Dear Chief Justice Bender,

Your recent dissent to In re Reapportionment (2011) showed me why our mutual friends think well of you. You managed to find a way around the lawyer’s adage:

“When you have the facts behind your case, pound on the facts. When you have the law, pound on it. When you have neither, pound on the table.”

You combined misdirection, humor and selective citations masterfully. Let’s share some of your finer efforts.

First: “neutral decision-makers.” You believe “a nonpartisan Commission” will counterbalance gerrymandering. That could be true, but we’ve never had one in Colorado.

Nothing surprising here, since almost all Americans are partisans. Gallup shows true Independents can be under 10% of all voters. Mario Carrera’s political giving shows his strong Democratic leanings, despite his registration. He’s just like pseudo-Independent Gene Nichol in the 1990s. This fact vitiates your Karcher citation about neutral decision-makers using neutral criteria with adequate opportunity for hearing other views. Karcher also doesn’t apply since Carrera short-circuited all hearings with a last minute new plan.
Second, a LOL: “competitive legislative districts are the antithesis of gerrymandered ones.” Whoa, horsie. Give me 3 days’ help from the incredibly competent Commission staff, and we’d have a plan that maximized “competitive” districts and let Republicans control our legislature. They are not mutually exclusive – as Carrera’s plan already shows.

Third: Voting Rights Act. Where are other US Supreme Court cases? To non-lawyers, Bush v Vera suggests splitting counties is gerrymandering if done to craft minority-dominated districts. More recently, Bartlett v Strickland appears to decide that “minority” districts need not be created when minority residents aren’t more than 50%. Big whoopsy in defending Carrera on VRA grounds.

Fourth: the “why.” Whatever someone may claim as their reason for something, we can wonder whether their stated reason may conceal another rationale. What’s Carrera’s “competitiveness” rating?

Carrera’s State House plan has eighteen districts within a five percent registration advantage for one party or the other. Nonpartisan seeming … except that Ken Buck won only three of those districts. With Carrera’s plan almost all purported “swing” districts were, in an actual outcome, Democratic wins. So much for “competitiveness” in a costly race that resembles most close Colorado legislative battles.

Mr. Chief Justice, it is the hard-and-fast criteria that curb our tendencies to favor “our” side. Follow them, as our honorable court has previously said, and you won’t eliminate partisanship, but you will minimize its impact.

Vitiate those criteria, and we confront Thomas More’s question in A Man for All Seasons.  “When the last law was down, and the devil turned on you, where would you hide?”

Dave Diepenbrock