Appeals court re-raises the bar for passing constitutional ballot measures in Colorado

When it comes to trying to get constitutional amendments on the statewide ballot in Colorado, voters in 2016 raised the bar. Then, last month, a federal judge lowered it back down. Now, an appeals court has put a stay on that ruling, lifting that bar once again.

At issue is how hard it should be for groups or citizens to gather enough petition signatures to get a question that changes Colorado’s Constitution on an election-year ballot. Some famous examples of voter-approved constitutional amendments here 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 state’s Constitution, they argued, should be hard to change. And, because of a recent federal appeals court ruling, it currently is harder.

For now, anyway. A lawsuit has seen the bar going up and down for the past month. Where it finally lands is anyone’s guess.

Related: A federal judge just lowered the bar for passing constitutional ballot measures in Colorado

The bar-raising started in 2016 when 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 from just over 50 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, in late March, Judge William J. Martinez threw out the part requiring signatures be gathered from each Senate district, 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 appealed 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 at the time. “We argued that this will give a voice to rural Colorado and now they have taken that voice away.”

To prevent groups from filing ballot measures based on the lower bar set by Martinez’s ruling, the Secretary of State asked the appeals court to issue a “stay” on the ruling, which it did on April 12.

This legal limbo— pardon the pun— could leave some people or groups who want to get a constitutional amendment on November’s ballot wondering which bar they will eventually have to meet by the time the courts clear it up. Those who wish to try and get a measure on the ballot by November have until Aug. 6 to get their signatures in. What the appeals court stay will do is likely filter out lesser-funded efforts since gathering enough signatures in every Senate district will be costly, not to mention having to advertise a campaign to voters if a measure ever does make it on the ballot.

One of the larger ballot measure campaigns hoping to change Colorado’s Constitution in November, a bipartisan redistricting reform effort, is taking two tracks just to be safe. First, the group, called Fair Maps Colorado, is hoping lawmakers put the question on the ballot so the group doesn’t have to gather signatures from voters at all.

But if that doesn’t happen, the group is planning to try to gather enough signatures in all 35 Senate districts.

“Our plan will be to respect the wishes of voters,” says Fair Maps Colorado spokesman Curtis Hubbard.

Photo credit: USMC Archives, Creative Commons, Flickr 


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