by Julie Pelegrin

As originally adopted, section 1 of article V of the Colorado constitution gave all of the legislative power to the General Assembly. During the Progressive Era, however, a group called the Colorado Direct Legislation League advocated for an amendment to the constitution to reserve to the people the power of initiative and referendum — law-making powers that the voters of Colorado exercise directly rather than through their elected representatives. In a special legislative session in 1910, the General Assembly referred a constitutional amendment to the ballot, which amendment passed in the 1910 general election, establishing the powers of initiative and referendum.

The initiative power — or citizen’s initiative — reserves to the people the power to enact changes to the state constitution and statutes by petitioning to place measures on the ballot. If a majority of the persons voting in an election approve the measure, it becomes the law of the state. If the new law is a statute, the General Assembly can amend it or repeal it through the normal legislative process. But if the new law is part of the state constitution, it can be changed only by another statewide vote of the people. The state constitution has been amended several times as a result of citizen initiatives, and many of these have specifically limited the authority of the General Assembly. In recent years, the General Assembly and the people have enacted a very specific process for placing a citizen’s initiative on the ballot, which process is a topic for another article.

The referendum power enables citizens to directly vote on legislation passed by the General Assembly. Using the referendum power, a person who dislikes a bill can, after the bill passes, put all or any portion of the bill on the ballot for approval or rejection by the voters. To refer legislation to the ballot, a person must circulate a petition and obtain a number of signatures equal to at least five percent of the number of people who voted in the most recent election of the Secretary of State. The person must submit the petition to the Secretary of State within 90 days after the end of the legislative session in which the General Assembly passed the legislation.

Once referred, the legislation is subject to a vote at the next even-year election, or at the next odd-year election if the legislation arises from section 20 of article X of the state constitution (TABOR). Generally speaking, if the legislation passed during an odd-numbered year and was referred to the ballot, it would not receive a vote for over a year – November of the next even-numbered year – and it could not take effect until the Governor proclaimed the vote in January after the election. If a bill that is not related to TABOR passes during the 2013 legislative session and is referred to the ballot under the referendum power, it cannot take effect until January of 2015.

There are situations in which legislation needs to take effect much more quickly; for these situations there is an exception to the power of referendum. If the General Assembly decides that a bill is “necessary for the immediate preservation of the public peace, health, or safety,” that bill is not subject to referral and can take effect immediately upon signature of the Governor. To identify these types of bills, the General Assembly created the safety clause, which legislators include in bills that they decide need to take effect sooner than 90 days after adjournment. The constitution also includes a blanket exception from the referendum power for appropriations bills.

Early in the state’s history, citizens challenged the inclusion of a safety clause in legislation. But the courts refused to second-guess the General Assembly’s decision that a piece of legislation should take effect immediately without waiting 90 days for a referendum petition.

In 1932, the citizens used the referendum power against a bill that would have raised the tax on oleomargarine. The people voted down the tax increase, and for many years after that, legislators routinely included the safety clause in all of their bills. In the late 1990’s and early 2000’s, however, legislators began including the safety clause only if they had a specific reason that a bill needed to take effect sooner than 90 days after adjournment. Click here for more information concerning the use of safety clauses, and here for information on safety clauses and effective date clauses.

The General Assembly also can use the power of referendum to refer a measure to the voters for approval. If the General Assembly wants to amend the state constitution, it must pass a concurrent resolution by a two-thirds majority of both houses, and then the resolution is automatically referred to the ballot for statewide voter approval by a simple majority of those voting. The General Assembly may also include a referendum clause in any bill that passes both houses by a simple majority. The referendum clause automatically places the legislation on the ballot at the next even-number year election, unless it is a TABOR-related measure. The Governor does not have the power to veto or sign a concurrent resolution or a bill that passes with a referendum clause.

But the power of referendum applies only to a bill, not to a resolution or memorial. In most instances, the General Assembly uses a resolution or memorial to recognize persons or significant events in the state. However, the General Assembly will also pass a resolution to express its opinion on federal legislation or to ratify an amendment to the U.S. constitution. The citizens of the state cannot refer that resolution to the ballot for voter-approval.