Lawsuit challenges Amendment 71 as unconstitutional

April 24, 2017

Amendment 71, Colorado Care

Photo credit: Lauren Swain

Today a group of plaintiffs represented by Attorney Ralph Ogden filed a lawsuit in federal court in Denver, claiming that Amendment 71 (A71) is unconstitutional.

In the wake of a $3 million media-blitz campaign that was financed primarily by big oil & gas with Broncos’ GM John Elway acting as pitchman, Colorado voters passed A71 on November 8, by a margin of about 300,000 votes. Amendment 71, aka “Raise the Bar,” lifts the threshold for passage of constitutional amendments to 55 percent of the vote from a simple majority. In order to get on the ballot, measures now need signatures from 2 percent of registered voters in all 35 state Senate districts. Previously, getting on the ballot required signatures totaling 5 percent of the number of people who voted for the secretary of state in the last general election, with no geographic requirements.

The lawsuit seeks to overturn A71 on the grounds that it violates the First and 14th Amendments of the United States Constitution. The First Amendment guarantees freedom of speech; and the 14th Amendment says:

“… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The plaintiffs include the Coalition for Colorado Universal Health Care and ColoradoCareYes, two groups that supported the failed 2016 ballot measure Amendment 69, which would have created a single-payer health care system in Colorado.

State Secretary of State Wayne Williams is named as the defendant in the lawsuit.

Supporters of the lawsuit argue that A71 will:

  • Allow one senate district to nullify individuals’ signatures across the state;
  • Restrict and force core political speech;
  • Limit what voters can vote on; and
  • Make it far more expensive for citizens to participate in the political process.

Proponents of A71 allege that the previous ballot initiative process excluded rural voters because petition gatherers tend to concentrate their efforts in more populated urban areas along the Front Range. The intended purpose behind A71 was to give rural voters more say and to make it more difficult to collect signatures, as stated in the pre-election Colorado Blue Book published by the Colorado Legislative Council.

The plaintiffs contend that by giving rural voters more say in what amendments are on the ballot, A71 essentially gives rural voters a special status, which violates the U.S. Constitution’s “one person, one vote rule” that treats all voters as equal.

For example, if 2 percent of the registered voters in a district cannot be contacted, informed, and persuaded to sign a petition, then their effective “no” votes veto all “yes” votes across Colorado — even if more than 2 percent of voters in all other 34 districts sign the petition and even if the vast majority of Coloradans support the measure. A71 could actually give the votes in one district more weight than votes in the 34 other districts combined. Even though senate districts contain about the same number of people, they do not always have the same number of registered voters, as evidenced in Senate District 4 (Parker) which has 121,093 registered voters but Senate District 21 (Commerce City) only has 80,499 voters.

The 2 percent requirement creates unconstitutional obstacles in complexity and cost to placing a citizen’s initiative on the ballot, making it nearly impossible for any but the wealthiest to amend the state Constitution. By limiting choices at the ballot, A71 blocks the rights of Coloradans of various political backgrounds to cast their votes effectively on issues that concern them.

Last year more than 60 diverse organizations opposed Amendment 71, including the Denver Republican and Democratic parties, the Libertarian Party of Colorado, and Generation Latino, the AFL-CIO and Greenpeace. In addition several members of the state house, Congress, and local governmental leaders, as well as several local papers, including the Denver Post, the Aurora Sentinel, and the Greeley Tribune, all came out publicly against A71.

Likewise citizens groups from all parts of the political spectrum also support the lawsuit, including Colorado Community Rights Network, the Independence Institute, Be the Change, Food and Water Watch, Colorado People’s Alliance, 350 Colorado, and local governments.

Dennis Polhill, a senior fellow with the conservative Independence Institute, spoke out in favor of the lawsuit at this morning’s press conference at Civic Center Park in Denver.

Fellow speaker Micah Parkin, executive director and founder of 350 Colorado, said: “71 was an effort by wealthy special interests to strip away the initiative process which allows for government by the people, for the people.”

Parkin also serves on the steering committee for the Coloradans Against Fracking coalition and the board of Colorado Rising, which works to pass ballot initiatives to restrict fracking near communities.

Ivan Miller, executive director of the Colorado Foundation for Universal Health Care and host of the press conference said: “Those on the left and the right are coming together to oppose this draconian amendment that infringes on the fundamental right of the initiative, which is guaranteed by the Colorado Constitution. According to the Colorado Supreme Court, the initiative stands in importance with the right to vote.”

The additional requirements imposed by A71 make it practically impossible for any but the wealthiest to amend the state Constitution. They also make it more difficult for citizens and local groups to stand up to big corporations and the wealthy around issues like fracking.

“We need an affordable citizen’s initiative in Colorado,” said Bill Semple, an individual plaintiff involved in the case and one of the petitioners that placed Amendment 69 (Colorado Care) on the ballot. “Elected officials in both parties respond to the demands of big corporations and the wealthy, not the needs of most citizens. For example, the majority of Americans support Medicare for all and yet it has been excluded from the discussion, at least until now. Leaders follow the money. The people must lead.”

Before A71’s passage, only one-third of all citizens’ initiatives  succeeded in getting on the ballot. In fact it took Colorado citizens several attempts to legalize marijuana and to pass the taxpayer’s bill of rights. Those measures likely wouldn’t have passed if A71’s restrictive geographic requirements had been applied to their efforts.

States that have gone too far in imposing restrictions on ballot initiatives have been challenged successfully. According to the National Conference of State Legislatures, geographic requirements in Idaho and Nevada were ruled unconstitutional because they were county-based, and populations can vary dramatically from one county to another.

Click here to read the lawsuit.

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