Summary
returning plan to Commission based upon unconstitutional sequencing of elections in two senate districts, because one senate district encompassed residences of two incumbent state senators while a second senate district lacked a state senator
Summary of this case from In re Reapportionment, Colo. Gen. AssemOpinion
No. 82SA6
Decided February 19, 1982. Rehearing denied March 1, 1982.
Ralph A. Cole, Pro se objector.
Gerald Dahl and Arnold Alperstein, Alperstein, Alperstein and Forman, P.C., for certain residents of Eagle, Grand, Jackson, Pitkin, Routt, Summit, Boulder, Gilpin, Jefferson and Clear Creek Counties.
Jac K. Sperling, for Raymond Bullock (Jefferson County Resident) and Jeanette Scotland (Boulder County Resident).
Gary Sandblom, for Michael T. Rabb and Jay Brizie (Boulder County residents).
James R. Stitt, Rodney R. Nowadzky, Stitt, Wittenbrink and Nieman, for the City of Westminster.
Wyatt B. Angelo, Russell, Angelo Wright, P.C., for Consolidated Gunnison County Group.
Charles M. Dosh, for Thomas P. Briggs and William G. DeGroot (Denver County residents).
Stephen Davis, for Rae Hilbert and Kathryn L. Pride (Denver County residents).
Durant D. Davidson, for Consolidated Otero County Group.
Cile Pace, Assistant Jefferson County Attorney, for Norman C. Allen, Jefferson County Clerk and Recorder.
Alfred J. Romano, Pro se protestor, Chairman, Larimer County Republican Party.
Daniel A. Campbell, Pro se protestor.
Jesse T. and Anne M. Kelsey, Pro se protestors.
Eldorado Estates Homeowners Association, Inc., Pro se protestor (Jeffrey Waller, Acting President).
Charles L. Dunahue, Republican Captain, District No. 1, Katherine E. Lillich, Republican Captain, District No. 1, Lucio Rodriguez, Republican Captain, District No. 2, Edna Shellhammer, Republican Captain, District No. 2.
Robert W. Terry, Pro se protestor.
Phillip and Barbara Fresquez, Pro se protestors.
Lila D. Greaves, Pro se protestor.
Jon L. Holm, Holm and Christensen and Leonard M. Campbell, Gorsuch, Kirgis, Campbell, Walker and Grover, for Colorado Commission on Reapportionment.
En Banc.
The sections of the Colorado Constitution establishing a system for reapportionment of the General Assembly to reflect population changes in the 1980 federal census require us to review the reapportionment plan. Colo. Const. Art. V, §§ 46, 47 and 48. We conclude that the plan adopted by the Colorado Reapportionment Commission (Commission) complies with the criteria in Colo. Const. Art. V, §§ 46 and 47. However, a portion of the plan which establishes the sequence of elections in Senate Districts 13 and 34 does not conform to constitutional requirements, and we disapprove that portion.
Colo. Const. Art. V, § 48(1)(e) requires this Court to adopt procedures for review of the plan. Rules for Reapportionment Commission Proceedings, Vol. 7B, C.R.S. 1973 (1981 Supp.).
Colo. Const. Art. V, § 48(1)(a) provides: "After each federal census of the United States, the senatorial districts and representative districts [of Colorado] shall be established, revised, or altered, and the members of the senate and the house of representatives apportioned among them, by a Colorado reapportionment commission. . . ." The constitutional reapportionment procedure which preceded the present system placed the responsibility for redistricting with the General Assembly. Colo. Const. Art. V, § 48 (prior to 1974 amendments). For a history of reapportionment in Colorado, see Lisco v. Love, 219 F. Supp. 922 (D. Colo. 1963) rev'd sub nom. Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964).
The paramount criterion for testing the constitutional sufficiency of a reapportionment plan is substantial equality of population among the senate districts and among the house districts as required by Colo. Const. Art. V, § 46:
The Colorado Senate has 35 members, one elected from each senatorial district. The House of Representatives has 65 members, one elected from each house district. Colo. Const. Art. V, § 45. Section 2-2-501, C.R.S. 1973 (1980 Repl. Vol. 1B) (1981 Supp.).
