In re Interrogatories on Senate Bill 21-247 Submitted by the Colorado General Assembly

2021 CO 37

Opinion

Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch’s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association’s homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE June 1, 2021

2021 CO 37

No. 21SA146, In re Interrogatories on Senate Bill 21-247 Submitted by the Colorado General Assembly—Questions Submitted by the Legislature— Apportionment—Separation of Powers.

The supreme court exercises its original jurisdiction to review

interrogatories propounded by the General Assembly regarding the

constitutionality of proposed Senate Bill 21-247. The interrogatories ask

(1) whether the General Assembly can add and amend various terms to the

Colorado Revised Statutes instructing the independent redistricting commissions

established under article V, sections 44 to 48.4 of the Colorado Constitution to take

certain actions to account for census data delays, and (2) whether the General

Assembly can require courts to apply a “substantial compliance” standard in any

legal action challenging the redistricting commissions’ compliance with the

technical, but not substantive, requirements of article V, sections 44 to 48.4.

The supreme court answers both interrogatories in the negative. First, while

nothing in the constitution forbids the commissions from taking the actions

suggested by Senate Bill 21-247, the independent commissions were established by voters specifically to remove authority from the General Assembly over the

redistricting process. Thus, the General Assembly does not have the authority to

direct the independent commissions to interpret constitutional terms a certain way

or to take any action beyond what article V, sections 44 to 48.4 already require.

Second, the General Assembly does not have the authority to define the standard

that applies to constitutional challenges; that power lies within the sole province

of the judiciary. Accordingly, the supreme court concludes that Senate Bill 21-247

would be unconstitutional if enacted. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

2021 CO 37

Supreme Court Case No. 21SA146 Original Proceeding Pursuant to Article VI, Section 3 of the Constitution of the State of Colorado

In Re: Interrogatories on Senate Bill 21-247 Submitted by the Colorado General Assembly

General Assembly’s Interrogatories Answered en banc June 1, 2021

Attorneys for the Colorado General Assembly: Westfall Law, LLC Richard A. Westfall Denver, Colorado

Attorneys for the Governor and Attorney General: Philip J. Weiser, Attorney General Natalie Hanlon Leh, Chief Deputy Attorney General Eric R. Olson, Solicitor General Kurtis T. Morrison, Deputy Attorney General Michael McMaster, Assistant Solicitor General Lauren Davison, Assistant Attorney General Denver, Colorado

Attorneys for the Colorado Secretary of State: Philip J. Weiser, Attorney General Leeann Morrill, First Assistant Attorney General Grant T. Sullivan, Assistant Solicitor General Peter G. Baumann, Campaign Finance Enforcement Fellow Denver, Colorado Attorneys for Colorado Independent Congressional Redistricting Commission: Wheeler Trigg O’Donnell LLP Frederick R. Yarger Meghan Frei Berglind Denver, Colorado

Achieve Law Group Jerome DeHerrera Luis A. Corchado Denver, Colorado

Attorneys for Colorado Independent Legislative Redistricting Commission: Law Office of Richard C. Kaufman PC, Inc. Richard Kaufman Centennial, Colorado

Peters Schulte Odil & Wallshein LLC Timothy R. Odil Loveland, Colorado

JUSTICE MÁRQUEZ delivered the Opinion of the Court.

2 JUSTICE HOOD dissents, and JUSTICE GABRIEL joins in the dissent.

3 ¶1 For the last several decades, Colorado’s decennial redistricting process has

been a tumultuous, politically fraught, and notoriously litigious affair.1 Seeking a

new approach, Colorado voters in 2018 passed Amendments Y and Z,

amendments to the state constitution that vest the authority to draw congressional

and legislative districts with new, independent commissions made up of ordinary

voters. Colo. Const. art. V, §§ 44 to 48.4. The Amendments lay out instructions for

how the commissions should draw district maps, including criteria to be

considered in determining boundaries and detailed timetables that require public

feedback and judicial review of the final plans.

¶2 The cascading deadlines set out in Amendments Y and Z were based on a

crucial assumption: that the United States Census Bureau would release its

decennial census data in a timely fashion, as required by federal law. Delays

caused by the ongoing COVID-19 pandemic, however, mean that the Census

Bureau is operating months behind schedule this year and has yet to release crucial

1 See, e.g., Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713 (1964); Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982); Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002); People ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); Keller v. Davidson, 299 F. Supp. 2d 1171 (D. Colo. 2004); Lance v. Davidson, 379 F. Supp. 2d 1117 (D. Colo. 2005), vacated and remanded by Lance v. Dennis, 546 U.S. 459 (2006); Lance v. Dennis, 444 F. Supp. 2d 1149 (D. Colo. 2006), vacated and remanded by Lance v. Coffman, 549 U.S. 437 (2007); Lance v. Coffman, No. 03-cv-02452, 2007 WL 915497 (D. Colo. Mar. 23, 2007); Hall v. Moreno, 2012 CO 14, 270 P.3d 961.

4 redistricting data to which the redistricting commissions expected to already have

access. This delay has thrown into question the feasibility of complying with the

timelines established by Amendments Y and Z.

¶3 To address the resulting uncertainty, the General Assembly introduced

Senate Bill 21-247 (“SB 21-247”). Among other things, the bill would amend a

recently enacted statutory definition of “necessary census data” to allow the

commissions’ work to move forward based on preliminary census data and any

other state or federal demographic data the commissions see fit to consult. The

bill would also require the final plans submitted to this court for review to be based

on the more complete redistricting data that the Census Bureau is expected to

release later this year and would require the commissions to hold an additional

public hearing after that data is incorporated into the plans. Finally, the bill would

require a reviewing court to apply a “substantial compliance” standard to any

legal challenges that may be brought alleging a failure to comply with the

technical—but not substantive—requirements of Amendments Y and Z.

¶4 Recognizing that there are important questions as to the constitutionality of

SB 21-247, the General Assembly petitioned this court to exercise its original

jurisdiction under article VI, section 3 of the Colorado Constitution to answer the

following interrogatories:

1. Are the provisions of Senate Bill 21-247, which amend the statutory definition of “necessary census data,” establish statutory

5 authority for nonpartisan staff to use that data for the preliminary plans, and confirm in statute that the staff plans which provide the basis for action by the commission must be based on final census data, constitutional in allowing the commissions to perform their constitutional responsibilities in accordance with sections 44 to 48.4 of article V of the state constitution following the 2020 federal census?

2. Is the provision of Senate Bill 21-247 that directs a court to apply the standard of substantial compliance when adjudicating a legal proceeding that challenges the lack of compliance with the technical requirements for the redistricting process established in the state constitution and related statutes, such as the timing of this court’s review of a commission’s first approved map or a staff map when the commission is unable to adopt a plan by the deadline to do so, constitutional?

¶5 We accepted jurisdiction and now answer both questions in the negative.

Amendments Y and Z do not require the exclusive use of final census data as the

commissions and their nonpartisan staff begin their work. The commissions are

thus free to consult other reliable sources of population data, such as preliminary

census data and interim data from the Census Bureau’s American Community

Survey.

¶6 However, the General Assembly does not have the power to compel the

independent commissions or their nonpartisan staff to consider a particular source

of population data or take any action beyond what Amendments Y and Z already

require. The Amendments were expressly intended to remove the General

Assembly from the redistricting process, instead vesting all authority to draw

district maps with independent commissions. Under this new scheme, the

6 General Assembly has a discrete and limited role in appropriating funds for the

commissions and nominating a limited number of applicants for consideration as

commission members. See Colo. Const. art. V, §§ 44.1, 44.2, 47, 48. But nothing in

the Amendments authorizes the General Assembly to enact implementing

legislation or take actions that would otherwise curtail the commissions’

constitutionally mandated independence. Accordingly, insofar as SB 21-247

attempts to direct the actions of the commissions and their nonpartisan staff, it

would be unconstitutional if enacted.

