Colorado redistricting case: at an end?
on Aug 15, 2006 at 7:47 pm
UPDATE Wednesday a.m. News reports on the decision discussed here say that attorneys for the four voters involved plan to appeal to the Supreme Court. Thanks to Colorado Confidential for the tip. And thanks to Howard Bashman of How Appealing blog for the initial alert to this ruling.
The political and constitutional battle over the redistricting of Colorado’s members in the House of Representatives may have reached its end, after two prior trips to the Supreme Court. This time, a federal court has based a ruling entirely on state, not federal, law and that might insulate it from Supreme Court review — especially since the three judges on the court are Coloradans, presumably familiar with state law.
The case has become famous because, at one stage, it resulted in a ruling by the state Supreme Court of Colorado that the legislature in that state may try only once during a decade to draw up new congressional disticts after a new Census, and cannot do so if a state court has already drawn up a plan because the legislature could not do so on the first try. That is sufficiently controversial that three Justices of the Supreme Court strongly implied in 2004 that they thought it was wrong, arguing that it should have been reviewed by the Supreme Court; it was not. But that precedent (based on a somewhat unusual combination of state and federal law) now stands, and the latest court action leaves it undisturbed.
The new ruling was issued on Monday by a three-judge U.S. District Court in Denver, in the case of Lance v. Dennis. (The decision in docket 03-2453 is here.) The case was on remand from the Supreme Court, which last February overturned the District Court’s dismissal of the latest case, and returned it to the District Court for another look.(The Supreme Court’s ruling is here. Scroll down to Feb. 21.)
At this stage, the case involved only one remaining constitutional issue: do voters in Colorado have an individual right as voters, under the U.S. Constitution, to vote in congressional districts that have been drawn up by the state legislature, not by a state court.
The theory of the four voters who brought this particular lawsuit was that the Constitution’s Elections Clause — Article I, Section 4 — gave the state legislature the authority to regulate congressional elections, and voters had an independent right to have redistricting done legislatively not judicially. The political aim of the theory, of course, was to overturn an earlier map fashioned by a state court, and revive a map drawn belatedly by the state legislature that was more favorable to Republican candidates.
Conducting elections under the court-drafted map, their lawsuit contended, amounts to a violation of the Elections Clause at least so far as the voters have a personal right derived from that Clause.
The District Court, in its decision Monday, was skeptical of that claim. It said it doubted whether “a right to vote in a congressional district created by the legislature under the Elections Clause” was “constitutionally protected.” But, it said, “we need not decide that issue” if it turned out — as it did turn out — that state law barred the voters from making that claim because it was parallel to an issue that state officials had made in the state Supreme Court, but did not prevail on it.
The state Supreme Courts ruled in 2003, in Salazar v. Davidson, that the state’s constitution, as informed by the federal Constitution, limited redistricting to once a decade, so that a legislative plan adopted in 2003 after a state court-ordered plan was already in effect was invalid. (The state legislature sought to challenge that decision in the Supreme Court, but the Court denied review on June 7, 2004, over the dissent of the late Chief Justice William H. Rehnquist, joined by Justices Antonin Scalia and Clarence Thomas. (Colorado General Assembly v. Salazar, found here as an entry on June 7.)
The District Court found that, under Colorado law dealing with issues that have been raised and decided in earlier cases, the voters were barred from pursuing their Elections Clause claim in their lawsuit. Although they were not parties in the Salazar case, and although their Election Clause claim was somewhat different, they shared an interest with state officials who pursued and failed with a variation of the Elections Clause claim. The voters’ lawsuit, the Court said, involves the “necessary issue” of “who may redistrict under the Elections Clause.” That issue, it said, was litigated and decided in Salazar. The voters are bound by that, under Colorado law, because the dispute in both cases was over “a matter of general interest toall its citizens” and voters and state officials share that interest.
It appears that, technically, the voters could seek to appeal that ruling directly to the Supreme Court. But the Supreme Court, according to the standard “Supreme Court Practice” manual, has for years shown “great deference” to how lower federal courts interpret state law, because they are on the scene That manual says that “such deference is not ironclad.” But, the manual notes, the Court is more prepared to defer when lower court judges in the case come “from the state whose law is being interpreted.” (See “Supreme Court Practice,” eighth edition, pp. 134-135.)
The decision here was made by three senior judges — U.S. District Judge David M. Ebel, Tenth Circuit Judge John C. Porfilio and District Judge Zita Leeson Weinshienk — all experienced Colorado lawyers. (Judge Porfilio thought the case should be dismissed for lack of standing, but did not dispute the Court’s view on “issue preclusion.”) Judge Ebel is also a former law clerk to the late Justice Byron R. White.
The District Court decision vindicates the dissenting position taken by Justice John Paul Stevens last February, when the Supreme Court overturned the District Court’s earlier dismissal. The Court should have found that the four voters were barred, by “issue preclusion” under state law, from bringing their challenge, Stevens said. Justices Ruth Bader Ginsburg and David H. Souter found Stevens’ view “persuasive,” but they said that the issue seemed “best left for full airing and decision on remand.”