The state shall be divided into as many senatorial and representative districts as there are members of the senate and house of representatives respectively, each district in each house having a population as nearly equal as may be, as required by the constitution of the United States, but in no event shall there be more than five percent deviation between the most populous and the least populous district in each house.
The five percent deviation test means that the sum of the percent by which the largest district's population exceeds that of the ideal district and the percent by which the smallest district population falls short of the population of the ideal district must be less than five percent. The senate districts in the reapportionment plan vary in population from a low of 81,144 to a high of 84,246. The "ideal" senate district would have a population of 82,570, obtained by dividing the population of Colorado by 35, the number of senate districts. The population of the largest senate district exceeds that of the ideal district by 2.03%. The population of the smallest senate district falls short of that of the ideal district by 1.73%. The house of representatives districts in the reapportionment plan vary in population from a low of 43,466 to a high of 45,662. The "ideal" house of representatives district would have a population of 44,461, obtained by dividing the population of Colorado by 65, the number of house districts. The population of the largest house district exceeds that of the ideal district by 2.70%. The population of the smallest house district fall short of that of the ideal district by 2.24%. All districts are within the five percent deviation limits. Thus, the reapportionment plan satisfies Colo. Const. Art. V, § 46.
Colo. Const. Art. V, § 47 contains three additional criteria for evaluating the composition of legislative districts. Section 47(1) provides in part: "Each district shall be as compact in area as possible and the aggregate linear distance of all district boundaries shall be as short as possible." In Acker v. Love, 178 Colo. 175, 496 P.2d 75 (1972), "compact" is defined:
This provision also requires that each district consist of "contiguous whole general election precincts" and that districts of the same house not overlap. No one challenges the plan on either of these bases.
Compactness as used in the constitutional sense. . . concerns a geographic area whose boundaries are as nearly equidistant as possible from the geographic center of the area being considered, allowing for variance caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines.
Section 47(2) provides in pertinent part:
Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts. Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.
By its express language, section 47(2) subordinates the importance of not dividing counties to the substantial equality of population mandate of section 46. See generally Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964) (state constitutional provision apportioning state senate based on factors other than population violated 14th amendment equal protection clause).
The final test for the constitutional adequacy of legislative districts is the communities of interest standard in Colo. Const. Art. V, § 47(3):
Consistent with the provisions of this section and section 46 of this article, communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors, shall be preserved within a single district wherever possible.
The language "Consistent with the provisions of this section and section 46. . ." as a preface to the communities of interest test in section 47(3) clarifies that maintenance of communities of interest is the least weighty of the requirements in sections 46 and 47.
Our role in this proceeding is a narrow one: to measure the present reapportionment plan against the constitutional standards. The choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court. We emphasize, however, that a basic purpose of the constitutional standards is to assure equal protection for the right to participate in the Colorado political process and the right to vote. See Reynolds v. Sims, 377 U.S. 533 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, supra. Testimony before the Commission justifying districts of unequal population would not shield a plan allowing unequal districts from judicial invalidation; deference to Commission expertise and judgment would be inappropriate in such a case.
The proceeding is meant to be swift and limited in scope so that elections from the new districts may proceed on schedule. See Rules for Reapportionment Commission Proceedings. Vol. 7B, C.R.S. 1973 (1981 Supp.). One of the objectors challenged the reapportionment provisions of the Colorado Constitution as Conflicting with the United States Constitution. Such a challenge is not within the ambit of justiciable issues in this reapportionment review.
We recognize the difficulty the Commission faces in complying simultaneously with multiple constitutional criteria which may conflict in application. When the greatest potential for conflict exists, the constitutional provisions explicitly note which criterion takes precedence. Thus, Colo. Const. Art. V, § 47(2) makes the prohibition against splitting counties subordinate to the requirement of section 46 that each legislative district have equal population. Likewise, section 47(3) makes clear that the preservation in a single district of discrete communities of interest is of lesser import than the other criteria of sections 46 and 47. We also recognize that the criteria of section 46 and 47 are to be viewed as a whole, as a set of firm but general guidelines which allow the Commission some discretion in application. With these general considerations in mind, we review the Commission's plan. Objections to the plan and proposed alternate plans were submitted in accord with our procedural rules; however, we do not limit our review of the plan to the districts which were the subject of specific objections.
