Category: Initiatives and Referendums

  • Colorado Voters Have 14 Ballot Measures to Approve or Reject This Year

    Colorado Voters Have 14 Ballot Measures to Approve or Reject This Year

    by Patti Dahlberg

    As Colorado’s registered voters will be receiving ballots for the November election within the next couple of weeks, this is an appropriate time to start looking at some of the many questions that will be on that ballot. This election is about more than just the presidential election; voters will also decide who fills the normal state and local offices and the fate of 14 statewide ballot measures.

    You may want to open your ballot as soon as you receive it and start researching names and issues. Early voting starts on October 21, and all ballots must be turned in by 7 p.m. on November 5.

    In the meantime, you’ll find the 14 statewide ballot measures demanding your attention listed below, along with a brief description of each measure. A far better resource for ballot information is, of course, the State Ballot Information Booklet, more commonly referred to as the “Blue Book.” The Blue Book is mailed to each registered-voter household, and that mailing has begun, so voters should start finding the Blue Book in their mailboxes any day now. Additionally, voters can access the electronic Blue Book on the General Assembly’s website.

    The Blue Book is prepared by Legislative Council Staff and includes an analysis of each ballot measure. Each analysis consists of a summary of the measure, a brief fiscal assessment of the measure’s costs, an explanation of what a “yes” or “no” vote means, how the measure changes the law, major arguments for and against the measure, and sometimes, some background or history of the law behind the measure. In short, the Blue Book hopefully provides enough information to help voters understand each measure’s purpose and effect.

    Amendment G – Modify Property Tax Exemption for Veterans with Disabilities. This measure would amend the Colorado Constitution to extend the current homestead exemption for veterans with a 100% permanent disability to include veterans who are unable to work a steady job that supports them financially because of a service-connected disability, as determined by the US Department of Veterans Affairs. (Link to ballot analysis.)

    Amendment H – Judicial Discipline Procedures and Confidentiality. This measure would amend the Colorado Constitution to create a board consisting of four district court judges, four attorneys, and four citizens that would preside over ethical misconduct hearings involving, and impose sanctions for misconduct by, judges. (Link to ballot analysis.)

    Amendment I – Constitutional Bail Exception for First Degree Murder. This measure would amend the Colorado Constitution to restore the ability of judges to deny bail in first degree murder cases when proof is evident or the presumption is great that the person committed the crime. (Link to ballot analysis.)

    Amendment J – Repealing the Definition of Marriage in the Constitution. This measure would amend the Colorado Constitution to repeal the language defining that only a union of one man and one woman is a valid or recognized marriage in Colorado. (Link to ballot analysis.)

    Amendment K – Modify Constitutional Election Deadlines. This measure would amend the Colorado Constitution to move up by one week the deadline for submitting signatures for initiative and referendum petitions and for judges to file declarations of intent to seek another term. The measure would also require the content of ballot measures to be published in local newspapers 30 days earlier than under current law. (Link to ballot analysis.)

    Amendment 79 – Constitutional Right to Abortion. This measure would amend the Colorado Constitution to make abortion a constitutional right in Colorado and prohibit state and local governments from denying, impeding, or discriminating against exercising that right. The measure would also repeal the existing constitutional ban on state and local government funding for abortion services. (Link to ballot analysis.)

    Amendment 80 – Constitutional Right to School Choice. This measure would amend the Colorado Constitution to create the right to school choice for children in kindergarten through twelfth grade and the right for parents to direct the education of their children. The measure would define school choice to include public neighborhood and charter schools, private schools, home schools, open enrollment options, and future innovations in education. (Link to ballot analysis.)

    Proposition JJ – Retain Additional Sports Betting Tax Revenue. This measure would amend the Colorado Revised Statutes to allow the state to keep sports betting tax revenue above the amount previously approved by voters and to use this money for water projects instead of refunding it to casinos and sports betting operators. (Link to ballot analysis.)

    Proposition KK – Firearms and Ammunition Excise Tax. This measure would amend the Colorado Revised Statutes to create a new state tax on firearms sellers equal to 6.5% of their sales of firearms, firearm parts, and ammunition. This new tax revenue would be exempt from the state’s revenue limit as a voter-approved revenue change and would be used to fund crime victim support services, mental health services for veterans and youth, and school safety programs. (Link to ballot analysis.)

    Proposition 127 – Prohibit Bobcat, Lynx, and Mountain Lion Hunting. This measure would amend the Colorado Revised Statutes to prohibit the hunting or trapping of bobcats, lynx, and mountain lions, except under certain circumstances, and establish penalties for violations. (Link to ballot analysis.)

    Proposition 128 – Parole Eligibility for Crimes of Violence. This measure would amend the Colorado Revised Statutes to increase the amount of prison time a person convicted of certain violent crimes must serve before becoming eligible for discretionary parole or for earned time reductions and to make a person convicted of a third violent crime ineligible for discretionary parole or earned time reductions. (Link to ballot analysis.)

    Proposition 129 – Establishing Veterinary Professional Associates. This measure would amend the Colorado Revised Statutes to create a state-regulated profession of “veterinary professional associate” in the field of veterinary care and outline the education and qualifications required for this position. (Link to ballot analysis.)

    Proposition 130 – Funding for Law Enforcement. This measure would amend the Colorado Revised Statutes to direct the state to spend $350 million to help recruit, train, and retain local law enforcement officers and provide additional benefits to families of officers killed in the line of duty. (Link to ballot analysis.)

    Proposition 131 – Establishing All-Candidate Primary and Ranked Choice Voting. This measure would amend the Colorado Revised Statutes to create an all-candidate primary election for certain state and federal offices, where the top four candidates would advance to the general election. Additionally, in the general election, voters would be allowed to rank those candidates in order of preference, and the votes would be counted over multiple rounds to determine the winner. (Link to ballot analysis.)

    Additional information on Blue Books and the Blue Book process can be found on the General Assembly’s website and in this 2020 LegiSource article. You can also find information on the ballot proposals filed by citizens (initiatives) on the Secretary of State’s Initiative Filings page.

