Jerry Kopel

Reapportionment, Part I

April 15, 2008.

By Jerry Kopel

Reapportionment of the legislature? Too early to discuss? Not really.

The 65 member House and the 35 member Senate will have new boundary lines in 2012, and there won't be a large experienced group of legislators from 2001 to provide insight in 2011.

None of the senators from 2001 will be part of the 2011 Senate. Some House members from 2001 might be part of the Senate, but no House members from 2001 will likely be in the House in 2011.

Thanks to term limits, experienced players will be on the sidelines, voteless unless appointed by the Governor or the Supreme Court Chief Justice. So it is up to the legislators now in office to learn as much as they can about what happened in the past, and benefit from prior success and past failure.

In this column and the next two, I will lay out the process, history, and possible future.

There will be an eleven member Reapportionment Commission appointed in 2011, following the 2010 census. The Speaker of the House and the House minority leader, plus the majority and minority leaders of the Senate, or their House and Senate legislative designees, will be on the commission.

That's two Democrats and two Republicans, regardless of how one-sided the makeup of the legislature. They have to be appointed by April 15, 2011.

The governor has a 10-day window, April 15-25, 2011, to appoint three members, none from the legislature. They can all be Democrats or Republicans or a mix. Assuming Gov. Ritter is re-elected in 2010, the commission could then be five Democrats and two Republicans.

The Supreme Court Chief Justice, between April 25 and May 5, 2011, appoints four members, none from the legislature. He or she could appoint three Republicans bringing that total to 5 and 5, and choose an Independent for the 11th member. That might cool criticism, but there is no reason the Chief Justice cannot give control to either the Republicans or Democrats.

And nothing in the Constitution denies the Governor and Chief Justice the right to give majority control of the commission to Independents.

Each Congressional District is entitled to one member, and one of the seven has to reside west of the Continental Divide. No Congressional District can contain more than four members of the commission.

By September, 2011, there should be a preliminary plan published. A legislative committee or committees will hold public hearings on the plan no later than 45 days after the preliminary plan is published.

The Reapportionment Commission can adopt or refuse to adopt changes in their plan and the plan is submitted to the state Supreme Court for its approval or its order returning the plan to the commission for revision, with a date for final action. The process before the Supreme Court is close to what would happen in a regular trial in district court in providing evidence for or against the plan.

Every legislator who "might" be around in 2011 ought to get, keep, and re-read many times In Re Reapportionment of Colorado General Assembly, 45 P.3d 1237 (2002) and 46 P.3d 1083 (2002) and review Part 5 of Article 2, Title 2 of Colorado Revised Statutes.

While the court can find "hedge room" to hold a plan constitutional, Section 46 and 47 of Article Five of the state Constitution permits for no more than a five percent deviation between the most populous and least populous district in the House and Senate, and "each district shall be as compact in area as possible".

* * *

Before the 1982 reapportionment, the decision-making was by the legislature, meaning the majority party if that party controlled the House and Senate, as the Republicans did in 1963-64.

In 1962, Colorado actually amended the constitution to provide for 104 legislators, 39 in the Senate and 65 in the House, for 1,753,947 residents of Colorado in the 1960 census.

If based on one person, one vote, that would have been 26,984 per House seat and 44,400 (on 39 senators) per Senate seat.

Of course, the increase in senators was part of a plan to use factors other than equality in population for Senate and House districts, such as language in the constitution immunizing from change a state statute which provided numerical disparity by that named statute as to senators. This was a major concession to rural Colorado's desire for continued power.

A statute adopted in 1963 for the 1964 election provided for Senate districts ranging in size from 19,983 in Las Animas County to 73,340 for a Senate seat in El Paso County. House seats ranged from 20,302 for Logan County to 35,018 for a House seat in Pueblo County.

The 104-seat legislature passed adoption in every Colorado county, and was approved by the U.S. District Court. However, the U.S. Supreme Court threw out the 1962 constitutional amendment. It held a civil right is a civil right no matter how many people vote to disallow it.

A complicated process followed, including further federal district court hearings. The 1962 "Amendment 7" was held not severable and all of it, including the increase to 39 senators was "null and void".

Gov. John Love (R) called the legislature into special session and a new reapportionment law was adopted July 8, 1964, with 65 in the House and 35 in the Senate. (That is when I first ran and won a House seat representing northeast Denver.)

Although districts were still somewhat unequal the U.S. District Court approved the planned election. The state Supreme Court also allowed the election to proceed but retained jurisdiction.

In 1966 a constitutional amendment was adopted stressing equality in representation. The state Supreme Court court then gave up jurisdiction.

Next column: The last reapportionment by the legislature in 1972 and the adoption of the Reapportionment Commission.

(Jerry Kopel served 22 years in the Colorado House)

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