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CARSTENS v. LAMM

January 28, 1982

Judith F. CARSTENS, Kim M. Rue, W. R. Bray, J. Robert Schafer, and Sherill R. Rochford, Plaintiffs,
v.
Richard D. LAMM, as Governor of the State of Colorado; J. D. McFarlane, as Attorney General of the State of Colorado; and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants; David T. GOENS, Janet Roberts, Jennie Sanchez, George Rosenberg, and Jean Galloway, Plaintiffs, v. Richard D. LAMM, as Governor of the State of Colorado, and Mary Estill Buchanan, as Secretary of State of the State of Colorado, Defendants



The opinion of the court was delivered by: FINESILVER

MEMORANDUM OPINION AND ORDER

In these consolidated cases, the Court is called upon to select a congressional redistricting plan for the State of Colorado. Following the tabulation of the 1980 decennial census, the Clerk of the United States House of Representatives informed the Governor of Colorado that the state, which currently has five representatives in Congress, was entitled to an additional congressional seat. Although the Governor and the General Assembly (sometimes referred to as the "State Legislature") made repeated attempts to develop an acceptable redistricting plan, both parties were unable to agree on the composition of the new districts. These suits were filed by several concerned citizens of Colorado in an effort to break the existing stalemate through judicial intervention.

 I

 OVERVIEW OF THE LITIGATION

 At the outset, we emphasize that "reapportionment is primarily a matter for legislative consideration and determination and that judicial relief becomes appropriate only when a legislature fails to reapportion to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so." White v. Weiser, 412 U.S. 783, 794-95, 93 S. Ct. 2348, 2354, 37 L. Ed. 2d 335 (1973) (quoting Reynolds v. Sims, 377 U.S. 533, 586, 84 S. Ct. 1362, 1394, 12 L. Ed. 2d 506 (1964)). The State Legislature fulfilled this responsibility ten years ago when the bill creating the current congressional districts was passed by both houses in the General Assembly and signed into law by the Governor. See C.R.S. 1973 § 2-1-101. At that time, there were 2,209,596 people residing within the borders of this state, and the ideal population *fn1" of each district was 441,919.

 Over the past ten years, however, the population of Colorado has grown at a rapid pace. According to the most current 1980 census figures, the population has increased by almost 700,000 people and now stands at 2,889,735. *fn2" Since this growth rate was proportionally greater than the average overall growth of the nation, Colorado was assigned an additional congressional seat during the decennial reapportionment *fn3" of the House of Representatives.

 Under the provisions of both federal and state law, the primary responsibility for drawing new congressional districts lies with the State Legislature, subject to the approval of the Governor. 2 U.S.C. § 2c (1979) *fn4" ; Colo.Const. art. V, § 44 (1973) *fn5" Shortly after the Clerk of the House of Representatives issued the reapportionment mandate, the Governor and the General Assembly began to consider various methods of approaching the task of redistricting. *fn6" By July 6, 1981, the first proposed plan, designated "H.B. 1615" *fn7" , had passed both houses of the General Assembly. The Governor promptly vetoed the bill and sent the matter back to the Legislature for further study. His veto message urged the General Assembly to set aside partisan political considerations and develop a "fairer and more responsible plan for congressional redistricting." Exhibit 27a, Governor's Veto Message of H.B. 1615 dated June 12, 1981.

 In response to the Governor's veto message, the Executive Committee of the State Legislative Council appointed an Interim Committee on Congressional Redistricting to review new proposals and make recommendations to the General Assembly *fn8" After several days of meetings in early July, the Committee referred five plans to the General Assembly. Although the Governor notified the Legislature in advance that none of these plans was acceptable, one plan, designated "H.B. 1618" *fn9" , was subsequently passed by both the State House of Representatives and Senate. The Governor vetoed the bill immediately upon receipt. He criticized the General Assembly for creating a highly partisan plan which would split the home counties of three incumbent Democratic representatives while giving "safe" districts to two incumbent Republicans. In addition to the political problems, the Governor noted that the plan "needlessly (split) select counties and fail(ed) to respect important communities of interest." He urged the General Assembly to work together toward an acceptable compromise for the citizens of Colorado. Exhibit 27b, Governor's Veto Message of H.B. 1618 dated July 17, 1981.

