A short, vague and strangely written document filed with the Secretary of State’s Office this October and awaiting the go-ahead to collect signatures could bring chaos to Colorado’s ballot initiative process if voters approve it next year.
At a little over one page in length, a proposed constitutional amendment would establish the right to initiate ballot measures in every subdivision of government and rewrite the deadlines and signature thresholds for statewide proposals — potentially imposing massive costs in the process.
“Petition rights shall exist in all districts,” the amendment begins. The Colorado constitution currently enables ballot initiatives statewide, in all cities and towns, in the two combined city-counties, and the two other home rule counties.
Among the major changes to the state's ballot initiative procedure, the proposal would cut the number of signatures required for statutory changes and slash the time for legal petition protests. The General Assembly's ability to exempt bills from referendum would be curtailed, and the process of verifying signatures would be more time consuming and more costly. Finally, a right for petition circulators to collect signatures in "public access areas" would be enshrined in the Constitution — with a penalty for those who violate it.
There are two proponents listed on the initiative’s filing document. One of them is Donald L. “Chip” Creager III of Denver, who owns Creager Business Depot, a wholesale grocery distributorship.
In response to an e-mail, Creager said that he is not making any public statements about the ballot initiative, but will be “releasing more information soon.”
He gave the URL to a website that advertises the “Petition Rights Amendment 2020.”
“Colorado must resist further attacks by politicians, bureaucrats, and other authoritarians. Defend our First Amendment right to petition,” the homepage reads.
With references to “tyranny” and “bureaucrats,” the authors’ word choice and tone are provocative. The website lists a raft of problems that the Petition Rights Amendment claims to solve.
“Angered by legislative corruption?” The PRA expands the opportunities for referendums.
“Unaccountable county, school, or special districts?” Those would now be subject to initiative.
The PRA would replace 1,581 words in the state constitution with the proposal’s 590 “clear words.”
The other named proponent is Natalie Menten, who represents Jefferson County on the Regional Transportation District Board of Directors.
"Some municipalities or the state have made it nearly impossible for grassroots to get something on the ballot," she said. "Special interests, deep-pocket folks, can get something on the ballot."
The filing document notes that Menten's e-mail address belongs to a domain called "Colorado Engaged." The secretary of state’s office shows that Menten formed the group on June 20 of this year.
Colorado Engaged’s website makes no reference to the Petition Rights Amendment, but mentions that the group provides “training information” about the state’s Taxpayer Bill of Rights. The homepage links to the “Vote No on CC” campaign, referring to the successful attempt to defeat the repeal of TABOR refunds in this year’s election.
Although the PRA does not mention TABOR, a single constitutional citation in the document turns out to link ballot initiative timelines to the election schedule as prescribed by TABOR.
"An open legal question"
“That would greatly expand the right to initiative, which I think is much needed,” said Republican former Secretary of State Scott Gessler, who reviewed the proposal. Gessler is now an attorney in private practice.
Christopher M. Jackson, an election lawyer in Denver, noted that the amendment appears to include school districts, special districts — in effect, everything.
“Every single local, state, special, any government entity now must have an initiative process,” he said. “Which is kind of weird.”
Menten confirmed that to be the case. Even the special district she serves on, RTD, could see decisions forced onto them through the ballot box.
"I believe in the power of the citizen," she said, shrugging off the possibility. "That doesn't say it's a law. They're just simply getting the question to all of the eligible electors."
Menten said that every year, "we watch one more nick and cut" to petitioners' rights. There's a long — gosh, there's such a long list...."
"In reality, legislatively, there is a consistent, year-to-year attack on our right to petition. Amendment 71, there was a huge attack."
When Amendment 71, known as “Raise the Bar,” passed in 2016, proposed constitutional amendments gained an additional requirement that at least 2% of signatures be gathered in each state senatorial district, and that 55% of voters approve it overall. The object was to slow the roll of special interest pipe dreams into the state constitution.
Among the PRA's changes, it would redo the calculation for the signatures required to get on a statewide ballot. Secretary of State Jena Griswold’s office updated its guidebook this year for initiative proponents, finding that 124,632 signatures are now required per a state formula.
The PRA would reset the number of signatures to 111,000 for statutory measures. Statutory initiatives would require 50% fewer signatures than constitutional amendments, which Menten believes will lead to more statutory ballot measures.