  • Citizen Initiative Process Allows Coloradans to Go Nuclear, or Not

    by Jessica Chapman

    The 700,000 or so Coloradans who went to the polls on November 5, 1974, voted “yes” to all 10 constitutional ballot measures before them. Citizens voted soundly in favor of reinstating the death penalty (which the U.S. Supreme Court had outlawed two years earlier) in certain cases. They voted by an even greater margin to prohibit busing students to schools that were farther away from the closest schools. “School bussing,” as it was known at the time, was a policy designed to desegregate schools when the school’s neighborhoods were still de facto segregated. (Notwithstanding the vote, Denver continued school busing pursuant to a 1973 lawsuit.)

    By a thinner yet still decisive margin, Coloradans also voted in favor of an initiative brought by environmental groups to prohibit nuclear detonations in the state unless approved by a vote of the people.

    The ballot language voters considered read:

    “An act to amend the Constitution of the State of Colorado to establish procedural steps to be complied with prior to the detonation of nuclear explosives devices, requiring prior approval of the detonation by the voters through the enactment of an initiated or referred measure.”

    The measure passed, with 58 percent (399,818) voting “yes” and 42 percent (291,284) voting “no,” and resulted in the addition of Article XXVI to the state constitution.

    What led to this point? How, exactly, did the question of whether or not to permit nuclear testing end up reaching Colorado voters?

    The 1970s marked a time in the state and nation as a whole when Americans were paying more attention to environmental issues. At the federal level, under the administration of President Richard Nixon, the decade ushered in the Environmental Protection Agency, the Endangered Species Act, the National Environmental Policy Act, and the Legacy of Parks program, among others. The first Earth Day was celebrated April 22, 1970.

    In Colorado, nuclear energy had become an environmental issue to rally around for a couple reasons. A fire at the Rocky Flats nuclear weapons production facility, eight miles south of Boulder, in 1969 led to a multi-year clean-up and concerns about soil, air, and water contamination.

    Meanwhile, the federal Project Plowshare program, which was launched in the 1950s to pursue “peacetime” uses for nuclear energy, had located two sites on Colorado’s Western Slope to test the capability of nuclear weapons to extract natural gas from underground rock. The first, called Project Rulison, involved the detonation of a nuclear device in Garfield County in 1969. The other, called Project Rio Blanco, involved three devices and took place in May 1973, less than a year and a half prior to the November 1974 vote.

    Neither Project Rulison nor Project Rio Blanco produced suitable natural gas, and in fact, radiation was detected in the air after the Project Rulison detonation. Such unintended consequences alongside mounting public health concerns about nuclear power built momentum around the issue. (Project Plowshare terminated in 1977.)

    Site of underground nuclear testing in Rulison, Colo. in 1969. Denver Public Library Special Collections

    Given these elements, the passage of a nuclear ban like Measure 10 seems perhaps unsurprising.

    Dr. Derek Everett, a professor of history at Colorado State University explains that, “[T]he nuclear explosion ban in the state constitution emerged at a time when many Coloradans were thinking twice about the environmental impact of development after World War II. Pushback against Rocky Flats, the Rocky Mountain Arsenal, the 1976 Winter Olympics, and other controversies reflected an increasing environmental awareness alongside the nuke ban in 1974.”

    Then, as now, citizen groups, or “proponents,” have the option of pursuing placement of issues before voters via the citizen initiative process.

    Measure 10, before it became enshrined as Article XXVI of the state constitution, was guided to passage by activists, chief among them a student group called People for Rational Energy Sources. The group gathered enough signatures—50,000+ in this case—to place the ballot language cited above in front of voters on that day in 1974, while also working to promote public awareness of and support for the issue through writing letters, organizing events and otherwise direct attention to the issue.

    The citizen initiative is an interesting feature of our state’s constitution—shared by just 25 states other than Colorado—permitting citizens (any citizen) to propose new state laws or constitutional amendments. The mechanics of the process are somewhat complex.

    In a 2018 LegiSource article, Office of Legislative Legal Services Director Ed DeCecco provides a useful two-part overview of the initiative process. He explains how proponents of a measure must proceed through a number of steps, including “review and comment,” setting the ballot title, gathering signatures, verification of signatures, and setting language for the Blue Book – all before any issue may be placed on the ballot. The process involves the Legislative Council and the Secretary of State’s office as well as this office. In the decades since Measure 10’s passage, while the General Assembly has introduced bills addressing the feasibility of nuclear energy, the issue has remained more or less untouched and Amendment XXVI has remained intact since its enactment. In fact, despite the widespread use of nuclear power in certain parts of the world, including the United States, Colorado has only ever had one nuclear facility, the Ft. St. Vrain Nuclear Power Plant, which operated from 1979 to 1989.

    The General Assembly has made efforts to modify aspects of the citizen initiative process over the years. The language in Article V, Section 1, however, stands: “… the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.” And the people of the state continue to be asked to approve or deny initiatives, but the people still haven’t gone nuclear.

  • Santa Claus, Safety Clause, or Petition Clause?

    by Julie Pelegrin

    ‘Tis the season. Children are working on their letters to Santa; legislators are working on their bills, diligently meeting with drafters, lobbyists, and stakeholders, trying to craft effective policy to address the state’s issues. Once the policy is worked out, a legislator may figure, “That’s it; all done drafting. Finally I can get that holiday baking done!” But wait – the bill drafter will be pestering legislators with one last question: “Do you want a safety clause or an act-subject-to-petition clause on your bill?”

    Here’s a little background information to use in making this important decision.

    When first approved in 1876, the Colorado Constitution placed the legislative power of the state solely in the hands of the elected members of the Colorado House and Senate. And that’s where it stayed for almost 35 years. But by the early twentieth century, many people had become disillusioned with government; they no longer trusted elected officials to act solely in the public interest. The progressive movement arose, and the people started demanding a role for themselves in making the laws. They wanted to put the “demo” back in democracy. At the general election held in 1910, Colorado voters adopted an amendment to the Colorado Constitution—placed on the ballot by the General Assembly—that put the power to make laws directly in the hands of the people through the twin powers of initiative and referendum.

    Using the power of initiative, any individual may propose a change to the constitution or to statute by collecting and submitting to the Secretary of State a sufficient number of signatures on a petition. To place an initiative on the 2022 ballot, an individual must collect at least 124,632 signatures (5% of the total number of votes cast for the office of Secretary of State in the previous general election). The initiative is a positive power, empowering the people to create, change, or repeal law.

