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256 Denver, CO 80202 720-865-8301 Plaintiffs: DOMINICK MORENO, et al.; KATHRYN H. HALL, et al.; Plaintiffs in Intervention: City of Aurora, et al.; v. Defendant: SCOTT GESSLER, in his official capacity as COLORADO SECRETARY OF STATE Attorneys for Amicus Curiae Shaffer for Colorado Richard N. Lyons, II Lyons Gaddis Kahn & Hall, P.C. P.O. Box 978, 515 Kimbark St. Longmont, CO 80502-0978 Telephone: (303) 776-9900 Attorney Reg. No: 09591 Case No. 11 CV 3461 Consolidated with Case No. 11 CV 3463 Court use only
SHAFFER FOR COLORADO’S AMICUS CURIAE BRIEF IN SUPPORT OF ALTERNATIVE MAP NO. 2 SUBMITTED BY PLAINTIFF IN INTERVENTION BILL THIEBAUT.
Shaffer for Colorado, a Colorado non-profit corporation, by its attorneys, Lyons Gaddis Kahn & Hall, P.C., enters its appearance as amicus curiae and submits the following Brief In Support Of Alternative Map No. 2 of Plaintiff in Intervention Bill Thiebaut. I. INTRODUCTION.
Article V, Section 44 of the Colorado Constitution requires the Colorado General Assembly to divide the state into as many congressional districts as there are representatives in the United States Congress. The appointed 2011 Colorado Joint Select Committee on Redistricting failed to reach a consensus on redrawn maps based upon the 2010 census data, and the Sixty-eighth 1
General Assembly adjourned sine die on May 11, 2011 without discharging its constitutional mandate. This litigation followed. Amicus Shaffer for Colorado (herein, “SFC”) was formed to support the candidacy of Brandon C. Shaffer, a resident of the City of Longmont, for a seat in the United States Congress representing the 4th Congressional District of Colorado. Mr. Shaffer currently serves as
Colorado State Senator, District 17, and also serves as the President of the Colorado Senate. On July 4, 2011 he announced his candidacy for the House of Representatives from the 4th Congressional District (herein, “C.D.”) Although Senator Shaffer resides in Longmont, there is no federal or state requirement that a congressional representative must reside within the congressional district which that person represents. Nonetheless, SFC submits this amicus brief because of its belief that it is in the best interests of the citizens of Longmont and of the Northern Front Range that Longmont and its environs remain united with communities (and citizens) to its east and north with which both the City and its residents share common interests. II. COURT’S ROLE.
Section 2-1-102, C.R.S., instructs and guides this Court as it redrafts the existing map of congressional districts. The role of the Court is broader in nature than the standard judicial review for legal error or abuse of discretion. By necessity, this Court must fashion a remedy using the guidelines of § 2-1-102 in drafting a congressional district map to prevent an unconstitutional and statutorily invalid 2012 election utilizing existing district boundaries. It is insufficient for this Court to simply review the submitted maps and select one that least offends the constitution and state statutes. Instead, this Court must affirmatively act in its 2
unique capacity1 to devise a state-wide map that comports as closely as possible to both federal constitutional limitations and state statutory directives. Simply put, merely selecting the least legally offensive map of those submitted by the parties may not satisfy the legal requirements and policy factors at issue.2 The oft-quoted charge to this Court consists of crafting and adopting a map that: (a) ensures population equality and non-dilution of minority voting strength; and (b) ideally reflects the nonconstitutional criteria set forth in § 2-1-102 (1) (b), C.R.S.3 This amicus brief focuses on the latter and urges this Court to adopt a map that achieves a compromise between the two highly partisan maps submitted by the two major groups of plaintiffs and that preserves communities of interest (including ethnic, cultural, economic, trade area, geographic and demographic factors). III. SUMMARY OF AMICUS SUPPORTIVE BRIEF.