“An open legal question would be: does this replace all of Amendment 71?” Jackson asked. “I think a more experienced drafter would have addressed the relationship between this and Amendment 71.”
The secretary of state’s office would also be forbidden to verify signatures using its current method of random sampling.
“That’ll substantially increase the cost to review ballot measures,” Gessler said. “You would take a random sample [of signatures] and then sample the 5%. So that would definitely increase the cost within the secretary of state’s office. And it would slow down the process.”
Among the other changes favorable to petitioners, the Petition Rights Amendment would lengthen the time circulators would have to collect petitions and drastically reduce the time for legal review. The Supreme Court would have six days to decide on protests of ballot titles, and signature protesters would have only five days to file with the Supreme Court.
“I can guarantee you that the protest and litigation timelines are unrealistic,” Gessler said. “If there’s a ballot initiative and you want to protest it and it has 150,000 signatures, it allows what, five days? I just don’t think it’s even humanly possible to go through 150,000 signatures and compare them to what the secretary of state did to protest. I don’t think it's physically possible.”
Jackson added that it was a huge change to send petition protests straight to the Supreme Court.
“The Supreme Court is an appellate court. It reads briefs and issues legal decisions. This suggests that the supreme court is like a trial court,” he said. “It doesn’t independently say, ‘I listened to this witness and I credit their testimony.’ ‘I think this is what happened.’ That’s not what the Supreme Court does.”
Both election lawyers were wary of the terminology the amendment’s authors used, saying it did not reflect existing legal verbiage in places.
“I don’t want to say definitively it wasn’t written by a lawyer, but it certainly does not have the kind of legal language that you’d expect a ballot initiative to have,” Jackson said.
Menten brushed aside their concerns. She believed the Supreme Court could fulfill the new tasks the amendment bestows on them. She also felt the secretary of state could verify each one of 111,000 signatures for constitutional amendments (even less for statutory changes).
"That is their job as an election department," she said.
Coloradans received the right to initiate measures in 1912. Since then, citizens have initiated 157 constitutional amendments and 81 statutory changes — less than half of each which have been successful.
Also, importantly, there have only been 13 occasions where citizens requested a vote on a legislatively passed law, known as a referendum.
That little-used power is square in the crosshairs of the PRA, as a section of the amendment proposes to limit the number of bills exempt from referendum to 12 per year, plus the budget. A spokesperson for the House Democratic caucus said that if the legislature adds a safety clause to bills — noting that the legislation is "necessary for the immediate preservation of the public peace, health, and safety” — those are exempt from referendum.
The website lists examples of bills where the legislature “abused” its authority by adding safety clauses. These included a 2004 bill which lowered the legal blood alcohol content from 0.1% to 0.08%, and a 2001 bill to clarify the definition of residential homes for those with developmental disabilities.
Of the 13 referenda since 1880, only three have succeeded.
“This is like the populist movement of the 1920s, which created these vestiges of direct democracy, including the initiative and referendum,” Jackson observed. “Government was a bunch of backroom people who weren’t responsive to what was actually going on. So people need a way to bypass the process. That’s the theory.”
Menten lamented that direct democracy was becoming harder in Colorado, which is why the PRA is necessary.
"In almost all cases that I know of, to be successful, you had to go pay people to get signatures," she said. "I've circulated almost every year of my life. The fact that grassroots have to have, realistically, a half million dollars or even up to a few million dollars just to get something on the ballot? Doesn't that raise concerns for the average citizen that that's how far out of our reach it is?"
A right to circulate
In July 2018, the Times-Call reported on an incident involving Menten as she was gathering signatures to repeal the tax on groceries in Longmont’s municipal code.
A security guard at a shopping center told her and another petition circulator that they were trespassing and had to leave the property. The police then showed up.
“I believe I was harassed and my first amendment rights were restricted by police threats of arrest for trespassing at Village at the Peaks mall. I have suffered harm from this incident,” Menten wrote in an e-mail to city attorney Eugene Mei and obtained by Colorado Politics.
Mei then spoke with a representative of the shopping center owner and informed Menten that "I trust that you will have no further issues gathering signatures."
Menten acknowledged that this episode — and others — all catalyzed the Petition Rights Amendment.
