DISTRICT COURT, CITY & COUNTY OF DENVER, COLORADO

City and County Building

1437 Bannock Street, Room 256 Denver, Colorado 80202

Div.

Plaintiff: KATHRYN H. HALL, DANNY E. STROUD, DICK R. MURPHY, Ph.D., MARK D. HILLMAN, WAYNE W. WILLIAMS, MARK BAISLEY, and SHIRLEY J. SEITZ

A COURT USE ONLY A

Case No.:

v.

Defendants: SCOTT GESSLER, in his official capacity as COLORADO SECRETARY OF STATE

Richard A. Westfall, Reg. No. 15295 Allan L. Hale, Reg. No. 14885

Peter J. Krumholz, Reg. No. 27741 Hale Westfall, LLP

1445 Market Street, Suite 300 Denver, Colorado 80202 Phone: 720-904-6010

FAX: 720-904-6020

E-mail: rwestfall@halewestfall.com ahale@halewestfall.com pkrumholz@halewestfall.com

Attorneys for Plaintiffs

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Kathryn H. Hall, Danny E. Stroud, Dick R. Murphy, Ph.D., Mark D. Hillman, Wayne W.

Williams, Mark Baisley and Shirley J. Seitz, by and through their attorneys, Hale Westfall, LLP, allege for their complaint as follows:

INTRODUCTION

1. The General Assembly is tasked with redrawing Colorado's congressional

districts every ten years in the wake of a new decennial census. See Colo. Const. art. V, § 44. In the 1980 and 1990 census cycles, the General Assembly and the Governor were unable to agree

on a congressional districting map, and Colorado's congressional districts in those two decades were drawn by the federal district court.

2. In 1993 in the case of Growe v. Emison, 507 U.S. 25 (1993), the Supreme COUlt

announced that when redistricting was to be accomplished by the COutts, generally, a state court should be the one, in the first instance, to perform redistricting for a State.

3. In the 2000 cycle, the General Assembly was unable to agree on a congressional

districting map, and Colorado's congressional districts were drawn by this Court. Avalos v. Davidson, No. 01 Civ. 2897 (Jan. 25, 2002).

4. The 2010 census results have been released and Colorado has gained

approximately 700,000 persons in population. The existing congressional districting map for Colorado is now unconstitutional, and a new congressional districting map must be drawn prior to the next general election.

5. The General Assembly has failed to draw a new congressional districting map as

required in the wake of the 2010 Census. This COUlt will now have to draw new congressional districts to make Colorado's congressional districts legal prior to the next general election cycle.

JURISDICTION AND VENUE

6. This Court has jurisdiction over this case pursuant to Colo. Const. mi. VI, § 9.

Plaintiffs seek declaratory and injunctive relief pursuant to C.R.S. §§ 13-51-101 - 106 and C.R.C.P.57.

7. This case is ripe because the General Assembly has reached an impasse in

attempting to draw a new congressional map for Colorado.

8. Venue is proper under C.R.C.P. 98(b)(2).

PARTIES

9. Plaintiff Kathryn H. Hall is a citizen of the United States and a resident and

registered elector in the Third Congressional District.

10. Plaintiff Danny E. Stroud is a citizen of the United States and a resident and

registered elector in the First Congressional District.

11. Plaintiff Dick R. Murphy, Ph.D., is a citizen of the United States and a resident

and registered elector in the Second Congressional District.

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12. Plaintiff Mark D. Hillman is a citizen of the United States and a resident and

registered elector in the Fourth Congressional District.

13. Plaintiff Wayne W. Williams is a citizen of the United States and a resident and

registered elector in the Fifth Congressional District.

14. Plaintiff Mark Baisley is a citizen of the United States and a resident and

registered elector in the Sixth Congressional District.

15. Plaintiff Shirley J. Seitz is a citizen of the United States and a resident and

registered elector in the Seventh Congressional District.

16. Defendant Scott Gessler ("Secretary") is the Secretary of State for the State of

Colorado and is responsible for the administration and enforcement of the election laws of the State of Colorado.

FACTUAL ALLEGATIONS

17. Under 2 U.S.C. § 2a, the President of the United States transmits to Congress a

statement showing the number of persons in each State as determined by the Census and the number of representatives to which each State is entitled.

18. Under 13 U.S.C. § 141, the Secretary of Commerce is required to report to each

State the detailed tabulations of population for specific geographic areas of each State.

