The elections division of the Secretary of State’s office has filed a motion to dismiss a campaign finance complaint filed against Gov. Jared Polis by the chair of Colorado’s Republican Party over a letter that arrived with tax refund checks that went to 3.1 million taxpayers in the summer.

In the July 7 letter, the governor said it was his “true pleasure” to send the “Colorado Cashback refund check.” 

The letter didn’t mention that the money came from TABOR refunds, although the letter vaguely alluded to its origins. Instead, Polis said because of Colorado’s strong economic growth and “our successful work to close special interest tax loopholes, we are able to put even more your hard-earned money back in your pocket.” 

The checks were mailed in August, just as candidates were gearing up for the November elections.     

Colorado GOP Chair Kristi Burton Brown called the letter a “political stunt” and  “indistinguishable from a campaign mailer” from Polis, who is running for reelection in November.

Coloradans received early one-time TABOR refunds – $750 for individual taxpayers and $1,500 for joint filers – as a result of Senate Bill 22-233, which the General Assembly adopted during the 2022 session. Those refunds would normally arrive after taxpayers filed their income tax returns next April. The August checks took about $2.7 billion of an anticipated $3.5 billion revenue surplus; the rest will be refunded next April using the standard TABOR refund mechanisms.

While the money came from TABOR refunds, the letter did not call it that, instead referring to the money as coming from the “Colorado Cashback.”

Burton Brown claimed in her Aug. 4 complaint that the letter that accompanied the checks was a form of electioneering communication. By using “Colorado Cashback” instead of referring to the checks as coming from TABOR, Polis used campaign language, the complaint alleged.  

The letter, the complaint continued, was a campaign literature that violated campaign finance laws because it used state funds for campaign purposes and the spending exceeded $50. Also, it was not reported or disclosed by the Polis campaign.

In its Sept. 16 motion to dismiss, the Elections Division initially said the alleged violation was not a curable one, and the facts, if true, could support a “factual and legal basis for violations of Colorado campaign finance law.”

The division began investigating the complaint, contacting lawmakers who sponsored SB 22-233 as well as the governor. Polis informed the division that his communications office came up with the Colorado Cashback term as a “brand for the refund mechanism” back in April. However, the term has never been used by the campaign nor as a campaign slogan, according to the Polis campaign. Burton Brown, the division investigation said, did not explain why she believed the term “Colorado Cashback” was associated with the Polis campaign, “nor did she provide any evidence of the campaign using the term in the complaint or in response to the division’s request for information.”

There were at least nine instances in which the term was used in press releases between April 28 and June 21, both by the governor and by General Assembly Democrats. 

Based on those findings, the division asked the Deputy Secretary of State to dismiss the complaint for insufficient evidence to support an alleged violation of state campaign finance law. 

The division’s report also noted that “various newspapers and press reported on the legislation and refund checks, and noted, sometimes critically, of Respondent Governor Polis’ use of the term ‘Colorado Cashback’ in association with the refund checks.”

The Deputy Secretary of State has until Oct. 21 to make a decision on dismissing the complaint