A Merciful End To A Bad Idea

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

The Colorado Supreme Court got it right Monday when it tossed out the state's proposed redistricting map for 2004 and beyond. The ruling is legally supportable, politically fair and, perhaps most importantly, a tangible sign that there are still some judges somewhere who are willing to protect their turf by standing up to the legislative branch when it seeks to bend the rules past the point of political and legal decency.

Stripped of its legal mumbo-jumbo, the ruling comes down to this: there may be second chances in the politics and law of redistricting in Colorado but there are no third chances. Colorado's high court ruled that the legislature forfeited its right to redistrict in 2003 after it failed twice to redistrict between the 2000 census and the 2002 election. The Justices, by a 5-2 majority, ruled that the lawmakers couldn't get their constitutional redistricting power back after they ceded it to the courts before the 2002 election.

Because it restores a balanced redistricting plan for the state - a plan that gave Coloradoans an amazingly close race in the new 7th Congressional District - the decision is a huge procedural blow to the Republican Party both in Colorado and in Washington.

It's also a ruling that renews one's faith in the separation of powers doctrine. For if the Colorado court were to have walked away from this case, or ruled in favor of the overtly partisan plan, the Justices might just as well as packed up their desks, handed in their robes, and gone home. Instead, the Court struck down a last-minute effort by the GOP-dominated legislature to replace a thoroughly competitive redistricting plan with a completely uncompetitive redistricting plan that dramatically helped Republican incumbents and candidates at the expense of their Democratic counterparts.

If this scenario sounds familiar, it is. There are similar redistricting battles underway in Texas and Pennsylvania. Next week, the United States Supreme Court will take a look at the Pennsylvania case and before the end of June will issue a ruling that might offer some clarity in all of these cases.

Because it is based mostly upon Colorado law, Monday's ruling has no precedent value for the judges in the other two cases. But you can bet that those judges, as well as Chief Justice William Rehnquist and Co., will be reading the Colorado decision for guidance.

The Justices in Washington also will have to read the Colorado ruling if and when the case gets appealed to the High Court. But there is no guarantee that they will take the case or, if they do, that they can hear and decide it in time for the next election cycle.

Because it combines law and politics so thoroughly, the ruling itself was bound to create some predictable sound bites. And, indeed, before my printer stopped printing out the 63-page majority decision some Colorado pols already were denouncing it publicly as another example of unelected judges thwarting the "will of the people" (not to mention the majority party in the State House).

This is nonsense, of course. Like it or not, the fact is that the Justices did precisely what they are supposed to do in this system of government: they determined whether a state statute - in this case the one that authorized the new redistricting - violated the state's constitution.

If "unelected" judges aren't supposed to do that job we ought to simply tear out the whole of Article III of the Constitution, which created the judicial branch, as well as the concomitant state constitutional provision. Besides, I'm not aware that the good citizens of Colorado were clamoring for a new redistricting plan in 2003 after the old plan for 2002 seemingly worked out so fine.

The majority first declared its jurisdiction over the case by recognizing that "congressional redistricting is a crucial issue, which warrants a decisive and expedient resolution from this court." The Court next ruled that Attorney General Ken Salazar indeed had the authority, as the state's chief legal officer, to bring the lawsuit against the state's secretary of state. Then the Justices tackled the meat of the case, deciding the "who" and "when" and "what" questions that made up the crux of the dispute.

Both the courts and the legislature can redistrict, the Justices ruled, but not both (or twice) during the same decade. So, the Court declared, the legislature was precluded in 2003 from coming up with its own redistricting plan after the courts approved a plan in 2002 following two rounds of legislative gridlock on the issue.

Whomever reads the ruling will immediately think back to former President Bill Clinton, who gave us the "it all depends on what the definition of 'is' is," line that helped define his presidency. That's because the majority came to its conclusion in part by declaring that the word "legislature" means more than just the state's legislative branch and that the phrase "General Assembly" means more than just the state's "legislature."

Critics of the ruling - like the two Justices who filed a 28-page dissent - surely are going to pounce on these definitional distinctions as proof that the Court went out of its way to limit the power of the legislative branch. But this argument isn't likely to go very far.

As the majority carefully pointed out, both the federal and state constitutions precluded the legislature from double-dipping into redistricting. "We find," the court concluded, that the framers of the Colorado Constitution intended to balance stability and fairness by both requiring and limiting redistricting to once per decade. Had they wished to have more frequent redistricting, the framers would have said so. They did not."

So what would you rather have? A once-a-decade redistricting performed by the legislature or the courts? Or an annual redistricting that follows the whims and fancies of the folks at the State House, the same ones who routinely spend their time and our money on silly pieces of showboat legislation? I thought so.

That's why - whether you are a Republican, a Democrat or neither - you ought to be satisfied that Monday, the system worked the way it was supposed to. The legislative majority tried to pull a fast one on the minority - a power grab that was an order of magnitude more serious than what legislative majorities usually try to pull - and the courts interceded to retain the status quo.

This is not "judicial activism," as one ill-advised Colorado lawmaker put it. It's the opposite. The Colorado court stepped in to stop political activism that would have had a devastating effect on the electoral process both in Colorado and perhaps around the country. I don't call that inappropriate. I don't call that judicial fiat. I don't even call that an abuse of power. I call that a good day at the office for the judicial branch.

By Andrew Cohen
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