A new lawsuit against Douglas County commissioners seeks to invalidate the board’s intervention in efforts to expand the commission from three members to five and restore the original ballot language approved by more than 20,000 petition signers.

The suit marks the latest hurdle for the board of commissioners who, in the final days before ballot certification, approved additional language for a citizen-led ballot measure and adopted a competing county-initiated measure addressing how commissioners would be elected. 

Bob Marshall, a Douglas County voter and state representative who represents Highlands Ranch, filed the lawsuit Monday. 

The lawsuit alleges the county-initiated ballot measure is defective under state law, that the county’s changes to the citizen-led ballot measure violate state law and that the board violated Colorado’s Open Meetings Law in the lead-up to the county-initiated measure.

The board has consistently maintained that it has the legal authority to set ballot titles and that its actions are intended to increase voter choice and provide fiscal information, allowing voters to make informed decisions at the ballot box.

Marshall, who previously filed a protest with the county that was dismissed by the board on Sept. 4, is asking the court to invalidate the county-led ballot measure and restore the original language of the citizen-led ballot. 

Statutory challenge

Under C.R.S. § 30-10-306.5, which governs ballot measures to expand a board of county commissioners, voters must be presented with two of the four possible governing structures.

On Aug. 31, county commissioners adopted their own ballot measure, citing this statute, asking voters if the board is expanded, should all county voters continue electing all five commissioners, similar to the current system.

Marshall argues the county’s measure should be invalidated because it “does not itself increase the membership of the Board from three to five” and “does not designate two or more election methods as required” by the statute.

During a Sept. 4 protest hearing, an attorney representing the county largely agreed that the statute applies to measures that expand a board from three commissioners to five. However, the attorney argued that the county’s measure is not itself an expansion measure and therefore is governed by a different source of authority.

In his lawsuit, Marshall noted that the Aug. 31 resolution expressly cites C.R.S. § 30-10-306.5 as the authority for referring the measure to voters. Because the board relied on that statute, he argues, the statute’s requirements must also apply to the measure.

Voter confusion

Marshall also argues that the county’s measure is misleading because it omits details, including residency requirements, election methods and the specific governing structure that would result from a “yes” or “no” vote.

According to the complaint, the resolution “was not designed to fix any language that might cause public confusion. Instead, it was designed to be in conflict with the citizen-initiated initiative.”

Because those consequences are unclear, Marshall argues voters cannot fully understand the legal effect of their vote.

“The question, therefore, does not fairly disclose the legal and practical effect of a ‘yes’ or ‘no’ vote and conflicts with or creates confusion alongside the citizen-initiated expansion measure in violation of Colorado law,” Marshall argued in court filings.

During Marshall’s protest hearing, Commissioner George Teal seemed sympathetic to this argument, asking fellow commissioners if they wanted to discuss amending the measure to clarify residency requirements. 

The other commissioners declined, saying the language was sufficiently clear. Teal ultimately voted against rejecting Marshall’s protest, but the challenge failed on a 2-1 vote.

Challenge to citizen-initiated ballot language

Marshall also challenged changes commissioners made to the citizen-initiated ballot measure.

The original language presented to the more than 20,000 voters who signed the petition asked, “Shall the membership of the Douglas County Board of Commissioners be increased from a three-member board to a five-member board?”

Commissioners later added a preamble that nearly doubled the length of the question. 

The additional language stated that expansion would result in “an ongoing estimated annual expense of $760,000 to $1,300,000 from county revenues” and that those revenues currently “support public safety, transportation and essential county services.”

Marshall argues the board unlawfully altered the ballot language by adding a fiscal impact statement without legal authority.

Marshall points to Clerk and Recorder Sheri Davis’s prior approvals of the ballot. 

According to court documents, in March, Davis informed organizers that the petition had been reviewed and found compliant to form. In August, the clerk verified that sufficient signatures had been submitted to qualify the measure for the ballot.

“The Clerk and other authorized County election officials are charged with duties under the Uniform Election Code, including conducting the election in substantial compliance with the Election Code and implementing only legally authorized ballot measures,” Marshall argued.

Opponents of the measure have argued that the fiscal note provides voters with relevant information and allows them to make an informed decision in the ballot box, citing similar state standards that require a fiscal note.

Alleged Open Meetings Law violations

Marshall also seeks to invalidate the resolutions based on alleged violations of Colorado’s Open Meetings Law.

On Aug. 27, the board posted notice of a special meeting scheduled for the following day, during which commissioners would discuss the two ballot measures. During that meeting, commissioners entered executive session to receive legal advice and following their return, voted to continue their discussion of the county-led ballot to the next business day. 

According to the complaint, the notice for the meeting was legally deficient.

Marshall alleges the notice did not include materials related to either the county-initiated ballot measure or the planned executive session.

He further alleges the executive session was improper because it was not adequately identified on the agenda in advance, failed to sufficiently describe the topic to be discussed and cited the wrong legal authority for entering executive session.

“In calling for the executive session, the County Attorney cited as authority ‘C.R.S. § 24-6-402(b).’ There is no § 24-6-402(b) in COML,” the lawsuit states. 

The lawsuit further alleges that the county failed to post the actual text of the county-initiated ballot measure in a timely manner before the continued meeting at which the measure was formally adopted.

County response

In a statement to The Denver Gazette, Commissioner Kevin Van Winkle criticized Marshall’s intentions and defended the board’s actions.

“Bob Marshall’s legal challenge is a politically motivated attempt to strip choices away from voters, hide the true fiscal impact of adding two constitutional officers and dodge facing all Douglas County voters in a countywide race. Our residents deserve full financial transparency and the opportunity to decide whether they still want the power to elect and hold accountable every commissioner making decisions on their behalf.”

Commissioner Abe Laydon said Marshall was seeking political favor through the lawsuit.

“We’re used to Rep. Marshall thinking that anytime he doesn’t get his way, it’s illegal. It’s too bad that instead of doing his job representing citizens in the legislature, he’s once again spending his time suing his own county. This new haphazard Hail Mary is yet another desperate attempt for him to get a seat on the board, but the law has been followed exactly as advised by counsel.”

Requested relief

Marshall is asking the court to prevent the county-led ballot from going before voters and restore the original language of the citizen-led ballot. 

Marshall also requested expedited consideration because of election deadlines and a temporary restraining order preventing the ballots from being sent to print on Friday.