¶7 The General Assembly likewise lacks the inherent power to dictate what

standard a court should apply when determining compliance with the technical

provisions of Amendments Y and Z; that task lies within the sole province of the

courts. Thus, while this court could certainly adopt such a standard, the provision

of SB 21-247 directing courts to apply a “substantial compliance” standard to these

constitutional provisions would be unconstitutional if enacted.

¶8 In so answering, we do not mean to suggest that the General Assembly had

any nefarious intent in proposing SB 21-247. The legislation was the product of

broad, bipartisan support and by all accounts appears to be a well-intentioned

attempt to help the redistricting commissions handle the unforeseen delay in the

release of census data. But however benign the General Assembly’s motives may

be, upholding the General Assembly’s incursion into the domains of both the

7 independent redistricting commissions and the judiciary here would set a

troubling precedent and run contrary to voter intent in enacting Amendments Y

and Z as well as our constitutional system of separation of powers. Accordingly,

we answer both of the General Assembly’s interrogatories in the negative.

I. Background

A. Colorado’s Redistricting History

¶9 Redistricting “has had a checkered history in Colorado.” People ex rel.

Salazar v. Davidson, 79 P.3d 1221, 1225 (Colo. 2003). Our original 1876 constitution

vested the General Assembly with authority to create both congressional and

legislative districts. See Colo. Const. art. V, § 44 (1876) (“When a new

apportionment shall be made by Congress the General Assembly shall divide the

State into Congressional districts accordingly.”); id. § 47 (“Senatorial and

Representative districts may be altered from time to time, as public convenience

may require.”). However, for years, the General Assembly failed to redistrict even

after the population had grown and the state had received additional

congressional seats, resulting in “grossly disproportionate” districts in which

“urban areas were systematically underrepresented.” Salazar, 79 P.3d at 1225–26.

¶10 This state of affairs ended after the U.S. Supreme Court ordered Colorado

to comply with the “one-person, one vote” principle. See Lucas v. Forty-Fourth Gen.

Assembly of State of Colo., 377 U.S. 713, 739 (1964). Lucas “ushered in a new era,”

8 after which it became clear that the state “must redistrict both its legislative and

congressional seats after every new census.” Salazar, 79 P.3d at 1226.

¶11 Two years after the announcement of Lucas, the voters of Colorado passed

an initiative vesting the power to conduct legislative redistricting for state House

and Senate districts in a commission made up of members of the legislative,

executive, and judicial departments. See Colo. Const. art. V, § 48 (1967). The

authority to draw congressional district boundaries, however, remained in the

hands of the General Assembly. And while the constitution provided the

legislative redistricting commission with procedural steps and substantive criteria

to guide its redistricting process, see Colo. Const. art. V, §§ 46, 47 (2017), the

General Assembly was simply instructed to “divide the state into as many

congressional districts as there are representatives in congress apportioned to this

state by the congress of the United States for the election of one representative to

congress from each district,” id. § 44 (2017).

¶12 Notwithstanding this broad grant of authority, the General Assembly failed

to produce a constitutional redistricting plan in three of the last four redistricting

cycles. See Hall v. Moreno, 2012 CO 14, ¶ 4, 270 P.3d 961, 964; Beauprez v. Avalos,

42 P.3d 642, 645–46 (Colo. 2002); Carstens v. Lamm, 543 F. Supp. 68, 71–72 (D. Colo.

1982). Thus, our courts were repeatedly visited by the “unwelcome obligation” of

judicial redistricting, Hall, ¶ 2, 270 P.3d at 963 (quoting Connor v. Finch, 431 U.S.

9 407, 415 (1977)), which “forces the apolitical judiciary to engage in an inherently

political undertaking,” id. at ¶ 5, 270 P.3d at 964.

B. Amendments Y and Z

¶13 All of this changed in 2018. That year, pursuant to article XIX, section 2 of

the Colorado Constitution, a unanimous General Assembly submitted two

referred measures to the voters proposing constitutional amendments that would

remove the redistricting authority from the General Assembly and the tri-branch

commission and place it, instead, in the hands of the new Independent

Congressional Redistricting Commission and the Independent Legislative

Redistricting Commission, both made up of ordinary voters.2 See SCR 18-004,

SCR 18-005; see also Chris Bianchi, Bye, Bye, Gerrymandering? Inside Amendments Y

and Z, Westword (Oct. 15, 2018), https://www.westword.com/news/inside-

amendments-y-and-z-which-try-to-eliminate-gerrymandering-in-colorado

-10885833. The Amendments, which were listed on voters’ ballots as

Amendments Y and Z, were designed to:

2The “Elections Clause” of the U.S. Constitution provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1. The U.S. Supreme Court has clarified that, where a state’s “lawmaking power . . . includes the initiative process,” the Elections Clause permits the vesting of redistricting power with independent commissions created by voter initiative. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 793 (2015).

10 • create [independent redistricting commissions], consisting of an equal number of members from each of the state’s two largest political parties and unaffiliated voters, to amend and approve . . . district maps drawn by nonpartisan legislative staff;

• establish a process for selecting commissioners, new requirements for transparency and ethics, and a procedure for judicial review of commission maps; and

• establish and prioritize the criteria the commission[s] must use for adopting the state’s U.S. congressional district [and state legislative district] map[s].

Legis. Council, Colo. Gen. Assembly, Rsch. Pub. No. 702-2, 2018 State Ballot

Information Booklet 8 (2018) (the “Blue Book”); see also id. at 23 (substantially similar

description for Amendment Z). Both the “Arguments For” and “Arguments

Against” the measures in the Blue Book highlighted the fact that the Amendments

sought to “transfer[] the legislature’s role [in the redistricting process] to . . .

independent commission[s].” Id. at 10; see also id. at 11 (arguing that, because it

would put the redistricting power in the hands of “unelected commissioners,”

rather than “state legislators,” Amendment Y “takes accountability out of the

redistricting process”); id. at 25 (noting approvingly that Amendment Z “keep[s]

political parties and politicians . . . from controlling the redistricting process”); id.

at 26 (arguing that Amendment Z “reduces accountability” because commissions

“are not even accountable to elected officials”). In short, Amendments Y and Z

sought to limit the influence of partisan politics over redistricting and make the

process more transparent and inclusive. Voters approved both measures by

11 overwhelming margins. See Colo. Sec’y of State, 2018 Abstract of Votes Cast 67, 69

(2018), https://www.sos.state.co.us/pubs/elections/Results/2018/

2018GeneralCertAndResults.pdf [https://perma.cc/WXC5-3JPV].

¶14 Now codified as article V, sections 44 to 48.4 of the Colorado Constitution,3

Amendments Y and Z set out substantive criteria for the redistricting maps,

requiring, among other things, that the final maps represent “a good-faith effort”

to achieve “population equality between districts,” id. §§ 44.3(1)(a), 48.1(1)(a);

preserve “communities of interest” as much as is reasonably possible, id.

§§ 44.3(2)(a), 48.1(2)(a); maximize politically competitive districts, id. §§ 44.3(3)(a),

48.1(3)(a); not be drawn for the purpose of protecting any political party or

candidate, id. §§ 44.3(4)(a), 48.1(4)(a); and not “dilut[e] the impact of [any] racial

or language minority group’s electoral influence,” id. §§ 44.3(4)(b), 48.1(4)(b).

¶15 In addition to these substantive criteria, the Amendments provide detailed

instructions for the selection, composition, and operation of the independent

commissions. The two commissions—one tasked with dividing the state into

3 Amendment Y, which is concerned with the congressional redistricting commission, is codified as article V, sections 44 to 44.6. Amendment Z, which is concerned with the state legislative redistricting commission, is codified as article V, sections 45 to 48.4. Because the Amendments are nearly identical in both content and structure, we discuss their provisions together throughout, noting differences between the two where appropriate.