I.
Initially, we consider a general objection that the plan is void because the preliminary reapportionment plan was not published as required by Colo. Const. Art. V, § 48(1)(e), which provides in pertinent part:
Within ninety days after the commission has been convened or the necessary census data are available, which ever is later, the commission shall publish a preliminary plan for reapportionment of the members of the general assembly and shall hold public hearings thereon in several places throughout the state within forty-five days after the date of such publication.
(Emphasis added.)
The affidavit of the Commission's staff director reflects that the commission held 19 local and regional hearings and two statewide hearings on the preliminary plan between November 2, 1981 and December 7, 1981. Two weeks or more before each hearing, the Commission mailed a hearing schedule and relevant local and statewide maps showing the proposed new legislative districts to the effective county clerks and recorders, Democratic and Republican county chairpersons, and newspapers and radio stations serving the areas in which the hearings were to be held. Technical descriptions of the proposed districts also were sent to clerks and recorders and party chairpersons. The Commission issued press releases announcing the hearings and soliciting public comment on the preliminary plan. Thereafter, the Commission held its hearings and received public comment.
The constitutional provision does not specify any particular method of publication is contemplated, the constitution makes it clear, directly or by reference. See Colo. Const. Art. V, § 1; Colo. Const. Art. XIX, § 2; Colo. Const. Art. XXIII, § 1; Colo. Const. Art. XX, §§ 4,5. In other cases, when newspaper publication is not specified, a reference to publication will not necessarily require a legal notice in a newspaper. See Colo. Const. Art. XVIII, § 8; Colo. Const. Art. V, § 13.
We conclude that the word "publish" in Colo. Const. Art. V, § 48(1)(e) has its commonly understood meaning, i.e., "to declare," "to make generally known," "to make public announcement of," "to place before the public," Webster's Seventh New Collegiate Dictionary; "To make public; to circulate; to make known to people in general," Black's Law Dictionary (rev. 4th ed. 1068). The purpose of publication of the preliminary plan is to make the public aware of the plan and to encourage comment to the Commission about it. The Commission's notice procedure and dissemination of the preliminary plan was sufficient to "publish" it in compliance with Colo. Const. Art. V, § 48(1)(e).
II. A.
Several opponents attack the plan claiming that, in failing to preserve intact Montezuma, Otero, Eagle, Gunnison and Fremont counties, the plan violates the requirement of Colo. Const. Art. V, § 47(2), which provides in pertinent part:
Except when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts.
We disagree. From our examination of the plan in conjunction with the Commission's Report, we conclude that the Commission was sufficiently attentive to county boundaries to meet the requirement of section 47(2).
Examining the plan as a whole, of the 53 counties in Colorado with populations less than that of an ideal senate district, only one, Delta County, was split in the plan. The Commission's justification for the division of Delta County between more than one senate district was the need to achieve sufficient population in Senate Districts 5 and 6 to meet the equal population requirement of section 46. The same number of counties — 53 — are too small to each comprise a single house district. Of these, only seven were divided between more than one house district. The Commission's justification for splitting six of the seven — Montezuma, Otero, Eagle, Delta, Gunnison and Elbert counties — was to add sufficient population so that house districts could be formed incorporating adjoining counties intact.
Of the small counties which were divided into more than one house district, only the division of Fremont County was justified on a basis other than equal population. The Commission placed northwestern Fremont County in a house district with several small mountain counties to preserve a "unique community of interest" and tied the Canon City portion of Fremont county to Pueblo because of "the U.S. 50 transportation corridor and major state facilities [providing] a common employment base."
