Lawyers for Colorado Concern argued Friday morning that Gov. Jared Polis violated the state constitution when he meddled in the state election process a week earlier.
Polis signed an executive order on May 15 allowing petition-gatherers to collect signatures from registered voters online to get on the November ballot.
The legislature holds the power to write election laws, not the governor with emergency powers, attorneys argued in an online hearing before Denver District Court Judge Robert L. McGahey Jr.
McGahey said he would try to get an order out by Tuesday, Wednesday at the latest, citing the Monday holiday that might prevent getting legal documents filed, calling himself "a speed bump on the road to justice." He said his order would "undoubtedly" be appealed by one side or the other.
"What [Polis] is doing is suspending a statute that has nothing to do with state action," said Christopher O. Murray of the Denver-based firm Brownstein Hyatt Farber Schreck, representing the plaintiffs, calling petition-gathering a private exercise.
He said when a petition is circulated for signatures, it's no different than essential businesses such as grocery stores, liquor stores and marijuana dispensaries, adding the election law Polis shelved in no way impedes the governor's ability to deal with the emergency or the business of the state, a legal requirement.
"Only the General Assembly may do that," Murray told the judge.
He noted that a unanimous Supreme Court ruling this month said a U.S. Senate candidate, Michelle Ferrigno Warren, couldn't get around petition requirements citing the pandemic, and only the General Assembly could change the rules.
Polis was represented by Christopher Beall, a deputy attorney general, who said the plaintiffs can't demonstrate they have been harmed, giving them standing to bring the lawsuit. The governor's executive order doesn't prevent from doing anything, but instead authorizes people to engage in online petition gathering, he said.
"They're asserting a generalized, abstract worry that some future events may adversely them in ways they can't tell us how they would be affected," Beall argued.
He argued that ballot initiatives and elections are the state's business.
Thirty-nine business groups on Thursday signed an amicus brief in support of Colorado Concern's case, while Protect Colorado, a group that supports ballot issues favorable to the oil and gas industry, filed to intervene in the case, also alleging that Polis overreached.
Protect Colorado was represented Friday by Suzanne Staiert, the former deputy secretary of state who is a candidate for state Senate this year. She said the ballot process for this November is a year and about nine months old to suddenly change the rules laid out in the constitution.
"We as an organization did consider other ballot issues that we would have run had this process been in place," she said of the new rules outlined by Polis.
Beall said the governor's decision still affirms constitutional requirements that would still be met by any temporary rules drawn up by the secretary of state as a result of his order, calling it a flexible regulatory provision that doesn't affect anyone's liberties.
"The governor isn't suspending the constitution — couldn't, isn't and we should move on from that argument," Beall told the judge.
He said it is Polis' responsibility to help keep the public safe from the virus, though the order doesn't prevent in-person petition gathering, and that virtual petition gathering is not substantive but simply technical.
"If the General Assembly disagrees, the General Assembly can override it," Beall said.
He said the intent of the law can be satisfied through means not available when the election law was written in 1910. Witnessing a signature is about verifying who a signer is. and that can be done by technology and information and not "direct personal knowledge," said the governor's lawyer.
Beall noted that the hearing Friday was being conducted over the internet and not in person.
"He has acted well within his authority," Beall said of Polis.
Beall cited a recent ruling by the Supreme Court granting flexibility to the General Assembly in suspending and resuming the legislative session next Tuesday.
The lawyers for plaintiffs — Colorado Concern, as well as University of Denver chancellor emeritus Dan Ritchie — asked for an expedited decision as the clock ticks toward November.
The judge said at the onset Friday he would not weigh the merits of the governor's larger stay-at-home strategies or "political overtones."
"This is not a hearing on politics," McGahey told the lawyers.
He added, "To me this case is all about legal argument."
To get a measure on this year's ballot, groups must collect at least 124,632 valid signatures from registered voters before Aug. 3 to get on the Nov. 3 ballot.
The coronavirus pandemic has sidelined efforts to get signatures by candidates and those trying to get policy issues before voters in November, including measures to raise taxes, prevent allowing non-citizens from voting, restrict oil and gas operations and ban abortions after 22 weeks.
The governor's office cast the Polis decision, even before he made it, as constitutional. The order is temporary and authorizes Secretary of State Jena Griswold, a fellow Democrat, to create the petition-gathering rules. Polis and Griswold, in their official capacities, were named as the defendants in the suit.
The order instructs Griswold to "[e]stablish a process by which proponents of ballot measures would receive petitions from the Secretary of State, transmit petitions to registered electors, receive signed and scanned petitions by electronic mail, transcribe the information from the completed forms, submit completed information, including the transcribed forms and signature documentation to the Secretary of State before the deadline for submission, validate the signed petitions received by the methods set forth in this paragraph, and any other process that the Secretary of State needs for ballot measures including the process to cure a petition; the full text of the ballot issue must accompany the petition for signature."
The governor's executive order is available by clicking here.
Colorado Politics first asked the governor's office about the potential executive order the day before Polis signed it and received an answer shortly before.
"The Governor is actively exploring options that we believe are allowable under the Constitution and is not pursuing an all-electronic form of signature gathering," the governor's office said in a statement on May 22, the same day as Polis signed the executive order allowing petition-gathering via email.
Protect Colorado issued a statement Friday outlining its further concerns.
"The notarization process prevents fraud and abuse, and should not be eliminated," Protect Colorado stated. "This is not the time to open the door to unintended consequences, including the possibility for fraud. Coloradans need to trust the integrity of their initiative petition process."