The Title Board rejected on Wednesday a proposed ballot initiative to drastically revamp the direct democracy process in Colorado, concluding the proposal was an attempt to repeal sections of the state constitution without actually being a constitutional amendment.

“You simply cannot amend the Colorado constitution by enacting a statute,” said Jason Gelender, a board member representing the Office of Legislative Legal Services. “It would be like if the General Assembly tried to do what the measure seems to try to do, saying ‘we’re going to repeal TABOR,'” referring to the Taxpayer Bill of Rights.

Initiative #6, from designated representatives Donald L. “Chip” Craeger III of Denver and John Ebel of Lone Tree, mirrored three other proposals the Title Board considered within the past year. Nicknamed the “Petition Rights Amendment,” the measure would expand the right of ballot initiative to most units of government, change the process by which initiative titles are set and appealed, and alter the number of signatures required to place an initiative on the statewide ballot.

Other changes would restrict the legislature’s ability to exempt bills from referendum and impose a $3,000 fine to people who impair the work of signature gatherers.

However, Initiative #6 deviated in two respects from past versions of the Petition Rights Amendment: first, it was a statutory change, not a constitutional amendment. Second, it now included a provision that “Anyone has standing to sue for any issue.”

Because the initiative struck several sections from the state’s constitution that govern the ballot initiative process, board members were skeptical of the maneuver.

“To me, when I see an initiative that only adds a new section of Colorado Revised Statutes and attempts to nonetheless repeal certain constitution provisions, it’s either doing one of two things,” explained Gelender. “One, it’s creating a second subject by having a new means of amending the constitution by statute. Or two, it’s simply not effective because you can’t amend the constitution that way.”

The proponents claimed in turn that Amendment B, which voters approved this year to repeal the Gallagher Amendment, operated similarly. Gelender explained that Amendment B was a constitutional amendment.

“It is a different thing and I feel very confident that this has not been done before,” he added. 

The board signaled to the proponents that their single subject concerns would be allayed by the deletion of the sentences repealing parts of the constitution and the sentence giving anyone standing to sue. They did not, however, provide a definitive answer about whether such changes were minor enough to allow a direct reconsideration at the board’s next meeting.

By a vote of three to zero, board members found they lacked jurisdiction to set a title as Initiative #6 was written, due to single subject concerns. Had the board found otherwise, it would have set a title that would appear before voters on the ballot, and allow proponents to proceed with gathering signatures.

Remote access

The board concluded its meeting by revising and adopting new meeting procedures. Members discussed in detail whether to include a policy of promoting remote participation beyond the pandemic.

“From an equity lens, I actually think we should be more flexible,” said board Chair Theresa Conley, representing Secretary of State Jena Griswold. “This is a very narrow opportunity for the public to actually change and impact the title.”

Board Clerk Steven Ward warned about the implications of such a move, worrying about the feasibility of running a teleconference or webinar simultaneously to every in-person meeting.

“There are billions of people on the Internet, and this policy opens the door to all of them to come appear at a Title Board hearing,” he said.

David Powell, representing Attorney General Phil Weiser, sided with Ward.

“I think a lot of people are going to say, hey, I want to participate remotely and it’s going to be an avalanche of requests,” he explained. “If we leave it in there, we’re creating an expectation.”

Conley pushed back, noting the hardship of a person from far outside the Denver area to appear before the Title Board and offer comments. She added that offering written comments in advance was not an exact substitute, given the fluid nature of the title-setting process.

Toni Larson, with the League of Women Voters of Colorado, commented during the meeting that she supported Conley’s position.

Board members and Ward agreed to find a way to increase meeting access, while striking the policy encouraging remote participation.