12 federal congressional districts and the other tasked with dividing the state into

legislative districts for the state House of Representatives and Senate—are each

composed of twelve voters, selected and appointed according to the criteria laid

out in article V, sections 44.1 and 47, respectively. The commissions are assisted

by nonpartisan staff appointed by the director of research of the Legislative

Council and the director of the Office of Legislative Legal Services, nonpartisan

offices within the General Assembly. See id. §§ 44.2(1)(b), 48(1)(b). The

commissions are free to adopt their own rules governing administration and

operation, id. §§ 44.2(1)(e), 48(1)(e), but must follow certain constitutionally

mandated procedures relating to public involvement in the redistricting process,

id. §§ 44.2(3), 48(3), and submission of the final plan to this court for review, id.

§§ 44.2(2), 48(2). The commissioners and nonpartisan staff are also bound by

ethical requirements designed to “ensure transparency in the redistricting

process.” Id. §§ 44.2(4), 48(4).

¶16 Finally, and pertinent here, Amendments Y and Z set out a detailed timeline

for the redistricting process, with benchmarks and deadlines for the commissions,

13 their nonpartisan staff, and this court.4 The process begins in March of the

redistricting year when the Governor convenes the commissions. See id.

§ 44.2(1)(a) (congressional restricting commission must convene no later than

March 15); id. § 48(1)(a) (legislative redistricting commission must convene no

later than March 30). Once nonpartisan staff are appointed, they begin by creating

a “preliminary plan” for consideration by each of the commissions. See id.

§§ 44.4(1), 48.2(1). These plans must be presented and published “no earlier than

thirty days and no later than forty-five days after the commission[s] ha[ve]

convened or the necessary census data are available, whichever is later.” Id.

(emphasis added). Notably, for our purposes, the term “necessary census data” is

not defined anywhere within Amendments Y or Z.5

¶17 After preliminary plans are published, the commissions must hold hearings

on the plans throughout the state, id. §§ 44.2(3), 48(3), which must conclude no

later than July 7, id. § 44.4(2); id. § 48.2(2) (July 21 for the legislative commission).

Following the conclusion of these public hearings, the nonpartisan staff must

4 For the sake of simplicity, we primarily refer to the deadlines for the congressional redistricting commission, noting parenthetically when those deadlines differ for the legislative redistricting commission. 5The term “necessary census data” appears to have been carried over from a previous version of article V, section 48, governing the operation of the earlier tri- branch reapportionment commission. See Colo. Const. art. V, § 48(1)(e) (2017).

14 prepare, present, and publish at least three “staff plans” in accordance with a

timetable established by their respective commission. See id. §§ 44.4(3), 48.2(3).

Any time after the first staff plan is presented, but no later than September 1, the

commissions must adopt one of the staff plans as the “final plan,” which must then

be submitted to this court for review. Id. § 44.4(5); id. § 48.2(5) (September 15 for

the legislative commission).6 If, for any reason, one of the commissions fails to

adopt a final plan by the September deadline, the nonpartisan staff must submit

an unamended version of their third staff plan to this court for review. Id.

§§ 44.4(6), 48.2(6).7

¶18 Once a final plan has been submitted to this court, we must determine

whether the plan complies with the criteria set out in article V, sections 44.3 and

48.1. See id. §§ 44.5(1), 48.3(1). By November 1, this court must approve the plan

unless we find that the commission—or, if the commission failed to timely submit

a final plan, the nonpartisan staff—abused its discretion in applying or failing to

6If one of the commissions decides on a final plan before the nonpartisan staff has completed all three staff plans, the nonpartisan staff is not required to produce additional staff plans for that commission. Id. §§ 44.4(5)(a), 48.2(5)(a). 7The commissions may adjust the deadlines for the preliminary and staff plans if “conditions outside of the commission’s control require such an adjustment to ensure adopting a final plan” by the September deadline. Id. §§ 44.4(5)(c), 48.2(5)(c).

15 apply the specified criteria. Id. § 44.5(2), (4)(a); id. § 48.3(2), (4)(a) (November 15

for the legislative commission). If this court finds an abuse of discretion and rejects

the submitted plan, the commission has twelve days to hold hearings and adopt a

new plan that resolves any defects in the original plan. Id. §§ 44.5(4)(b), 48.3(4)(b).8

By no later than December 15, this court must approve “a plan”—be it the first

revised plan or a subsequent revised plan, if necessary—and order that the plan

be filed with the Secretary of State. Id. § 44.5(5); id. § 48.3(5) (December 29 for the

legislative redistricting plan).

C. Census Data Delays

¶19 The redistricting process, both before and after the adoption of

Amendments Y and Z, has always hinged on population data drawn from the

decennial census. The U.S. Constitution requires that the federal government

conduct a census every ten years. See U.S. Const. art. I, § 2, cl. 3. To fulfill this

obligation, federal law tasks the United States Census Bureau with taking a

“census of population as of the first day of April” once every ten years. 13 U.S.C.

§ 141(a) (2018). By December 31 of the census year, the Census Bureau must report

a tabulation of the total population by state—commonly referred to as

8 If the commission fails to adopt a new plan within twelve days, the nonpartisan staff is given an additional three days to formulate a new plan to submit to this court to review. Id. §§ 44.5(4)(c), 48.3(4)(c).

16 “apportionment data”—to be used in determining how many representatives in

Congress will be apportioned to each state. Id. § 141(b). Then, by the following

April 1, the Census Bureau must release to the states more detailed redistricting

data—often referred to as “Pub. L. 94-171 data”—to be used in drawing

congressional district maps. Id. § 141(c).

¶20 As with many things, the ongoing COVID-19 pandemic threw a wrench in

this process, delaying data collection and processing for the 2020 census. As a

result, the apportionment data that should have been reported by December 31,

2020, was not released until April 26, 2021. See 2020 Census Apportionment Results

Delivered to the President, U.S. Census Bureau (Apr. 26, 2021),

https://www.census.gov/newsroom/press-releases/2021/2020-census-

apportionment-results.html [https://perma.cc/NZQ2-MZUF]. The figures

released on April 26 show that Colorado will gain an additional, eighth seat in the

U.S. House of Representatives starting with the 2022 election due to the state’s

population growth since the 2010 census. Id. However, the Pub. L. 94-171 data

that normally would be used to draw new district maps will not be delivered until

August 16, 2021, more than four months after the April 1, 2021 deadline

contemplated by federal law. Id. But even this data may be of limited use: The

Census Bureau will be releasing data in a “legacy format” in August—that is, raw

data in an older format without tables or a user-friendly system for data access.

17 See U.S. Census Bureau Statement on Release of Legacy Format Summary Redistricting

Data File, U.S. Census Bureau (Mar. 15, 2021), https://www.census.gov/

newsroom/press-releases/2021/statement-legacy-format-redistricting.html

[https://perma.cc/5YGF-5F5A].9 States will likely have to wait until September

30, 2021 to access tabulated, user-friendly redistricting data. Id.

¶21 The timelines set out in Amendments Y and Z were designed to align with

the release of data from the federal decennial census. See, e.g., Colo. Const. art. V,

§§ 44.1(1), 47(1) (“After each federal decennial census of the United States, the

members of the commission shall be appointed and convened as prescribed in this

section.” (emphasis added)). But the delay of the 2020 census data makes it

difficult for the commissions to both make use of the up-to-date census data and

submit plans within the constitutionally mandated timelines. Tabulated data may

not be released until September 30, past the deadlines for submission of final plans

to this court. And even assuming the commissions are able to use the legacy

format data released on August 16, they will have only a few weeks after that to

9The Census Bureau acknowledges that “most states lack the capacity or resources to tabulate the data from these summary files on their own,” but nevertheless decided to release legacy format data earlier to give states the opportunity to use an outside vendor to process the data for a quicker turnaround. Id.

