• Mario Nicolais

U.S. Supreme Court cases leave it to states to stop gerrymandering



Twice in the last two weeks, the U.S. Supreme Court shrugged its shoulders over redistricting and gerrymandering, effectively telling states to deal with the problem. Thanks to prescient action by the state legislature earlier this year, Coloradans will get that opportunity in November.


The anti-climactic end to the most anticipated case, Wisconsin’s Gill vs. Whitford, came about through a procedural issue. Wisconsin Democrats claimed Republicans gerrymandered state legislative districts so unfairly that it abridged their constitutional rights and violated the Equal Protection Clause. For example, in Wisconsin Republicans won only 48.2 percent of the statewide vote but 59 out of 100 districts. Rather than deciding the primary question, the Supreme Court ruled the individual Democrats involved didn’t have standing to bring the case because none alleged they lived in a district where the gerrymander hurt them. That is the epitome of a judicial “punt.”


Simultaneously, the Supreme Court ruled that Maryland Republicans objecting to a Democratic map waited too long to file for an injunction to stop the maps from being used. Consequently, it did not address the merits in that case, either. It seems the Supreme Court punts more than the Denver Broncos.


A week later the Supreme Court did make a decision — it overruled a lower court in Texas and found the Texas legislature acted in good faith and, consequently, did not draw racially discriminatory districts. Therefore, the districts drawn by the state will stand until the next redistricting cycle in 2021.


The sum effect of the Supreme Court’s decisions — or lack thereof — means states must be responsible for legislative redistricting and all the problems inherent therein. In particular, it is up to each state to develop its own answer to end gerrymandering. Colorado will get its chance on the November ballot.


Through a bipartisan agreement of Republican and Democratic leaders, including Gov. John Hickenlooper, a Democrat, State Senate President Kevin Grantham, a Republican, and Speaker of the House Crisanta Duran, another Democrat, two ballot measures will be presented to voters this fall. The compromise measure is the culmination of years spent hashing out details, working with special interest groups, and garnering the support of politically active business leaders like DaVita’s Kent Thiry. And if it passes, Colorado will be better off for it.


In 2011, I served on Colorado’s Reapportionment Commission, the eleven-member group tasked with redrawing the lines for state House and state Senate districts. After spending almost a year and countless hours and days on that project, I am convinced that despite its good intentions, the current system does not work. In the end, it became engulfed in the same heated partisan cauldron that burns most good intentions. In fact, I played a primary role in stoking those fires, though, as it turns out, with just cause. In a mirror image of the Wisconsin case, an AP analysis demonstrates Democrats in Colorado drew districts that have disproportionately benefited them for a decade. We tried hard to do the right thing for a long time, but in the end the temptation to gerrymander became too powerful.


The new system attempts to overcome that flaw through several means. For example, commission members would no longer be handpicked by party bosses and the state’s chief justice, but will be selected from pools of citizen applicants. Unaffiliated voters will receive equal representation with Republicans and Democrats. Maps will be drawn by nonpartisan legislative staff, not behind the closed doors of political parties.


Most importantly, approving maps will require a super-majority; there may be no greater vaccination against gerrymandering than mandated consensus.


Over the next four and a half months, candidate campaigns will dominate the headlines and declare that nothing less than Colorado’s future is on the line. In a way, they will be right, but you will have to look a little further down the ballot to find the most important question. Thanks to the U.S. Supreme Court, its now a question only Colorado’s citizens can answer.


Mario Nicolais is an attorney and Denver Post columnist who writes on law enforcement, the legal system and public policy. Follow him on Twitter: @MarioNicolaiEsq




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