Alternative Map No. 2 submitted by Plaintiff in Intervention Bill Thiebaut (herein, “Thiebaut Map No. 2”) best reflects the testimony received by the Colorado Joint Select Committee on Redistricting at its public hearing of February 26, 2011, in Loveland 4 at which numerous citizens requested that Longmont remain in the 4th C.D. Furthermore, of the maps submitted to this Court, Thiebaut Map No. 2 best recognizes the long historic communities of interest of the
See Carstens v. Lamm, 548 F.Supp. 68, 79 (D. Colo. 1982) (congressional redistricting is law-making function and submitted maps of legislature or governor are not binding on court but are only expressions of state policy.); and Beauprez v. Avalos, 42 P.3d 642, at 653 (Colo. 2002) (trial court free to accord whatever evidentiary weight it saw fit to submitted evidence). 2 See Beauprez v. Avalos, 42 P.3d 642, 646 (Colo. 2002) (trial court “considered over a dozen maps submitted by many of the parties” and “worked from” one preferred map to judicially fashion a final map that met constitutional and statutory requirements). 3 Beauprez v. Avalos, 42 P.3d 642, 651 (Colo. 2002) (once the trial court is assured that the constitutional requirements are satisfied, it may consider non-constitutional criteria “articulated by the state as important state policy.”) 4 http://www.colorado.gov/cs/Satellite/CGA-ReDistrict/CBON/1251581558170
Northern Front Range and the Northern Plains, particularly the Longmont-Fort Collins-Greeley triangle. Thiebaut Map No. 2 reflects the population increase along the Front Range Corridor and the concurrent population decrease on the Eastern Plains and thus divides the Plains into two sections utilizing a dividing line approximate to Eastern I-70: the north (4th C.D.) within the South Platte drainage basin, and the south (6th C.D.) within the Arkansas River’s drainage basin. It further acknowledges the melding of Larimer and Weld Counties into one economic unit that has long been recognized by the State of Colorado’s Legislative Council in its annual economic and revenue forecast. Thiebaut Map No. 2 offers not only an alternative to the highly partisan maps submitted by the two major groups of plaintiffs but also a compromise for the Court’s serious consideration based upon long-standing communities of interest. The City of Longmont and its surrounding area have historically been associated with such communities to the east and northeast by numerous cultural, economic, geographic, and demographic ties. It is improper to sever these ties and to reposition Longmont into another C.D. IV. ARGUMENT: THIEBAUT MAP NO. 2 REFLECTS A COMPROMISE AMONG PARTISAN PROPOSALS AND OFFERS THE BEST ALTERNATIVE FOR THE COURT TO CONSIDER.
Thiebaut Map No. 2 best reflects the testimony received by the Colorado Joint Select Committee on Redistricting at its public hearing of February 26, 2011, in Loveland. Those citizens that spoke to the Committee were of the strong belief in their arguments that Longmont should remain in the 4th C.D., as it has for the past decade, due to its community of interest with 4
Larimer and Weld Counties. Although not binding on this Court, the testimony of the concerned citizens who appeared before the Committee should be considered in this Court’s task of redistricting. Thiebaut Map No. 2 divides the Eastern Plains into two sections utilizing a dividing line approximate to I-70: the north within the South Platte drainage basin (remaining in the proposed 4th C.D.), and the south within the Arkansas River’s drainage basin (proposed to be placed into the 6th C.D.). This division is a logical response to the demographic growth and development over the past ten years on the Front Range corridor and the decline in population on the Eastern Plains. There has been a demographic surge in the extreme southwest portion of the current 4th C.D., specifically in the City of Loveland in Larimer County and in the Tri-Town Area (comprised of the towns of Frederick and Firestone, and the City of Dacono) that lies just east of the I-25 corridor in Weld County. While the Eastern Plains decreased in population, the Tri-Town Area increased significantly: Firestone by 432%, Frederick by 251.8%, Dacono by 37.7% , and the City of Loveland by 32%.5 As the population decreases on the Eastern Plains and increases along the Northern I-25 corridor, the constitutional and statutory mandates of population equivalencies overrides the desirability of communities of interest among the Eastern Plains. The past decade has transformed the once homogenous unit of the Eastern Plains and separated the northwestern portion into a different unit, both economically and demographically. The dramatic growth of Douglas County6 also exerts a similar gravitational pull on the central portion of the Eastern Plains. These population shifts justify a new north-south division, and it
is logical to make this division based upon the two major rivers draining each section, the South Platte and the Arkansas. As Judge Finesilver explained in Carstens v. Lamm, 543 F. Supp. 68, at 83 (D. Colo. 1982), the residents of the Eastern Plains “are dependent on these two rivers for their water supply which is their economic base7.” Thiebaut Map No. 2 accurately recognizes the long historic communities of interest of the Northern Front Range and the northern plains (the Longmont-Fort Collins-Greeley triangle). It further acknowledges the melding of Larimer and Weld Counties into one economic unit (the Northern unit) as has long been recognized by the State of Colorado’s Legislative Council in its annual economic and revenue forecast which divides the state into nine regions: Metro Denver, Colorado Springs, Pueblo-Southern Mountains, San Luis Valley, Southwest Mountain, Western, Mountain, Northern (Larimer-Weld) and Eastern.8 Theibaut Map No. 2 offers not only an alternative to the highly partisan maps submitted by the two major groups of plaintiffs but also a compromise for the Court’s serious consideration based upon long-standing communities of interest, while avoiding the division of Larimer and Weld Counties, preserving the integrity of the City of Denver, and recognizing the communities of interest of the towns and cities on either side of the Northern I-25 corridor. The City of Longmont and its surrounding area are associated with communities to the east and northeast by numerous cultural, economic, geographic, and demographic ties. It is improper to sever these ties after five successive congressional elections.
