A federal judge has ruled unconstitutional a key part of a constitutional amendment passed by voters to make it harder to pass constitutional amendments.
Head spinning yet?
Here’s what happened: Until 2016 it was not very difficult for people and groups to get questions about whether to change Colorado’s Constitution onto statewide ballots for voters to decide. It was a matter of gathering enough petition signatures.
Some famous examples of voter-approved constitutional amendments are the Taxpayer’s Bill of Rights that mandates all tax increases require a vote of the people, and, of course, legalizing marijuana. Another recent attempt, which failed, was whether Colorado should have its own universal healthcare system.
Some folks, including every single living governor of Colorado, didn’t like how easy it was to get constitutional amendments on the ballot. The constitution, they argued, should be hard to change.
So in 2016 a group funded largely with oil-and-gas money ran its own ballot measure called “Raise the Bar.” It asked voters to throw up some hurdles when it comes to trying to change Colorado’s Constitution.
To do that, they proposed raising the pass rate to 55 percent for questions that do make the ballot. But they also made it harder to get those questions on the ballot in the first place by mandating that petition signatures be gathered in all 35 Senate districts. Previously, people or groups could just collect enough signatures on the 16th Street Mall in Denver or outside grocery stores in Colorado’s suburbs and urban corridors.
Voters in the fall of 2016 overwhelmingly agreed with “Raise the Bar,” and the state Constitution was changed to make it harder to change the state Constitution.
But it’s that part about having to get signatures from each Senate district that Judge William J. Martinez today threw out, essentially gutting a pivotal part of the new law and lowering the bar back down. His logic? It violates the doctrine of “one person, one vote,” he said because Colorado’s Senate districts vary wildly by voting population.
The judge’s ruling came after a lawsuit filed by a coalition of groups who opposed the “Raise the Bar” initiative, known officially as Amendment 71. In their lawsuit, they argued in part, “Because Amendment 71 forces proponents to collect signatures in these rural districts, it coerces them, on pain of losing a place on the ballot, into speaking to people they do not choose to address in places they do not wish to speak.”
During their 2016 campaign, supporters of “Raise the Bar” pitched it as a way to give more of a voice to rural Colorado. Opponents said it did the opposite, by potentially giving veto power of a proposed statewide ballot measure to a place as small as a single concentrated urban neighborhood in a single Senate district.
Related: Amendment 71, aka “Raise the Bar,” explained
The Secretary of State’s Office says it plans to appeal the judge’s ruling to the federal 10th Circuit Court of Appeals.
“We have a duty to defend what the voters have voted on in the Constitution,” Deputy Secretary of State Suzanne Staiert told The Colorado Independent. “We argued that this will give a voice to rural Colorado and now they have taken that voice away.”
Staiert says the Secretary of State will ask the 10th Circuit to put a hold— a “stay” in legal terms— on the judge’s order to keep the higher “Raise the Bar” rules in effect until the case is settled. “We’re in the middle of a petition cycle,” she says, “so the harm in not staying it through this election is uncertainty.”
Indeed, people and groups who are considering whether to try and gather signatures to get a constitutional question on November’s ballot likely want to know whether they’ll have to travel out to Moffat County with a clipboard and petitions or if they can just post up on Pearl Street.
Amanda Gonzalez, director of Colorado Common Cause, which fought the “Raise the Bar” ballot measure, says her group worried the new rules would shut out grassroots organizers from trying to get future measures on the ballot by making the process too expensive. “We saw this as really unnecessarily cumbersome,” she says. “We’re thrilled that this unnecessary hurdle has been removed.”
Chris Jackson of the Sherman & Howard L.L.C. firm in Denver, who practices politics law and closely watches the state’s appellate courts, offered a quick take on Twitter following the judge’s ruling, including what he called a potential “nightmare scenario.”
3/ The court said Amendment 71 dilutes votes: if you live in a district with a higher number of registered voters, your vote counts less.
— Christopher Jackson (@COAppeals) March 27, 2018
5/ Nightmare scenario: a measure gets on the ballot w/out those required signatures and passes on Election Day, but the 10th Circuit later reverses today's decision.
— Christopher Jackson (@COAppeals) March 27, 2018
7/ To avoid a legal quagmire, the 10th Circuit must reach a decision very soon.
— Christopher Jackson (@COAppeals) March 27, 2018
This is a good development. I voted against Amendment 71, and it was precisely because of the unduly burdensome requirement to collect signatures from all 35 Senate districts. Otherwise, I am all for making it harder to pass constitutional amendments. The 55% threshold I’m fine with: a constitutional amendment should have overwhelming support of the people, not a bare majority. Raising the overall signature threshold is another idea I would be fine with–5% of the votes from the previous general election is a low threshold compared to other states with citizen-initiated amendments, and it’s silly that it’s the same threshold as is required for citizen-initiated legislation.
But requiring signatures from all 35 senate districts, with each district requiring 2% of registered voters to have signed… that’s too onerous. That basically makes the amendment process too difficult for all except the largest, deepest-pocketed organizations. Once I saw that the Amendment 71 campaign was mostly funded by oil-and-gas money, it made more sense. They stand a lot to lose by citizen-initiated statutes & amendments, which can lead to far more bold & direct environmental regulation than laws passed by the Colorado legislature. They probably also wanted to preserve TABOR, which is becoming less popular in Colorado & would be most likely to be overturned by grassroots organizations getting a citizen-initiated constitutional amendment on the ballot (since it was originally passed as an amendment, it can only be overturned by another amendment, or by a federal court).