Although the Commission's arguments to this Court and the objections of opponents to the plan focus on the preservation of "small" county boundaries, the language of section 47(2) is not limited to counties smaller than one legislative district. It merely states that "[e]xcept when necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts." Of the ten "large" counties with population sufficient to sustain one or more senate districts, only Mesa County, which is encompassed in one district, Adams County, comprising three districts, and Denver, comprising six, are not divided and incorporated into districts with all or part of other counties.
Adams, Arapahoe, Boulder, Denver, El Paso, Jefferson, Larimer, Mesa, Pueblo and Weld counties fall in this category.
For the most part, the Commission justified this splitting of "large" counties in forming senate districts by the need to meet equal population requirements. In the metropolitan areas, where the Commission had to combine parts of counties which already contain one full district with adjoining counties, and the population is dense enough to allow the lines to be drawn in a number of ways without offending section 47(2), the Commission relied more often on the rationale of preserving communities of interest.
An example is the division of Weld and Larimer counties, the combined population of which is in excess of that required for three senate districts. The Commission shifted the excess population of Larimer County to a northwestern Colorado district and of Weld County to a northern plains district, leaving each county with an entire senate district and a district shared by the two counties.
El Paso County's population requires that it be composed of more than three senate districts, but it must be combined with Elbert, Lincoln and Teller counties to support four senate districts. Because any changes in election laws or voting practices in El Paso County must be approved in accordance with the Voting Rights Act of 1965, 42 U.S.C. § 1971, et seq. (1976), the Commission began its division of the county by drawing a district primarily in Colorado Springs to insure that minority voting strength would not be diluted in a discriminatory fashion. The Commission then joined each of the three adjoining counties with a separate part of El Paso County to form the three remaining districts. It might have been possible for the Commission to draw three of the districts within the El Paso County boundaries, leaving sufficient population from El Paso County to combine with all of Teller, Lincoln and Elbert counties to form a forth district. However, no one objected to us about the El Paso County plan, the lines were drawn to achieve equal population, and, absent a clear constitutional violation, we should not substitute our judgment for that of the Commission.
Turning to the house districts in the larger counties, we note that El Paso and Denver counties support their allotted house districts without the addition of population from outside their boundaries. However, portions of Adams, Arapahoe, Boulder, Jefferson, Larimer, Mesa, Pueblo and Weld were added to other counties or each other to form house districts. The only objections before us to the crossing of county boundaries to form house districts involving a larger county are those by Fremont and Otero residents to their inclusion with portions of Pueblo County. It is impossible for us to ascertain in larger counties whether different district configurations might result in a net reduction in the number of house districts which cross county lines.
Each detail of the reapportionment plan which we might disapprove would require the Commission to make changes which have a "ripple effect," necessitating numerous other changes in the reapportionment scheme. In Re Interrogatories of House Resolution No. 1020, 178 Colo. 311, 497 P.2d 1024 (1972). We are mindful that the time constraint in section 48 will not allow the Commission to conduct new hearings on the Commission's revisions resulting from a disapproval. Although we might make different choices were we in the Commission's place, we should not substitute our judgment for the Commission's unless we are convinced the Commission departed from constitutional criteria. In many instances that determination may be one of degree. We note, for example, that the court-approved plan for reapportionment in 1972, measured under the previous version of Colo. Const. Art. V, § 47 included senate districts which divided six small counties and house districts which divided eleven small counties. In re Interrogatories by the General Assembly, supra.
Colo. Const. Art. V, § 48(1)(e) provides in relevant part: "If the plan is returned [by the supreme court], the commission shall revise and modify it to conform to the court's requirements and resubmit the plan to the court within twenty days. If the plan is approved by the court, it shall be filed with the secretary of state for implementation no later than March 15 of the second year following the year in which the census was taken." See also Rules for Reapportionment Commission Proceedings, Vol. 7B, C.R.S. 1973 (1981 Supp.).
Colo. Const. Art. V, § 47, in effect in 1972, provided: "Except when declared by the general assembly to be necessary to meet the equal population requirements of section 46, no part of one county shall be added to all or part of another county in forming districts."
