Colorado Supreme Court hears oral arguments against new congressional redistricting map

The Colorado Supreme Court heard oral arguments Tuesday afternoon from civil rights and advocacy groups who argue that the recently submitted congressional redistricting map doesn’t go far enough to empower the state’s minority voters.

Much of the debate focused on a specific section of the voter-approved amendments that established the independent redistricting process. Section 44.3 of Amendment Y prohibits “diluting the impact of … (a) racial or language minority group’s electoral influence.” This provides more protection in the state constitution than the federal Voting Rights Act of 1965, the legal challengers argue.

Civil rights groups said, however, that the congressional redistricting commission did not consider that provision closely enough and needed a better analysis of minority voting patterns to avoid that type of dilution, specifically for the state’s Latino voters. 

Even when it is impossible to draw a so-called “minority-majority” district, the groups argued that the commission still needed to prioritize a consideration of how minority groups could influence election outcomes. 

“Districts are drawn based on those first five criteria, which are race neutral, and only after all that discretion is exercised and we come back and look at the map is the commission tasked with asking ‘Did we ensure that we didn’t dilute minority electoral influence?’” said Kendra Beckwith, an attorney representing the Colorado Latino Leadership, Advocacy and Research Organization, or CLLARO. The other five criteria require that districts have equal population, be contiguous in geography, preserve communities of interest, be as compact as possible and that there is an effort to maximize the number of politically competitive districts.

Beckwith also took issue with the commission’s approach to discussing minority voting protections. The commissioners spoke about the issue during many public hearings but also received legal advice about the issue in private executive sessions, closed on the basis of attorney-client privilege. Critics worry about the precedent that could set in future redistricting cycles. 

“If this court agrees with the commission, we will have made race a forbidden topic in this state. It is not against the law to talk about race. It’s a conversation Amendment Y promised and it’s a conversation that the commission must have,” Beckwith said.

The justices questioned how the commission could even determine a standard for minority voter influence and whether dilution occurred. The challengers said it could be done through analysis of how various districts could affect minority voting groups. It couldn’t be about demographics or population percentages. 

“By tying it to electoral influence, you have to do a functional analysis of actual election results and compare it to what’s possible,” said Mark Gaber, an attorney representing the League of United Latin American Citizens and the Colorado League of United Latin American Citizens.

Gaber also emphasized the importance of crossover districts, which would have a sizable minority population and enough white crossover voters to elect minority-preferred candidates. He argued that the language in Section 44.3 requires the commission to consider those types of districts, since a minority-majority district isn’t necessarily possible with the state’s dispersed Latino population.

In his rebuttal remarks, redistricting commission attorney Fred Yarger said the challengers misunderstand Section 44.3, treating it as a “command for proportionality,” which he said shouldn’t be connected to redistricting law.

“If this map is remanded based on the approaches that are being offered to the court today, race will dominate in the redrawing of district lines in at least CD3, CB8 and maybe CD1,” Yarger said, referring to the 3rd, 8th and 1st congressional districts.

He gave the example of LULAC’s proposed revisions to the 3rd Congressional District outlined in the group’s brief, which would split El Paso County and extend a sliver of the district into Colorado Springs.

“There is only one reason for that change, and that reason is race. That is incredibly constitutionally problematic,” Yarger said. 

He claimed that race was spoken about extensively during the commission’s deliberations, but members did not group communities together simply because of their race or ethnicity. Rather, he said, the commission voted on a map that keeps together communities that share demonstrated actual interests. 

“No plan can please everybody, but when this record is reviewed in its entirety, it’s clear the commission did not abuse its discretion,” he said.

The state Supreme Court will need to decide by Nov. 1 whether to adopt the congressional map or send it back to the commission for alterations.

The Independent Congressional Redistricting Commission and a related Legislative Redistricting Commission are the first of their kind to oversee the once-a-decade redistricting process in Colorado following voter approval of anti-gerrymandering measures Amendments Y and Z  in 2018.