Title Board Meeting of April 1, 2020

The Title Board conducted a virtual meeting on April 1, 2020 to consider setting the ballot titles for 11 proposed initiatives.

During its final meeting of the 2019-2020 election cycle, the Title Board reversed its prior decision and revoked the ballot titles of four proposed initiatives to alter the regulation of oil and gas development.

Board members also upheld the title setting for 10 other measures, including a controversial proposal to eliminate the caucus and assembly process for nominating political candidates.

Board members entertained a lengthy discussion on Thursday about a plan to eliminate the state’s oil and gas regulatory body and replace it with an independent board of nine apolitical members.

Initiatives 307-310, with minor variations between them, explicitly sought to remove partisan influence from the Colorado Oil and Gas Conservation Commission by creating a successor body with the ability to approve rules from Colorado’s air quality, water quality, solid waste, and health boards that were relevant to oil and gas.

That “veto” over other rulemaking agencies’ work gave pause to Timothy Howard, who objected to the ballot titles issued at the April 15 meeting. The Title Board must determine whether proposed initiatives satisfy the constitutional requirement to adhere to a single subject, and Howard felt that the veto feature did not fit within the board’s redesign.

“Voters will be surprised to learn that the initiative allows the independent board to usurp authority before other agencies,” argued Matt Samelson, an attorney for Howard. “This is a dramatic reallocation of government control and authority and is an impermissible second subject.”

Howard’s objection also noted that one section of the proposals altered the authority of local governments to regulate the extraction industry by only permitting them to enact rules in five listed areas.

“Local governments’ authority has been eviscerated, and it has been limited to an enumerated list,” said Matt Sura, another attorney for Howard.

Sarah Mercer, representing the measures’ designated representatives, countered that Sura’s representation was a “strange and creative way” of reading the initiatives. From her perspective, establishing an independent board was key to halting the “war” over oil and gas in Colorado, in which localities and the state were at odds over regulatory authority.

“Because of that conflict, in setting up the independent board, this initiative would not be able to accomplish its goal of ending that conflict without also addressing the authority of the local governments,” she said.

Board member David Powell, representing Attorney General Phil Weiser, warned that he shared the objector’s concern during last week’s title setting, and was inclined to believe that the changes for local governments constituted a second subject. Theresa Conley, the board chair, agreed.

“You’re shifting these governmental powers and I don’t think that is necessary to sort of revamping the COGCC,” said Conley, the representative of Secretary of State Jena Griswold. With the new oil and gas panel’s veto power over the air quality and other boards, those bodies would not merely “have to seek comment from this independent board. They have to get approval. And I do think that is quite a shift of power.”

Mercer defended the veto provision, arguing that running all regulations that touched on oil and gas through the “conflict-free regime” of the politically-independent board would create consistency.

Board members voted 2-1 to find that the four initiatives lacked a single subject. Only board member Jason Gelender, the representative of the Office of Legislative Legal Services, sided with Mercer.

Board members voted to uphold their titles on three related measures that did not contain the problematic language limiting local governments’ authority — although the presence of the veto provision caused Conley to again vote no.

Primary ballots

Among the 14 rehearings for previously-titled initiatives, a debate ensued about three proposals — Initiatives 316-318 — that would mandate candidates seek a spot on the primary election ballot by petition. The measures would therefore do away with the precinct caucus and assembly as a means of securing ballot placement.

Celeste Landry objected to the titles given because they did not inform voters of what she believed was their true purpose: reducing candidates’ access to the ballot and creating fewer competitive elections.

“Some ballot contests don’t have enough voters of a party to successfully collect enough signatures to place one candidate on the ballot,” Landry argued. “If placing one candidate on the ballot is hard or impossible, placing two candidates will be even harder or more often impossible, since a voter may only sign one candidate's petition for any given office.”

She and other attendees told board members that in some smaller counties, the number of registered voters in one party is insufficient to collect signatures for county commissioner candidates of that party. Assemblies, by contrast, can place up to three candidates on the primary ballot.

Jennifer Filipowski of Eagle pointed out that there are Coloradans who view the caucus process as antiquated, and that sentiment may drive them to vote for the measures without understanding the consequences. “I fear that voters’ enthusiasm for eliminating the caucus process and the political parties' ability to field candidates on the primary ballot will be misinterpreted,” she said.

One participant, Martha Tierney, took issue with the title’s mention of the word “caucus.” Tierney, an attorney representing Colorado Democratic Party Chair Morgan Carroll, stated categorically that “caucuses do not play any role in nominating candidates. Zero.”

Her position appeared to contradict that of the Democratic Party, whose website proclaims that it “still holds caucus to help select what non-presidential candidates will be on the primary ballot!” The party explicitly advertises that “there are two ways for candidates to make it onto the primary ballot,” one of which is the “caucus and assembly process.”

E-mails to Carroll and the Colorado Democrats’ spokesperson seeking clarification on Tierney’s representation of the caucus process went unanswered.

Mark Grueskin, an attorney for the designated representatives, said that all of the objections were speculation about the effects of the measure, which the Title Board could not consider in setting a descriptive title. Board member Julie Pelegrin, substituting for Gelender during this portion of the meeting, concurred.

“We can’t predict how ultimately changes in the law play out, and we can’t put into a title what somebody’s motive may or not be in presenting a measure,” she said.

Other business

In other business, board members reaffirmed the title given to two other oil and gas proposals. One would require economic impact analyses for all new rules from the Colorado Oil and Gas Conservation Commission, and the other would grant localities the regulatory powers of the COGCC if they so choose. However, an objection to the latter measure labeled as a second subject a provision that would deny local jurisdictions the ability to implement moratoriums on extraction.

Greg Brophy, one of the designated representatives, said that the moratorium language had to be included to clarify that the proposed constitutional amendment would not conflict with existing constitutional language protecting mineral rights.

The board also upheld the title for a measure seeking to prevent confinement without adequate space for farm animals. The objection claimed that the word “confinement” should not go in the title because it connotes “imprisonment” and is therefore pejorative, not neutral, language.

“I think we all recognize that everybody confines animals in some way or another, whether you put up the gate so they don't get into the kitchen or you put them in a cage or whatever,” observed Pelegrin. “Confinement is a pretty generic term for how you keep animals where you want them.”

Finally, board members affirmed the title for a proposal to divert tobacco tax and tobacco master settlement money for preschool programming. Initiatives that receive a title will move to the signature-gathering phase for a spot on the November ballot.

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