In re Reapportionment of the Colorado General Assembly

PER CURIAM. In this original proceeding, we are required to review the finalized Reapportionment Plan ("Adopted Plan") submitted by the Colorado Reapportionment Commission ("Commission") to determine whether the Adopted Plan complies with article V, see-tions 46 and 47 of the Colorado Constitution. Colo. Const. art. V, § 48(1)(e). We hold that the Adopted Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2), and the Commission has not made an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in our most recent reapportionment opinion, In re Reapportionment of the Colo. Gen. Assembly, 45 P.3d 1237 (Colo.2002) [hereinafter In re Reapportionment 200%]. We therefore return the Adopted Plan to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011. I. Pursuant to Colorado Constitution article V, section 48(1)(a), the Commission was tasked with redrawing Colorado House and Senate districts based on population changes reflected in the 2010 federal census. We commend the Commission and its staff for their effort and commitment to a difficult and complex endeavor,. The Commission held eleven meetings between May and July 2011 to receive public testimony from various geographic regions of the state; it then conducted twenty-five public hearings throughout the state to receive comments on its preliminary plans. In addition, the Commission maintained a website with information about the reapportionment process, the Commission's hearings, and copies of proposed plans, and regularly sent updated information to more than 380 interested persons on an email mailing list. At a subsequent meeting on September 12, 2011, the Commission reviewed and discussed proposed final plans (Final Plans Senate 0Olvl and 002v1, and Final Plans House OOlvi and 002v1). After that meeting, the Chair of the Commission submitted additional proposed final plans (Final Plan Senate 003v1l and Final Plan House 003v1), and on September 19, 2011, the eleven-member Commission voted to approve the Chair's proposed plans for the Senate (9-2) and House (8-3). Together, these approved plans became the Adopted Plan now before us. Only a limited number of the sixty-five [110] House districts 1 and an even smaller number of the thirty-five Senate districts 2 are challenged here; no objections have been raised to the remaining districts in the Adopted Plan. II. Our role in this proceeding is a narrow one: we measure the Adopted Plan against the constitutional standards, according to the hierarchy of federal and state criteria we have previously identified. In re Reapportionment 2002 at 1247; In re Reapportionment of the Colo. Gen. Assembly, 828 P.2d 185, 189-90 (Colo.1992) [hereinafter In re Reapportionment 1992 ]; In re Reapportionment of the Colo. Gen. Assembly, 647 P.2d 191, 194 (Colo.1982) (per curiam) [hereinafter In re Reapportionment 1982]. Our review must be swift and limited in seope so that elections may proceed on schedule. In re Reapportionment 1992, 828 P.2d at 189; In re Reapportionment 1982, 647 P.2d at 194 n. 6. In redrawing legislative districts for the House and Senate of the Colorado General Assembly, the Commission must comply with federal law and state constitutional standards, the overarching purpose of which is to assure equal protection of the right to vote and the right to participate in the political process. In re Reapportionment 1982, 647 P.2d at 194. Our prior opinions addressing reapportionment have established a clear hierarchy of the relevant federal and state criteria. In order of priority, the Adopted Plan must comply with: (1) The Fourteenth Amendment Equal Protection Clause, U.S. Const. amend. XIV, § 1 (prohibiting the states from denying "to any person within its jurisdiction the equal protection of the laws"); and the Fifteenth Amendment, id. amend. XV ("The right of citizens of the United states to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."); (2) Section 2 of the Voting Rights Act of 1965, Pub.L. 89-110, 79 Stat. 445 (codified as amended in 42 U.S.C. § 1973) (prohibiting a state or political subdivision from imposing or applying a "voting qualification or prerequisite to voting or standard, practice, or procedure . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)@) of this title [pertaining to a member of a language minority group] ); (8) Colorado Constitution article V, section 46 (requiring substantial equality of population of districts, not to exeeed five percent deviation between the most populous and least populous district in each house); Colorado Constitution article V, section 47(2) (prohibiting districts that divide counties, "[elxcept when necessary to meet the equal population requirements of section 46," and requiring that "the number of cities and towns whose territory is contained in more than one district of the same house shall be as small as possible"); (4 w/ (5) Colorado Constitution article V, section 47(1) (requiring districts to be as compact as possible and consist of contiguous whole general election precinets); and (6) Colorado Constitution article V, section 47(8) (requiring preservation of communities of interest within a district wherever possible). In re Reapportionment 2002, 45 P.3d at 1247; In re Reapportionment 1992, 828 P.2d at 189-90. In explaining this hierarchy, we have previously acknowledged that any plan adopted by the Commission must first comply with federal law. In re Reapportionment 2002, 45 [111] P.3d at 1247 ("If the Commission faces actual or probable federal law violations, its starting point for the Approved Plan is compliance with federal law."); see also In re Reapportionment 1992, 828 P.2d at 189-98 (discussing Voting Rights Act objections raised to the 1992 reapportionment plan). "If federal law issues are not present, the Commission proceeds directly to the Colorado criteria and applies them according to their preferential order." In re Reapportionment 2002, 45 P.3d at 1247. With respect to the state constitutional criteria, our prior case law has made clear that section 47(2) allows the Commission to divide a county only if necessary to meet the equal population requirement of section 46. Id. at 1248 (citing In re Reapportionment 1982, 647 P.2d at 197). The five percent deviation3 allowance in section 46 provides the