Colorado’s 8th Congressional District race was exceptionally close in the November election, ending up in Republican hands and splitting the state’s US House delegation 4-4. That outcome prompted bitter complaints from some Democrats about how the state’s independent redistricting commission had favored Republicans, robbing of them what they believed should have been a 5-3 or even a 6-2 advantage.
But you won’t that complaint about a similar process for state legislative reapportionment, where Democrats have wildly over-performed their aggregate vote share for the second cycle in a row. For only the second time since 1964, Democrats won at least eight State House seats more than they would have been allocated on a strict proportional basis. The first time was in 2022.
Sold to voters as a means to eliminate partisan gerrymandering – the practice of drawing legislative districts to favor one party – it turns out that the independent reapportionment commission adopted in 2018 has been more favorable to Democrats than at any time since districts of uniform population were adopted in 1964.
Prior to that, Statehouse districts were formed along county lines, with larger counties having more representatives, all of which were elected at-large. Denver, for instance, might elect 12 state representatives, while four rural counties might combine to elect one.
As you might imagine, this had the effect of exaggerating a party’s over-performance. In the 27 elections conducted this way between 1910 and 1966 for which we have data, 11 of them resulted in one party overperforming by 10 seats or more, or 40% of the time.
The effect of county-based districts can be seen clearly in the elections of 1928, 1932, and 1942. In 1928, the Republicans could have expected to win 7 of Denver’s 12 seats, but in the absence of ticket-splitting, they carried 11. Likewise, in the Roosevelt landslide of 1932, the Democrats won 11 of 12 seats on 54% of the vote. And in 1942, then pendulum swung the other way, giving Republicans all 15 of Denver’s seats on 53.7% of the vote.
The switch to districts
In 1964, the US Supreme Court ruled in Reynolds v. Sims that state legislative districts had to be reasonably equal in population, invalidating Colorado’s system, along with that of many other states. Colorado preceded that decision by adopting a state constitutional amendment to that effect in 1962, while simultaneously rejecting a separate amendment to establish an independent reapportionment commission.
Given that the previous system allowed for little in the way of active gerrymandering, while the new system allowed for great flexibility in how the legislature would draw district lines, one might expect the partisan advantage to be even greater, but that’s not how things worked out.
With 60 years of election data to draw on – including runs of 40 years of Republican dominance and the last 20 years of Democrats having the upper hand – some clear patterns emerge (see Fig.1).
But while the swings were smaller, they were much more persistent. The Republicans pulled off a run of 15 over-performances in 16 cycles, though only once did they push that to 9 seats. Currently Democrats are on a run of 11 cycles. From 1964 to 2000, the Republicans averaged 2 seats over expected; the Democrats averaged nearly 4 seats over expected from 2002 – 2020, and only in 2000 did worse than three seats over.
Not only are majorities enhanced, but also control of the House itself. Twice, in 1972 and 1976, Republicans won the House on less than 50% of the two-party vote. Four times during their recent run – all before the time of the current “independent” commission – Democrats won the House on a minority of the two-party vote, including three cycles in a row from 2012 to 2016; in 2014, they claimed the House on an astounding 44.8% of the two-party vote.
The Independent Commission
In 2018, by an overwhelming margin of 71% to 29%, Colorado voters approved Amendments Y and Z, replacing the previous reapportionment panel with an “independent” commission composed of four Democrats, four Republicans, and four Unaffiliated voters. Any plan approved by the panel must pass with the approval of 8 members, including 2 of the unaffiliated members, and then pass muster with the Colorado Supreme Court.
The move was presented as a way to make reapportionment less contentious and more fair. Prior to that, the legislature itself passed a bill with a reapportionment map. But in 2001, that process fell victim to a split House and Senate and a series of lawsuits. And again in 2011, the legislature was split between a Democrat Senate and a Republican House, emphasizing the partisan aspects of the process.
The legislation that referred the proposed amendment to the people was bipartisan, with two staunch conservatives acting as the Republican sponsors. But it was also designed in part by Kent Thiry, co-founder of DaVita, whose hobby seems to be trying to tinker with Colorado’s election process. He failed to persuade voters that the state should split its Electoral Votes proportionally to the vote, and this year failed in his effort to introduce a California-style “jungle primary,” despite heavy advertising.
In the last two cycles, the Democrats have outperformed their expected number of seats by 11 and 8, respectively. The most ever in the same-size district era was 9 by the Republicans in 1984, and the Democrats came within 3 votes in House District 16 of matching that.
Now, given Colorado’s blue shift over the last 20 years, one might assume that the overperformance is at least partly a result of a higher percentage of the aggregate vote. But that would be wrong. Overperformance is essentially independent of the expected number of seats, except for the fact that the majority party generally controls the reapportionment process.
The Democrats’ overperformance the last two cycles has been exceptional for their expected number of seats, 35. They have converted narrow 3-seat majorities into overwhelming 14-seat and 11-seat margins. And in the last 30 elections, 23 of them produced expected margins of 3 seats or more, over 75% of the time.
While the reapportionment process has certainly been less contentious, it’s almost impossible to argue on the basis of the last two election cycles that it’s been more fair. Republicans’ electoral failures in the state have been manifest and undeniable, but their failures in the state legislature have apparently been magnified by a process sold to the voters as fairer. While any number of changes are needed if the GOP expects to be competitive again here, one of them is certainly to return what is by definition a partisan process to partisans.
Joshua Sharf is a Denver resident and frequent contributor to Complete Colorado.
