Colorado Supreme Court Limits Legislature’s Role in Redistricting

By Ben Williams

Independent redistricting commissions. You've heard about them. You may even have an idea of what they are. But the degree of 'independence' as contemplated by legislators and advocates varies, and those variations show up in codification.

After all, every state that self-styles its redistricting commission as being independent gives the legislature some role in the selection of commissioners. So where is the line drawn?

The Colorado Supreme Court wrestled with this question in a case last week. In response to delays in the delivery of census data for redistricting purposes (also known as 'P.L. data') caused by the coronavirus pandemic, the Colorado General Assembly passed a law requiring the state's two independent redistricting commissions to use currently-available data sources for the preparation of draft maps. Once the state receives the delivery of census data for redistricting in mid-August, the commissions would then shift to using that data for the preparation of final redistricting plans. Recognizing the potential legal problems posed by such a law, the Assembly submitted the bill to the state supreme court for advisory review.

In a 38-page opinion, a majority of justices held that such a bill was beyond the scope of the legislature's power. In answering that question, the court looked at the initial drafting of the constitutional amendments that created the commissions (Amendments Y and Z) and the language presented to voters for approval or rejection. The court found that both made clear the purpose of the commissions was to remove the legislature from the process except for two specifically enumerated roles: funding the commissions and participation in one step of a multi-step commissioner selection process. Thus, the legislature had no power to compel the commissions to do anything-including telling them what t types of data they could use.

Perhaps more importantly, the court also held the use of non-P.L. data sources other than the delayed redistricting data from the Census Bureau are permissible. This empowers the commissions to use alternative data sources should they wish to do so. Both Illinois and Oklahoma have used data from the Census Bureau, but not from the decennial census. They've used data from the American Community Survey.

These 'alternative' data sets are just the latest in a series of 11th hour redistricting policy shifts. If you'd like to learn more about the ins and outs of redrawing lines, NCSL is hosting its final redistricting seminar next month in Salt Lake City. Those interested can register at this link.

Ben Williams is a policy specialist in NCSL's Elections and Redistricting Program.

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