19. Colorado has received this data. Colorado's congressional districts, in the wake

of the 2010 decennial Census, are unconstitutional because they deny Coloradans equal protection of the laws and the "one person one vote" principle. See Baker v. Carr, 369 U.S. 186 (1962); see also Wesberry v. Sanders, 376 U.S. 1 (1964), Carstens v. Lamm, 543 F. Supp. 68 (D. Colo. 1982).

20. Colorado's total state population on April 1, 2010, was 5,029,196. The ideal

population for each of Colorado's seven congressional districts is 718,457.

21. Colorado's seven congressional districts are malapportioned and therefore

unconstitutional:

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District

Present Population

Deviation from % Deviation

Ideal

1 662,039
2 733,805
3 706,186
4 725,041
5 725,902
6 797,813
7 678,410 (56,418) 15,348 (12,271) 6,584 7,445 79,356

(40,047)

7.9% 2.1% 1.7% 1.0% 1.0% 11.0% 5.6%

22. Per C.R.S. § 2-1-100.5, Colorado's congressional districts shall be divided

pursuant to the official figures of the most recent decennial census.

23. Colorado's congressional districting plan is set forth in C.RS. § 2-1-101. The

congressional districting map contained in that statute is unconstitutional and does not comply with C.RS. § 2-1-100.5. Nevertheless, as can be seen from the deviation table above, a new map can be adopted that preserves Colorado's communities and minimally changes the existing congressional districting map.

24. Colorado's congressional districts must be redrawn and in place no later than

March 6,2012, precinct caucus day. Pursuant to C.RS. § 1-5-103, as amended by S.B. 11-189, the last day for county commissioners to alter precinct boundaries would be 29 days prior, or February 6, 2012. To allow even abbreviated proceedings in the Colorado Supreme COUlt, this Court should adopt a new congressional districting plan by the end of 20 11 - especially given the impasse in the 2011 session, and given that there are no plans to hold a special session as was

. done in 2001.

FACTS RELATED TO LAST REDISTRICTING AND DESCRIPTION OF C.R.S. § 2-1- 101

25. As background for the Court, a brief description of how Colorado's current

congressional districts were drawn by this Court is in order.

26. The case was originally brought by Democratic plaintiffs in May, before the 2001

special session was held to address redistricting.

27. In the 2000 cycle, Colorado was given another congressional district as a result of

Colorado's population growth. Accordingly, a new congressional districting plan needed to be drawn to account for a new congressional district. Colorado retains the same seven congressional districts for the 2010 cycle that were created for the 2002 election cycle.

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28, This Court delayed action on the case until the General Assembly concluded the

special session (the General Assembly concluded the special session on October 9,2001), The Court then established an expedited trial schedule when the General Assembly failed to enact a bill in the special session,

29, Trial was held immediately before and after Christmas. Throughout the trial, the

Court indicated that it would not consider partisan reasons for drawing a congressional districting plan for Colorado, See, e.g., Avalos, slip op. at 9 ("As mentioned above, this COUli cannot consider partisan criteria in deciding how to redistrict the state of Colorado."). The COUli also was exceptionally clear that it would be guided by neutral criteria and especially the controlling precedent of Carstens v. La111111, 543 F, Supp. 68 (D. Colo. 1982). See id. at 3 ("In drawing the redistricting plan as set forth in Exhibit 1 .. , the Court only applied the criteria set Iorth in Carstens. ").

30. During the trial, the COUli asked the patties to submit maps for the Court's

consideration. Immediately before a short Christmas break, the Court indicated that it was favoring a map drawn by the Republican Leadership of the General Assembly.

31 . Immediately after the Christmas break, the Democratic plaintiffs introduced the

map that the COUli eventually adopted, captioned "Plaintiffs' Amendment to the Republican Leadership Map and Amendment to the Republican Leadership Map,"

32, The Court, in adopting the late-filed Democratic map, acknowledged that one

criticism of it was that it was introduced late in the trial but indicated in its ruling that the parties still had an opportunity to comment on it. See Avalos, slip op, at 13. The Court cited "competitiveness" in its discussion of the new Seventh Congressional District that it adopted, Avalos, slip op, at 9, but did so only to avoid "incumbency" for a new district. The Court noted that predicting "competitiveness" is risky in light of the block of unaffiliated voters equally as large as the major political patties. Id.

