court to affirm, which it did, that lawmakers wouldn’t violate the state Constitution’s 120-day limit on the legislative session if the days were not counted consecutively.
The most important parts of the Y and Z amendments that must be maintained through unexpected challenges is public participation and transparency, which many observers worry could be severely curtailed as time available to draw district maps shrinks. The amendments attempted to pull the redistricting process into the light of robust public hearings. It’s right there in the text of the Constitution: “Citizens want and deserve an inclusive and meaningful … redistricting process that provides the public with the ability to be heard as redistricting maps are drawn.”
Members of the public have much responsibility here, but so far they’ve shown a disappointing indifference to the process. The commissions attracted only a fraction of the anticipated number of applicants, even though the seats were open to a wide swath of Colorado voters. Now, with the likelihood of reduced opportunity for members of the public to participate in the work of the commissions, it’s even more critical for Coloradans, especially those from traditionally underrepresented communities, to assert their newly-won right to help draw fair, effective political maps.
The redistricting process is at a precarious juncture, and there is a potential that the commissions will find themselves outmatched by circumstances. Court-drawn maps might have to suffice for the 2022 election cycle, with its own deadlines for caucuses and primaries applying further pressure on the redistricting timeline. Another possible outcome is temporary district maps as they are drawn today except for the addition of a congressional seat elected on an at-large basis.
But the state should not tolerate merely expedient maps until 2030. If Y and Z fall apart in 2021, new constitutional amendments should be referred to the 2022 ballot that retain the Y and Z reforms but, through just a couple of language tweaks, allow the state to apply them for the 2024 election cycle and beyond.
For now, however, Colorado leaders and voters should do everything possible to salvage the Y and Z commissions. If ever there was a cause worthy of bipartisan, statewide effort, it’s the promise of a fair, transparent and effective redistricting process.