Judge Finesilver’s decision in Carstens v. Lamm is often misinterpreted to mean that the Eastern Plains should never be divided, but a careful reading indicates that the preservation of the Eastern Plains was the result of the maps submitted by the parties and not based upon a judicial declaration or determination that the two different river basins should always be joined. The current census data justify a re-examination of this issue to reflect the population trends. 8 http://www.colorado.gov/cs/Satellite/CGA-LegislativeCouncil/CLC/1251573164950
V. ARGUMENT: THE CITY OF LONGMONT AND ITS ENVIRONS SHOULD REMAIN IN THE 4TH C.D. TO PRESERVE EXISTING COMMUNITIES OF INTEREST WITH THE NORTHERN FRONT RANGE AND THE NORTHEASTERN PLAINS. A. Longmont and Its Environs. The City of Longmont and its surrounding area should remain in the 4th C.D. due to its long standing community of interest with the Northern Front Range and the Northeastern Plains, and with Larimer and Weld Counties in particular. In Carstens v. Lamm, the court took judicial notice of the unique geography of Colorado and explained that: “The eastern portion of Colorado (generally referred to as the eastern plains) covers more than one-third of the state’s land area. This region has flat plains and broad rolling prairies which gradually rise to the foothills and the mountain ranges (on the west) that divide the state. A combination of physical and economic geography influences the eastern portion of the state. These high plains are bisected by two prominent river valleys, the Arkansas and the South Platte, which have been dominant forces in the development of this region. The people in this area are dependent on these two rivers for their water supply which is their economic base.” Carstens v. Lamm, 543 F. Supp. 68, at 83 (D. Colo. 1982). The City of Longmont lies on these high plains on the banks of the St. Vrain River, a major tributary of the South Platte. Founded as a planned community (“colony”) in 1871, Longmont’s current population is listed by the 2010 census as 86,270.9 Longmont’s original economic base was tied to agriculture because of its unusual origins. The history of Longmont is best told by the Longmont Museum’s summation found on its website: In 1870, a group of prominent men in Chicago decided to start a new town in Colorado. They sold memberships in this new town, called "The Chicago-Colorado Colony" and used the money to buy 60,000 acres of land for a townsite and nearby farms in a carefully chosen site in northern Colorado. They planned the town, and brought people, lumber,
and building materials to the barren site, where they built a small town by the summer of 1871. They named the new town “Longmont “in honor of Longs Peak, clearly visible from the town. One of the great achievements of the Chicago-Colorado Colony was building large irrigation ditches to bring water from the rivers to the fields of wheat, fruit trees, and peas that farmers planted. As the town grew, large-scale agricultural industries arrived, first flour mills in 1872, then the Empson vegetable cannery in 1887. Several leading citizens of Longmont worked together to build a beet sugar factory on the west edge of town, finally developing enough support in 1903 to build what soon became the Great Western Sugar Co. Sugar beets grow well in northeastern Colorado, because of the availability of irrigation water, and the richness of the soil. 10 Due to various annexations over the past decade, Longmont now straddles the county line and includes lands lying in both Boulder and Weld Counties.11 These ties to agriculture led Judge Coughlin, in the Avalos litigation12, to move Longmont from the 2nd C.D. to the 4th C.D., noting that the 4th C.D. “is a district which recognizes the agricultural community of interest of the eastern plains.” Thus, for the 2002, 2004, 2006, 2008, and 2010 congressional elections, Longmont and its surrounding agricultural area of the original Chicago Colony have been within the 4th C.D. and tied to its Front Range sister communities. Those agricultural ties with the Eastern Plains have been reinforced by a long history and strengthened by the present day sharing of cultural, economic, educational, trade area, geographic and demographic connectors. It is not by accident that Longmont’s Main Street (U.S. Highway 287) also forms the “Main Street” of Loveland and of Fort Collins. This modern highway’s historical genesis was Colorado’s Overland/Cherokee Trail which served as a north/south connecting route between the
http://www.ci.longmont.co.us/museum/research/history.htm https://secure.ci.longmont.co.us/arcgis/CityMap/CityMap.html 12 Avalos v. Davidson, No. 01CV2897, slip op (Denver Dist. Ct. Jan. 25, 2002).
