In the debate surrounding Colorado’s famously loose ballot initiative system, the so-called impound initiatives introduced repeatedly in local municipalities over the past three years might serve as a test case. This year, they have been introduced in Denver and two of its suburbs, Aurora and Lakewood. The proposed laws would require police to seize the vehicles of every unlicensed driver they stop.
But the initiatives aren’t primarily about keeping the roads safe and the man behind them doesn’t live in Denver, Aurora or Lakewood. As many know by now, the man behind the initiatives is Daniel Hayes. He lives in unincorporated Jefferson County and his initiatives are a weapon in his personal battle against illegal immigrants.
Since 2005 when he first began floating his initiatives, Hayes has learned to soften his rhetoric. He has mostly stopped talking about “getting Hernandezes off the road” and the need to “send illegals home” because “something has to be done.” He talks instead about getting unlicensed drivers off the road because, if they hit you, they could bankrupt you.
Scratch the surface, though, and the old Dan Hayes comes back.
In an interview, he told The Colorado Independent that it’s the people who oppose his initiatives who are the racists.
“They call me the racist but let’s face it, illegal aliens are not treated the same on the highway … They don’t even get identified. They drive all they want. So I guess what [the opposition] is saying is that they don’t care. They want these people to drive without being bothered.”
Hayes said Colorado Ethics Watch, which filed transparency lawsuits this summer against the Aurora and Lakewood initiatives, has a pro-illegal immigrant agenda and pointed as evidence to the fact that Ethics Watch attorney Luis Toro is Latino.
“You know that guy is a Spanish guy and he hates this car towing, this Luis Toro.” Referring to Toro, he said Ethics Watch has taken “his side.”
But opposition to the initiatives doesn’t just include Toro and Ethics Watch. Nearly all the authorities who would be affected by the law oppose it. The Colorado Association of Chiefs of Police and County Sheriffs have come out strongly against the initiatives, saying they would be diverting and costly and would unnecessarily take discretion out of the hands of officers on the scene. Colorado Common Cause and Coloradans for Safe Communities also oppose the initiative, as do Denver Mayor Hickenlooper, the Denver police and the city council.
Toro told The Colorado Independent that Ethics Watch was drawn into the case because of the lack of transparency.
“Voters only know [the initiative] is about illegal immigration because of media reports,” he said. “And we only know Hayes is the man behind the initiatives because of legal complaints. That’s no way to run a government or to make laws.”
Because Hayes doesn’t live in the places where he is introducing the initiatives, he has had to find voters there to act as proxy proponents. He has also provided funding for the signature campaigns that will place the initiatives on ballots. But Hayes had remained technically anonymous until Ethics Watch filed complaints in Lakewood and Aurora.
The complaints seek to force the people financing the initiative campaigns to publicly identify themselves in compliance with state campaign-finance laws.
In Aurora, Ethics Watch contends Hayes gave $14,000 to Dan Kennedy Enterprises, which collected 8,300 petitions in support of the initiative. Those signed petitions constituted an in-kind donation.
Ethics Watch asked Debra Johnson, Aurora’s city clerk, to compel Hayes, as well as the Aurora voters working with him, Pere Wickes, Kay Aaro and Erik Hanson — members of a group called “Unlicensed Driver Motor Vehicle Impoundment and Bonding Initiative” — to register as an issue committee and disclose donations and expenditures.
But Johnson said Hayes was an individual not a committee. “I do not find the requisite probable cause to take further action on your complaint,” she wrote.
Toro said Johnson’s ruling ignores the fact that Hayes is pulling strings from outside the voting municipality. The laws are meant to prevent outsiders from waging these kind of long-distance campaigns. “It is obviously a wrong analysis,” Toro said, but it doesn’t come as a surprise.
“There is a frequent problem in this state where people charged with the responsibility to enforce campaign finance laws don’t actually do it– especially if they have aspirations for higher office and might be perceived as taking sides.”
Disclosure as intimidation?
Those campaign finance laws are bad laws, Jon Caldara, head of the conservative Independence Institute told The Colorado Independent. “The laws have a chilling effect” on expression, he said. People should not be forced to reveal for public record how they stand on issues. Requiring disclosure amounts to intimidation, he said.
Caldara said the Institute battled Referendum C in 2005 and was “set on the legal path” as a result, drawing suits asking for donor identities. “They wanted the lists of people who gave $20,” said Caldara. The Institute incurred mounting legal fees and Caldara was forced to testify for hours on the stand in the last weeks of a “busy election cycle.”
The Independence Institute is presently waiting to learn whether the U.S. Supreme Court will hear its case in favor of repealing Colorado campaign finance laws. The argument in Independence Institute v Boucher was rejected by Colorado courts last year.
“It’s not the government’s job to protect us from ideas, even those backed by people and groups with great resources … People are able to make up their own minds,” attorney Steve Simpson is quoted at the Institute’s website.
Marketplace of ideas
But in the marketplace of ideas, money and power matter a lot, said Monica McCafferty, spokeswoman for Planned Parenthood of the Rocky Mountains in conversation with The Colorado Independent this summer. Planned Parenthood battled an antiabortion initiative last year and is battling another one this year.
“‘No’ campaigns cost a lot more than ‘Yes’ campaigns,” she said. Groups with money can come from outside. They use Colorado as a petri dish for their issue of choice because of our ballot initiative laws. She says because the wording of initiative titles can be vague on the ballot, No campaigns have an uphill battle. You have to educate the voters about the issue generally, she said, and also on the intention and effect of the proposed law.
“We won one of the largest margins of defeat, 73 percent to 27 percent, against Amendment 48 last year,” she said about the proposed anti-abortion amendment. “But it’s back. This is not a representation of how Coloradans feel.”
McCormick reports that the “NO on 48” campaign raised about $1.8 million while the Yes camp raised about $580,000.
“Our coalition raised about three-times the amount in comparison to the opposition,” she said. “Now we have to do it all over again.”
This year, Hayes only needs to secure 3,972 signatures (pdf) to land his impound initiative back on the ballot in Denver. It won’t appear on the Lakewood ballot due to delays caused by the legal complaints and signatures in support of the proposed law were tossed out by a judge in Aurora because the petition residents signed did not include the full text of the initiative.
Written with reporting by Joseph Boven.