    In contrast, the referendum power is a negative power, empowering the people only to rescind all or part of an act passed by the General Assembly. By collecting the same number of signatures required for an initiative and submitting those signatures to the Secretary of State, an individual may place all or part of an act on the ballot for the electorate’s approval or disapproval. But the time for rescinding an act is limited; the signatures must be filed with the Secretary of State within 90 days after the end of the legislative session in which the General Assembly passes the act.

    There are two exceptions to the power of referendum. The people cannot refer an act to the ballot if: 1) The act is “necessary for the immediate preservation of the public peace, health, or safety”; or 2) the act is an appropriation to support a state agency or institution. Deciding whether an act is an appropriation is relatively straightforward. If all it does is appropriate money, and it does not enact any actual changes to the law, it is likely an appropriation and therefore not subject to the referendum power. But who decides whether an act is necessary for the immediate preservation of the public peace, health, or safety?

    The General Assembly does by including what’s called a “safety clause” at the end of the act: “The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety.”

    The Colorado courts have held that the General Assembly alone is authorized to determine whether that declaration is appropriately included in an act. While legislators may certainly debate whether to use a safety clause in a bill, once the General Assembly decides that question, the decision stands; the court will not overturn it. In Van Kleeck v. Ramer in 1916, the Colorado Supreme Court held that, in deciding whether an act is necessary for the immediate preservation of the public peace, health, or safety, the General Assembly “exercises a constitutional power exclusively vested in it, and hence, such declaration is conclusive upon the courts in so far as it abridges the right to invoke the referendum.”

    Deciding whether to include a safety clause in a bill is often a matter of timing. If an act is subject to the power of referendum, because it does not include a safety clause, that act cannot take effect for at least 90 days after the end of the legislative session in which it is passed. As previously explained, a citizen has 90 days after the session ends to collect enough signatures to place the act on the ballot. During that time, rather than risk implementing a law that the voters may reverse, the act is held in limbo; it cannot take effect until the time for collecting signatures expires. And if someone does collect enough signatures to put the act on the ballot, it cannot take effect until the Governor declares the vote after the next general election. General elections occur only in even-numbered years, so if an act passes in a legislative session held in an odd-numbered year and is referred to the ballot by petition, the act won’t take effect—if it even takes effect—until roughly 18 months after the end of the legislative session.

    The last act referred to the ballot was Senate Bill 19-042, which addressed an agreement among the states to elect the President of the United States by national popular vote. The General Assembly passed the act February 22, 2019, the Governor signed it March 15, 2019, but, because it was referred to the ballot, it did not take effect until December 31, 2020.

    In contrast, an act that passes with a safety clause may take effect as soon as the Governor either signs it or allows it to become law without signature.

    So if the bill sponsor thinks the bill makes a necessary policy change, and it’s important that the change take effect sooner than 90 days after the end of the legislative session, the bill will need a safety clause.

  • Amendment C Eases Restrictions on Charitable Gaming

    by Duane Gall and Patti Dahlberg

    Colorado may have been born out of the Wild West, but when the good citizens of the state approved the original state constitution in 1876, they wanted no part of any “lotteries or gift enterprises for any purpose.” Article XVIII, section 2 of the Colorado Constitution of 1876 required the General Assembly to pass laws prohibiting the sale of lottery or gift enterprise tickets in the state.

    Since that time, the state has softened its stance on lotteries and “gift enterprises”, and this November 2, the voters will have the opportunity to loosen the restrictions on charitable gaming even more when they vote on Amendment C.

    Evolution of charitable gaming in Colorado.

    In 1958, some citizens circulated a petition to put an initiative on the ballot to amend article XVIII, section 2 to permit the operation of certain games of chance by nonprofit organizations as a way to raise funds to support their charitable activities. Under that exception, the Secretary of State could license nonprofit organizations that had operated continuously in Colorado for at least five years to conduct raffles or bingo games. The organizations had to meet three specific conditions: (1) The proceeds of a game had to be exclusively devoted to the purposes of the nonprofit organization conducting the game; (2) Only members of the organization could be involved in managing and operating the game; and (3) The organization could not pay bingo or raffle managers or workers any wages.  The voters approved the amendment 51% to 49%. These provisions remain in place today.[1]

    Since article XVIII, section 2 was last amended, Colorado voters have legalized several gambling options in addition to those involving charities. In 1980, voters approved state-run lotteries; in 1990, they approved limited gaming in casinos in three areas of the state; and just last year, they approved sports betting in Colorado. As the gambling market has grown more crowded since 1958, it’s likely the market share enjoyed by charitable gaming has dwindled significantly.

    Changes proposed by Amendment C

    Amendment C offers Colorado voters the first chance to change article XVIII, section 2 in almost 40 years. On June 15, the last day of the 2020 legislative session, the General Assembly adopted House Concurrent Resolution 20-1001, which places Amendment C on the ballot.

    As explained in the 2020 Bluebook, Amendment C:

    • Decreases from five to three the number of years that a nonprofit organization must operate in Colorado to qualify for a bingo-raffle license. The measure further authorizes the General Assembly, after January 1, 2024, to change the years of operation by enacting a statute. Thus, future changes to the required number of operating years would not require a constitutional amendment and so would not be subject to a statewide vote.
    • Eliminates the requirement that persons who manage or work a raffle or bingo game be members of the nonprofit organization that hosts the game; and
    • Permits people who manage or operate raffles and bingo games to receive compensation, such as meals or payment. But the compensation paid to these managers and operators cannot exceed the minimum wage.

    Amendment C is a constitutional amendment that does more than just repeal existing language. As such, under article XIX, section 2 (1)(b) of the Colorado Constitution, the amendment requires a 55% majority vote to pass.

    2020 State Ballot Information Booklet, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1.

     

    Visit the General Assembly’s website for more information on the initiative process and for a history of election results for ballot issues.

     

    For more information on the ballot measure process, see:

     


    [1] Art. XVIII, section 2 of the Colorado Constitution was amended again in 1980 to authorize the General Assembly to establish state-supervised lotteries, some of the proceeds of which go to municipalities and counties for park, recreation, and open space purposes. That amendment passed by a whopping 59.8% to 40.2%.