18 incorporate that data, receive public input, and submit final plans to this court.10

Any delay in the submission and approval of final maps could derail a host of

other deadlines that must be met before the 2022 elections. See generally Colo. Sec’y

of State, 2022 Election Calendar (2021), https://www.sos.state.co.us/pubs/

elections/calendars/2022ElectionCalendar.pdf [https://perma.cc/YHG2-M2KZ]

(listing deadlines for the 2022 election calendar).

D. SB 21-247

¶22 To address the impact of delayed census data on the redistricting process,

members of the General Assembly proposed SB 21-247. The bill seeks to address

the delay in two ways. First, the bill would amend and supplement various

provisions of the recently enacted section 2-2-902, C.R.S. (2020).11 The statutory

definition of “necessary census data” in section 2-2-902 would be amended to

include, for the 2021 redistricting year only, population estimates from the census

10Despite these setbacks, the commissions have done an admirable job of setting about their constitutionally mandated tasks, holding dozens of meetings and conducting public outreach. See generally Colorado Independent Redistricting Commission, https://redistricting.colorado.gov [https://perma.cc/PC53-5UFB]. Counsel for both commissions assured this court at oral argument that the commissions are endeavoring to create and submit constitutionally compliant plans by their respective September final-plan deadlines. 11Section 2-2-902 was added to the Colorado revised statutes last year following the enactment of the “Colorado Accurate Residence for Redistricting Act.” See ch. 38, sec. 1, § 2-2-902, 2020 Colo. Sess. Laws 122, 122.

19 apportionment data as well as other non-census sources. And a new statutory

term, “final census data,” would be added and defined to include, for the 2021

redistricting year only, both the legacy and tabulated Pub. L. 94-171 data. The

amended provisions of section 2-2-902 further instruct the commissions and their

nonpartisan staff as to how and when to release plans using final census data,

including a new requirement that the commissions hold at least one public hearing

after receiving final census data.

¶23 Second, SB 21-247 adds a new section to the Colorado Revised Statutes,

section 2-2-903, which would require a reviewing court to apply a “substantial

compliance” standard to the technical provisions of the Amendments:

In any legal proceeding challenging compliance by the commissions, the Colorado Supreme Court, or nonpartisan staff with the technical rather than substantive provisions that implement the redistricting processes established in the Colorado constitution and related statutes, a court shall adjudicate such dispute with a view to ascertaining whether there was substantial compliance with the requirements of such constitutional or statutory provisions.

(Emphasis added.)

¶24 SB 21-247 was introduced in the Senate on April 16, 2021, and was passed

on third reading on April 26, 2021. The bill was passed by the House of

Representatives on second reading on May 4, 2021, and currently awaits final

passage by the House of Representatives. Recognizing that the bill raises a number

of novel questions as to the interpretation of Amendments Y and Z and the

20 operation of the newly formed independent redistricting commissions, the

General Assembly petitioned this court to answer interrogatories before passing

the final bill. We accepted the petition and now exercise our jurisdiction to answer

the questions posed by the General Assembly.

II. Jurisdiction

¶25 Under our state constitution “[t]he supreme court shall give its opinion

upon important questions upon solemn occasions when required by the governor,

the senate, or the house of representatives.” Colo. Const. art. VI, § 3.12 It is the sole

province of this court to decide whether a question is sufficiently “important” and

arises from an appropriately “solemn occasion” so as to justify the exercise of our

original jurisdiction under article VI, section 3. In re Interrogatory on House Joint

Resol. 20-1006, 2020 CO 23, ¶ 26, __ P.3d __. And while it may be “‘impossible to

state any absolute rule’ for determining the importance and solemnity of a given

12 Colorado is one of only eight states in which the supreme court is constitutionally authorized to issue advisory opinions on questions presented to it by the governor or the legislature. In re Hickenlooper, 2013 CO 62, ¶ 35, 312 P.3d 153, 160 (Márquez, J., dissenting). The other seven states are Florida, Maine, Massachusetts, Michigan, New Hampshire, Rhode Island, and South Dakota. See Me. Const. art. VI, § 3; Mass. Const. pt. 2, ch. 3, art. 2; Mich. Const. art. 3, § 8; N.H. Const. pt. 2, art. 74; R.I. Const. art. 10, § 3; see also Fla. Const. art. 4, § 1(c) (advisory opinions can only be requested by the governor, not the legislature); S.D. Const. art. V, § 5 (same). Additionally, two states have statutory provisions allowing advisory opinions. See Ala. Code § 12-2-10 (2021); Del. Code Ann. tit. 10, § 141 (2021).

21 question,” this court’s past decisions provide a few broad guidelines to help us in

making that determination. Id. (quoting In re Hickenlooper, 2013 CO 62, ¶ 7,

312 P.3d 153, 156).

¶26 First, we have held that questions posed by the legislature “must be

connected with pending legislation and must concern either the constitutionality

of the legislation or matters connected to the constitutionality of the legislation

concerning purely public rights.” In re Submission of Interrogatories on House

Bill 99-1325, 979 P.2d 549, 554 (Colo. 1999). In keeping with this limitation, we

generally avoid answering “questions affecting private or corporate rights”

through the interrogatory process. In re Lieutenant Governorship, 129 P. 811, 814

(Colo. 1913).

¶27 Second, we generally decline to answer questions “that call for ‘hasty

consideration’ rather than the thorough analysis the interrogatories require.” In re

Interrogatory on House Joint Resol. 20-1006, ¶ 27 (quoting In re House Bill No. 1503 of

Forty-Sixth Gen. Assembly, 428 P.2d 75, 77 (Colo. 1967)). To this end, we favor

accepting jurisdiction over interrogatories that present “narrow question[s]” that

“principally requir[e] us to construe” legal provisions, as opposed to questions

that require “underlying factual determinations.” In re Interrogatory on House

Bill 21-1164, 2021 CO 34, ¶¶ 26, 29, __ P.3d __.

22 ¶28 Finally, we have declined in the past to answer questions that can be

addressed “through ordinary judicial proceedings.” In re Senate Resol. Relating to

Senate Bill No. 65, 21 P. 478, 480 (Colo. 1889).

¶29 We conclude that the interrogatories before us present important questions

upon a solemn occasion. The work of the independent redistricting commissions

is a matter of “great public importance involving the fundamental rights of

Colorado citizens to vote for their representatives.” Salazar, 79 P.3d at 1224. The

purely legal questions presented deal with concrete issues affecting these

fundamental public rights, and thus may be appropriately reviewed through the

interrogatory process. And given that article V, sections 44.5 and 48.3 task this

court with reviewing and approving the commissions’ final plans, there is no

alternative or “ordinary” judicial process through which these questions can be

readily addressed—it is ultimately the responsibility of this court to ensure

compliance with the processes and standards set out in Amendments Y and Z.13

13 The congressional redistricting commission has urged this court to decline answering the second interrogatory on the grounds that the question is unripe. But we have never before applied the justiciability doctrine of ripeness to petitions invoking our advisory power pursuant to article VI, section 3 of the Colorado Constitution. None of the cases cited by the commission suggest otherwise; instead, they represent instances in which this court declined to answer interrogatories due to unresolved issues of fact. See, e.g., In re Interrogatories of Colo. Senate of Fifty-First Gen. Assembly, Senate Resol. No. 5, 578 P.2d 216, 217 (Colo. 1978)

23 Accordingly, we exercise our original jurisdiction and answer the interrogatories

presented by the General Assembly.

III. Standard of Review

¶30 When construing a constitutional amendment, we seek to determine and

effectuate the will of the voters in adopting the measure. In re Interrogatory on

House Bill 21-1164, ¶ 31. To accomplish this, we begin with the plain language of

the provision, giving terms their ordinary meanings. Id. We may also “consider

other relevant materials such as the ‘Blue Book,’ an analysis of ballot proposals

prepared by the Legislative Council.” Lobato v. State, 218 P.3d 358, 375 (Colo.