"Government forgets who owns the land and who is at the top of the organizational chart, and it is citizens," she said. "Public property is public property."
That language and sentiment are mirrored in the final section of the PRA.
“Government hostility to petitions must cease,” it reads in italics. “Those who stop, detain, eject, cite, or arrest a circulator or signer for petitioning peaceably in public access areas shall be fined $3,000.”
Jackson said that “public access areas” could refer to grocery store parking lots or shopping centers, which are still privately owned.
“If the public has access to any area, then always and forever you can never eject a petition circulator from that area,” was his interpretation of the provision.
(Menten said that the Longmont shopping mall took public money, and therefore should be considered public property.)
Confrontation of petition circulators does occur. A Facebook video posted on Nov. 9 shows a woman videotaping her interaction with a circulator in Boulder in which she repeatedly asks the man if he will display his identification badge.
"Are you having a bad day or something?" the man asks. "Harassment is a crime."
It is unclear whether that behavior would fall in the category of "stopping" or "detaining" someone, or who would issue the fine.
Multiple state legislators contacted for comment declined to respond to the proposed amendment, citing that it was awaiting a hearing from the Title Board. Griswold’s office also offered no comment.
However, one lawmaker, Rep. Edie Hooton, D-Boulder, drew attention to a single sentence in the final section, in which the disclosure of donations and private payments for petition circulators would be be prohibited “to reduce retaliation and coercion.”
“The petition appears to be an attempt to remove existing transparency protections and make it easier for dark money groups to overturn laws enacted by the people’s representatives,” she said. “I’d have concerns with this type of approach.”
Menten had no qualms about the secrecy, feeling that merely getting a measure on a ballot was different from persuading people to vote for it.
"This is not swaying a yes or a no vote. The disclosure is still present when you are running the campaign to say vote yes or no."
Since 1995, ballot initiatives need to confine themselves to single subjects. The purpose is to prevent voters from being confused, or to stop two proposals that would fail on their own from combining enough of their supporters to pass in tandem.
The Title Board decides whether an initiative qualifies as a single subject, but those decisions can go to the Supreme Court on appeal.
Gessler thought it likely that the PRA would count as a single-subject initiative.
"This is all related to a central theme, the right to initiative," he said. "Which, by its very nature, encompasses a lot of subsidiary issues."
He cited a Colorado Supreme Court case from June of this year, in which the justices sided with the proponents of Initiative No. 3, a proposal to repeal TABOR entirely.
Justice Richard L. Gabriel, writing for the majority, said that the initiative "effectuates one general objective or purpose, does not treat incongruous subjects in the same measure, comprises subject matter that is necessarily and properly connected, contains nothing surreptitious or hidden, and presents no risk of surprise or fraud on voters."
Therefore, it is possible that a proposed amendment to alter the Supreme Court's jurisdiction, affect campaign finance disclosures, and change the rules for getting ideas on the ballot could constitute "one general objective."
Jackson, however, was not as sure.
"The single subject rule, I think, is hard to apply," he said.
In 2014, the Supreme Court considered a different measure, Initiative 76, which would have drastically expanded the number of offices eligible for recall. Heads of any state or local agency, commission, department, division, enterprise, bureau, district, office, board, or entity that "has governmental power or collects, spends, borrows, or loans public money," would have been ensnared.
The proponent was Natalie Menten.
Justices concluded that there were two subjects: the recall of elected officials and the recall of non-elected officials. They blocked the measure and sent it back to the Title Board.
Interestingly, though, Initiative 76 also would have changed the petition process for recalls. Buried in page 15 of the ruling was this sentence: "Collectively, these changes to the manner in which these recall elections are triggered and conducted constitute a single subject."
Gessler, who called Menten a friend (she in turn described him as a "good guy"), nevertheless was unsure what she and Creager were trying to do with their Petition Rights Amendment, even if it got through unscathed.
“I think it would be a somewhat rocky implementation,” he said. “Again, some of the terminology doesn’t match current terminology in the framework in law. It would be sort of, how do you harmonize some of this terminology with some of the existing stuff? That would take a fair amount of work.”
Then again, perhaps the reality lies in something the coordinator of Longmont's grocery tax proposal said to the city attorney in the midst of Menten's petitioning fracas.
"Menten isn't baiting you," he wrote. "She was sending a wake up call and it worked."