The silence of a court is not neutrality

The New York Times reports that the Colorado Supreme Court has yet to rule on the validity of ballot proposals that would redraw the state's congressional districts ahead of the 2028 cycle, and that Democratic advocates warn time is running short for the proposals to survive. I take no side in the partisan contest between the two great factions now contending for advantage. My concern is the mechanism — and the mechanism here is in trouble.

The power to draw the lines of representation is among the most consequential a republic possesses. In Federalist No. 10, I argued that the great danger of popular government is the tyranny of a permanent majority organized around shared interest. Gerrymandering — the art of drawing a district so as to guarantee the outcome before a single ballot is cast — is precisely the instrument by which one faction converts a temporary majority into a durable one. The maps are the majority; the votes merely confirm it.

The Constitution, in Article I, Section 4, grants state legislatures the primary authority to regulate the times, places, and manner of elections for Congress — subject to Congress's own override. The people of Colorado, through their own constitutional processes, appear to have sought to place this power in the hands of an independent commission or similar body, removing it from the legislature that benefits most directly from the current lines. That is a structural reform of exactly the kind the extended-republic theory commends: dispersing power, multiplying the checks on any single faction.

But — and here is the structural problem the Times places before us — a court that does not rule is, in practice, ruling against reform. Deadlines for ballot qualification are real. A proposal that cannot clear judicial review before the filing window closes is a proposal that dies, not by decision but by delay. Whether that delay is inadvertent or strategic I cannot say from the lead alone; I mark the cause as inference, not recollection. What I can say is that a judiciary that fails to discharge its reviewing function in time to preserve the people's options is not a neutral actor. It becomes, by omission, a participant in the factional contest it was meant to referee.

The deeper principle is this: the legitimacy of a representative body depends on the integrity of the process by which its members are chosen. A legislature that draws its own district lines is, to that extent, choosing its constituents rather than the other way around. The framers understood this danger imperfectly — we did not resolve it cleanly in Philadelphia — but the republican theory we inscribed in the Constitution points consistently toward the accountability of representatives to the people, not the reverse. Any structural reform that moves in that direction deserves a timely answer from the courts, not procedural silence that serves as a veto.

The question I would press upon the Colorado justices, and upon any court in like circumstances, is simply this: does delay preserve the constitutional order, or does it foreclose the people's lawful remedy? If the latter, the court has not stood apart from the political contest — it has decided it.