Colorado General Assembly v. Salazar (2004) as precursor to Moore v. Harper

The Supreme Court’s decision to grant certiorari in Moore v. Harper, the North Carolina redistricting case, has prompted, and will prompt, a great deal of commentary (including this helpful discussion this week over at the Safeguarding Democracy Project). But it’s led me to go back and examine a number of sources, and one case from a generation ago is of some interest: Colorado General Assembly v. Salazar (2004). The Court denied certiorari, but three justices dissented. The opinion does not appear in many recent critiques of the scope of the Legislature Thereof Clause, and it’s rarely cited in briefing, but it’s an illuminating decision nonetheless–with parallels to Moore and, perhaps, highlighting a weakness of Moore.

The Colorado Supreme Court in 2003 found that the state constitution precluded the legislature from mid-decade redistricting. That was despite the fact that the 2002 congressional map was implemented by a state court because the Assembly had failed to pass a congressional redistricting plan in time. The legislature wanted a shot at drawing a map in 2003. No dice, said the Colorado Supreme Court. The assembly appealed, citing its power to as the “legislature” to determine the manner of elections under the Elections Clause.

The Court denied cert in 2004. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented, relying on a version of his concurring opinion in Bush v. Gore (without citing it, opting, instead, to cite McPherson v. Blacker (1892) with a “cf.” signal): “Legislature” must mean something under Article I of the Constitution, and here the institutional legislature has been cut out of the process.

In fact, the language in this case is, in some respects, materially similar to Justice Alito’s dissenting opinion in the stay application in Moore v. HarperCompare Colorado General Assembly (“And to be consistent with Article I, § 4, there must be some limit on the State’s ability to define lawmaking by excluding the legislature itself in favor of the courts.”) with Moore (“And if the language of the Elections Clause is taken seriously, there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.”).

Two other points of interest, to me.

First, there was very little buzz about the Colorado General Assembly’s cert petition or the dissenting opinion. (Not no buzz: the New York Times editorial board lamented the dissenting opinion.) One reason may have been timing: the Court’s partisan gerrymandering decision in Vieth v. Jubilirer was just a few weeks earlier and likely absorbed the brunt of attention. (But Rick Hasen’s useful examination of the case in a Hastings Constitutional Law Quarterly piece some years ago is a good one.) Another is that, well, it was a dissent from a denial of certiorari from three justices, and, like Bush v. Gore, seemed to have little traction at the time.

Second, the opinion relied heavily on the legislature being cut out of the process. Unlike the usual cases traipsed out for discussion here, like Smiley v. Holm (legislative act subject to gubernatorial veto) and Ohio ex rel. Davis v. Hildebrant (legislative act subject to referendum), Chief Justice Rehnquist’s opinion focuses on the legislature being entirely left out by the state court ruling. It’s a concern not unlike Chief Justice Roberts’s dissenting opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission.

It strikes me as interesting to consider the outer bounds of claims under the Legislature Thereof Clause. Is the concern the absence of legislative involvement, like in Colorado General Assembly and Arizona State Legislature? Or is it some inappropriate treading upon the legislature, which is at issue in Moore? The latter seems far more difficult to police, even if it came out in the concurring opinion in Bush v. Gore. In Moore, the North Carolina legislature still gets a bite at redistricting for 2024. But it must do it within the contours of the state supreme court’s articulation of state constitutional law. The interim congressional map is only an interim, and the legislature can come back with another map later. (In fact, the legislature had a shot at a map after the partisan gerrymandering decision, but that map was also rejected by the state courts.)

Rick Pildes has blogged here about the various routes that the Supreme Court may take in Moore. The “Regulating v. Permanently Displacing State Legislatures” distinction here comes to mind as the Court takes up the case.

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