 The matter was sent back to the Legislature's Interim Committee on Congressional Redistricting which met for several days in August. The Committee reviewed a large number of proposals and ultimately selected three plans for referral to the entire Legislature. Despite warnings from the Governor that he could not approve any of the plans recommended by the Committee, the Legislature reconvened and passed a third plan, designated "H.B. 1624" *fn10" , on September 22, 1981. Rather than veto the bill immediately, the Governor announced his intention to refrain from taking any action on the measure for ten days to allow for the possibility of a compromise.

 Before any serious negotiations could begin, however, the first of these consolidated lawsuits, Civil Action No. 81-F-1713, was filed with the Court. The plaintiffs, Judith F. Carstens, Kim M. Rue, W. R. Bray, J. Robert Schafer and Sherill R. Rochford, are residents of each of the five current congressional districts. Their complaint seeks declaratory and injunctive relief against Governor Richard D. Lamm and Secretary of State Mary Estill Buchanan. *fn11" Specifically, plaintiffs (hereinafter referred to as the "Carstens plaintiffs") make three requests of this Court:

 
(1) to rule that C.R.S. 1973 § 2-1-101 is unconstitutional because it provides for only five congressional districts instead of the six districts mandated by the 1980 apportionment of the House of Representatives;
 
(2) to enjoin defendants from conducting either the primary or general congressional election for 1982 until Colorado is lawfully divided into six congressional districts; and
 
(3) to accept H.B. 1624, the most recent plan adopted by the Legislature, as the redistricting plan for Colorado in the event that the Governor and the Legislature could not agree on a compromise proposal in a timely manner.

 Even the possibility of judicial intervention in the redistricting matter could not prompt the parties to reach an accord. On October 8, 1981, the Governor's ten-day grace period expired and he vetoed H.B. 1624. For the first time, however, the Governor's veto message not only included a critique of the rejected plan but also put forth a counter-proposal. *fn12" Exhibit 27c, Governor's Veto Message of H.B. 1624 dated October 8, 1981. The Governor subsequently met with leaders of the State Legislature to discuss the merits of his plan and the prospects for resolving the matter without judicial assistance.

 In the meantime, several concerned citizens filed a second lawsuit on October 23, 1981. The new plaintiffs, David T. Goens, Janet Roberts, Jennie Sanchez, George Rosenberg and Jean Galloway (hereinafter referred to as the "Goens plaintiffs") are also residents of each of the five current congressional districts. Their complaint similarly requests this Court to enjoin the defendants, Governor Richard D. Lamm and Secretary of State Mary Estill Buchanan from conducting the primary or general congressional elections until a new redistricting plan has been adopted. In the absence of a compromise by the parties, the Goens plaintiffs asked the Court to adopt a plan which satisfied the following seven requirements: (1) population equality; (2) absence of racial discrimination and non-dilution of minority votes; (3) compactness; (4) contiguity; (5) preservation of county lines; (6) preservation of municipal boundaries; and (7) preservation of communities of interest. The Goens plaintiffs also urged the Court to adopt their proposed plan *fn13" which complied with the seven stated criteria or, in the alternative, to implement provisions of 2 U.S.C. § 2a(c)(2) (1979). Under this federal statute, the state would elect the "additional Representative ... from the state at large and the other Representatives from the districts then prescribed by the law of the state." 2 U.S.C. § 2a(c)(2) (1979).