     

  • Amendment B – A bit of the backstory

    by Ed DeCecco

    The year was 1982. Michael Jackson released Thriller, ET was phoning home and charming audiences the world over, and the Denver Broncos finished last in the AFC West. More notably for Colorado taxpayers, voters also approved Amendment 1, which was passed by the General Assembly as House Concurrent Resolution No. 1005.

    Amendment 1 was a constitutional amendment and it was first. (Note: My editor has informed me that wasn’t quite enough backstory.) Amendment 1 was a comprehensive restructuring of article X, section 3 of the Colorado Constitution that made a number of changes to the property tax system. Prior to its introduction, a Citizen’s Panel reviewed and made recommendations for changing the property tax system, and then a House Ad Hoc Committee synthesized those recommendations into a concurrent resolution. Amendment 1 exempted some properties; established penalties for counties that failed to value property correctly; made a number of changes to the State Board of Equalization; and last but not least, amended how actual property value is determined and how property is valued for assessment.

    Now, if you are a county assessor, you would read this last item and think to yourself “Everyone knows how to value and assess property. On with it, you buffoon!” But for everyone else, a brief explanation of the property tax system is probably helpful. First, the actual value of property is determined for each assessment cycle, which for most property begins every odd-numbered year. The assessed valuation of the property is then determined by multiplying the actual value by the applicable assessment rate. Finally, the assessed valuation is multiplied by a local government’s mill levy, which is the property tax rate expressed in one one-thousandths, to determine the amount of tax owed.

    Prior to Amendment 1, the assessment rates were fixed in statute at 30% for residential and nonresidential property, although there were also a number of subclasses of property that had lower assessment rates established in law. With the exception of producing mines and lands or leaseholds producing oil or gas, Amendment 1 required nonresidential property to be assessed at 29% of its actual value, and residential property to be initially assessed at 21% of its actual value.

    But as a result of the conference committee report for House Concurrent Resolution No. 1005 that both chambers adopted, article X, section 3 (1)(b) of the Colorado Constitution requires the General Assembly to determine the percentage of aggregate statewide assessed property that is attributable to residential real property for the 1985 property tax year and to recalculate that percentage each year thereafter based on certain adjustments (called the “target percentage” in statute).[1] Each property tax year when there is a change in the level of value, which is the biennial reassessment cycle, the General Assembly must adjust the residential assessment rate with the goal of keeping the target percentage the same as it was in the year immediately preceding the new assessment cycle. You probably know this provision by its common moniker—the Gallagher Amendment.[2]

    As a result of the Gallagher Amendment, the residential assessment rate has over time declined to 18%, 16%, 15%, 14.34%, 12.86%, 10.36%, 9.74%, 7.96%, 7.2%,[3] and finally to its current level of 7.15%. Those percentages remind me of the scores on my last 10 German tests in high school. And just as my scores alarmed my high school German teacher and parents, this trend of lowering residential assessment rates caught the attention of the General Assembly. Thus, it convened the Alternatives to the Gallagher Amendment Interim Study Committee during the interim after the 2018 legislative session. As part of this committee, the legislators heard testimony about the declining residential assessment rate and the effect on local governments and, as its name suggested, considered alternatives to the Gallagher Amendment.

    While no proposals passed in 2018 as a result of the interim committee, perhaps a seed was planted, as two committee members—Senator Jack Tate, Arapahoe County, and Representative Daneya Esgar, Pueblo County—were prime sponsors of Senate Concurrent Resolution 20-001. Senate Concurrent Resolution 20-001. And if that happens, the assessment rates will remain constant—7.15% for residential property and 29% for nonresidential property—by operation of the existing statutory provisions. So if Amendment B passes, the state will be back where it started prior to the election in 1982. The assessment rates will be set in statute, and the Broncos will likely finish in last place again.[4]

     


    [1] This is often described as a 45%/55% split, which describes the first ratio of aggregate statewide valuation of assessment attributable to residential property to the aggregate statewide valuation of assessment attributable to nonresidential property, but the actual target percentage often varies a percentage point or two from 45%.

    [2] No, it is not named after the 70s prop comedian known for smashing watermelons with oversized hammers, but rather for Dennis Gallagher, the legislator and later City and County of Denver Councilperson and Auditor, who championed the provision as a state Senator.

    [3] These decreases were not in successive years. Sometimes the residential assessment rate stayed constant.

    [4] For more information about Amendment B, see the Blue Book at http://leg.colorado.gov/sites/default/files/blue_book_english_for_web_2020_1.pdf

  • National Popular Vote Compact: Every Colorado citizen’s chance to change how we elect the President

    by Bob Lackner

    During every presidential election, millions of Americans cast a ballot for a presidential candidate. Those votes, however, are actually cast not for the presidential candidates themselves, but for a slate of presidential electors: Members of the Electoral College, who actually select the President of the United States. From the first days of the Republic, the Electoral College has been a controversial mechanism for electing the president. The fact that in the past 20 years, there have been two elections (in 2000 and 2016) in which the winner of the national popular vote did not obtain a majority of votes in the Electoral College has helped fuel the controversy. This continuing debate over the continued utility of the Electoral College has led people to consider alternatives. One alternative that is before the voters of Colorado this year is the National Popular Vote Compact (Compact). Voters have the opportunity to support or oppose the Compact by voting on Proposition 113.

    The issue of determining how to select the nation’s chief executive was described as the most difficult of all the issues the Constitutional Convention had to decide.[1] The Electoral College emerged as an 11th hour compromise.[2] The United States Constitution specifies that each state has a number of presidential electors (or members of the Electoral College) equal to the whole number of its senators and representatives in Congress.[3] Colorado has two senators and currently seven representatives, which means our state has a total of nine electoral votes. The full membership of the Electoral College is 538 electors, representing 100 senators, 435 members of the House, and three electors from the District of Columbia.

    Currently, individual voters in all the states and the District of Columbia vote for a ticket consisting of a presidential and vice presidential candidate. The tally of individual votes is known as the popular vote. With the exception of Maine and Nebraska, every state appoints a slate of presidential electors selected by the political party whose candidate wins the state’s popular vote in the general election.[4] In this manner, for all but those two states, the Electoral College operates as a winner-take-all system in which the winner of the statewide popular vote receives all of that state’s Electoral College votes.