The constitution allows the Commission to divide a county only if necessary to meet the equal population requirement. The Commission's justification for some of the county divisions in the plan before us is not as precise as it might be. Nevertheless, substantial equality of population and avoidance of splitting counties cannot always be met simultaneously. When they cannot, the avoidance of split counties must yield. The area of the state in which these conflicts occur is subject to adjustment, and the Commission must have the discretion to choose where the necessary and constitutionally permissible compromises are made. Here, the Commission substantially complied with the constitutional requirements. In re Interrogatories by the General Assembly, supra.
B.
Several objectors contend that the Commission violated the prohibition against splitting cities in Colo. Const. Art. V, 47(2), which provides in pertinent part:
Within counties whose territory is contained in more than one district of the same house, the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible.
Two residents of the City of Boulder maintain that its division into more than one senate district and the division of Grand Junction into more than one house district, when the population of each is sufficient to support a single district, is unconstitutional. Officials of Westminster, although acknowledging the city's irregular boundaries and location in two counties, request that its division among seven house districts and four senate districts be reduced to five house districts and two or three senate districts. Neither challenge convinces us that the Commission failed to adhere to constitutional standards in the exercise of its discretion.
Within Denver, objectors questioned the compactness of House Districts 6, 9, 10 and 11 and the communities of interest in House Districts 6, 7, and 9 and Senate Districts 31, 32 and 35. Preservation of communities of interest is a constitutionally recognized ideal which may not always be achievable. Again, after reviewing the objections, we conclude that the Commission acted within the bounds of its authority and discretion in drawing house district boundaries in Denver. Other objections based on lack of compactness or failure to preserve communities of interest, primarily in the inclusion of mountain and suburban residents in House District 53, while not without some logical basis, also fail to demonstrate that the Commission improperly applied constitutional criteria.
III.
As several objectors called to our attention, the plan draws the boundaries of Senate District 34 to encompass the residences of two incumbent state senators, while no state senator resides within Senate District 13. The term of one of the incumbents expires in 1982, the term of the other in 1984. As part of the plan, and under section 2-2-503, C.R.S. 1973 (1980 Repl. Vol. 1B) (1981 Supp.), the Commission designated the senate districts in which state senators shall be elected in the November 1982 general election, and every four years thereafter, and the senate districts in which state senators shall be elected in the November 1984 general election, and every four years thereafter. That designation sets an election in district 34 in 1982 but no senatorial election in district 13 until 1984. The result is that until 1985 no senator will reside in district 13, but two will reside in district 34. We agree with the objectors that such a result violates constitutional guarantees of legislative representation.
The objectors also argue that the plan violated the "one-person one-vote" guarantee of Reynolds v. Sims, 377 U.S. 533 (1964). In Reynolds, the United States Supreme Court addressed the failure to apportion seats in the Alabama legislature on the basis of population which resulted in the vote of an elector in a more populous district carrying less weight than the vote of an elector in a more sparsely settled district. The Court found that this dilution of the weight of a citizen's vote violated the right to equal protection of the laws. U.S. Const., amend. XIV. See WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964) (companion cases to Reynolds). In the instant case, however, the objectors do not contend that voters in district 13 will suffer a dilution of their suffrage right as a result of population variances between districts. Neither is any suggestion made that the present incumbents elected by the residents of district 13 will not be permitted to serve their full term in office, see section 2-2-504, C.R.S. 1973 (1980 Repl. Vol. 1B) (1981 Supp.), or that when elections are held in 1984 the residents will not receive their proportionate voice in state government. Rather, the contention of the objectors is directed to the timing and not the weight of their vote, a contention not directly controlled by Reynolds v. Sims, supra, and its progeny.
At the outset, we note that equal protection is not denied because district 13 is scheduled to elect a state senator in 1984, whereas, in the absence of reapportionment, some residents of that district would have voted for a state senator in 1982. Although reapportionment and election scheduling should preserve wherever possible the opportunity of all citizens to vote for a state senator every four years, the complexities of the reapportionment process may result occasionally in a six-year delay of the opportunity of some persons to vote for a senator. Where this result is absolutely necessary, it does not constitute a constitutional deprivation unless the change is shown to be the result of an invidious discrimination. See Ferrell v. Hall, 339 F. Supp. 73 (D.C. Okla. 1972) aff'd mem. 406 U.S. 939 (1972); Stout v. Bottorff, 249 F. Supp. 488 (D.C. Ind. 1965); McCall v. Legislative Assembly, 291 Or. 663, 634 P.2d 223 (1981). But see Schaefer v. Thompson, 251 F. Supp. 450 (D.C.Wy. 1965), aff'd mem. 383 U.S. 269 (1969).