2009). We endeavor to avoid a “narrow or technical reading of language contained

in an initiated constitutional amendment if to do such would defeat the intent of

the people.” Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996). And

whenever possible, we seek to avoid interpretations that would produce absurd

or unreasonable results. In re Interrogatory on House Bill 21-1164, ¶ 31.

¶31 When interpreting a statute, we generally begin with the presumption that

the act is “constitutional, and a party asserting that a statute is unconstitutional

has the burden of proving that assertion beyond a reasonable doubt.” Zaner,

(noting that an interrogatory could not be answered “in the absence of resolution of . . . issues of fact”). No such resolution of factual issues is necessary to answer the second interrogatory presented.

24 917 P.2d at 286. However, “[n]o such presumption of constitutionality arises when

we are asked by the General Assembly to address the constitutionality of

legislation that has not yet been passed by both houses of the General Assembly.”

Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 5 n.4 (Colo. 1993).

¶32 In examining the interaction between a challenged statute and a

constitutional amendment, our inquiry focuses on whether the two provisions

necessarily conflict. See In re Interrogatories Propounded by Senate Concerning House

Bill 1078, 536 P.2d 308, 313 (Colo. 1975) (“The test for the existence of a conflict is:

Does one authorize what the other forbids or forbid what the other authorizes?”).

Thus, we have held that “legislation that furthers the purpose of . . . constitutional

provisions or facilitates their enforcement is permissible.” Zaner, 917 P.2d at 286.

By contrast, “legislation which directly or indirectly impairs, limits or destroys

rights granted by . . . constitutional provisions is not permissible.” Id.

IV. Analysis

¶33 We begin by reviewing what is and isn’t required of redistricting plans

under Amendments Y and Z, ultimately concluding that the Amendments do not

require the exclusive use of final census data when creating preliminary and staff

plans. See Colo. Const. art. V §§ 44.4, 48.2. The commissions and their nonpartisan

staff are thus free to consult other reliable sources of population data, such as the

preliminary census data released on April 26 and interim data from the Census

25 Bureau’s American Community Survey, so long as the resulting final plans

submitted to this court for review conform with the criteria set out in article V,

sections 44.3 and 48.1.

¶34 We next determine that, in light of the commissions’ independent

constitutional authority and purposefully independent design, coupled with the

limited role carved out for the legislature, the General Assembly does not have the

authority to compel the commissions or their nonpartisan staff to take any action

beyond what Amendments Y and Z already require. Thus, to the extent that

SB 21-247 attempts to direct the actions of the commissions and their nonpartisan

staff, it would be unconstitutional if enacted.

¶35 Finally, we conclude that the General Assembly lacks the authority to

dictate the standard a court should apply when reviewing compliance with

constitutional provisions such as those found in Amendments Y and Z.

Accordingly, the portion of SB 21-247 that would require a reviewing court to

apply a “substantial compliance” standard for compliance with the technical

provisions of Amendments Y and Z would be unconstitutional if enacted.

A. Amendments Y and Z Do Not Require the Exclusive Use of Final Census Data in Creating Preliminary and Staff Plans

¶36 As described above, Amendments Y and Z lay out admirably detailed

guidelines for the operation of the commissions as well as criteria related to the

26 substantive requirements that the final redistricting plans must meet. None of

these guidelines or criteria, however, require that the commissions refer wholly or

exclusively to Pub. L. 94-171 data produced by the Census Bureau. Indeed, some

other types of data and testimony presumably must be heard by the commissions

to determine the existence of and relevant boundaries for different “communities

of interest.” See Colo. Const. art. V, §§ 44.3(2)(a), 48.1(2)(a) (requiring that the final

plans “preserve whole communities of interest” to the extent possible); id.

§§ 44(3)(b)(I), 46(3)(b)(I) (defining “community of interest” as any group that

“shares one or more substantial interests that may be the subject of . . . legislative

action” and “is composed of a reasonably proximate population”). The same is

likely true for evidence necessary to “maximize the number of politically

competitive districts.” See id. §§ 44.3(3)(a), 48.1(3)(a).

¶37 The phrase “census data” is mentioned only once in each Amendment, and

then only in reference to a deadline for preliminary plans. See id. §§ 44.4(1), 48.2(1)

(requiring preliminary plans to be “presented and published no earlier than thirty

days and no later than forty-five days after the commission has convened or the

necessary census data are available, whichever is later” (emphasis added)). Moreover,

this particular deadline is not carved in stone—each commission has the power to

adjust the date “if conditions outside of the commission’s control require such an

adjustment.” Id. §§ 44.4(5)(c), 48.2(5)(c). Thus, the phrase “necessary census data”

27 operates not as a substantive requirement for the final plans, but rather as a

shorthand to tie the redistricting timeline to the April 1 date by which federal law

demands that the Census Bureau release Pub. L. 94-171 data. See 13 U.S.C.

§ 141(c).

¶38 Finally, reading the phrase “necessary census data” to establish a

requirement that the commissions consider only Pub. L. 94-171 data would defeat

the intent of the voters who adopted Amendments Y and Z. Viewing the

Amendments as a whole, the preliminary and staff plans serve two primary

purposes. First, they serve as “rough drafts” for the final plans, giving the

commissions starting points from which to work. Second, and more importantly,

release of the preliminary and staff plans allows for public input into the

redistricting process. See, e.g., Colo. Const. art. V, §§ 44.4(1), 48.2(1) (allowing any

member of the public to submit comments on the preliminary plans and requiring

nonpartisan staff to explain how they intend to address those comments).

Imposing a requirement that the commissions wait to create such plans until

Pub. L. 94-171 data is available would limit the opportunity for public input and

make it harder for the public “to be heard as redistricting maps are drawn.” Id.

§§ 44(1)(f), 46(1)(f).

¶39 To be sure, in a normal year, it would be preferable for the preliminary and

staff plans to be based on the detailed Pub. L. 94-171 data timely provided by the

28 Census Bureau. But the text of Amendments Y and Z does not require the

exclusive use of such data in the creation of those plans, and we decline to read

such a requirement into the Amendments when doing so would frustrate the

intent of the voters and produce absurd results in light of this year’s census data

delays.14

B. The General Assembly Cannot Assert Control Over the Independent Commissions or Their Nonpartisan Staff

¶40 SB 21-247 seeks to direct the actions of the redistricting commissions and

their nonpartisan staff by demanding, for example, that they “shall” use

Pub. L. 94-171 data to prepare staff plans and “shall” conduct an additional

hearing after taking account of such data. Less explicitly, the bill seeks to direct

the actions of the commissions by defining the phrases “necessary census data”

and “final census data.” We conclude, however, that the General Assembly lacks

the authority to direct the actions or operation of the redistricting commissions

and their nonpartisan staff.

14The final plans that the commissions submit to this court must be the result of “a good-faith effort to achieve . . . population equality between districts . . . as required by the constitution of the United States.” Id. § 44.3(1)(a); see also id. § 48.1(1)(a) (requiring that, for legislative districts, there be no more than “five percent deviation between the most populous and the least populous district in each house”). Counsel for both commissions have assured the court that, to comply with these requirements, the commissions intend to use Pub. L. 94-171 data for the final plans.

29 ¶41 Under our constitution, the General Assembly is vested with the legislative

power of the state. Colo. Const. art. V, § 1(1). This power, however, is not

absolute. One important limitation on the General Assembly’s legislative

authority is the people’s reserved right of initiative. See id. § 1(2). The people may

exercise this right to enact constitutional amendments limiting the authority of the

General Assembly or vesting certain powers with independent constitutional

bodies. See Developmental Pathways v. Ritter, 178 P.3d 524, 533 (Colo. 2008) (“The

concepts of initiative power and self-execution are premised on a similar intent to

remove certain provisions from the reach of the legislature.”). Thus, when the

voters establish an independent constitutional body via initiative with the intent

of divesting the General Assembly of authority, the General Assembly’s power

with regard to that independent body “derives exclusively from [the] Amendment

. . . itself.” Colo. Ethics Watch v. Indep. Ethics Comm’n, 2016 CO 21, ¶ 11, 369 P.3d

270, 272; see also Yenter v. Baker, 248 P.2d 311, 316 (Colo. 1952) (“[W]here, as here,

the legislature is divested of all discretionary authority . . . , the legislature may

not make any other limitation than that provided in the Constitution.”). Put

differently, any power that the General Assembly asserts over a constitutionally

created independent commission that was expressly designed to divest the

legislature of authority must derive from the amendment that created the

commission, not the constitution’s general grant of legislative authority.

