Opinion

LOMAX | Federal judge’s ruling on ‘Raise the Bar’ could prove a hollow victory for activists

Author: Simon Lomax - April 4, 2018 - Updated: April 4, 2018

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Simon Lomax

The activists behind a failed government takeover of Colorado’s healthcare system – which would have raised state taxes by a massive $25 billion – are celebrating right now.

Not a victory at the polls, of course, but a series of two rulings from a federal court judge in Denver in mid-February and again last week. The rulings targeted Amendment 71, or “Raise the Bar,” a voter-approved initiative that reformed the process for state constitutional ballot measures, while leaving the rules for statutory measures unchanged.

You can expect the celebration among activists to be short-lived. Secretary of State Wayne Williams is appealing the single judge’s ruling, and all over the country, appellate courts have ruled in favor of measures like Amendment 71 – including the famously liberal 9th Circuit Court of Appeals in San Francisco. That’s how clear cut the law on this subject really is.

Before examining the case law, first some background: In a Feb. 14 preliminary ruling, Judge William J. Martinez questioned the legality of a new signature gathering requirement for state constitutional amendments in Colorado. The requirement was part of Amendment 71, which voters overwhelmingly approved by a margin of 56 percent to 44 percent in 2016.

Amendment 71 was a direct response to activist groups using Colorado’s constitutional amendment process to score political points, quite often with a national audience in mind. With signatures gathered only in Denver and Boulder, these groups would qualify amendments for the ballot and then stage divisive and costly political campaigns.

Proposed constitutional amendments would sometimes target entire sectors of the Colorado state economy. For example, anti-GMO groups took aim at agriculture, while anti-oil and gas groups tried to take down the state’s energy sector. Some activists have used constitutional ballot measures to campaign against growth itself, while others used the process to push a fringe anti-tax agenda that would threaten basic services at the state and local level.

Through Amendment 71, Colorado voters approved new checks and balances to make it harder for the state constitution to be turned into a political plaything.

Constitutional amendments now require a 55 percent majority to pass. And before they can make the ballot, proposed constitutional amendments must demonstrate some level of statewide support, by gathering signatures from at least 2 percent of the registered voters in all of Colorado’s 35 state Senate districts.

Vital for Colorado, where I have worked as a research fellow since 2017, was among dozens of business, civic and industry groups to support the Raise the Bar campaign.

Several months after the 2016 election, the activists filed suit in federal court, led by campaigners for single-payer healthcare and anti-growth policies. Amendment 71 “compels them to engage in political speech and associational activity in state senate districts they and their supporters would otherwise avoid,” and therefore violates the First and Fourteenth amendments, the activists claimed.

Colorado Secretary of State Wayne Williams filed a motion to dismiss, but Judge Martinez responded with a curious preliminary ruling.

On the one hand, the judge said higher courts “have uniformly upheld geography-based signature-gathering requirements when the relevant geographical subdivision is a congressional district or a state legislative district, given that such districts must … be of approximately equal population.” But on the other hand, Judge Martinez spent pages and pages in his Feb. 14 ruling trying to explain why those precedents did not apply to the case before him, which also dealt with a geography-based signature-gathering requirement based on state legislative districts of approximately equal population.

The concern, as Judge Martinez saw it, was an uneven number of registered voters in those legislative districts, even though the constitutional standard for drawing legislative districts is based on total population, not registered voters.

Last week, in a widely expected move, the judge doubled down on his preliminary ruling, issuing a ruling and injunction against the Raise the Bar’s signature-gathering rules. The 55 percent voter approval requirement still remains in force, however.

So, what happens next? The 10th Circuit Court of Appeals in Denver will be asked to settle the matter, and as Judge Martinez himself acknowledged, appellate courts have consistently upheld measures like Amendment 71.

“The First Amendment ensures that all points of view may be heard; it does not ensure that all points of view are equally likely to prevail,” the 10th Circuit ruled in 2006, upholding a Utah law that makes some ballot measures harder to pass than others. To argue otherwise means “every structural feature of government that makes some political outcomes less likely than others” would be rendered unconstitutional, the court said in the same case, Initiative and Referendum Institute v. Walker.

On the specific question of signature gathering, geographical distribution requirements in several states including VirginiaMissouri and Nevada have been upheld by federal appeals courts. In the Nevada case, Angle v. Miller, the 9th Circuit found half the states with citizen-initiated ballot measures have lawfully imposed such requirements. This serves a state’s “legitimate interest in ensuring a minimum [level] of statewide support for an initiative as a prerequisite to placement on the ballot” and not simply “localized support,” the appeals court in San Francisco said.

In another case, the 9th Circuit struck down a signature-gathering requirement in Idaho because it was based on counties, which vary greatly in terms of population. In that ruling, however, the court endorsed the same approach taken by the drafters of Amendment 71: “Idaho could achieve the same end through a geographic distribution requirement that does not violate equal protection, for example, by basing any such requirement on existing state legislative districts,” the 9th Circuit said in Idaho Coalition United for Bears v. Cenarrusa.

You could not find a federal appeals court more sympathetic to the single-payer health care and anti-growth activists than the 9th Circuit. And yet, even there, measures like Amendment 71 have prevailed.

During the 2016 campaign, I knew and respected people on both sides of the Amendment 71 debate. I still do. But the campaign is over and the law is clear. It’s hard to see the value in litigation that seeks to delay the inevitable and deny the will of Colorado’s voters just a little longer.

Simon Lomax

Simon Lomax

Simon Lomax is a research fellow with Vital for Colorado, a coalition of state business leaders, public officials and citizens focused on energy policy, and an adviser to pro-business groups. Before going into advocacy, he was a reporter for Bloomberg News and a congressional fellow with the American Political Science Association. The views expressed are his own. Find him on Twitter at @simonrlomax.