Oregon and California Trails and the Santa Fe Trail, extending from Bent’s Fort in Southern Colorado to near Laramie, Wyoming.13 Thus, before there were any towns along the Northern Front Range, pioneers, traders and trappers established a north/south trade route that would become the main streets of three major cities along the Front Range. In fact, for a full century before Longmont was connected to the City of Boulder by way of the Diagonal Highway14 (which was not constructed until 1960), Longmont was vertically tied to Loveland and Fort Collins by Highway 287. Thiebaut Map No. 2 preserves this historic
linkage that was recognized by the redistricting after the 2000 census. B. Longmont’s Ties to the North and East. The nexus between Longmont (including its Chicago-Colony farm lands) to the Northern Front Range and to the North Eastern Plains (encompassing the City of Greeley and communities along Colorado Highway 85) is strong and extensive. The following are but a sampling of these cultural, economic, trade area, geographic and demographic connectors: Longmont is the only member in the North Front Range Water Quality Planning Association that is not located in Larimer or Weld County. The Association consists of 35 municipal and district dischargers that are dedicated to collaborative planning and facilitation regarding water quality protection along the Front Range. 15 The City of Longmont obtains its electrical power from the Platte River Power Authority, a consortium of the cities of Loveland, Estes Park, Longmont and Fort
http://www.cherokeetrail.org/pioneering/pioneering.html http://boulderhistory.org/timeline.asp 15 http://www.nfrwqpa.org/members_list.shtml
Collins (located in Larimer County). Through this Authority, each of the sister cities obtains its electrical power from the Rawhide Energy Station. 16 Longmont (and its agricultural environs) obtains much of its water supply from the Colorado-Big Thompson Project. Longmont, along with Greeley, Loveland, Estes
Park, and Fort Collins, participated in the Windy Gap Project to provide additional supplemental water.17 All water law matters arising within the Platte River drainage basin (which includes the St. Vrain River) are handled by Water Division No. 1 of the Colorado District Court in Greeley18. In the 1960’s, the St. Vrain Valley School District, located in Longmont, reorganized and incorporated the school districts that formerly served the Weld County communities lying to its northeast, east, and southeast: Mead, Firestone, Frederick, Dacono and Erie. For over fifty years, the St. Vrain Valley School District’s high school athletic teams have participated in leagues that include schools lying within Weld County and Front Range communities of Loveland, Fort Collins, and Greeley. The St. Vrain Valley School District joined with 12 other school districts in Larimer and Weld counties to form the Centennial Board of Cooperative Educational
www.prpa.org http://www.ncwcd.org/project_features/wgp_main.asp 18 The Arkansas River drainage basin is within Water Division No. 2 of the Colorado District Court in Pueblo.
Services19 to avoid duplication of services and administration through cooperative efforts. The Longmont United Hospital and Poudre Valley Health System of Fort Collins have recently announced a joint-venture to construct and operate a medical facility in the Frederick area adjacent to I-25 in Weld County.20 According to the 2010 Labor Migration Study by the Boulder Regional Business Partnership, more private sector residents from Larimer and Weld Counties work in Longmont than local Longmont residents.21 Colorado State University, located in Fort Collins, maintains an extension office in Longmont for the benefit of the community.22 The University of Colorado has no presence in Longmont. Longmont’s residents are closely connected to the popular Front Range Community College system which has campuses in Longmont and in Fort Collins.23 C. Thiebaut Map No. 2 Best Preserves Longmont’s Community of Interest.
