The state’s Title Board last week rejected challenges to eight versions of the ballot measure that would change Colorado’s flat income tax to a graduated income tax, boosting taxes on high-income earners.

Opponents pointed out that the ballot measures wouldn’t just raise taxes on high-income individuals; they would also raise taxes on certain kinds of small- and medium-sized businesses, and that could be a much greater burden than on individuals.

The legal fight, however, isn’t over. Opponents are likely to head to the Colorado Supreme Court to seek its opinion on the measures.

All the proposals have the same bottom line: to raise taxes from higher-income earners to pay for K-12 education, child care and health care. Some of the proposed measures also look to cover early childhood education.

The ballot measure seeks to change both state law and the state Constitution, including a partial repeal of the Taxpayer’s Bill of Rights, which mandates a statewide flat tax rate.

The title board is made up of representatives from the Attorney General’s Office, the Secretary of State’s Office, and Legislative Legal Services for the General Assembly. Its main job is to determine if a proposed ballot measure has a single subject. The Title Board approved the eight measures in a Jan. 22 hearing, declaring all met the single-subject requirement.

The Feb. 4 meeting was a rehearing sought by the opponents, led by Michael Fields and Advance Colorado.

One challenge to the board’s decision is that the title board lacks the authority to set the title. That’s because the eight versions include a legislative declaration, which the opponents said would not appear in law if approved by voters.

They pointed out that the state Constitution grants the people the power to propose laws and amendments to the Constitution. The legislative declaration does neither, they pointed out: “The people do not have the power to make a legislative declaration outside of a law or amendment,” they wrote in their challenge.

Teresa Conley of the Elections Division pointed out that the issue of the legislative declaration was raised during the ballot measures’ review and comment hearing, the first step in filing a ballot measure. Legislative Legal Services conducted the hearing and raised questions about the ballot measure, but did not ask that it be removed.

Conley said if the opponents want to bring the issue of the declaration to the Supreme Court, “I’m all ears.”

Attorney Rebecca Sopkin, representing the Independence Institute, said the legislative declaration, which is just over two pages long, is basically an advertisement for the ballot measure.

The opponents continue to claim the ballot measures violate the state constitution’s single-subject law. One challenge with the ballot measure is that it has as many as five subjects.

A challenge brought by Michael Hancock of Aurora, represented by attorneys from Brownstein Hyatt Farber & Shreck, raised an argument not previously raised in other challenges: that applying the graduated income tax to corporations and individuals creates multiple subjects.

The ballot measure would apply to C-corporations, estates, trusts, and pass-through entities, according to the challenge.

By “decoupling the various categories of earners from the same flat income tax, the proponents did not need to impose a graduated income tax on each category of earners,” the challenge stated.

That was an intent to curry favor with voters who would want to impose a higher income tax rate on high-income earners, but it would also significantly increase the income tax burden on corporations and small businesses, the challenge stated.

They pointed to a 1995 Colorado Supreme Court ruling on the single-subject issue, which stated that its central purpose is to prevent “the joining together of multiple subjects into a single initiative in the hope of attracting support from various factions which may have different or even conflicting interests.”

It’s possible that a voter would be fine with imposing higher taxes on millionaires but not on small businesses, the challenge stated.

“This danger is not trivial,” the challenger said. “The tax burden increase will fall most heavily on corporations and small businesses, almost all of which receive over a million dollars in income, and not individual earners.”

David Meschke of Brownstein told the Title Board that the ballot measure is misleading and should be explained to include both individuals and businesses.

Meschke also pointed out that the measure would supplement funding for the programs identified in the measure (K-12 education, health care, and child care) and would not hold those programs at their current funding levels.

That would tie the legislature’s hands, he argued. It would require the General Assembly to maintain the funding for those programs.

That matters in a budget year (2026-27), when the General Assembly is facing a $850 million general fund shortfall to cover existing obligations.

If the legislature were to cut funding for those programs, the law contained in the ballot measure would not allow the legislature to cover those cuts, Meschke explained.

How frustrating would that be to voters in a budget crunch, to see the programs outside of the ones in the ballot measure cut, and they can’t use the money for that?

Chris deGruy Kennedy of the Bell Policy Center, representing Protect Colorado’s Future, told the Title Board that the proponents want to ensure net new revenue is used for the purposes identified in the measure and that the legislature cannot use it to refinance existing state operations.

Kennedy said the legislature could get the new revenue and say it has the ballot measure money for K-12, so “let’s take $1 billion out of our current K-12 funding and put it into some other purpose” with the ballot measure money filling the K-12 hole.

Conley called the budget decisions a policy choice for the legislature. “I don’t have a problem with our finding” that it satisfies the single subject requirement. The board’s two other members concurred.

“This is major public policy,” said Kurt Morrison, representing the Attorney General. He connected the dots for the measure, noting that each section relies on language from another section.

The section on amending TABOR is confusing, Conley acknowledged. But the spirit of TABOR is that voters can change it, she said.