Citing an inability to act on the multifaceted redesign of Colorado’s ballot initiative procedures, the members of the Initiative Title Setting Review Board unanimously blocked a proposed constitutional amendment from the 2020 statewide ballot.
“I am not inclined to find that we have jurisdiction to set title on this one,” said Jason Gelender, the appointee representing the Office of Legislative Legal Services, at Wednesday’s hearing.
The three-person panel, known as the Title Board, sets the ballot title for proposed initiatives that meet the legal requirement to pertain to a single subject.
The Petition Rights Amendment, formally known as initiative #127, was a roughly one-page constitutional amendment that would create a universal right to initiative at all levels of government, repealing several constitutional and statutory requirements and creating new Supreme Court jurisdiction over the entire legislative process.
The two proponents of the PRA, Donald L. “Chip” Creager III of Denver and Regional Transportation District Director Natalie Menten of Lakewood, said that the proposal was the product of a group working for over one year.
Title Board hearings must consider, by statute, whether initiative titles are “brief” and “unambiguously state the principle.” The title from the state’s nonpartisan staff ended up stretching to 26 lines.
Board members had several concerns with the amendment, beginning with whether it would repeal the single-subject requirement for future initiatives.
“It’s my understanding that this does essentially get rid of the single-subject rule,” said David Powell, an appointee of Attorney General Phil Weiser, referring to one clause in the title stating that the PRA would expand “the scope of allowable petitions from a single subject to a broad topic.”
“Is a single subject the same as a ‘broad topic?’ ” Powell asked.
Menten countered that while the PRA as written would require “very broad” topics, it also retained the phrase “single subject.”
“We have found in the past that depending on the analysis of this board or those who might protest, that our rights to petition under a single subject have been denied,” Menten argued.
She obliquely referenced her own firsthand experience with the narrow interpretation of the single subject requirement. When Menten proposed a 2014 ballot measure to drastically expand the number of officials who could be subject to recall, the state Supreme Court rejected the proposal, saying Menten was trying to cover two subjects: the recall of elected officials and the recall of nonelected officials.
“It was about recalls. But that was thrown out,” she said. “Our subject was recalls. So it was narrowly defined.” She would continue to refer to her unsuccessful recall measure throughout the hearing and afterward.
Later in the hearing, Gelender queried the proponents about a section that would have limited the number of bills the General Assembly can exempt from referendum through use of a safety clause. The PRA would have made all but 12 bills and the budget subject to referendum — but those 12 bills would have received “strictest Supreme Court scrutiny” before passage.
“If the General Assembly wanted to enact legislation with a safety clause, they would essentially have to...get the Supreme Court to sign off on that legislation before they could enact it?” he asked.
Yes, responded Creager.
Gelender felt that this provision constituted a second subject, and played into his decision to block the measure from the ballot.
“This kind of interjection of the judiciary into the legislative process before legislation is enacted is something I believe is completely new and would be surprising to the voter of average intelligence looking at this,” he said.
Even though Coloradans have had a longstanding right to legislative referendum, there have been only 13 attempts and three successful instances of repealing a legislative act since 1880.
Powell spotted a citation in the proposed amendment within the section repealing existing law that pertained to the duties of the Title Board itself.
“Is this proposal essentially going to get rid of the Title Board?” he asked.
“Yes, it would do that. I’m sorry to put you guys out of a job,” Creager said, to chuckles from board members. He elaborated that the PRA would have required proponents to set their initiative titles at 60 words or fewer in “plain English,” which opponents could challenge in the Supreme Court.
In an analysis from Legislative Council staff, fiscal impact statements for ballot initiatives and statewide voter guides for measures that reach the ballot would also have disappeared.
In expressing his no vote, board Chair Ben Schler, the representative of Secretary of State Jena Griswold, said that he agreed with the other board members’ conclusions about the lack of adherence to the single subject rule. He added that he did not see a “necessary and proper connection” between the PRA’s goal of revamping petition procedures and its section to forbid any government regulation to identify, report or limit private donations and spending for petitions or paid circulators.
After the vote, Menten said that the consequential provisions of broadening the single subject requirement and preventing the secretary of state from randomly sampling signatures were “achievable,” and important to reversing the harm done to petitioners’ rights.
“Other states that have the right to petition have a longer period” to collect signatures, Menten said. “Colorado can be one of the most restrictive.”
When asked if she would consider crafting a more narrowly-tailored initiative to just address the collection timeline, Menten asserted that if she were to go after “one small part of the problem,” she would rather address the whole system.
On the PRA’s website, bold, red text advises readers to “Click here to see the future of your freedoms if we do nothing.”
The link leads to a page with a picture of a fenced-in zone labeled “Petition Area.” The caption identifies the location as Hong Kong, stating that the Chinese government uses the restricted petition zone as a “force to overcome free expression.”
It also advises readers to “think again” if they believe similar phenomena could not happen in the United States.
Menten and Creager said that they would move for a rehearing on the PRA, an act that would have to take place within seven days.