Colorado Redistricting Had Inside Help

Colorado was supposed to be an exception to the bitter fights over gerrymandering that define redistricting in much of the nation.
by | February 10, 2012
 

Colorado was supposed to be an exception to the bitter fights over gerrymandering that define redistricting in much of the nation.

Unusually, the Democratic governor gave up the chance to stack the map-drawing commission in his party's favor. Instead, he pushed for a balanced commission that would approve the new maps by consensus.

Bob Loevy, a retired political science professor and Republican, wholeheartedly embraced this bipartisan vision. He was optimistic that the commission's 11 members -- five Republicans, five Democrats and one independent -- could craft fair maps guided by the needs of voters. But as the process unfolded, Loevy says, he grew disillusioned

Much of the public testimony he heard seemed to have been manufactured by Democrats and Republicans to justify highly partisan lines.

And Loevy realized that the commission's taxpayer-funded staff wasn't drawing most of the maps. Instead, Republicans and Democrats on the commission were working off-hours with teams of outside consultants who were crafting competing partisan maps.

The consultants were not on the payroll of the commission -- or even of the political parties. Instead, at least some of their salaries were paid by nonprofit groups who had no legal obligation to disclose who their funders were or how they spent their money.

Loevy, who was named to the commission by the state's chief justice, called the process a "marionette show," in which the outside mapping experts served as puppeteers.

Others in Colorado called his perspective naïve.

"I thought the whole process was democracy in action," said Wellington Webb, a former Democratic mayor of Denver who was serving on the reapportionment commission for the second time. Loevy's concerns were "the comments of a political science professor," Webb said. "That's not the way it works in real life."

ProPublica has been tracking the process as states carry out their once-a-decade redrawing of their electoral maps. Several states have overhauled their redistricting processes to make them more transparent and more accountable to voters. That by no means ended the personal and partisan battles over map lines. We've explored the way politicians and other special interests have used shadowy nonprofits and manufactured testimony to manipulate the redistricting process in California, Florida, Massachusetts, Minnesota, and elsewhere. Other news outlets have reported on similar tactics being used in New Jersey, Nevada and Arizona.

Many of these states have seen their redistricting process mired in bitter legal battles. Hardly any started with the bipartisan optimism that characterized Colorado's public process.

An Early Start

Months before that public redistricting process began, political insiders in Colorado organized nonprofit organizations that would pay for redistricting consultants and legal efforts.

Public records offer scant glimpses of the interests that supported and the people who helped run these nonprofit groups. Among those identified by name are two prominent real estate developers, a former Republican congressman, Colorado firefighters and two of Colorado's teacher unions.

Democrats got out-of-state help from The Foundation for the Future, the national Democratic redistricting strategy group whose donors include trial lawyers, the American Federation of State, County and Municipal Employees, the AFL-CIO and John Hunting, a wealthy environmentalist from Michigan.

In January 2011, before the public process had started, The Foundation for the Future reported a $16,818 in-kind donation of "data, data use, and training" to a group called Colorado Long View. Matt Inzeo, the communications director for the Colorado Democratic party, described Colorado Long View as a Democratic-aligned nonprofit that worked on reapportionment. Inzeo said neither he nor state party chair Rick Palacio knew much about the group.

Part of the power of using nonprofit groups for political action is the ability to conceal who is actually calling the shots. No one we contacted would say who was actually responsible for running Colorado Long View. Its current registered agent seems apt: It's "The Corporation Company." Kevin C. Paul, the Denver attorney who originally incorporated the group, said he was "honestly not sure" who is in charge of it. Attorneys Mark Grueskin, who worked with Democrats on redistricting, and Scott Martinez, who worked on redistricting and with Democrats on the reapportionment commission, would not comment.

Such nonprofits are organized under federal laws that require their primary purpose to be promoting "social welfare." This allows them to accept unlimited amounts of money and, like other nonprofits, they face virtually no obligation to disclose their donors.

Colorado has an active group of millionaire and billionaire political donors nicknamed the "Gang of Four" who made a coordinated effort to unseat Republicans who opposed gay marriage and, in 2004, spent millions to help win both houses of the state's legislature for Democrats.

Did these wealthy donors seek to influence the political balance of the state by donating to Colorado Long View or another Democratic-aligned nonprofit?

The law doesn't require them to disclose such donations, and the millionaires declined to comment.

