Redistricting: Kourlis had it right
The long legal battle over our 2003 bill to draw permanent congressional districts ended Monday when the US Supreme Court refused to hear the appeal of four Colorado voters seeking redress under Article I, Section 4 of the US Constitution.
The Denver Post gloated editorially that this “high-handed and illegal” action of the General Assembly has at last been disposed of. Presumably written by Bob Ewegen, who has had a four-year mad against yours truly about this issue, the editorial did me the honor of personal responsibility for the disputed legislation.
Actually it was a team effort, with much credit also going to now-Congressman Doug Lamborn, former State Rep. Rob Fairbank (now my office mate in the private sector), and former Speaker Lola Spradley, as well as to former State Sens. Cliff Dodge and Jeff Wells, our tactical advisers in the wings.
But in Ewegen’s mind this alleged “midnight gerrymander” (it was neither) will always be my baby and mine alone. To his credit as a phrase-maker, that label has gained wide currency — it was approvingly quoted to me just the other day by Republican State Sen. Steve Ward. Good thing Ward wasn’t serving back then; we’d never have gotten our 18 votes.
But as for the actual constitutionality of our 2003 bill, I still cherish the ringing dissent of then-Justice Rebecca Kourlis (joined by Justice Nathan Coats) in the state Supreme Court’s 12/1/03 ruling that struck down SB-352. The case is Salazar v. Davidson, and the full opinion is here.
Kourlis and Coats, not coincidentally the only two Republicans on the seven-member court, demolished the partisan-Democrat and doctrinaire-liberal holding of Chief Justice Mullarkey. The opinion as posted online is not searchable, so scroll down past page 63 of the majority opinion to read the dissent (which starts over from page 1).
Its five sections show that: (I) the judiciary has no final authority over redistricting under either the federal or state constitution, (II) courts have only a reviewing role, within limits, (III) there is no time deadline for legislative action on redistricting, (IV) the 2002 court-imposed districts were merely temporary, and (V) the state Supreme Court was wrong in ever granting Salazar’s request for original jurisdiction. Becky Kourlis sums up her cogent reasoning as follows:
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With its holding today, the court significantly alters our form of government. For the first time in the state’s history, the court restricts the redistricting authority of the General Assembly to a narrow window, and mandates that if the General Assembly fails to act within that time frame, the court will exercise that power for it.
While eliminating political considerations from redistricting may or may not be a laudable goal, redistricting is an inherently political activity, and rests with the democratically elected branch of government for good reason. Absent express constitutional authority granting a role to the judiciary – which I suggest is wholly absent from our constitution – the courts should serve only to protect constitutional interests in redistricting: not to commandeer the process.
Amen! A commandeering of the process by the imperial judiciary, and a consequent profound alteration of our form of government here in Colorado– away from the rule of law and the will of the people to the rule of judges and the theories of ideologues — was exactly what Salazar, Mullarkey, and their fellow Democrats accomplished in this case. Ewegen and the Post are free to believe otherwise, but I’m with Kourlis and the Constitution.
The author can be reached at John@BackBoneAmerica.net
I know this will break your heart, but “Becky’s” brilliant article III analysis was lifted from my amicus brief in the case (which is the purpose of an amicus brief, anyway); I was the only amicus to raise it. From the intro:
It is odd that you should love “Becky” so much, when she is so unalterably opposed to meaningful reform of the courts, whilst you despise me for reasons I can’t even begin to fathom.
by that pesky Ken | Friday, Mar 9, 2007 | 4:37 pmIf you want to predict how a court will rule on an election dispute, figure out which party nominated the judges. Republican or Democrat, they always go home with the girl that brung ‘em. 100% predictable.
by that pesky Ken | Friday, Mar 9, 2007 | 4:39 pmby that pesky Ken | Friday, Mar 9, 2007 | 4:44 pm
Thanks again for your stick-tuitiveness. I’ve oft thought of Bob Ewegen, when he has written of himself as a Republican, as typifying the Civil War term “Copperhead”.
To quote again from my mentor’s book JUSTICE IN JEOPARDY (by A. B. Logan) as he quoted Thomas B. McCauley: “America– your republic will be fearfully plundered and laid waste by barbarians in the 20th century as the Roman Empire was in the 15th– with this difference: The Huns and Vandals who ravaged the Roman Empire came from without: our Huns and Vandals have been engendered within your own country by your own institutions”.
Separate topic: Today at Old Colorado City History Center, guiding light Dave Hughes (Westpoint, cl of 1950, and global wireless internet pioneer during his retirement) said he mailed the printers proofs for reprint of Irving Howbert’s MEMORIES OF A LIFETIME IN THE PIKES PEAK REGION. It’s been my promotion for 8 years as a promise to Howbert’s grandson (a retired lawyer with the predecessor firm to Holland and Hart here in C. Spgs) to get a quality reprint done. Only a few months ago did I mention to Hughes that Howbert had dropped the copyright many years ago in hopes of a reprint. Hughes grabbed my info and ran with it as a fund raiser for the OCCHS. We should have 300 copies within 4 weeks. The book should be required reading for every Republican… especially for those who voted fot the Sand Creek Massacre Joint Resolution. Howbert rode with the 3rd Colorado Vol. Cav. as an 18 year old, and tells it like the battle really was. Soon after, he served 5 terms as our El Paso County Clerk, elected by acclaimation of both political parties. He later deposed Socialist Governor Davis “Bloody Bridles” Waite by forming a coalition with the Dems and using the new Woman Vote to oust Waite. Howbert had a women CommitteePerson in every Colorado Republican Precinct! And he accomplished much more.
by Curt Neeley | Friday, Mar 9, 2007 | 7:08 pm