30 ¶42 The plain language of Amendments Y and Z make clear that the voters

intended to create independent redistricting commissions; indeed, the

Amendments use the term “independent” several times in describing the nature

of the commissions. See Colo. Const. art. V, §§ 44(1)(b), (2), (3)(a), 46(1)(b), (2),

(3)(a); cf. Yenter, 248 P.2d at 314 (quoting Black’s Law Dictionary for the notion that

“independent” means “not subject to control, restriction, modification, or

limitation from a given outside source”). Moreover, the Amendments contain

provisions intended to ensure that independence. See, e.g., id. § 44.2(4)(b)(I)(C)

(“Except for public input and comment, nonpartisan staff shall not have any

communications about the content or development of any plan outside of public

hearings with anyone except other staff members.”).15

¶43 The Amendments also give the commissions and their staff sole

constitutional authority to conduct all of the key tasks in the redistricting process.

The commissions and their staff, not the General Assembly, are tasked with

15The General Assembly, Governor, and Secretary of State focus largely on the anti-gerrymandering purpose of Amendments Y and Z without tethering that purpose to the independence of the commissions. But the voters expressly determined that the “public’s interest in prohibiting political gerrymandering is best achieved by creating . . . new and independent commission[s].” Colo. Const. art. V, §§ 44(1)(b), 46(1)(b) (emphasis added). To allow the General Assembly to curtail the commissions’ independence would thus impair the very mechanism that voters sought to use to fulfill the Amendments’ anti-gerrymandering purpose.

31 “acquir[ing] and prepar[ing] all necessary resources” for the redistricting process,

id. §§ 44.2(1)(b), 48(1)(b); creating preliminary plans, id. §§ 44.4(1)(b), 48.2(1)(b);

developing “standards, guidelines, or methodologies” for the development of staff

plans, id. §§ 44.4(3), 48.2(3); adjusting deadlines if necessary, id. §§ 44.4(5)(c),

48.2(5)(c); and adopting a final plan to submit to this court for review, id.

§§ 44.4(5)(a)–(b), 48.2(5)(a)–(b). By contrast, the General Assembly is assigned

only three discrete tasks pertinent to the redistricting process: setting

compensation for panelists who assist in selecting commissioners, id. §§ 44.1(5)(c),

47(5)(c); appropriating “sufficient funds” for commission expenses, id.

§§ 44.2(1)(d), 48(1)(d); and providing a per diem allowance for members of the

commissions, id.

¶44 Together, these provisions “evince[] an intent by Colorado voters to have

the Commission[s] interpret and enforce the Amendment[s’] provisions, separate

and distinct from the General Assembly.” Developmental Pathways, 178 P.3d at 532.

This intent was made explicit in the 2018 Blue Book, which explained that

“Amendment Y limits the role of partisan politics in the congressional redistricting

process by transferring the legislature’s role to an independent commission.” Blue Book,

supra at 10 (emphasis added); see also id. at 25, 26 (similar statements regarding the

effect of Amendment Z). The voters thus clearly intended to put the redistricting

process “beyond the power of the legislature.” Yenter, 248 P.2d at 314.

32 ¶45 The General Assembly’s arguments to the contrary are unavailing. First,

while Amendments Y and Z contemplate that the General Assembly will

appropriate funds for the redistricting process, they do not envision a broader,

“continued role for the General Assembly” in the redistricting process. Quite the

opposite. See Developmental Pathways, 178 P.3d at 532 (noting that the General

Assembly is tasked with appropriating funds for the Ethics Commission but

nevertheless concluding that “the nature of the Amendment suggests that the

voters wanted to minimize legislative involvement”).

¶46 The limited role assigned to the General Assembly in Amendments Y and Z

stands in contrast to many other constitutional provisions. For example, article V,

section 1(9) of the Colorado Constitution—the provision at the core of this court’s

analysis in Zaner, 917 P.2d at 285–86, and In re House Bill 1078, 536 P.2d at

314—expressly affords a role for the General Assembly to enact legislation

prescribing “the manner of exercising [the powers of initiative and referendum].”

Similarly, the constitutional amendments establishing the Independent Ethics

Commission expressly invite the General Assembly to enact implementing

legislation. Colo. Const. art. XXIX, § 9 (“Legislation may be enacted to facilitate

the operation of this article . . . .”). The medical marijuana amendment likewise

envisioned implementing legislation. Colo. Const. art. XVIII, § 14(8) (stating that

the General Assembly “shall define such terms and enact such legislation as may

33 be necessary for implementation of” the medical marijuana amendment). By

contrast, Amendments Y and Z do not contemplate a role for the General

Assembly to direct the independent commissions’ work or to define constitutional

terms like “necessary census data.” Accordingly, “[i]t does not lie within the

power of the General Assembly to place limitation or qualification upon” such

constitutional terms. Sunray Mid-Continent Oil Co. v. State, 368 P.2d 563, 566 (Colo.

1961).

¶47 Second, to the extent that the General Assembly argues that it must act to

check potential abuses of the commissions’ broad authority, we are unconvinced.

It is the role of this court to determine whether the commissions have abused their

discretion in applying the substantive criteria required of the final plans. See Colo.

Const. art. V, §§ 44.5(2), 48.3(2). Moreover, the final plans must comply with “one

person, one vote” and other federal constitutional requirements of redistricting

plans. See generally Evenwel v. Abbott, 577 U.S. 937 (2016) (discussing the demands

of the “one person, one vote” doctrine). These checks, coupled with the

purposefully independent and nonpartisan design of the commissions, see Colo.

Const. art. V, §§ 44.1, 47, are sufficient to ensure that the commissions do not abuse

the substantial authority granted to them under Amendments Y and Z.

¶48 Finally, SB 21-247 cannot be justified on the grounds that it furthers the

purposes of Amendments Y and Z. It may be the case that the underlying actions

34 that SB 21-247 directs the commissions to take would be consonant with the

purposes of Amendments Y and Z. But the very act of directing the commissions

“impairs” and “limits” the constitutionally mandated independence of the

commissions. See Zaner, 917 P.2d at 286.

¶49 Accordingly, to the extent that SB 21-247 attempts to direct the actions of the

redistricting commissions or their nonpartisan staff, it would be unconstitutional

if enacted.16

C. The General Assembly Cannot Define the Standard that a Court Applies When Reviewing Compliance with the Technical Provisions of Amendments Y and Z

¶50 In addition to attempting to direct the actions of the redistricting

commissions, SB 21-247 seeks to direct courts, instructing that “[i]n any legal

proceeding challenging compliance” with the “technical rather than substantive

provisions” of Amendments Y and Z, a court must apply a “substantial

compliance” standard. Again, however, we determine that the General Assembly

lacks the authority to make such a demand.

16Given that the interrogatories before us pertain only to the constitutionality of SB 21-247, we decline to opine on the constitutionality of any other legislation directing the operations of the independent redistricting commissions or their nonpartisan staff.