But Andy George, the executive director of Colorado Citizens for Fair Representation, said his nonprofit, which funded Republican-aligned reapportionment efforts, was created partially in response to the perceived political clout of the "Gang of Four."

"There was no reason for us to expect that tremendous amounts of money might not be spent on reapportionment by these same folks," he said.

George said his group was not affiliated with the Republican party, but he said its pro-business interests in reapportionment were "substantially similar" to those of the Republicans.

"You want a healthy business environment in Colorado -- you certainly don't want Democrats in charge of the state legislature for the next 10 years," said George, who has extensive experience running political nonprofits in Colorado.

Like political operatives in state after state, he called reapportionment "like an extra campaign season thrown in the middle of the campaign."

Current Federal Election Commission regulations don't treat redistricting as a campaign activity.

And while IRS rules require 501(c)(4) nonprofit groups to have "social welfare," not political activity, as their "primary purpose," the IRS does not define exactly what that means or provide much enforcement.

Political pros view redistricting as one of the most effective ways to influence elections since a district drawn to favor to a particular candidate or party can keep them in office -- or in a majority at the state house -- for 10 years.

The nonprofits that fund partisan redistricting efforts often claim to be independent of either party.

Citizens for Fair and Legal Elections, which raised money for congressional redistricting efforts in Colorado, is not officially affiliated with the state GOP -- even though it was founded by Ryan Call, who is now the chair of the Colorado Republican party, and is currently run by Richard Westfall, who also happens to serve as the GOP's legal counsel.

"I'm not going to get into a debate with you about what people may or may not perceive," Westfall said, when asked if it was credible that the group was not affiliated with the GOP.

The group's board of directors, according to an IRS filing provided by Westfall, includes a former Republican congressman, Robert Beauprez; a prominent Republican real estate developer, Stephen Schuck, who has run for governor; as well as Walter "Buzz" Koelbel, Jr., another real estate developer.

According to its application for tax-exempt status, the group estimated its 2011 donations would total $500,000. Both Westfall and Beauprez declined to comment on where this money came from, a right enjoyed by all such nonprofits.

Beauprez said that "a lot of the donors did not want notoriety," and that he was not aware of who they were. "I know deposits were made into the account,'' he said. " I don't know who made them."

The IRS filing noted that a 2010 ruling from the Federal Election Commission had opened the door to fundraising for redistricting by "current Members of Congress.'' It added: "Federal candidates may be involved with soliciting funds on behalf of Citizens for Fair and Legal Elections."

March of the Marionettes

The 1974 ballot measure that created the commission required its members to travel across the state and hear testimony on potential district lines. This year's commissioners listened to hundreds of people in person and received hundreds more emails and letters. Compared with many states, where new maps get little public scrutiny, this process seemed like a model of transparency.

Under state law, new district lines are supposed to keep together "communities of interest," a broad term that can mean anything from an ethnic group to a group of people who have shared economic interests.

But in Colorado, as elsewhere, public hearings often were conducted in code, with citizens lining up to describe various "communities of interest" that would help one party and harm the other.

"When parties are trying to manipulate a commission, the best way to do it is by starting where you want to end up, figuring out where you want the lines to be at the end and reverse-engineering it [the testimony]…and figuring out what 'community of interest' testimony serves that purpose," said Rob Witwer, a Republican member of the commission and former state legislator.

Gayle Berry, a lobbyist and another Republican member of the commission, said she had seen that reverse-engineering in practice.

In June, before the reapportionment commission had even begun considering maps, Berry said she had a conversation with a Democratic state legislator in which he asked if she had seen one of the new proposed senate maps. The legislator described the proposed map to her in detail.

Later that summer, at a public hearing, Berry said she heard testimony supporting exactly the configuration the legislator had described. When the commissioners finally saw the map, it was described by the Democratic commissioner who introduced it as "being based on what we heard in public testimony" -- even though Berry knew the map had existed months before the commission had heard any testimony at all.

"I think anyone who's not been through this before is sort of amazed at the brazenness of both parties," Witwer said. "They'll put people up and say, 'I'm a concerned citizen,' or 'I'm a long-time citizen and I just care deeply about my community'…and it takes the partisan performance [of a district] and it moves it five points."

The chairman of the commission, Mario Carrera, a media executive and an independent voter, said he believed at least 80 percent of the public testimony the commission had heard was manufactured, which he said was "disappointing."

Other commissioners estimated the amount of "manufactured" testimony as 30 percent to more than 90 percent.