The complaint of the objectors, however, is not directed merely to the six-year lapse between senatorial elections for some of the citizens of district 13, but to the constitutionally significant fact that during the last two years of this period the residents of district 13 will not have an identifiable senatorial representative. Such a result cannot be sanctioned consistent with the requirements of our state constitution.
Colo. Const. Art. V, § 48 provides that following the federal census, "the senatorial districts and representative districts shall be established, revised, or altered, and the members of the senate and the house of representatives apportioned among them. . . ." (emphasis added). This constitutional mandate is not an empty maxim that districts are to be allocated a seat in the general assembly which may or may not be filled for a period of time. Rather, it is a guarantee that all citizens will receive an identifiable representative as a result of either a resident holdover senator or the election of a new senator upon implementation of the reapportionment plan. A contrary construction, which would allow a district to remain unrepresented for two years, would not only offend this provision of the constitution and fundamental notions of democratic representation, but would also be inconsistent with the system of representative government contemplated in other provisions of our constitution.
We do not question the constitutionality of representation of a district by a holdover senator who was not elected by all the voters of the district. See Ferrell v. Hall, supra; Stout v. Bottorff, supra.
Colo. Const. Art. II, § 24 guarantees the right of the people to petition "those invested with the powers of government for the redress of grievances." While that right does not limit citizens to petitioning only those representatives for whom they have voted, it is clear that legislators will be most responsive to citizens who place them in office and who, more importantly, reserve the power to remove a particular legislator from office during his term or return him to office by reelection. Full protection of this constitutional right requires that each district have an identifiable representative at all times.
Our conclusion is also buttressed by reference to the recall power reserved to the people in Colo. Const. Art. XXI: "Every elective public officer of the State of Colorado may be recalled from office at any time by the electors entitled to vote for a successor of such incumbent. . . ." (emphasis added). The residents of district 13 will not be able to recall the state senators for whom they originally voted because, as a result of the reapportionment, those senators are located in other districts and the residents of district 13 would not be entitled to vote for the successor of the recalled representative; nor will they be able to exercise the recall power over a new senator representing district 13, since, under the present reapportionment plan, none will exist. A reapportionment plan which virtually nullifies these important constitutional powers cannot be constitutionally sanctioned, at least where that result can be readily avoided. See McCall v. Legislative Assembly, supra (reapportionment plan requiring district to go unrepresented for two years invalidated under similar provisions of Oregon constitution).
The election sequencing in these two districts is particularly unjustifiable in light of a constitutionally preferable and easily implemented alternative. The election schedules established by the Commission provide for a senatorial election in district 34 in November 1982. As a result, two senators, a holdover senator and the victor in the 1982 election, will represent district 34 from 1983 to 1985. This is the same period during which district 13 will not be represented. If the Commission were to switch the election dates for districts 13 and 34, each district would be represented by a single senator from 1983 to 1985. We simply note this as a preferable solution. It is not our role to mandate a particular solution and we leave that for the Commission's decision, guided by the reasons we express for disapproval.
The objectors also contend that the provision for two resident state senators in district 34 results in unconstitutional "overrepresentation" of that district. It is unnecessary to address this contention. Because of our holding that each district is entitled to a senator, it necessarily follows that no district will be represented by more than one senator.
We reject one feature of the reapportionment plan, the sequencing of elections in Senate Districts 13 and 34, and return the plan to the Commission for revision, modification, and resubmission to this Court as required by Colo. Const. Art. V, § 48(1)(e).
JUSTICE LOHR and JUSTICE QUINN concur in part and dissent in part.
CHIEF JUSTICE HODGES does not participate.