35 ¶51 As noted, the General Assembly is vested with the legislative power of the

state. Colo. Const. art. V, § 1(1). In exercising that power, the legislature has

instructed the judiciary how best to discern legislative intent when interpreting

statutes. See, e.g., §§ 2-4-201 to -216, C.R.S. (2020) (providing general rules for

construction of statutes). Similarly, the General Assembly has provided in some

instances that a “substantial compliance” standard should be applied to certain

statutory claims. See, e.g., § 1-1-103(3), C.R.S. (2020); § 8-47-104, C.R.S. (2020);

§ 15-2.5-304, C.R.S. (2020); § 31-12-107(1)(g), C.R.S. (2020).

¶52 But whatever the General Assembly’s power to establish the standard for

compliance with its own enactments, such power does not extend to constitutional

provisions. Interpreting the constitution—a task that encompasses the decision of

what standard to apply to a given constitutional claim—“is, and has always been,

a judicial function.” In re Interrogatories Concerning House Bill 1078, 536 P.2d at 316

(citing Marbury v. Madison, 5 U.S. 137 (1803)); see also Colo. Gen. Assembly v. Lamm,

704 P.2d 1371, 1379 (Colo. 1985) (noting that “interpretation of the constitution” is

“a function at the very core of the judicial role”). Accordingly, because the power

to define the standard applicable to a constitutional claim is vested in the courts,

see Colo. Const. art. VI, § 1, the General Assembly may not constitutionally

exercise that power, Colo. Const. art. III (“[N]o person or collection of persons

charged with the exercise of powers properly belonging to one of these

36 departments shall exercise any power properly belonging to either of the others,

except as in this Constitution expressly directed or permitted.”).

¶53 The General Assembly asserts that this cannot be so because it has already

provided in a different statute that a “substantial compliance” standard should

apply to claims relating to article X, section 20 of the Colorado Constitution. See

§ 1-7-907, C.R.S. (2020). But the General Assembly enacted that statutory provision

only after this court established substantial compliance as the applicable standard

for such claims in Bickel v. City of Boulder, 885 P.2d 215, 227 (Colo. 1994).17

Section 1-7-907 simply codified this court’s holding, and its enactment does not

stem from a broader authority to define the standard applicable to constitutional

claims.

¶54 To be clear: This court could—and very well might—apply a “substantial

compliance” standard to challenges alleging that the commissions failed to comply

with non-substantive provisions of Amendments Y and Z. But see Colo. Const.

art. V, §§ 44.5(2)–(3), 48.3(2)–(3) (specifying that an “abuse of discretion” standard

applies in our review as to whether the commission complied with the specified

17As we have recognized elsewhere, “the rule of substantial compliance is firmly grounded in prior decisions of this court.” Meyer v. Lamm, 846 P.2d 862, 875 (Colo. 1993). We have always applied that standard of our own accord, not on the suggestion of the General Assembly. See id. 875–76 (collecting cases).

37 substantive criteria). But the General Assembly does not have the power to require

this court or any other court to apply such a standard to a constitutional claim.

Accordingly, the provision of SB 21-247 requiring courts to apply a “substantial

compliance” standard to claims alleging violations of procedures laid out in

Amendments Y and Z would be unconstitutional if enacted.

V. Conclusion

¶55 The provisions of SB 21-247 that seek to direct the operation of the

independent redistricting commissions and their nonpartisan staff would violate

article V, sections 44 to 48.4 of the Colorado Constitution if enacted. And the

provision of SB 21-247 that seeks to define the standard that courts should apply

to determine compliance with Amendments Y and Z would violate article III and

article VI, section 1 of the Colorado Constitution if enacted. Accordingly, we

answer both of the General Assembly’s questions in the negative.

JUSTICE HOOD dissents, and JUSTICE GABRIEL joins in the dissent.

38 JUSTICE HOOD, dissenting.

¶56 I respectfully dissent from the majority’s response to the first interrogatory,

which I would answer in the affirmative. I join the majority’s response to the

second interrogatory.

¶57 The majority makes several indisputable points: (1) while our constitution

vests the General Assembly with legislative authority, the people retain the power

of initiative, maj. op. ¶ 41; (2) the people may use their initiative power to create

an independent constitutional body, id.; (3) Colorado’s redistricting process has

been a partisan, litigious mess for years, see id. at ¶¶ 1, 12; and (4) the people

overwhelmingly approved Amendments Y and Z to try to clean up that mess by

transferring redistricting authority to the commissions, id. at ¶ 13. I quarrel with

none of this.

¶58 Where I do part company with the majority is over what role, if any, remains

for our state’s elected representatives to facilitate the efforts of the redistricting

commissions by addressing matters as to which Amendments Y and Z are silent.

The majority says this: “[A]ny power that the General Assembly asserts over a

constitutionally created independent commission that was expressly designed to

divest the legislature of authority must derive from the amendment that created

the commission, not the constitution’s general grant of legislative authority.” Id.

at ¶ 41. As the majority sees it, this means that the General Assembly can do no

1 more than what Amendments Y and Z explicitly say it can do—pay the bills. Id.

at ¶ 43.

¶59 It reaches this conclusion even though nothing in Amendments Y and Z

explicitly prohibits the General Assembly from enacting the policies of SB 21-247.

See Colo. Const. art. V, §§ 44–48.4. And even though the COVID-19 pandemic

“threw a wrench,” maj. op. ¶ 20, into a new, and thus completely untested,

redistricting process right before the looming 2022 election cycle.

¶60 The majority arrives at this troubling result because it misinterprets our

precedent. Most significantly, it gets the presumption about the legislature’s

residual authority exactly backwards: Rather than focusing on the General

Assembly’s broad plenary authority to legislate, which requires us to presume that

the legislature can act unless the constitution explicitly says that it cannot, the

majority limits the General Assembly to only that which the Amendments

expressly permit. This is new ground.

¶61 To understand how this is new, it is helpful to examine the backdrop against

which this debate occurs:

The people of Colorado, in adopting the state constitution, created the General Assembly and vested it with plenary power to adopt general laws, subject only to the restraints and limitations of the state and federal constitutions. The General Assembly, therefore, may enact any law not expressly or inferentially prohibited by the constitution of the state or of the nation.

2 People in Int. of Y.D.M., 593 P.2d 1356, 1359 (Colo. 1979) (emphasis added) (citations

omitted). So, we start with the premise that our duly elected representatives may

exercise their constitutional prerogative to legislate unless the constitution says

otherwise.

¶62 This court has long said that the General Assembly may supplement the

dictates of the state constitution so long as its actions “further[] the purpose of,”

“or facilitate[] . . . enforcement” of, constitutional provisions; conversely, the

legislature may not “impair[], limit[] or destroy[]” rights granted by those

constitutional provisions. Zaner v. City of Brighton, 917 P.2d 280, 286 (Colo. 1996);

accord Yenter v. Baker, 248 P.2d 311, 316 (Colo. 1952) (“Where the legislature is

vested with power, subject to limitation, it has authority to make any restriction

not less than that named in such limitation; but where [the statute and constitution

directly conflict], . . . the legislature may not make any other limitation than that

provided in the Constitution.”).

¶63 As the majority tells us, “In examining the interaction between a challenged

statute and a constitutional amendment, our inquiry focuses on whether the two

provisions necessarily conflict.” Maj. op. ¶ 32. “The test for the existence of a

conflict is: Does one authorize what the other forbids or forbid what the other

3 authorizes?” Id. (quoting In re Interrogatories Propounded by Senate Concerning

House Bill 1078, 536 P.2d 308, 313 (Colo. 1975)).1

¶64 But as soon as the majority finishes reciting this precedent, it swallows the

rule by proclaiming that “the very act of directing the commissions ‘impairs’ and

‘limits’ the[ir] constitutionally mandated independence.” Id. ¶ 48 (quoting Zaner,

917 P.2d at 286). Surely, this proves too much. If any direction is invalid, the

legislature is altogether evicted from its historical gap-filling role—evicted in a

way flatly at odds with what we’ve said repeatedly in the past.