    Each December, after a presidential election, the presidential electors meet (typically in their state capitols) to cast their votes to elect the president and vice president. A candidate must receive at least 270 Electoral College votes to be elected president. If no candidate receives enough votes, the House of Representatives chooses the president and the Senate selects the vice president, although this scenario has not occurred since 1824. There have been five elections in the United States in which the winner of the national popular vote was not the winner of the Electoral College vote.[5]

    The idea of the Compact came from those supporting direct election of the president or who otherwise object to the Electoral College. Essentially, the Compact is an agreement among participating states to ensure that the presidential candidate who receives the most votes nationwide is elected president. Under the Compact, each member state designates the presidential slate with the largest national popular vote total as the “national popular vote winner” for that state. Once the Compact goes into effect, a participating state commits to awarding all of its electoral votes to the national popular vote winner.[6] This would mean, for example, that if the voters of Colorado give a majority of their votes to Candidate A but Candidate B is the winner of the national popular vote, all of Colorado’s electoral votes would be awarded to Candidate B, the national popular vote winner, notwithstanding the fact that Candidate B did not win the statewide popular vote in Colorado. Under the current system, by comparison, the candidate who wins a majority of Colorado’s votes gets all of Colorado’s votes in the Electoral College – regardless of how well that candidate performs nationally.

    The Compact ensures that the candidate who wins the most nationwide votes also wins a majority of the votes in the Electoral College, since a majority of electoral votes will be automatically awarded to the winner of the national popular vote. In this way, the Compact will preclude future controversies in which the winner of the national popular vote is not the candidate who wins a majority of the votes in the Electoral College.

    By its terms, the Compact takes effect on July 20 of any presidential election year in which states representing 270 or more electoral votes have enacted the Compact. If Proposition 113 passes, the Compact will include 15 states and the District of Columbia, representing 196 electoral votes. This is 74 votes short of the 270 electoral votes necessary for the agreement to take effect. Because the Compact was not in effect as of July 20, 2020, it will not apply to the 2020 presidential election, which means that it can take effect no earlier than the 2024 presidential election. Until the Compact becomes law, Colorado will continue to award its Electoral College votes to the winner of the state’s popular vote.

    The Compact is designed to implement what amounts to direct election of the president without having to formally amend the U.S. Constitution to eliminate the Electoral College. Getting states representing 270 electoral votes to enact the Compact is arguably much easier than undertaking the arduous and time-consuming process of amending the Constitution.

    In 2019, during the regular legislative session of the General Assembly, the General Assembly passed, and the Governor signed into law, Senate Bill 19-042. The bill makes Colorado a party to the Compact. After the bill was passed, opponents initiated a referendum petition as allowed in article V, section 3 of the Colorado Constitution. The text of Proposition 113 consists of the full text of Senate Bill 19-042.

    A “yes” vote on Proposition 113 is a vote to approve Senate Bill 19-042 and award all of Colorado’s electoral votes in presidential elections to the winner of the national popular vote once the Compact takes effect. A “no” vote on Proposition 113 is a vote to reject Senate Bill 19-042 and retain the current system of awarding the state’s Electoral College votes to the candidate who wins the Colorado popular vote.[7]

     


    [1] Chiafalo v. Washington, No. 19-465, slip. op. at 2 (U.S. July 6, 2020)

    [2] Id.

    [3] Article II, §1, Cl. 1. The number of members of the U.S. House of Representatives that is allocated to a state is based on the total population of the state as adjusted after the last census.

    [4] In Maine and Nebraska, the candidate who wins the popular vote in each congressional district get the electoral vote for that district and the remaining two electoral votes go to the candidate who wins the statewide popular vote.

    [5] As noted above, this has happened twice in the past 20 years (2000 and 2016) while the other three instances occurred in the 1800s. Such an event did not happen between the 1888 and 2000 presidential elections.

    [6] Most of the substantive provisions of the Compact are contained in Article III. That article specifies in relevant part that “[t]he presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.” Most of the other provisions contained in the Compact address requirements that are more of a procedural and administrative nature.

    [7] The author wishes to acknowledge reliance on the 2020 State Ballot Information Book, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1A (“Blue Book”) for general background relating to the Electoral College and the Compact as part of the Blue Book’s discussion of Proposition 113 on the 2020 general election ballot.

  • Why the National Popular Vote Compact Resembles Oleomargarine

    by Julie Pelegrin

    This year’s statewide ballot promises to be action-packed with initiatives and referred measures—11 in all. But only one of the ballot measures is actually historic: Proposition 113 (aka Senate Bill 19-042), an act concerning adoption of an agreement among the states to elect the President of the United States by national popular vote. It’s not historic because of its content (although changing how we elect presidents and vice presidents would arguably be significant), it’s historic because of the path it took to get on the ballot.

    Long-time LegiSource readers will remember that in 1911, the people of Colorado amended article V, section 1 of the state constitution to reserve to themselves the power of referendum. This means that, if a bill passes without a safety clause, an individual may collect signatures[1] on a petition to place all or a portion of the bill on the ballot for voter approval. Senate Bill 19-042 passed February 21, 2019, without a safety clause. The governor signed the bill, and by August 1, 2019, two citizens submitted a petition to the Secretary of State’s office with enough signatures to put the entire act on the ballot. The last time the people referred an act to the ballot was 1931—and therein lies a tale.

    The Twenty-eighth Colorado General Assembly convened its regular legislative session Wednesday, January 7, 1931. The state and the nation were still in the early years of what’s now known as the Great Depression. About a week into the session, Representative Joe Plummer, a farmer representing Morgan and Washington counties, introduced House Bill 10 (HB10), “A Bill for an Act Regulating the Manufacturing, Selling, Handling or Dealing in Oleomargarine, Imitation or Filled Cheese, or Any Substitute for Any Dairy Products, Requiring Licenses Therefor, ….”

