CO Supreme Court Holds that Independent Really Means Independent

by Julie Pelegrin

This week, we’re looking at the second set of interrogatories that the General Assembly sent to the Colorado Supreme Court during the 2021 legislative session. House Joint Resolution 21-1008 asked the court to determine whether the changes made in Senate Bill 21-247, concerning the procedures of the independent redistricting commissions, would be constitutional if adopted. The court held that the changes in the bill would not be constitutional and clarified a limit on the plenary authority of the General Assembly.

To understand the questions and the answers, we’ll start with some background on the redistricting process in Colorado.

Every 10 years, in the year following the U.S. Census, the boundaries for congressional and state legislative districts are redrawn to ensure equal population as required by the federal constitution. In 2018, voters passed Amendments Y and Z, codified in sections 44 to 48.4 of article V of the Colorado Constitution, which create the independent congressional redistricting commission and the independent legislative redistricting commission to draw the congressional and legislative district maps.[1] The amendments also provide instructions for how to draw the maps (usually called redistricting plans), including criteria to apply in determining the district boundaries and very specific timelines for proposing the redistricting plans, getting public feedback on the plans, and submitting the plans to the Colorado Supreme Court for final approval.

These timelines are based on an initial triggering event: Receiving the “necessary census data,” presumably by April 1 of the year following the census. This year, however, due mainly to the COVID-19 pandemic, the states are not receiving the census data until much later. At this point, the anticipated date for receiving the data is August 16, 2021, more than four months late. And the data released by this date won’t be tabulated and user-friendly for data access. That data won’t be available until September 30, 2021.

Obviously, this delay wreaks havoc with the timelines specified in the constitution, which require:

  • Preliminary redistricting plans to be prepared by early May;
  • The commissions to hold several public hearings on the plans before July 21;
  • The commissions to consider up to three staff plans that are prepared after the public hearings are complete;
  • Each commission to submit an approved plan to the Colorado Supreme Court by September 15;
  • The court to either approve each commission’s plan or sends the plans back for reconsideration by November 15; and
  • The court to finally approve plans for both congressional and legislative districts no later than December 29, 2021.

If the independent commissions cannot meet this timeline, there’s a strong likelihood that the deadlines for the 2022 election cycle will need to be delayed. To avoid that situation, the General Assembly introduced SB21-247 to make it clear that the commissions could begin their work using preliminary census data, but that the final plans must be based on the final census data. Also, to avoid protracted legal challenges to the process that the commissions follow, SB21-247 provided that a court, in considering a challenge to the plans on technical grounds, would apply a substantial compliance standard; that is, the plans would not be found to be unconstitutional on technical grounds so long as the commissions substantially complied with the technical constitutional requirements.

The constitution uses the term “necessary census data” to describe the data the independent commissions must use to create the redistricting plans. That term isn’t defined in the constitution, but it is defined in section 2-2-902 (1)(c), C.R.S., as the federal decennial data published for the state by the United States Census Bureau and adjusted by the General Assembly’s nonpartisan staff to reflect changes concerning the residential addresses of incarcerated persons. This, of course, is the data that the commissions will not receive until August or September this year – much too late to begin the process of preparing plans.

SB21-247 redefined “necessary census data” for this year only, to include population estimates from the census data and other data selected by the independent commissions. The bill also required the final plans to be based on “final census data,” defined as the data the commissions will receive in August and September of this year. The bill also included provisions concerning how and when the commissions will release the plans that are based on the final census data, including the requirement to hold at least one public hearing after receiving the final census data.

As faithful LegiSource readers will recall, the General Assembly has plenary legislative authority, meaning it may enact legislation with regard to any issue or subject, so long as the legislation is not prohibited by or in conflict with the constitution. Amendments Y and Z specifically instruct the General Assembly to set compensation for the persons who assist in selecting the commissioners, appropriate money for commission expenses, and provide a per diem allowance for commissioners. But the amendments do not appear to specifically limit the plenary authority of the General Assembly, and the provisions of SB21-247 do not conflict with any provision of the amendments. The General Assembly therefore was arguably acting within the boundaries of its plenary authority in enacting SB21-247 to facilitate the work of the independent commissions. However, to avoid any legal challenges to the redistricting plans based on the provisions of SB21-247 that would cause delay to the 2022 election cycle, the General Assembly asked the Colorado Supreme Court for its opinion as to whether the provisions of SB21-247 are constitutional.

The court held in a 5-2 opinion that they are not.

The court reviewed Amendments Y and Z and concluded that by their terms they do not require the independent commissions to use only final census data when creating the preliminary and staff plans. Thus, the commissions can begin their work without waiting to receive the data that are scheduled to be delivered in August and September. However, for the final redistricting plans to comply with the criteria specified in the constitution, those plans likely must be based on the final census data received in August and September.

The court also concluded that the General Assembly’s grant of plenary authority actually does not extend to legislation concerning Amendments Y and Z; the General Assembly does not have authority to direct the actions or operations of the independent redistricting commissions, except as specifically stated in the amendments. The court held that, in adopting Amendments Y and Z, the voters specifically intended to “divest the legislature” of authority over the redistricting process and especially over the independent commissions. Any authority of the General Assembly over those commissions must be specifically stated within the amendments. And in this case, Amendments Y and Z give the independent redistricting commissions and their staff “sole constitutional authority to conduct all of the key tasks in the redistricting process.” In adopting Amendments Y and Z, the voters put the redistricting process “beyond the power of the legislature.”

Finally, the court held that the General Assembly cannot define the standard that a court applies when reviewing compliance with constitutional requirements, even if those requirements are purely technical. The General Assembly may establish the standard for determining compliance with statutes that the General Assembly enacts, but it cannot set the standard for determining compliance with constitutional provisions that the people enact. That decision lies solely with the courts.

While the court was considering the interrogatories, SB21-247 rested on the third reading calendar in the House of Representatives. After the court announced its decision on June 1, 2021, the House effectively killed the bill by agreeing to lay it over until July 8, 2021.



[1] Before 2018, the General Assembly was charged with congressional redistricting and a redistricting commission appointed by the Governor, the Chief Justice of the Colorado Supreme Court, and legislative leadership created the legislative redistricting plans.