Column Image, Peter Blake, Uncategorized

Redistricting for rural power likely to fall on thorny ground

Disgruntled agricultural interests who may have forgotten their history seem determined to repeat it.

Secession having been rejected by voters in six of the 11 counties considering it, rural Coloradans unhappy with a legislature controlled by urban Democrats are thinking up other ways to increase their influence.

Rep. Jerry Sonnenberg, R-Sterling, is said to be planning a constitutional amendment that would give rural counties more power at the statehouse.

icon_op_edAccording to an article in the Greeley Tribune, Sonnenberg’s tentative plan — now being vetted by Colorado Counties Inc. — would be to give one state senator to each of the six largest (in acreage) counties. The remaining 58 counties would be paired off, with one senator per pair. That would keep the Senate at 35 members.

In short, Sonnenberg wants to get out from under the one-man, one-vote principle that has been the law of the land for 50 years.

Lotsa luck with that. Colorado has been down that road before, with its very own case before the U.S. Supreme Court. Sonnenberg’s effort is eerily similar to the original one and would probably meet the same fate — if it gets that far.

For many decades, Colorado (along with many other states) was dominated by rural interests. The U.S. population became increasingly urban during the 20th century, but legislatures didn’t bother changing district lines much, giving farmers, ranchers and small communities disproportionate power at the statehouse.

That changed in 1962, when the U.S. Supreme Court, in Baker v. Carr, told Tennessee (and other states similarly situated) that it had to follow its own state constitution, which directed legislative districts to be redrawn after every decennial census and the populations equalized. In fact, Tennessee hadn’t redistricted since 1901. Some districts had 10 times as many people as others.

The injustice may seem obvious now, but it was one of the most hotly debated issues of the 1960s. Courts in those days were reluctant to tackle “political questions;” they believed it was up to the legislature, not judges, to determine how states were governed. But the high court voted, 6-2, that the issue was in fact “justiciable,” meaning courts could decide legislative reapportionment cases.farming2

Justices John Marshall Harlan and Felix Frankfurter dissented at length. They argued that the majority had rejected judicial restraint and violated the separation of powers doctrine. The plaintiffs should have sought relief in their legislatures, not the courts, they said.

The stress of deciding proved so great for one justice, Charles Evans Whittaker, that he had a nervous breakdown and recused himself from the case, resigning from the court shortly thereafter.

Ah, weren’t those quaint days, when there were still respected judges who thought there were areas in which the courts shouldn’t intervene. Now it’s hard to find any issues that courts find non-justiciable.

In February 1964, the U.S. Supreme Court extended the one-man, one-vote doctrine to congressional districts. In Wesberry v. Sanders the court found it unconstitutional for Georgia to have an Atlanta-based congressman with 1 million constituents while a rural congressman had only 270,000.

In Reynolds v. Sims, decided June 15, 1964, the high court ruled, in a case out of Alabama, that state Senates had to follow the one-man, one-vote rule just as state Houses had to.

The Colorado case was decided the very same day. The background: In 1962, after much debate, two initiatives were put to state voters. One would have required that both the 65-member House and the 35-member Senate be apportioned by population. The other also equalized House districts but would have added four members to the Senate by giving Adams, Arapahoe, Boulder and Jefferson counties an extra one each. Otherwise it perpetuated the existing, rural-dominated senatorial apportionment plan. The maximum population-variance ratio was 3.6 to 1. Denver and three suburban counties had half the population but only 14 of the 39 senators.

Oddly, Colorado voters rejected the first plan handily and gave the second one an amazing plurality of 64 percent. Even under-represented Denver supported it with 55 percent. It was known as a “little federal plan,” because the state Senate, like the U.S. Senate, would not be apportioned by population.

The plan survived a challenge in federal district court, which found it didn’t violate the Equal Protection Clause, but was appealed to the U.S. Supreme Court. Arguing for the plaintiff-appellants was legendary attorney George Creamer.

“Once population has gone away, there is nothing to represent,” intoned Creamer, who looked and sounded like the late actor Charles Laughton. “We cannot have a senator for wheat or a senator for beef. If he represents something, it must be people.”

He said the 1962 amendment gave rural constituencies “perpetual control” of the state Senate at the expense of urban and suburban populations.

The high court agreed. In Lucas v. the 44th General Assembly of Colorado, it ruled that the fact the apportionment plan had been incorporated into the state constitution by popular vote didn’t protect it from a federal constitutional challenge. And citing Reynolds v. Sims, it rejected out of hand the argument that a state Senate could be apportioned differently than the House.

Attorney Creamer, by the way, was no raving city liberal pushing graduated income taxes, anti-gun laws and draconian renewable-energy measures, like today’s progressives. He might best be described as Old Right, fighting various taxing schemes that were attempted in his day.

In 1958 he successfully attacked a proposed Denver city income tax. He argued that only the legislature could levy an income tax. No Denver judge wanted to take on that issue, so a suburban judge was imported to hear the case. He ruled in favor of Creamer and the state Supreme Court upheld him. There is still no city income tax.

In 1962 Creamer successfully fought off a proposed metro-area sales tax on constitutional grounds. Six years later he won a case that required the Denver City Council to establish equal-sized districts.

What Sonnenberg — who might agree with Creamer on everything but one-man, one-vote — is trying now seems even more unconstitutional than what was tried five decades ago. The fact that he would put his plan before the voters won’t save it.

There is no turning back this clock. The two recent Colorado Senate recalls and the 2-1 defeat of the higher income tax for schools mean urban voters may not be entirely a lost cause. Rural lawmakers should try to work more with their urban counterparts, not jack around with their districts.

Longtime Rocky Mountain News political columnist Peter Blake now writes Thursdays for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com

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