Because the $29.7 million tax rate reduction would only take a bite out of the projected $2.2 billion TABOR refunds, “the Court should strike the legislative mandate for specific language to be added to the title of this initiative,” wrote Taheri.

The Colorado Attorney General’s Office, which is defending the Title Board’s actions, pointed to the concession the board made by adding to the ballot title that Initiative #46, while affecting state spending, could alternatively apply to TABOR refunds.

“By its plain terms, the title states that the measure will cut funding for state expenditures or cut the size of a TABOR refund. Read as a whole, the title is not confusing,” wrote Assistant Attorney General Michael Kotlarczyk.

HB1321 passed the General Assembly this year along party lines, with Democrats arguing that it was only fair to give voters notice of the impact a tax reduction would have on services. They portrayed it as a counterbalance to the 1992 TABOR amendment, which prescribes the information voters must see about proposed tax increases in ballot titles.

Republicans accused the party in power of trying to dissuade voters from approving tax-cutting measures.

“The first thing they’re gonna be told is all the damage you’re going to be doing to a government program, whereas what people are actually looking for in measures is: What’s it going to do to their taxes?” said Rep. Ron Hanks, R-Cañon City.

Lawmakers in committee heard from several witnesses testifying in full support of the measure, including Kristi Hargrove of Crested Butte.

“As a lifelong Republican, I believe in governmental transparency and accountability,” she said. “I’m here to urge each and every one of you to vote in support of HB1321 to give voters a full picture when they cast their ballot.”

No one raised the scenario the proponents of Initiative #46 are now facing: What happens if voters receive information about a ballot initiative that suggests one thing will happen, when the likely outcome is another?

Taheri and Fields were also the proponents for two unsuccessful ballot initiatives this year related to taxation and spending. They are not challenging HB1321’s constitutionality, but they hope the court instead will find a way to decide the new law does not apply to Initiative #46 because it compromises the clarity of the ballot title.

“If they just affirm it without any explanation, that puts us in a bit of an awkward position in determining what they were affirming. Were they affirming it was a clear title? Or were they affirming the statute overrides the clear title [requirement]?” said Taheri. “I hope they render a full opinion so we can know what they mean, one way or the other.”