Supreme Court kicks TABOR lawsuit back to appeals court

The saga around a notorious provision in Colorado’s state constitution continues, in what could be the most fundamental disagreement in state politics this decade.

The U.S. Supreme Court punted Kerr v Hickenlooper back down to a lower court Tuesday. The lawsuit aims to undo TABOR — the 1992 voter-approved measure that requires the state to get voter permission to raise taxes.

Plaintiffs in the case are a bipartisan bunch, including state lawmakers past and present, educators, administrators, public officials and private citizens. Their basic argument is that raising taxes is the purview of lawmakers. It’s part of making fiscal policy, and that’s what they were elected to do.

The case centers around the constitutional guarantee to a republican form of government, in which the public votes for representatives who make the laws that govern society.

But TABOR requires a popular vote for every tax increase and forces a refund when revenue exceeds a certain cap. That, the plaintiffs in this case argue, is direct democracy — not representative democracy.

Colorado Attorney General Cynthia Coffman defended TABOR in trial and in appeal. In 2014, the 10th Circuit ruled the plaintiffs do have standing in the case, saying there’s demonstrable injury and it’s a judicial not political matter.

That’s the decision Coffman petitioned the Supreme Court to review.

Attorney and former Colorado legislator David Skaggs explained that on Tuesday, “all [the Supreme Court] said is, ‘you’re sent back to Tenth Circuit to take another look in light of what we decided in Arizona.” 

In Arizona, the public voted to create an independent commission to redraw state districts, rather than let partisan lawmakers do it. The state legislature sued, basically arguing, “Hey, that’s our job.” The Supreme Court’s ruling in that case — specifically on the legislative role citizens can take on in a representative democracy — will have bearing on the TABOR case.

House Speaker Dickey Lee Hullinghorst, one of the 34 plaintiffs in Kerr v Hickenlooper, said she signed on because “it’s a constitutional issue … it would be terrible if everyone had to vote on everything.”

Wade Buchanan is president of the Bell Policy Center — a progressive think tank in Colorado. He said that since TABOR became law in 1992, the state government has been stretched to perform essential functions like education and transportation.

“TABOR is sold as power to the people,” he said. “Let them vote — what are we afraid of? What it’s really about is hog-tying government because the folks who believe strongly in it, what they’re really after is undermining government. They don’t believe government has a role to play in advancing the public good.”

Opponents of the lawsuit argue that TABOR is what the people want.

Jonathan Lockwood, executive director of free market advocacy group Advancing Colorado said doing away with TABOR would “fly in the face of people’s rights.” For him, TABOR is an important way of giving people a voice in government. Without it, “politicians could raise taxes unlimitedly. And if we didn’t have TABOR, that would be the reality. You don’t need to have a blank check to run the state government.”

Colorado Attorney General Cynthia Coffman will defend TABOR once again in the 10th Circuit Court of Appeals.

Photo by Neil R, Creative Commons, via Flickr