¶65 For example, nearly half a century ago, this court addressed two conflicting

voter initiatives and the General Assembly’s tie-breaking statute, which provided,

“in case of adoption of conflicting provisions, the one which receives the greatest

number of affirmative votes shall prevail.” House Bill 1078, 536 P.2d at 314

(quoting § 1-40-113, C.R.S. (1973)). This court held that the statute enhanced,

rather than limited, the right of the people to amend our constitution. Id. In short,

we permitted the General Assembly to supplement the constitutional provision

because the legislation facilitated the operation of the voter-initiative provision.

1Contrary to the majority’s veiled assertion, maj. op. ¶ 46, this framework governs even when the constitutional amendment at issue is self-executing, see Developmental Pathways v. Ritter, 178 P.3d 524, 533 (Colo. 2008); Zaner, 917 P.2d at 286.

4 ¶66 The majority plots a new course primarily based on two of our cases

addressing the Independent Ethics Commission (“IEC”) created by

Amendment 41. Maj. op. ¶¶ 41, 44.

¶67 In Colorado Ethics Watch v. Independent Ethics Commission, 2016 CO 21, ¶ 12,

369 P.3d 270, 272, we concluded that Amendment 41 allows legislation creating

judicial review of the IEC’s enforcement decisions but not its nonenforcement

decisions. Although we said that “any authority that the General Assembly may

exercise regarding IEC’s operations derives exclusively from Amendment 41

itself,” id. at ¶ 11, 369 P.3d at 272, we cited no legal authority and did not discuss

our conflicting precedents—things you might expect if we were announcing an

exception to a fundamental constitutional principle.

¶68 Indeed, our statement wasn’t even necessary to the resolution of that case.

Judicial review of nonenforcement decisions was unconstitutional—not because

the General Assembly’s authority to direct the operations of an independent

commission must come from the establishing constitutional amendment—but

because Amendment 41 explicitly prohibited legislation that “limits or restricts”

the IEC’s powers. Id. at ¶ 12, 369 P.3d at 272 (alterations omitted) (quoting Colo.

Const. art. XXIX, § 9). Judicial review of nonenforcement decisions limited the IEC

because Amendment 41 expressly invited penalty-setting legislation in the

enforcement context, implying that legislation about nonenforcement decisions

5 was prohibited. Id. (“[B]ecause Amendment 41 only permits the legislature to act

with respect to IEC’s enforcement actions, the General Assembly cannot

constitutionally enact legislation pertaining to any IEC decisions that do not

involve enforcing penalties.”). Perhaps most importantly for our purposes, we

held that the General Assembly could provide for judicial review of enforcement

decisions even though Amendment 41 says nothing about judicial review at all.

See id. at ¶¶ 8, 12, 14, 369 P.3d at 272–73.

¶69 The second IEC case is Developmental Pathways v. Ritter, 178 P.3d 524, 526

(Colo. 2008), involving a constitutional challenge to the gift ban under

Amendment 41. True, we said that “[t]he concepts of initiative power and self-

execution are premised on a similar intent to remove certain provisions from the

reach of the legislature.” Id. at 533. But closer inspection of this opinion reveals

that this court never intended to banish the legislature altogether. Although we

found Amendment 41 to be self-executing, and thus beyond the reach of “the

normal legislative process,” we noted that the “legislature may implement or

facilitate a self-executing amendment.” Id.

¶70 Neither of these opinions purported to wholly deprive the General

Assembly of its plenary authority to legislate, even when faced with an

independent commission. On the contrary, they simply reiterate that the General

6 Assembly cannot undermine the provisions giving life to the independent

commission. In sum: no conflict, no problem.

¶71 And I see no conflict here. The purpose of Amendments Y and Z was to end

the “practice of political gerrymandering, whereby . . . districts are purposefully

drawn to favor one political party or incumbent politician over another.” Colo.

Const. art. V, §§ 44(1)(a), 46(1)(a). To that end, the Amendments reassigned the

General Assembly’s power to “draw maps” to the commissions. Id. §§ 44(1)(b),

46(1)(b); see also Legis. Council, Colo. Gen. Assembly, Rsch. Pub. No. 702-2, 2018

State Ballot Information Booklet 8 (2018) (the “Blue Book”) (“Amendment Y transfers

the authority to draw congressional district maps from the state legislature to a

newly created Independent Congressional Redistricting Commission . . . .”); Blue

Book, supra, at 23 (“Amendment Z replaces the reapportionment commission with

the Independent Legislative Redistricting Commission . . . , which is charged with

drawing the state’s legislative districts.”).

¶72 SB 21-247 doesn’t interfere with the commissions’ exclusive line-drawing

power; it simply tells them to look at certain high-quality federal data about who

lives where while they’re drawing lines around us. Specifically, the bill provides

that, for this round of redistricting, the commissions must draft preliminary plans

using the Census Bureau’s apportionment (total population) data plus other data

selected by the commissions from governmental sources, and that the staff plans

7 must reflect final census data, which, for this year only, includes the untabulated

version of the Pub. L. 94-171 data expected to be released in August.

¶73 So, SB 21-247 isn’t the first stop down the slippery slope back to

gerrymandering. It is a guardrail that guarantees that the commissions will use

apolitical data about where we live when they exercise their discretion to sort us

into districts of equal population size that preserve compact communities of

interest and that maximize political competition. See Colo. Const. art. V, §§ 44.3,

48.1. Requiring the commissions to use a specific source of neutral demographic

data does not at all infringe on the commissions’ autonomy during the line-

drawing process.

¶74 Of course, my conclusion would be different if the General Assembly sought

to require the use of data provided by a political party or another partisan entity.

That would conflict with the Amendments’ anti-gerrymandering purpose.

¶75 Similarly, it would be unconstitutional for the General Assembly to directly

contradict anything that’s spelled out in the Amendments, such as the criteria the

commission must use in drawing maps. But neither the Amendments nor the Blue

Book say where the commissions should get their demographic data before they

carve up the state.

¶76 If anything, the Amendments imply that census data is exactly what the

commissions should be looking at. Both commissions’ deadlines for their

8 preliminary maps are a function, in part, of when “the necessary census data are

available.” Id. §§ 44.4(1), 48.2(1); see also id. §§ 44(3)(c), 46(3)(c) (“‘Race’ or ‘racial’

means a category of race or ethnic origin documented in the federal decennial

census.”); id. §§ 44.1(1), 47(1) (“After each federal decennial census of the United

States, the members of the commission shall be appointed and convened . . . .”).

¶77 The Independent Congressional Redistricting Commission concedes that,

for the congressional redistricting process, Amendment Y’s “precise mathematical

population equality” requirement, see id. § 44.3(1)(a), “requires that the

Commission’s final plan be based on the final 2020 redistricting-level census data.”

Given that admission, I don’t see how the provisions of SB 21-247 requiring the

use of that same data could conflict with Amendment Y.

¶78 Nor does the provision requiring at least one public hearing on a map based

on final census data conflict with the Amendments. Another purpose of the

Amendments is to “provide[] the public with the ability to be heard as redistricting

maps are drawn.” Id. §§ 44(1)(f), 46(1)(f). As such, “[t]he commission[s] must, to

the maximum extent practicable, provide opportunities for Colorado residents to

present testimony at hearings held throughout the state.” Id. §§ 44.2(3)(b), 48(3)(b).

Since the commissions plan to use final census data for their final plans, maj. op.

¶ 39 n.14, requiring a single public hearing after that data is plugged in would

9 facilitate the Amendments by giving the public the opportunity to weigh in on

something closer to the final maps despite the chaos of the pandemic.

¶79 So, SB 21-247 fills gaps in the Amendments without undermining the

commissions’ power to independently draw Colorado’s political maps. For

decades, we have permitted such complementary gap-filling by the legislature.

That should hold true again today.

¶80 I join the majority’s response to the second interrogatory but respectfully

dissent from its response to the first, which I would instead answer in the

affirmative.

I am authorized to state that JUSTICE GABRIEL joins in this dissent.