Commission some flexibility in maintaining substantially equal population across all districts in a house (the paramount concern under the Fourteenth Amendment and seetion 46), while simultaneously minimizing county and city splits (the most important criterion under section 47). In re Reapportionment 2002, 45 P.3d at 1248. We have emphasized that "[the Commission's Adopted Plan must be (1) sufficiently attentive to county boundaries to meet the requirement of section 47(2), and (2) accompanied by an adequate factual showing that less drastic alternatives could not have satisfied the equal population requirement of the Colorado Constitution." Id. at 1249 (internal quotations and citations omitted). The remaining criteria, compactness and preservation of communities of interest, are subordinate to compliance with section 47(2). Other nonconstitutional considerations, such as the competitiveness of a district, are not per se illegal or improper; however, such factors may be considered only after all constitutional criteria have been met. IIL The various objections to the Adopted Plan revolve around a common theme: namely, that the Adopted Plan violates seetion 47(2) because it is not sufficiently attentive to county boundaries, and because it failed to minimize city splits in Colorado Springs.4 We agree. For example, the Commission contends that it was required to comply with section 2 of the Voting Rights Act when drawing districts in Aurora, and that such compliance justified county splits in Arapahoe and Jefferson counties, directly and indirectly affecting several House districts. The changed ethnic and cultural demographics in this area of the state are unquestionably valid "community of interest" concerns under section 47(8), and the Commission appropriately considered these demographics, particularly the growth in the Latino population across the state, as part of its overall approach to drawing districts. However, the Commission's reliance on the need to comply with the Voting Rights Act to justify dividing Arapahoe and Jefferson counties cannot trump section 47(2) on the record before us, where the Commission conceded in its briefing and at oral argument that it lacked information from which its expert could opine on any potential section 2 violation in Aurora.5 See generally [112] Bartlett v. Strickland, 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). Consequently, this justification for county splits in Arapahoe and Jefferson Counties is inadequate. This is particularly true where the record indicates that the Commission had before it alternative plans that avoided the county boundary splits challenged here while still preserving these communities of interest through Hispanie-majority and minority-influence districts. Absent a showing that federal law requires a different result, section 47(2) " 'allows the Commission to divide a county only if necessary to meet the equal population requirement.!" In re Reapportionment 2002, 45 P.3d at 1248 (quoting In re Reapportionment 1982, 647 P.2d at 197). We hold that the Adopted Plan is not sufficiently attentive to county boundaries to meet the requirements of article V, section 47(2). We further hold that the Commission has not made an adequate showing that a less drastic alternative could not have satisfied the equal population requirement of article V, section 46, given that the record before us reflects that the Commission was presented with alternative plans that avoided many of the boundary splits challenged here. Accordingly, as required by article V, section 48(1)(e) of the Colorado Constitution, we return the Adopted Plan to the Commission for further consideration, modification, and resubmission with supporting materials by 5:00 p.m. on December 6, 2011. We again commend the Commission for its extraordinary efforts, and we recognize that redrawing districts to minimize county and city splits may well require adjustments to other district boundaries. We do not redraw the apportionment map for the Commission. Rather, "'[tlhe choice among alternative plans, each consistent with constitutional requirements, is for the Commission and not the Court'" In re Reapportionment 1992, 828 P.2d at 189 (quoting In re Reapportionment 1982, 647 P.2d at 194). The Commission shall determine how to formulate a plan that complies with article V, sections 46 and 47, in accordance with the guidance offered on remand in our 2002 opinion. See In re Reapportionment 2002, 45 P.3d at 1254. Chief Justice BENDER dissents, and Justice RICE joins in the dissent. Footnotes [1] Objections have been raised to House districts 1, 14-21, 25, 38, 56, 47, 58, 59, and 63-65 of the Adopted Plan. [2] Objections have been raised to Senate districts 9-12, 16, 26, 31, and 32 of the Adopted Plan. [3] ''The five percent deviation test means that the sum of the percent by which the largest district's population exceeds that of the ideal district and the percent by which the smallest district population falls short of the population of the ideal district must be less than five percent." In re Reapportionment 1982, 647 P.2d at 193 n. 4 (emphasis added); see also In re Reapportionment 2002, 45 P.3d at 1253 (noting technical violation of section 46 where deviation was 5.001 percent); In re Reapportionment of the Colo. Gen. Assembly, 46 P.3d 1083, 1090 (Colo.2002) (noting remedy of the technical violation}. [4] Objections to the House plan on this ground were filed by Arapahoe County; Douglas County; various officials and citizens of Elbert, El Paso, and Yuma counties; Jefferson County; Las Ani-mas County; Weld County; Town of Superior; Southwest Colorado Citizens for a Constitutional Map and Club 20; and Colorado Citizens for Fair Representation (CCFR). Objections to the Senate plan on this ground were filed by Arapahoe County; Douglas County; Town of Superior; and CCFR. The Garfield County Board of County Commissioners and the Montezuma County Clerk and Recorder both objected to the manner in which their respective counties were divided. [5] Thus, unlike in 1992, when the Commission was presented with a genuine dispute regarding potential Voting Rights Act violations, see In re [112] Reapportionment 1992, 828 P.2d at 189-93, here, the Commission had before it no evidence indicating racial bloc voting in this area.