    These days the concept of “oleomargarine” requires some explanation. Margarine was created in France in 1869. Emperor Louis Napoleon III offered a prize to whomever could invent a “cheap edible fat” to feed the military and the lower classes. Although it started as a mix of animal fats, by the early 20th century, oleomargarine was mainly made from vegetable oils (oleo comes from the Latin oleum, “oil”) and soon it was widely available as a low-cost alternative to butter. And that caught the attention of the dairy industry.

    The industry supported several state and federal laws against oleomargarine, mainly to tax it and prohibit the addition of coloring. (Oleomargarine is naturally colored an unappetizing white; margarine comes from the Greek word for “pearl.”) HB10 as introduced would have made selling oleomargarine without a license unlawful, and the licensing fees weren’t cheap. The bill also prohibited making or selling oleomargarine that was colored and flavored in imitation of real butter. According to Western Farm Life magazine, the “obvious” object of the bill was to “benefit and protect the dairy farmer,” and the magazine urged the agricultural interests of the state to support the bill by writing to their legislators.[2]

    But not everyone was so pleased. According to the Steamboat Pilot, the bill ignited a “vigorous fight” between the range cattlemen and dairy cattlemen. The oleomargarine made in Colorado included beef tallow. The range cattlemen claimed the licensing requirements would reduce the market for oleomargarine, and thus tallow, thereby reducing the price of cattle by about six dollars per head.[3]

    Despite the vigorous fight, the bill enjoyed a pretty smooth ride in the House. HB10 passed on third reading February 24 with 52 aye votes. Fifty members of the House then voted to add a safety clause.[4]

    The ride was much bumpier in the Senate. First, the bill stalled in committee for over a month. When a motion to move the bill out of committee was tabled, one newspaper columnist reported, “That just about kills it.”[5] Eventually a deal was cut, and on April 2, the committee recommended the bill to the Committee of the Whole with significant amendments, including adding an excise tax on oleomargarine of 15 cents per pound. The Committee of the Whole rejected the committee report and instead adopted an amendment replacing the text of the entire bill, retaining the 15 cent tax, but exempting oleomargarine that contained more than 30% of animal fats. The bill weathered several additional attempts to amend and kill the bill, finally passing third reading in the Senate with 28 ayes. But the safety clause was removed.

    The House promptly rejected the Senate amendments. The conference committee again rewrote the entire bill, and both houses finally passed the bill on the last day of session. In its final form, the bill, included a 15 cent per pound tax on oleomargarine containing less than 45% animal fat, required manufacturers and wholesalers to pay an annual $25 license fee, required restaurants that served oleomargarine to post a sign to that effect, and did not have a safety clause.

    But all was not well. According to some news reports, the “nut oil interests” (the other oil used in oleomargarine) were not happy about the tax.[6] But one columnist continued to claim that it was the dairy farmers and cattlemen who were still at odds.[7] By July 22, the citizens had referred HB10 to the ballot. And, despite endorsements by several agricultural interests and recommendations for passage in several rural newspapers, HB10 failed with 217,671 no votes to 134,313 yes votes.

    And one would think that was the end of it. But it wasn’t.

    About two weeks after the Twenty-ninth General Assembly convened in January 1933, Representative Joe Jankovsky[8] introduced House Bill 337 (HB337), “A Bill for an Act Defining Oleomargarine and Relating to the Sale and Distribution Thereof and Providing for an Excise Tax Thereon.”[9] Before it passed the Senate, at least one newspaper editorial referred to the General Assembly’s action on the bill as “discouraging and disgusting.” The editorial went on to ask, “How in the world can we have decent, efficient government when legislators, elected to represent the people turn right around and deliberately do the thing the people have said shall not be done.”[10]

    HB337 as introduced looked a lot like HB10, but by the time it passed there were three important differences: 1) The excise tax was reduced to ten cents per pound; 2) the tax exemption applied to oleomargarine made from any of a variety of listed fats (all of which appear to be domestic in origin); and 3) the bill had a safety clause. And the final interesting twist to this story: The only reference in the journals to a vote on the safety clause is in the House, where it failed. There is no other indication in the House or Senate Journals that the safety clause was approved by a two-thirds vote, which appears to have been the practice at the time.

    So, November 3, 2020, Colorado voters will decide the fate of Senate Bill 19-042. If the measure fails at the ballot, history demonstrates that the question of Colorado’s participation in the national popular vote compact could be revived for consideration by a later General Assembly.

     


    [1] This year the minimum required number of signatures is 124,632.

    [2] “Legislation in Interest of Farmers,” The Western Farm Life (for Irrigation, High Altitude, Plains Farmers), as reproduced in the Record Journal of Douglas County, February 20, 1931.

    [3] Alva A. Swain, Under the Capitol Dome, the Steamboat Pilot, February 6, 1931.

    [4] Based on a review of the House and Senate journals from that time, it appears that once a bill passed third reading, the body – House or Senate – would consider a motion to add a safety clause to a bill. The motion required at least a two-thirds majority to pass.

    [5] Alva A. Swain, Under the Capitol Dome, the Steamboat Pilot, March 27, 1931.

    [6] “Dairy Interests Contend Margarine Bill Should Pass,” the Independent, Vol. XLV, No. 48, Oct. 28, 1932.

    [7] Alva A. Swain, Under the Capitol Dome, the Wray Gazette, Vol. 30, No. 42, Oct. 13, 1932.

    [8] Rep. Plummer was not reelected in 1932.

    [9] The final title of HB10 was “An Act Defining Oleomargarine and Relating to the Sale thereof and Providing for an Excise Tax Thereon.”

    [10] Oak Creek Times, reprinting from the Lamar Register, page 4, March 30, 1933.

  • Legislative Council Staff Wraps Up the 2020 Blue Book

    by Cathy Eslinger

    The Legislative Council Committee will meet tomorrow, Thursday, September 3, to review analyses of the measures that the secretary of state has certified to the 2020 general election ballot. This year’s ballot will include 11 measures, the majority of which—seven—are on the ballot because each received at least 124,632 signatures on initiative petitions. Of the remaining four, the General Assembly referred three of them to the ballot and the people referred one to the ballot by petition.

    As required by the state constitution and by statute the Legislative Council Staff (LCS) has been working for weeks to prepare the analyses to help the public understand the purpose and effect of each measure. Following the Legislative Council’s review, the LCS will mail the analyses, printed in the familiar “blue book,” to each registered-voter household in the state.