Despite this perception, all public testimony was treated the same -- so there was no priority given, for example, to a bipartisan effort by voters in rural Grand and Jackson Counties, who sent roughly 300 emails and letters to the commission, more than any other area in Colorado.

The Grand County Democrat who helped coordinate this strong showing, Andrew Gold, said he had originally received a phone call urging him to come out to testify in favor of drawing Grand County in with Colorado's more urban Front Range region.

But rather than falling in with what seemed to be the Democratic party's preferred district plan, Gold decided to organize opposition. At his suggestion, the chairs of the Republican and Democratic parties of Grand County showed up at a commission hearing together and emphasized that Grand County was united in its desire to be grouped with other rural counties -- not lumped in with a slice of urban Boulder.

Several commissioners described the Grand County testimony as clearly legitimate, not manufactured for a partisan purpose -- but they said that perception gave it no special standing.

The commissioners tried to figure out the motives of the witnesses in different ways. Some would google the names of speakers during hearings, in order to figure out what their motivations might be, or whisper to each other about the identity of the person speaking. Other commissioners would ask follow-up questions in an attempt to determine if the speakers could actually understand and defend their own testimony. (In some cases, several commissioners said, they couldn't.)

What the commissioners didn't do was press those testifying to identify their partisan affiliations, since some said this might have a chilling effect on testimony.

"It was very hard to tell, pretty much, what was real," Carrera said. "Every commissioner had to go with what they felt was important."

In interviews with nine of the commission's 11 members, commissioners differed on whether they found the amount of manufactured testimony frustrating or inappropriate. Some argued that manufacturing testimony is just good political organizing -- like efforts to get out the vote.

"Probably 99.9 percent was manufactured. That doesn't bother me. I think everyone went there with an agenda," said Arnold Salazar, a Democratic commissioner. (He said he is not related to Ken Salazar, the Colorado Democrat who is currently serving as secretary of the Interior.)

Others were less sanguine.

"I think it makes a mockery of the process," said Mario Nicolais, a Republican commissioner, who said he thought the public testimony ultimately had little value. "It has nothing to do with actual communities and people, and it has everything to do with political parties and partisan performance. It's a sham."

Who Pays for the Maps -- And Does It Matter?

To do the practical work of creating new state house and senate maps, the commission hired a taxpayer-funded staff of eight people, including one, Jeremiah Barry, who was an experienced map drawer who had worked on the previous round of redistricting in 2001. The total cost of the commission was roughly $300,000, according to Barry.

Although the nonpartisan staff produced plenty of maps as the commission gathered testimony across the state, these maps were largely ignored in favor of the maps drawn by the partisan consultants funded by interests that remained almost entirely out of sight.

Carrera, the unaffiliated voter who served as the commission's chairman, said he thought it was reasonable for the members of each party to work with their own staff.

"There's a lot at stake," he said. "Both Democrats and Republicans want the best possible advice that they can get to be able to come up with the best solutions that would favor them."

Both Republican and Democratic commissioners interviewed about the partisan consultants said they had no idea who was paying their salaries -- and some said that didn't matter.

"We had them draw maps to our liking," said Webb, the former Democratic mayor of Denver.

Referring to his Democratic colleagues, he said, "These are five strong-willed individuals who are independent of any organization, and no one could tell us what to do."

Spokesmen from three of the organizations that donated to "Colorado Long View" said their groups played no direct role in shaping the Democrats' reapportionment strategy.

Contributions to the group included $500 from the United Transportation Union Small Donor Committee and $2,500 from the Colorado Professional Fire Fighters Small Donor Fund.

Asked what the purpose of Colorado Long View was, Ray Rahne, the secretary treasurer of the Colorado Professional Fire Fighters union, said, "That's who we donate money to to help us out."

He said he was not sure if the contribution had been intended for redistricting efforts, but that the union had no involvement with redistricting.

Jennie Peek-Dunstone, the executive director of the American Federation of Teachers Colorado, confirmed that the AFT's political education committee had approved a $2,500 donation to "Colorado Long View" to support Democrats in redistricting but said that AFT had no further involvement in the redistricting process.

The largest donor to Colorado Long View was the Colorado Education Association, the state's largest teachers' union, which gave $100,000 in October 2009 to a group called "Colorado's on the Move," which later changed its name to "Colorado Long View."

CEA said that its earlier donation had not been intended for redistricting but instead for "education purposes."