Thiebaut Map No. 2 offers not only a compromise among competing political interests, but also best meets the statutorily stated intent to preserve communities of interest. It maintains the integrity of Weld-Larimer Counties, recognizes and preserves the geographic integrity of the City of Denver, and reflects the north-south axis of population growth along the far western boundary of the current 4th C.D. Thiebaut Map No. 2 also avoids splitting Longmont from the
http://www.cboces.org/site_res_view_template.aspx?id=2867a390-daf0-4d68-bbb4-78b7c220a34e http://pvhs.org/body.cfm?id=11&action=detail&ref=14 21 http://www.longmont.org/media/docs/PDF%20Files/2010%20Profile.pdf 22 http://www.ext.colostate.edu/cedirectory/c_detail.cfm?index=7&countyA=Boulder 23 http://www.frontrange.edu/
Tri-Town Area and preserves in the 4th C.D. all communities on both sides of the northern I-25 economic and transportation corridor. It is not in the best interests of the citizens of Longmont to have Longmont and its environs withdrawn from the 4th C.D. just a decade after the court had acknowledged Longmont’s strong ties to Larimer and Weld Counties. VI. CONCLUSION.
For the above stated reasons, SFC urges this Court to draft and adopt a map of the 4th C.D. that preserves the City of Longmont’s presence in the 4th C.D. , and respectfully suggests that Thiebaut Map No. 2 best meets both the constitutional/statutory requirements and the factors cited in Section 2-1-102 (1) (b), C.R.S. for the Court’s consideration. Dated: September 30, 2011 LYONS GADDIS KAHN & HALL, PC
By __/s/ Richard N. Lyons, II_________ Richard N. Lyons, II
CERTIFICATE OF SERVICE I hereby certify that on the September 30, 2011, the foregoing was electronically filed and served with LexisNexis File and Serve, or served in the manner indicated, addressed to the following: Mark G. Grueskin, Lila Bateman, Martha M. Tierney Heizer, Paul, Grueskin, LLP 24001 15th St., Suite #300 Denver, CO 80202 Attorneys for Plaintiffs Moreno, Le Lait, Patterson, Mahoney, Clark, Matsunaka and Whitney John Suthers, Attorney General Maurice Knaizer, Deputy Attorney General LeAnn Morrill, Assistant Attorney General Colorado Attorney General’s Office 1525 Sherman St. Denver, CO 80203 Attorneys for Defendants Richard A. Westfall, Allan L. Hale Peter Krumholz Christopher McNicholas Hale Westfall, LLP 1445 Market St., Suite #300 Denver, CO 80202 Attorneys for Plaintiffs Hall, Stroud, Murphy, Ph.D., Hillman, Williams, Baisley and Seitz Regina M. Rodriguez, John D. Shively James R. Spaanstra. Thomas W. Carroll Faegre & Benson, LLP 3200 Wells Fargo Center 1700 Lincoln St. Denver, CO 80203-4532 Attorneys for Plaintiff-Intervenor-Colorado Latino Forum and Colorado Hispanic Bar Association Nina Perales, Rebecca M. Couto Mexican American Legal Defense and Education Fund 110 Broadway, Suite #300 San Antonio, TX 78205 Attorneys for Plaintiff-Intervenor-Colorado Latino Forum and Colorado Hispanic Bar Association Stanley T. Matsunaka Clark Williams and Matsunaka, LLC 2881 N. Monroe Ave., Suite 1 Loveland, CO 80538 Attorneys for Intervenor – Bill Thiebaut
Lance J. Ingalls, Esq. Douglas County Attorney Douglas County Board of County Commissioners 100 Third Street Castle Rock, CO 80104 Attorneys for Plaintiff-Intervenor – The Board of County Commissioners of Douglas County Martha L. Fitzgerald, Hubert A. Farbes, Jr. Michael F. Feeley Brownstein, Hyatt, Farber, Schreck, LLP 420 Seventeenth St., Suite #2200 Denver, CO 80202-4432 Attorneys for Plaintiff-Intervenor – The City of Aurora and Mayor Edward J. Tauer
Charles H. Richardson, Jr., Billy R. Stiggers The City of Aurora Aurora Municipal Center, Suite 5300 15151 E. Alameda Pkwy. Aurora, CO 80112 Attorneys for Intervenor – City of Aurora Bruce Barker, Weld County Attorney P. O. Box 758 Greeley, CO 80632 Attorney for Board of County Commissioners of Weld County George N. Monsson, El Paso County Attorney 27 E. Vermijo Ave. Colorado Springs, CO 80903 Attorney for Board of County Commissioners of El Paso County
Daniel B. Slater 1415 Main St., Suite A Cañon City, CO 81212 Attorneys for Amicus Curiae McFadyen
George Haas, Larimer County Attorney P.O. Box 1606 Fort Collins, CO 80522 Attorney for Board of County Commissioners of Larimer County
______/s/ Kyna Glover, Paralegal____________