 Negotiations between the Governor and the General Assembly continued throughout the month of October and culminated in a settlement conference at the federal courthouse on November 6, 1981. At the end of this conference, both the Governor and the leaders of the General Assembly conceded that there was no hope of reaching a compromise. *fn14" The two lawsuits were subsequently consolidated, and the case was set for trial on December 3rd and 4th. In the ensuing weeks, twenty-two plans *fn15" were submitted to the Court for consideration. At trial, however, testimony focused on five major plans: H.B. 1624, *fn16" submitted by Carstens plaintiffs; the Goens plan, *fn17" submitted by the Goens plaintiffs; Governor's Proposal A *fn18" and the GRC plan, *fn19" submitted by defendant Lamm; and the McPhee Plan # 2, *fn20" submitted by a private citizen.

 II

 JURISDICTION

 The parties agree that this Court has jurisdiction over plaintiffs' claims for declaratory relief pursuant to 28 U.S.C. § 2201 and 2202 (1979). Jurisdiction over plaintiffs' equitable claims is based on 28 U.S.C. §§ 1343(3), 1343(4) (1979) and 42 U.S.C. §§ 1983 and 1988 (1979). Because this case challenges the constitutionality of the current apportionment of Colorado's congressional districts, a three-judge court was convened in accordance with the provisions of 28 U.S.C. § 2284(a) (1979). *fn21"

 Defendant Buchanan contends that the Legislature and the Governor have not had a full opportunity to act on redistricting Colorado, and therefore, the case before the Court is not ripe for adjudication. According to Buchanan, the Legislature and the Governor "may well" reach an accord on redistricting if they are given more time. Plaintiffs, however, point out that Colorado's congressional districts must be finalized prior to certain precinct and primary deadlines. *fn22" They argue that the Court cannot wait to take action on this matter until those deadlines expire.

 Ripeness is an amorphous legal concept subject to many "subtle pressures including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought." Poe v. Ullman, 367 U.S. 497, 508, 81 S. Ct. 1752, 1758, 6 L. Ed. 2d 989 (1961). See also, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); In re Grand Jury, 604 F.2d 69 (10th Cir. 1979). The central concern of a ripeness inquiry is "whether there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality" to warrant the attention of the Court. Lake Carriers Ass'n. v. MacMullan, 406 U.S. 498, 506, 92 S. Ct. 1749, 1755, 32 L. Ed. 2d 257 (1972) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941)). As a general rule, the Court will not review matters involving uncertain and contingent future events that may not occur as anticipated or may not occur at all. See Wright & Miller, 13 Federal Practice & Procedure, § 3532, p. 238 (1975).

 In the instant case, the Governor and the State Legislature have had ample opportunity to redistrict Colorado to provide for an additional representative. The Legislature has passed three different redistricting proposals, all of which were subsequently vetoed by Governor Lamm. No attempt was made to override these vetoes. Despite months of deliberate study and negotiations, the people of Colorado still do not have an acceptable congressional redistricting plan.

 We are persuaded that the fate of redistricting in Colorado has reached an impasse which the parties are not capable of resolving. At the end of the November 6 negotiating session in the federal courthouse, the parties agreed that it "would do neither side any ... good to negotiate ... further". Transcript, Hearing of November 6, 1981, p. 3. Moreover, at trial Representative Ronald Strahle, Majority Leader of the Colorado House of Representatives testified that it was "highly remote" that the Governor and the Legislature would ever agree on an acceptable redistricting plan. This assessment was never challenged.

 The hardship to the parties and to the people of Colorado is evident. There is no dispute that the current posture of Colorado's congressional districts is unconstitutional. If an acceptable redistricting plan is not adopted, the only alternative would be to hold the 1982 congressional elections pursuant to district lines which are patently offensive to the long-established principle of "one person-one vote". Thus, this Court is presented with a controversy of immediate concern. There is no indication that absent judicial intervention, a viable solution will be forthcoming. Considering the nature of the issues presented for decision and the hardship to the parties, we find that the redistricting question is ripe for adjudication.

