by Jason Gelender

The Colorado constitution requires a petition for a proposed ballot initiative to be signed by registered electors “in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election” before the initiative can be placed on the ballot.[1] If the proposed ballot initiative amends the Colorado constitution, the petition must also be signed by at least two percent of the registered electors residing in each of the state’s 35 Senate districts.[2]

The Colorado constitution also imposes requirements regarding the manner in which an initiative petition must be signed, stating that a petition “shall be signed by registered electors in their own proper persons only,” and that each petition must include “an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector.”[3]

Accordingly, the implementing statutes that govern the qualification of proposed initiatives for the ballot require initiative petitions to be signed in person by registered electors while in the physical presence of a petition circulator. In 2020, government, business, and individual efforts to reduce the spread of COVID-19 through mandatory and voluntary social distancing have made in-person ballot petition signature gathering considerably more challenging for proponents of proposed ballot initiatives than it typically is.

The Colorado Disaster Emergency Act, §§ 24-33.5-701 to 24-33.5-717, C.R.S., (CDEA), authorizes the Governor to declare a disaster emergency during which the Governor may “suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders, rules, or regulations of any state agency….” On March 10, 2020, the Governor declared a disaster emergency as a result of the COVID-19 global pandemic. On May 15, 2020, recognizing the challenges to in-person ballot petition signature gathering posed by social distancing resulting from the disaster emergency, the Governor issued Executive Order D 2020 065 (EO 65), which, among other things: (1) suspended the requirement of section 1-40-111, C.R.S., that initiative petition signature collection take place in person; and (2) authorized the Secretary of State to create temporary rules to permit signature gathering by mail and email.

On May 18, 2020, petitioners Colorado Concern, a self-described “alliance of top executives with a common interest in enhancing and protecting the Centennial State’s business climate,” and Colorado Concern board member Daniel Ritchie filed a lawsuit in Denver District Court against the Governor and the Secretary of State seeking a preliminary injunction to stop the enforcement of EO 65 and a declaratory judgment finding EO 65 unconstitutional under the Colorado constitution and unauthorized under the CDEA. On May 27, 2020, after ordering expedited briefing and holding a hearing, the district court issued an order [https://www.courts.state.co.us/Media/Opinion_Docs/20cv31708%20-%20Ritchie%20v%20Polis%20-%20FINAL%20as%20filed.pdf] denying the injunction and declaratory judgment. The petitioners appealed to the Colorado Supreme Court.

On July 1, 2020, the supreme court reversed [https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2020/20SC453.pdf] the district court, unanimously holding that article V, section 1 (6) of the Colorado constitution requires initiative petition signatures to be executed in person in the presence of a petition circulator and that the Governor cannot issue an executive order that suspends that requirement. The supreme court concluded that, by adopting the phrase “in their own proper persons,” the voters who approved article V, section 1 (6) intended that petition signatories sign for themselves rather than permitting someone else to sign for them. The supreme court further concluded that this requirement, read together with the additional article V section 1 (6) requirement that a registered elector attest to the validity of petition signatures, also requires that the in-person signing occur in the presence of the person circulating the petition. The supreme court supported these conclusions by observing, as the U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1988), had observed, that Colorado’s initiative process is interactive and involves direct engagement.

In light of its holding that article V, section 1 (6) requires in-person collection of initiative petition signatures, the supreme court did not determine whether EO 65 complied with the requirements of the CDEA. Instead it simply concluded that while the CDEA authorizes the Governor to suspend certain types of statutes, rules, and regulations during a declared disaster emergency, it does not authorize the Governor to suspend constitutional provisions.

The supreme court’s decision that initiative petitions must be signed in person and in the presence of a petition circulator dissuaded the proponents of at least one proposed initiative from even attempting to qualify the initiative for the 2020 ballot. Before the court issued its decision, the Secretary of State had authorized email and mail signature collection for six of the sixteen initiatives that had been approved for circulation: initiatives numbers 174, 271, 283, 292, 300, and 301. On July 2, 2020, the day after the supreme court announced the decision, the proponents of initiative #174 (“Setback Requirement for Oil and Gas Development”) announced that they would end their signature collection efforts because they were left with no safe way to proceed.

The proponents of at least one other proposed initiative also cited the decision as a factor in their inability to collect the required number of signatures. On July 31, 2020, three days before the August 3, 2020, deadline for turning in signatures, the backers of initiative #271 (“Policy Changes Pertaining to State Income Taxes”) announced that they had been unable to collect the required signatures because “we could not overcome the effects of a global pandemic and a Supreme Court decision that did away with a viable alternative to traditional signature collection.” However, despite these challenges, three initiatives have qualified for the ballot and four others have turned in enough signatures for the Secretary of State to review them for signature sufficiency.

[1] Colo. Const. Art V, § 1 (2). For the 2020 general election, 124,632 verified signatures must be collected to qualify a proposed initiative for the ballot.

[2] Colo. Const. Art. V, § 1 (2.5).

[3] Colo. Const. Art. V, § 1 (6).