33. In this cycle, the Court has additional guidance in drawing a congressional

districting plan for Colorado. Originally enacted in 2004 and amended in 2010, C.R.S. § 2-1-102 provides the Court neutral criteria to follow in drawing congressional districts for the State. As it reads today:

Neutral criteria for judicial determinations of congressional districts.

(1) In determining whether one or more of the congressional districts established in section 2-1-101 are lawful and in adopting or enforcing any change to any such district, COUltS:

(a) Shall utilize the following factors:

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(I) A good faith effort to achieve precise mathematical population equality between districts, justifying each variance, no matter how small, as required by the constitution of the United States. Each district shall consist of contiguous whole general election precincts. Districts shall not overlap.

(II) Compliance with the federal "Voting Rights Act of1965", in particular 42 U.S.C. section 1973; and

(b) May, without weight to any factor, utilize factors including but not limited to:

(I) The preservation of political subdivisions such as counties, cities, and towns. When county, city, or town boundaries are changed, adjustments, if any, in districts shall be as prescribed by law.

(II) The preservation of communities of interest, including ethnic, cultural, economic, trade area, geographic, and demographic factors.

(III) The compactness of each congressional district; and

(IV) The minimization of disruption of prior district lines.

Subsection (1)(a) contains the two constitutional criteria set forth in Carstens, see 543 F. Supp. at 79-82. Except for clause eIV) (minimization of disruption of existing lines), subsection (1 )(b) tracks the three non-constitutional neutral criteria set forth in Carstens. See id. at 82-84.

34. C.R.S. § 2-1-102 represents "state apportionment policy." White v. Weisel', 412 U.S.

783, 796 (1973) (overturning federal court plan that did not adequately respect "state apportionment policy"); Carstens, 543 F. Supp. at 79.

FIRST CLAIM FOR RELIEF

(Declaratory - Equal Protection and "One Person One Vote")

35. Plaintiffs incorporate all previous paragraphs.

36. C.R.S. § 2-1-101 (Colorado's current congressional districting plan) is

unconstitutional under the Equal Protection Clause, U.S. Const. amend. XIV, § 1, and U.S. Const. art. I, § 2.

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SECOND CLAIM FOR RELIEF (Injunctive)

37. Plaintiffs incorporate all previous paragraphs.

38. This Court should enjoin the application of C.R.S. § 2-1-101 (Colorado's current

congressional districting plan) by the Secretary of State and adopt a new congressional districting plan for Colorado that follows Carstens and C.R.S. § 2-1-102.

Wherefore, Plaintiffs pray for the following relief:

a.

declare C.R.S. § 2-1-101 unconstitutional;

b.

enjoin C.R. S. § 2-1-101 from being used to conduct the 2012 general election;

c. 2-1-102;

adopt a congressional districting map for Colorado that applies Carstens and C.R.S. §

d. establish procedural deadlines that will allow for expeditious and cost-effective

litigation of this case including: (i) a uniform deadline for parties to intervene; (ii) an expedited discovery schedule; and (iii) a trial date no later than October of this year (unless the Governor calls a special session in the interim); and

e. any such other relief to which Plaintiffs are entitled, including their fees and costs as

may be allowed by law.

DATED: May 10,2011

HALE WESTFALL, LLP

PURSUANT TO C.R.C.P. 121(c) § 1-26(7), A SIGNED COPY OF THIS DOCUMENT IS MAINTAINED BY HALE WESTFALL, LLP, AND WILL BE MADE AVAILABLE FOR INSPECTION UPON REQUEST

By: /s/ Richard A. Westfall

Richard A. Westfall, Reg. No. 15295 Allan L. Hale, Reg. No. 14885

Peter J. Krumholz, Reg. No. 27741

7

Plaintiffs' Addresses:

Kathryn H. Hall 663 Cordial Ct.

Grand Junction, CO 81506

Danny E. Stroud

5650 W. Qunicy Ave., Unit 5 Denver, CO 80235

Dick R. Murphy, Ph.D. 11409 Flatiron Dr.

Lafayette, CO 80026

Mark D. Hillman

444 17th St. Burlington, CO 80807

Wayne W. Williams 2420 Linenhall Ct.

Colorado Springs, CO 80920

Mark Baisley

10398 Totem Run Littleton, CO 80125

Shirley J. Seitz

2032 S. Gray Dr. Lakewood, CO 80227

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