 One possible short term solution to the redistricting dilemma is contained in 2 U.S.C. § 2a(c)(2) (1979). This federal statute declares, "until a state is redistricted in the manner provided by the law thereof after any apportionment, ... if there is an increase in the number of representatives, such additional representative or representatives shall be elected from the state at large and the other representatives from the districts then prescribed by the law of such State." Defendant Buchanan maintains that even if this matter is ripe for review, this Court must defer to the directives of this statute and dismiss the case.

 The Carstens plaintiffs claim that this Court is not constrained by the provisions of 2 U.S.C. § 2a(c)(2) because the measure was impliedly repealed when Congress passed 2 U.S.C. § 2c in 1967. Section 2c provides, "In each state entitled ... to more than one representative under an apportionment, ... there shall be established by law a number of districts equal to the number of representatives to which such state is entitled, and Representatives shall be elected only from districts so established, no district to elect more than one representative ..." On its face, Section 2c appears to prohibit at-large elections under any circumstances since the number of districts and the number of representatives must always be equal.

 We are of the view that these two statutes are not necessarily inconsistent and do not preclude this Court from considering the redistricting dilemma. Section 2c prohibits a legislature or court from deliberately designing a redistricting plan which would elect at-large representatives. Arguably, Congress did not repeal Section 2a(c)(2) because they did not want to leave a state without a remedy in the event that no constitutional redistricting plan exists on the eve of a congressional election, and there is not enough time for either the Legislature or the courts to develop an acceptable plan. *fn23" In this very limited circumstance, we believe that Section 2a(c)(2) provides emergency statutory relief from an otherwise unconstitutional situation. There is nothing in the language of Section 2a(c)(2) which indicates that Congress intended to bar the federal courts from providing timely assistance to the state in resolving a redistricting dispute. Since the posture of this case does not require the use of such a drastic emergency remedy, we find that Section 2a(c)(2) is not applicable here.

 III

 ISSUES

 The issues in this case can be divided into two broad categories. The first category defines the scope of the Court's authority to act while the second category delineates the criteria which form the basis of the Court's decision.

 A. The Scope of the Court's Authority to Act

 Although we have established that this Court has jurisdiction to rule on the redistricting dispute, it is also important to determine the scope of the Court's authority in this matter. According to the Carstens plaintiffs, our authority is somewhat limited. Since redistricting is primarily the responsibility of the State Legislature, they argue that H.B. 1624, the last legislative pronouncement, represents current state policy on redistricting and should receive priority during the Court's deliberations.

 Carstens plaintiffs claim that courts in general have paid great deference to the "studied and thoughtful approach" to redistricting provided by the legislative process. As examples of instances in which a court has deferred to the legislature, they cite White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973) and Donnelly v. Meskill, 345 F. Supp. 962 (D.Conn.1972). These cases fail to support Carstens' position.

 In White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973), the Supreme Court reversed a three-judge district panel's selection of a redistricting plan because that plan "broadly brush(ed) aside state apportionment policy without solid constitutional or equitable grounds for doing so." Id. at 796, 93 S. Ct. at 2355. The case is not controlling, however, because the "state apportionment policy" referred to by the Court was embodied in a plan which not only had been passed by the State Legislature but also had been signed into law by the Governor. Id. at 784, 93 S. Ct. at 2349. In the instant case, H.B. 1624 was approved by the General Assembly but vetoed by the Governor. *fn24"

 Although Donnelly v. Meskill, 345 F. Supp. 962 (D.Conn.1972), another case cited by the Carstens plaintiffs, is factually similar to the situation before this Court, Donnelly is also distinguishable. In that case, the Court was required to select one of three plans submitted after the Legislature's redistricting bill had been vetoed by the Governor. The plan chosen by the Court contained districts "essentially as outlined by the legislature, with adjustments necessary to bring about virtually complete population equality." Id. at 965. While the Court felt that this essentially legislative plan was constitutionally sound and workable, it concluded, "if time permitted extended hearings before the court or extended consideration by a court-appointed master, a better plan might be devised, weighing all possible factors." Id. at 965. In the instant case, the Court has solicited extensive submissions from the parties and does not face the same severe time constraints *fn25" which confronted the Donnelly court. Thus, we do not feel that the holding in either White or Donnelly compels us to give priority to H.B. 1624, particularly if a better plan is available.

