The federal appeals court based in Denver rejected a conservative group’s challenge on Friday to a 2021 Colorado law that requires tax-cutting ballot initiatives to provide details to voters about affected services, even if the mandated information is inaccurate.

Following the 1992 enactment of the Taxpayer’s Bill of Rights, ballot measures seeking to increase tax rates or impose new taxes must include a statement disclosing the amount in the title voters see. Three years ago, the Democratic-controlled legislature enacted a law requiring similar disclosures for measures that reduce spending — including the amount of revenue to be lost and the programs that could be affected.

Advance Colorado, a conservative organization that has backed tax-cutting measures in the past, argued the law compels them to incorporate the government’s own message into its ballot initiatives in violation of the First Amendment. A trial judge disagreed with the group, and a three-judge panel of the U.S. Court of Appeals for the 10th Circuit confirmed that Colorado’s process for setting ballot titles meant the disputed “speech” was actually from the government, expressed by the government.

The “Colorado initiative titling system squarely qualifies as government speech and Advance Colorado has not otherwise shown its own speech was improperly compelled by the government speech,” wrote Senior Judge Michael R. Murphy, a Bill Clinton appointee, in the April 26 opinion.

Attorneys for Advance Colorado said they are considering appealing to the U.S. Supreme Court.

“Voters deserve to know how a ballot measure will impact their communities. I appreciate the 10th Circuit’s unanimous decision today affirming state law,” said Secretary of State Jena Griswold, who was the defendant in the lawsuit.

Colorado requires citizen-initiated ballot measures to go through the Title Board, a three-member body consisting of representatives from Griswold’s office, the attorney general’s office and the legislature’s nonpartisan counsel office. The Title Board determines whether a proposed initiative adheres to the constitutional requirement that it contain a single subject. If so, the board sets a title for voters that explains the essential features of the measure.

Appeals of ballot titles, in turn, go to the state Supreme Court.

In 2021, the General Assembly enacted House Bill 1321 to require certain disclosures in the ballot title for tax-cutting measures. The law also imposed additional phrasing for tax-raising intiatives. The lead sponsor in the House of Representatives noted Republicans had not been successful in winning legislative majorities, but were instead enacting revenue reductions through the ballot box.

“We’d prefer that ballot measures don’t continue to chip away at our ability to fund our public schools and the other priorities that the voters of the state care about,” said Rep. Chris deGruy Kennedy, D-Lakewood.

Last year, Advance Colorado backed two proposed initiatives that would reduce sales tax rates and cap property tax increases. The Title Board set ballot titles noting the revenue reduction and the services that would be subject to reduced funding. Advance Colorado then filed suit in federal court, arguing the disclosures amounted to unconstitutionally compelled “speech” about its own ballot initiatives. Moreover, the title’s statement that education, health care and higher education would be affected was a misstatement of the measures’ effects.

“Even worse, it requires compelled false speech,” the group’s leader, Michael Fields, said at the time. “The language must be used even when there is no guarantee that a reduction in tax rates ‘will reduce funding’ for any particular state program.”

At a hearing last summer, U.S. District Court Chief Judge Philip A. Brimmer denied the group’s request for an injunction, finding the ballot title was the government’s own statement about an initiative.

“The United States Supreme Court has made clear that the First Amendment free speech clause does not apply to government speech,” he said. There was no testimony that anyone would “tend to believe that the language of the (title) is that of the electors of the people who initiated this petition.”

Advance Colorado appealed to the 10th Circuit, but faced a skeptical panel during oral arguments in March.

“Ballot initiatives are not government speech,” said attorney Jennifer H. Weddle.

“We’re not talking about the ballot initiative. We’re talking about the title,” responded Judge Carolyn B. McHugh, a Barack Obama appointee. 

The title was set “by the political body of the government,” Weddle answered.

“I don’t care,” said McHugh. “That’s not you speaking. It’s the government speaking.”

The state warned a decision in favor of Advance Colorado would essentially disempower the Title Board and enable ballot initiative sponsors to write their own titles. Further, finding the legislature’s requirements for ballot titles unconstitutional would also invalidate the Taxpayer’s Bill of Rights’ own requirements for ballot language.

“Is it your position that the last stop for this case is gonna be the Colorado Supreme Court?” asked Judge Joel M. Carson III, a Donald Trump appointee. 

“That is our position,” said Senior Assistant Attorney General Michael T. Kotlarczyk.

The panel ultimately agreed Colorado’s ballot titles are government speech, with the state exercising “substantial control” over the contents.

At the same time, Murphy incorrectly deemed the Title Board “solely responsible for setting a measure’s title without the influence of proposal advocates.” In reality, ballot initiative proponents speak to board members during title setting meetings and help craft ballot titles.

Weddle told Colorado Politics that Advance Colorado disagreed with the decision, and believed the legislature’s “removal of any discretion from the Title Board — a neutral body — requiring them to include false and misleading speech in citizen ballot initiative titles is antithetical to democracy.”

The case is Advance Colorado et al. v. Griswold.