    The LCS prepares a blue book before each general election for which initiated or referred constitutional or statutory amendments or questions are certified to the ballot. The analysis of each measure includes a summary of the measure, the major arguments for and against the measure, and a brief fiscal assessment of the measure. The analysis may also include other information that can help voters understand the measure’s purpose and effect. The goal is to write an analysis that is concise, readable for a layperson, and factually correct. In even‑numbered years, state law also requires that the blue book include information about the judges who are standing for retention in the coming election. The state commission and district commissions on judicial performance prepare this information and provide it to the LCS.

    Each analysis typically goes through three drafts. But, depending on the complexity of the measure and the time available, some may require only two drafts. The LCS interviews proponents, opponents, and other stakeholders, using information provided by them, as well as information obtained through the LCS’s own research, to prepare and amend drafts.

    The LCS maintains a stakeholder mailing list of individuals who express interest in receiving drafts and posts the draft analyses on a page on the General Assembly website along with the text of each measure. Any person may file written comments for staff to consider in preparing the drafts. The staff consider all comments and proposed amendments submitted by the established deadlines, but use discretion in changing the analysis. Some of the criteria for making proposed changes to the analysis include:

    • Avoiding slogan-type language that triggers a response but does not contribute to greater understanding of the measure;
    • Ensuring that statements are verifiable statements of fact rather than mere opinion, directly applicable to the measure, and not misleading;
    • Ensuring that the language specifically strengthens or clarifies the arguments and is not repetitive;
    • Maintaining the balance of the analysis between the opposing sides; and
    • Avoiding language that is more appropriate for the campaigns conducted by the opposing sides.

    As part of the analysis, the LCS also prepares a fiscal impact statement for each measure, taking into consideration fiscal impact information submitted by various state and local agencies, proponents and opponents, and other interested persons. The blue book will include a summary of each measure’s fiscal assessment, and the full fiscal impact statement for each measure will be available on the blue book website. At a minimum, the summary must include:

    • An estimate of the measure’s effect on state and local government revenues, expenditures, taxes, and fiscal liabilities;
    • An estimate of the amount of any state and local government recurring expenditures or fiscal liabilities; and
    • For a measure that modifies the state tax laws, an estimate of the impact to the average taxpayer, if feasible.

    The LCS submits a final draft of each analysis to the Legislative Council Committee, which holds a public hearing to review the analyses. Anyone who is interested in testifying on the accuracy or fairness of an analysis may do so at this public hearing. The Legislative Council may change the language of an analysis upon a two-thirds affirmative vote of the council members. Before the public hearing, the LCS will post on the General Assembly website information for each analysis that includes the final draft, any comments and amendments submitted to the last draft mailed to stakeholders, a list of persons who had opportunity to comment on the last draft, and the text of the measure.

    Following the public hearing, the LCS mails copies of the blue book to each registered-voter household in the state no later than 30 days prior to the election. This year, the scheduled mailing date is Oct. 2. The LCS will also be mailing a Spanish language version of the book to each registered-voter household in counties identified by the U.S. Department of Justice under the federal Voting Rights Act.  In 2020, these counties include Conejos, Costilla, Denver, and Saguache. Staff contracts with a professional translation service to prepare these materials.

    In addition, when the blue book is ready for mailing, no later than September 10 this year, the LCS will post both the English and Spanish versions to the blue book page on the General Assembly website.

    If you would like more detailed information concerning the process for preparing the blue book, check the General Assembly’s website.

  • An Introduction to Initiatives (Continued)

    by Ed DeCecco

    I know that the end of part one of this article was quite the cliffhanger, and you’ve probably been obsessively refreshing the LegiSource page to see what happens after the Title Board sets the ballot title for an initiative. So, without further delay, here is the conclusion of the initiative process.

    Signature Gathering

    Once the ballot title is officially set, the proponents may proceed to the signature-gathering phase, which many people think of as “those times when I’m accosted outside of King Soopers to sign something, but that is not nearly as fun as being accosted to buy Girl Scout cookies.” (Okay, that might just be me.) The reason for these encounters is that the state constitution requires that an initiative petition be signed by a number of registered electors in the state that is greater than or equal to 5% of the total number of votes cast for all candidates for the office of Secretary of State at the previous general election. Currently, that threshold is 98,492 signatures. Lucky for designated representatives, they may use volunteer and paid petition circulators to help gather signatures.

    As a result of Amendment 71, an initiative from 2016, if the initiative is for a constitutional amendment, then 2% of the total required signatures must also come from each Senate District. This has had a twofold effect. First, it means that citizens throughout the state are involved in the petition process for constitutional initiatives. Second, it’s been a major boon for businesses that sell maps of the state Senate Districts.

    Circulators must collect the signatures on petition sections approved by the Secretary of State, which include LCS’s fiscal information abstract on the first page of the initiative section and have spaces for the electors to sign their name and identify the address. So, if someone outside of King Soopers asks you to sign anything other than this official form, then congratulations, you’re famous, and someone wants your autograph.

    Submission and Verification of Petitions

    The designated representatives must turn in their signed initiative petitions to the Secretary of State no later than six months after the date a ballot title is set or three months before the election, whichever date is sooner. Secretary of State Wayne Williams will then personally review and verify each signature submitted, oftentimes visiting with each elector to confirm that he or she signed the petition. (Not true. I was just checking to see if you were still paying attention.) The Secretary of State’s office will verify that the petition is signed by registered electors of the state using random sampling, and, depending on the number of valid signatures, possibly a line-by-line analysis.

    If there are enough signatures to meet the constitutional requirements, then the Secretary of State will deem the petition sufficient, and barring a successful protest against the determination, the proponents have successfully navigated the initiative process and the measure will appear on the ballot.

    Blue Book

    But before jumping to the ballot, a word about the Blue Book is in order. Named as an homage to The Beatles eponymous album or, perhaps, because it has a blue cover, the Blue Book is the excellent ballot information booklet published by LCS as required by the state constitution. It includes the full text of the initiative, the title, a fair and impartial analysis, and arguments for and against it. If the measure is a matter arising under TABOR, then it will also include fiscal information required by that initiative, which was approved by voters in 1992.