  Congressional redistricting is a law-making function subject to the state's constitutional procedures. Koenig v. Flynn, 285 U.S. 375, 52 S. Ct. 403, 76 L. Ed. 805 (1932). See also Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795 (1932). The Colorado Constitution explicitly provides that every bill passed by the General Assembly shall be signed by the Governor before it becomes law. *fn26" Colo.Const. art. IV, § 11. There is no authority conferred upon the General Assembly "to create congressional districts independently of the participation of the Governor as required by the state constitution with respect to the enactment of laws." Smiley, 285 U.S. at 373, 52 S. Ct. at 401. Accord, State ex rel. Reynolds v. Zimmerman, 22 Wis.2d 544, 126 N.W.2d 551 (1964).

 As a result, H.B. 1624, which certainly is entitled to careful consideration by this Court, cannot represent current state policy any more than the Governor's proposal. Both the Governor and the General Assembly are integral and indispensable parts of the legislative process. *fn27" To take the Carstens' position to its logical conclusion, a partisan state legislature could simply pass any bill it wanted, wait for a gubernatorial veto, file suit on the issue and have the Court defer to their proposal. This Court will not override the Governor's veto when the General Assembly did not do so. *fn28" Instead, we regard the plans submitted by both the Legislature and the Governor as "proffered current policy" *fn29" rather than clear expressions of state policy and will review them in that light.

 B. The Criteria

 The primary goal of an acceptable congressional redistricting plan should be "fair and effective representation of all citizens." Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S. Ct. 1362, 1383, 12 L. Ed. 2d 506 (1964). Prior to the early 1960's, the Supreme Court refused to get involved in the predominantly political cases which challenged the composition of legislative or congressional districts. See e.g., Colegrove v. Green, 328 U.S. 549, 66 S. Ct. 1198, 90 L. Ed. 1432 (1946). *fn30" The disparities in the composition of districts in some states became so great, however, that the Court was forced to intervene in order to protect the integrity of the legislative system. Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962). *fn31" Development of the criteria which currently govern congressional redistricting began shortly thereafter with Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964).

 Over the next few years, the Court attempted to define the acceptable parameters of population deviation under the "one person, one vote" principle. Although the Court seemed to assume that equal representation was synonymous with equal population, it steadfastly refused to quantify the criteria announced in Wesberry as a fixed or numerical percentage. In Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), the Court invalidated a Missouri congressional redistricting plan with an overall population deviation of 5.97%. *fn32" Justice Brennan declared that Wesberry's "as nearly as practical" standard required "the State (to) make a good faith effort to achieve precise mathematical equality" and "(to) justify each variance, no matter how small." Id. at 530-31, 89 S. Ct. at 1228. The Court concluded that the population variances among the Missouri congressional districts were unacceptable and could not be justified by the state's attempt to avoid fragmenting political subdivisions or areas with distinct economic and social interests, to recognize projected population shifts, to ensure geographically compact districts, or to achieve a reasonable legislative compromise. Id. at 533-36, 89 S. Ct. at 1230.

 Similarly, in Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969), the Court invalidated a New York congressional redistricting plan with a total population deviation of 13.095% *fn33" In that case, New York did not claim that the Legislature had made a good faith effort to achieve mathematical equality. Instead, the state attempted to justify existing deviations by creating districts with specific interest orientations. The Court rejected this argument as "antithetical to the basic premise of the constitutional command to provide equal representation for equal numbers of people." Id. at 546, 89 S. Ct. at 1237.

 Although the Court has accepted greater population deviations for state legislative districts *fn34" , it seems preoccupied with the notion of precise mathematical equality for congressional districts. The most recent decision on this issue not only affirmed the strict standard enunciated in Kirkpatrick and Wells, but also tightened the range of acceptable variances. In White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973), the Court rejected a Texas redistricting plan with an overall ...


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