Recent Developments in Single Subject Requirement Case Law – Part III

By Jason Gelender

Editor’s Note: This is the third article in a three-part series on recent court decisions interpreting and applying the constitutional single subject requirement. The first article was posted July 11, 2019, and the second article was posted July 25, 2019.

In part I of this series on developments in the case law interpreting the single-subject requirement, we examined a recent case concerning the title of House Bill 18-1306 in which the Denver District Court decided that section 7 of the bill, added by amendment in the Senate, did not fit within the single subject expressed in the bill title. In part II of the series, we examined a recent case concerning a single-subject challenge to a lengthier and more complex bill, Senate Bill 17-267, “Concerning the sustainability of rural Colorado”, in which the Denver District Court decided that the bill did not violate the single-subject requirement.

In this article, we examine a recent Colorado Supreme Court case, In re Title, Ballot Title, and Submission Clause for 2019-20 #3,[1] in which the court held that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR)[2] in its entirety has a single subject. Article V, section 1 (5.5) of the Colorado constitution requires every proposed initiative to have a single subject, which must be clearly expressed in its title. Consequently, before setting a title for a proposed initiative, the Title Board[3], must first find that the proposed initiative has a single subject.[4]

Initiative proponents proposed initiative 2019-20 #3 (initiative #3), to repeal the Taxpayer’s Bill of Rights (TABOR) in its entirety. Initiative #3 is structured as a “simple repeal” that does not include the full text of TABOR in strike type but instead simply states: “In the constitution of the state of Colorado, repeal section 20 of article X.” The Title Board concluded that initiative #3 does not have a single subject and that therefore the board lacked jurisdiction to set a title. In making this conclusion, the Title Board relied on cases in which the Colorado Supreme Court had indicated that (1) TABOR includes multiple subjects and (2) a proposed initiative to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. Proponents filed a motion for rehearing, but the Title Board denied the motion and again declined to set a title. Proponents appealed.[5]

The Colorado Supreme Court reversed the title board and remanded initiative #3 back to the Title Board for title setting, holding that initiative #3 contains a single subject: the repeal of TABOR. The court first noted, as it had in prior cases, that the single-subject requirement serves the following functions:

  • Forbidding the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their own individual merits (e., preventing “logrolling”); and
  • Preventing surreptitious measures and apprising the people of the subject of each measure by the title to prevent surprise and fraud from being practiced upon voters.

The court then concluded that initiative #3 satisfies both functions and therefore has a single subject because it “effectuates one and only one general objective or purpose, namely the repeal of TABOR … and could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?”

The court acknowledged that it had stated in multiple prior cases that if a constitutional provision contains multiple subjects, then a proposed initiative to repeal the entire provision also contains multiple subjects. But the court then characterized those statements as nonbinding “dicta” that lacked underlying analysis. The court specifically distinguished In re Proposed Initiative 1996-4,[6] a case in which the court had concluded that a proposed initiative that would have repealed and reenacted certain individual provisions of TABOR had multiple subjects, from the total repeal of TABOR, without reenactment of any provisions, proposed by initiative #3. The court then declined to adopt the “dicta” for the following reasons:

  • “[A] one-sentence initiative asking voters to decide if a constitutional provision should be repealed meets all of the requirements of a single subject[;]”
  • There is “no basis for creating … a unique single-subject rule for efforts to repeal constitutional provisions, whether or not such provisions contain multiple subjects[;]” and
  • “[C]oncluding that an initiative [to repeal a constitutional provision] contains multiple subjects merely because the targeted provision contained multiple subjects effectively makes the original provision impervious to challenge.”

Having declined to adopt the “dicta,” the court concluded that initiative #3 satisfied the single subject requirement.

In a dissenting opinion, two justices rejected the majority of the court’s characterization as “dicta” of the court’s prior statements that TABOR includes multiple subjects and that an initiative proposing to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. The dissenters concluded that initiative #3 includes multiple subjects because:

  • The single subject requirement applies to all initiatives, including those that only repeal existing constitutional provisions;
  • TABOR includes multiple subjects because (1) the court actually held in In re Proposed Initiative 1996-4, that the initiative’s proposed repeal of specified portions of TABOR itself violated the single-subject requirement even without consideration of the initiative’s proposed reenactment of some of the provisions, (2) the court later relied on that holding in other cases, and (3) if a partial repeal of TABOR violates the single-subject rule, it is logically impossible that a full repeal of TABOR does not;
  • The constitutional single subject requirement for initiatives was adopted in 1994 in response to the adoption of TABOR for the purpose of preventing multiple-subject initiatives like TABOR from being placed on the ballot in the future, and allowing initiative #3 to appear on the ballot is thus “directly contrary to the intent of the single subject requirement[;]” and
  • Case law has consistently held that a proposed initiative to repeal a multiple-subject constitutional provision violates the single subject requirement, and the majority had no justification to overrule that case law.

What can we learn from the decision?

  • First, the decision establishes that a proposed initiative to repeal TABOR in its entirety and do nothing else has a single subject.
  • Second, the decision strongly suggests, notwithstanding the court’s explicit statement that it “is not adopting an exception to the single subject rule for repeal measures,” that a proposed initiative that does nothing more than repeal a discretely identified constitutional or statutory provision has a single subject even if the provision to be repealed is complex and might itself include multiple subjects. This seems especially likely to be true if the entire provision was enacted at the same time.
  • Third, beyond the first and second points, the decision may raise more questions than it answers. For example:
    • If a proposed initiative to repeal a constitutional provision in its entirety has a single subject, does a proposed initiative that repeals only a portion of the provision (and does nothing else) necessarily also have a single subject? Two days after the court’s decision in In re Title, Ballot Title, and Submission Clause for 2019-20 #3, the Title Board considered whether proposed initiative 2019-20 #84, which proposed the partial repeal of TABOR, had a single subject. A majority of the Title Board concluded that initiative #84 contained multiple subjects because it was not a simple repeal of all of TABOR as a single constitutional provision while the dissenting Title Board member argued that initiative #84 had a single subject because #3 has a single subject and it includes everything that initiative #84 includes and more. The proponents of initiative #84 did not appeal the denial of title.
    • If a proposed initiative proposes the simple repeal of multiple consecutive constitutional or statutory sections that were all enacted together, does it automatically have a single subject regardless of the breadth or complexity of the provisions? For example, does an initiative that states “In the constitution of the state of Colorado, repeal sections 1 to 16 of article II.” (a repeal of the first 16 sections of the state bill of rights, all of which were adopted simultaneously in 1876 and have not been amended since) have a single subject?
    • Does the decision elevate form over substance? For example, if a proposed initiative proposes to repeal TABOR just like initiative #3 does but, instead of proposing a “simple repeal,” shows the full text of TABOR in strike type, could the measure contain multiple subjects because it could have been “written more simply or directly” and might confuse voters with a wall of text?

Stay tuned for future clarification regarding the single-subject rule as the Title Board will likely have to wrestle with the questions raised by the decision, applying the decision to the best of its ability, and the Colorado Supreme Court will have to assess the merits of the Title Board’s efforts.


[1] 2019 CO 57, 442 P.3d 867.

[2] Colo. Const. art X, sec. 20.

[3] The Title Board is a three-member statutory board consisting of designees of the Secretary of State, the Attorney General, and the Director of the Office of Legislative Legal Services that is charged with setting “a proper fair title” for each proposed initiative. 1-40-106 (1), C.R.S.

[4] Section 1-40-106 (1), C.R.S. See section 1-40-106.5 (3), C.R.S.

[5] Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

[6] 916 P.2d 528 (Colo. 1996).