"Because the $100,000 contribution was given to a group that spent at least this amount during 2009 and 2010, this money could not have been used for redistricting. CEA contributed it for public education purposes and was informed that its donation was used accordingly -- long before either redistricting or reapportionment could have been addressed," CEA spokesman Mike Wetzel wrote in an email.

Wetzel declined to comment on the purpose of Colorado Long View or who was in charge of the group, other than to say that it was a "nonprofit group made up of many different partners."

The Democrats on the commission also held a small number of their caucus meetings at the CEA's Denver headquarters, according to commissioners Webb and Salazar.

The two commissioners said that they did not think CEA staff were present at these meetings and Webb said that, to his knowledge, CEA had not made any requests about map lines.

Wetzel, the CEA spokesman, wrote in an email that the union's meeting rooms are "typically made available to a wide variety of groups" and that CEA "made no requests of anyone with regard to the line-drawing process for any legislative district."

Alan Philp, an attorney and redistricting expert who worked with Republicans on the reapportionment commission, said his work was funded by Colorado Citizens for Fair Representation and that he did a small amount of fundraising for Republican-aligned reapportionment efforts.

"Any donors that did step up to the plate never made requests about lines," he said. "We never had any requests that I'm aware of about specific lines or helping specific candidates or incumbents."

Who else helped pay the consultants' salaries, and whether they had any particular interests in redistricting, will most likely never be known.

Colorado's political parties must operate under strict campaign finance laws. Seth Masket, a political scientist at the University of Denver, said that nonprofits and other independent groups have increasingly come to serve as de facto arms of Colorado's political parties. But, he said, it's not clear when the groups are simply providing organization for the parties and when the groups might be taking a more active and independent role.

'We Were So Close'

After months of meetings, the commissioners approved a set of compromise maps for the state House and Senate. The maps didn't satisfy everyone, but they were approved with a small bipartisan margin of 8-3 and 9-2, with two and three of the five Republican members of the commission voting against the maps. The maps were responsive to some of the public testimony -- for instance, they put Grand County in with other rural counties, rather than adding those voters to a more urban district.

Then maps went to the state supreme court for approval, where lawyers representing "Colorado Citizens for Fair Representation" argued that the maps were unconstitutional because they split too many city and county lines.

This was the same Republican-aligned nonprofit that had also paid for the mapmaking consultants who worked behind the scenes with commission Republicans. The fact that some of the Republican commissioners had approved the maps was irrelevant because the nonprofit was not under their control.

When the state supreme court rejected the compromise maps, ruling -- as the nonprofit's lawyers had argued -- that they divided too many cities and counties, Democrats ended efforts to reach a bipartisan solution.

"When that compromise was blown up, we were left to do what's in the interests of the majority, which I would admit to you is not always fun, but it's the way that politics works," Salazar said.

The Democrats pushed through a new set of maps that drew leaders of the Republican party into the same districts as other Republicans, a move that would force Republicans to retire or to run against each other in a primary race. The Democrats' maps passed on a 6-5 party-line vote with the support of the independent chairman. They then won court approval.

Partisan bitterness and recrimination erupted, exactly what Colorado voters hoped to avoid when they overhauled the reapportionment process in 1974.

Loevy, who titled his online account of his experiences "Confessions of a Reapportionment Commissioner," called the final incumbent-pairing maps "dishonorable" and "patently undemocratic."

John Hickenlooper, the Democratic governor, has said he was disappointed by the way the process had turned out.

"It became very bitter, and I just regretted -- we were so hopeful that even if we didn't get consensus, we would get 8 out of 11 votes," Hickenlooper told ProPublica. "We were so close."

In the end, the Democrats' map looped rural Grand County in with part of Boulder County -- exactly what Boulder County's Republicans and Democrats had worked so hard to prevent.

"Basically, it eliminated our representation in the state legislature," said Harry Kottcamp, the chairman of the Grand County Republican Party who had ended up driving hundreds of miles to testify at five separate public hearings, to no avail.

"I am really disillusioned with the whole process, I really am," said his Democratic counterpart Robert McVay. "I was raised that the people have a voice, and that's not the truth."

Clarification (2/10): An earlier version of this story did not specify that attorney Mark Grueskin worked with Democrats only on congressional redistricting, while attorney Scott Martinez worked both on redistricting and with Democratic members of the reapportionment commission.

A version of this story was published in The Denver Post.

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