    LCS prepares three drafts of the measure, and solicits feedback from interested parties and the public. The Legislative Council committee considers LCS’s final draft and may modify it with a 2/3rds vote. Once completed, the Blue Book is mailed to every residence in the state with a registered elector. Everyone should have received the 2018 version. It is just a smidge shorter than Moby Dick because it describes a total of 13 initiated and referred measures.

    Ballot

    Having gone through the appropriate steps, an initiative will appear on the ballot. Initiated constitutional amendments are numbered consecutively from 1 to 99 and are referred to as “amendments.” Initiated statutory changes are numbered consecutively from 101 to 1999 and are referred to as “propositions.” (See §1-5-407, C.R.S.) To pass, an amendment requires 55% of the votes cast, unless the measure just repeals a provision, in which case it requires a majority vote, which is the same amount needed to pass an initiated statutory change (See Art V, §1(4)(b) of the Colorado Constitution).

    If approved by voters, the initiative will officially become part of the Colorado Constitution or the Colorado Revised Statutes, and the designated representatives may finally rest on their laurels. I, on the other hand, may have to prepare a LegiSource article about their successful endeavor. So thanks for that!

     

    For additional resources about the initiative process, check out these helpful links:

    https://www.sos.state.co.us/pubs/elections/Initiatives/InitiativesHome.html

    https://leg.colorado.gov/content/how-file-initiatives

  • An Introduction to Initiatives

    by Ed DeCecco

    While sitting in Starbucks, filling out the 2018 general election mail ballot, and sipping what might be your last Pumpkin Spice Latte for the season, you might think to yourself, “Only seven statewide initiatives—why aren’t there more of these delightful, thought-provoking questions?”[1] You might even be inspired to become an active participant in Colorado’s robust system of direct democracy. If so, here is an initiative-process primer to help you.

    Initiating the Initiative

    To paraphrase Lao Tzu, the journey of a thousand signatures begins with a single email to Legislative Council Staff (LCS). That is, proponents begin the initiative process by submitting to LCS a draft of the initiative to change the Colorado Revised Statutes or amend the Colorado Constitution, or occasionally to do both. The petition must be typewritten and legible and contain the text of the initiated measure, and it must include the names and mailing addresses of the two designated representatives of the proponents. Proponents are encouraged to write the measure “in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning that are understandable to the average reader.”[2]

    Review and Comment

    Two weeks after submission to LCS, LCS and the Office of Legislative Legal Services (OLLS) are required “to render their comments to the proponents of the petition concerning the format or contents of the petition at a review and comment meeting that is open to the public.”[3] Upon reading this rather formal-sounding requirement, one might think that the review and comment meeting is akin to the senate committee grilling Michael Corleone. It’s not. In fact, it is not a hearing at all because it is not conducted by a legislative committee and there no witnesses. Instead, it is a relaxed discussion at the State Capitol between staff, the designated representatives, (both of whom are required to attend the meeting), and the designated representatives’ attorney, if they have one.

    But, like the scene from The Godfather II, the designated representatives will have a script for their discussion. At least 48 hours prior to the meeting, staff from OLLS and LCS will give the proponents a Review and Comment Memorandum, which includes our view of the proposal’s major purposes and our substantive and technical comments and questions. At the meeting, staff will read the review and comment memorandum aloud and provide the proponents with a chance to respond.

    Many proponents view this as an opportunity to provide a record of their intent and to see if they can improve the measure. Others do not. For example, one set of proponents responded to each question and comment by saying something along the lines of, “Thank you very much for the question. We will take it under consideration.” Which is fine, as the designated representatives are under no obligation to answer our questions or make any changes after the review and comment meeting. This is their initiative and they are free to disregard our comments, considered and wise as they hopefully may be, and proceed to title setting.

    Many times, however, the designated representatives will make changes based on staff’s questions and comments. If so, they can resubmit the measure to LCS for another review and comment meeting. Alternatively, if all of their changes are directly in response to staff suggestions, they may make the changes and proceed to title setting.

    Setting the Ballot Title

    Initiatives do not appear in their entirety on the ballot, which is beneficial to everyone other than the printers paid to prepare the ballots. Instead voters are presented with a question known as a ballot title, which is in a form that they can answer “yes/for” or “no/against.” A ballot title is a summary of what the initiative does and includes the single subject and central features of the proposal. It cannot include slogans or catch phrases, and it must be brief.

    To procure a ballot title, the designated representatives must submit their finalized initiative to the Secretary of State and appear at a title board meeting. These meetings occur on the 1st and 3rd Wednesdays from December through May. The title board consists of representatives from the Attorney General’s office, the Secretary of State’s office, and the OLLS. If the initiative is properly before the title board, and if the title board determines the measure has a single-subject, which is a constitutional requirement, then it will set a ballot title.

    Prior to the title board meeting, LCS will prepare an initial fiscal impact statement and an abstract of the fiscal impact. These numbers are a sneak peak of the fiscal impacts that will be described in the Blue Book, and the abstract is used in the next phase in the initiative process.

    If the proponents or literally any other registered voter in the state is dissatisfied with a ballot title or the title board’s failure to set a ballot title, or with the abstract prepared by LCS, then he or she may file a motion for rehearing with the Secretary of State within seven days after the title board’s decision. The rehearing decision may be further appealed to the Colorado Supreme Court, which will hear the case on an expedited schedule. Obviously, these appeals can add a few extra steps for the designated representatives. On the bright side, this appeal means the proponents would have completed a coveted state government trifecta: legislative branch for review and comment; executive and legislative branch for title board; and judicial branch for the final review. How many citizens can say that? Not many.

    “Not many” is also the answer to the question, “How many people will keep reading this blog if it gets any longer?” Check back for the next installment to read about the remainder of an initiative’s amazing administrative journey.

     


    [1] I realize this may be an unlikely scenario. You may actually be having your first Peppermint Mocha of the season while voting and thinking about how much you like initiatives.

    [2] § 1-40-105 (1), C.R.S.

    [3] Id.; see also Legislative Council Rules for Staff of Legislative Council and Office of Legislative Legal Services Review and Comment Filings (9)(a), which requires the meeting to take place two weeks after submission, with some exceptions.