Supreme Court rebuffs lawmakers’ redistricting fix, says commissions can use preliminary data

In a 5-2 ruling, the Colorado Supreme Court on Tuesday issued an advisory opinion that warned state lawmakers that their proposed fix to a legislative redistricting process upended by U.S. Census Bureau delays would be unconstitutional — but affirmed the ability of the state’s new independent redistricting commissions to use preliminary and interim population measurements until final data sets are released.

Last month, lawmakers in the Colorado General Assembly asked the Supreme Court to weigh in on Senate Bill 21-247, a bipartisan measure aimed at addressing delays in the release of census data caused by the COVID-19 pandemic. The Census Bureau expects to release final population data by Sept. 30, weeks after Colorado’s inaugural redistricting commissions, created by the voter-approved constitutional Amendments Y and Z in 2018, are required to submit their plans to the Supreme Court for review.

SB-247, which was passed by the Senate but is still under consideration in the House of Representatives, would create a new definition of “necessary Census data” in state law to give the commissions more flexibility, as well as stipulate that the commissions should be given the benefit of the doubt — a standard of “substantial compliance” — in any potential lawsuits that challenge their use of preliminary data. But the Supreme Court ruled on Tuesday that the General Assembly doesn’t have the power to decide either of those things.

“However benign the General Assembly’s motives may be, upholding the General Assembly’s incursion into the domains of both the independent redistricting commissions and the judiciary here would set a troubling precedent and run contrary to voter intent in enacting Amendments Y and Z as well as our constitutional system of separation of powers,” state Supreme Court Justice Monica Márquez wrote in a majority opinion.

But the court’s ruling also makes clear that the independent commissions can decide for themselves to use preliminary data. The commissions announced last month that they would move forward with the redistricting process using the Census Bureau’s American Community Survey and state population data, and preliminary maps for new General Assembly and congressional districts are scheduled to be presented by commission staff later this month.

“The Amendments do not require the exclusive use of final census data when creating preliminary and staff plans,” the court’s opinion read. “The commissions and their nonpartisan staff are thus free to consult other reliable sources of population data, such as the preliminary census data released on April 26 and interim data from the Census Bureau’s American Community Survey.”

In a statement, Colorado’s top elections official, Secretary of State Jena Griswold, called the Supreme Court’s ruling an “encouraging” step.

“Today’s decision … enables the redistricting commissions’ timely completion of the congressional and state electoral maps,” Griswold said. “Timely completion of the final electoral maps is important, as the 2022 election calendar and the date of the statewide primary could otherwise be delayed. The Secretary of State’s Office will continue to work with stakeholders on this crucial issue.”