LOMAX | ‘Raise the Bar’ restored as court lowers the boom on anti-biz groups

Author: Simon Lomax - April 20, 2018 - Updated: April 20, 2018

Simon Lomax

Talk about a short-lived victory.

Anti-growth and single-payer healthcare activists barely had a chance to celebrate a single judge’s ruling against Amendment 71, passed overwhelmingly by voters in 2016, before the 10th Circuit Court of Appeals in Denver restored the constitutional provision in full.

All told, it took just over two weeks for the 10th Circuit to impose a stay on the lower court’s ruling pending a full hearing of the arguments. The appeals court ruling restored the signature-gathering provisions of Amendment 71 – also known as the “Raise the Bar” initiative – which require the backers of a proposed constitutional amendment to talk to communities across the state, not just Denver and Boulder, before their measure can qualify for the ballot.

As I wrote earlier this month, the federal judge’s ruling – which sided with activists who don’t want to gather signatures for ballot measures beyond Denver and Boulder – was well outside the mainstream of election law. Federal appeals courts all across the country have ruled in favor of measures like Amendment 71, which requires signatures from 2 percent of registered voters in all 35 state Senate districts before a proposed constitutional amendment can qualify for the ballot.

The case law supporting Amendment 71 was a major factor in the 10th Circuit stay, authored by two appeals court justices appointed by President Obama – Judge Carolyn McHugh and Judge Nancy Moritz. According to the order from the appeals court, “the movant’s likelihood of success of the merits” influenced the decision to immediately restore Amendment 71 in full, and so did “the risk of harm to the public interest.”

Also before the court was a brief from former Colorado governors Bill Ritter (D) and Bill Owens (R), who supported the appeal and request for an emergency stay from Colorado Secretary of State Wayne Williams (R).

“Before Amendment 71, petition signatures could be collected from voters in any area, and often most signatures came from voters in large urban areas and the populous Front Range to the exclusion of almost every other region of the state,” stated the bipartisan brief.

“The geographic distribution requirement of Amendment 71 requires constitutional ballot initiatives to have statewide, grassroots support before an initiative can be placed on the ballot.”

The Ritter-Owens brief also summarized the huge disconnect between the single judge’s order and what federal law says about qualifying state-level constitutional initiatives for the ballot.

“The [lower court’s] analysis and decision depart from the holdings of every other court that has considered the same issue and conflicts with the U.S. Supreme Court’s precedent that geographic distribution requirements based on total population rather than registered voters are constitutional,” the governor’s brief said.

The strongest endorsement of Amendment 71’s legal merits may have been the actions taken outside the courtroom, however. After the single judge’s ruling, backers of constitutional ballot measures chose to honor the signature gathering requirements of Amendment 71 because they know those requirements are both reasonable and lawful.

“We are going to continue to gather signatures in all 35 Senate districts,” the proponents of constitutional ballot measure to increase state income taxes for education spending told the Denver Post. “That is the prudent thing to do because of the probable appeal. We also think it’s also really important to engage communities throughout the state, so we are going to keep doing what we are doing.”

Moreover, none of the activist groups who chose to file statutory ballot measures this year, because they are unaffected by Amendment 71’s higher bar for gathering signatures, used the two weeks between the single judge’s ruling and the appeals court stay to refile their initiatives as constitutional amendments.

Even the anti-growth activists who helped bring the lawsuit against Amendment 71 stuck with their statutory measure, which would ban annual growth above 1 percent in 10 Front Range counties, rather than reintroduce the initiative as a constitutional amendment. That’s remarkable: Not even the activists behind the lawsuit really believed their own arguments against Amendment 71 would stick once the case reached the 10th Circuit.

Actions speak louder than words. When given the chance, the activists refused to rely on their own legal theories about Amendment 71. And whether they will admit this or not, the activists know the real argument over Amendment 71 – a lawful and reasonable response to abuses of the constitutional initiative process – took place two years ago.

People of good will on both sides of the campaign disagreed, put their arguments before the voters of Colorado, and the voters settled the question. But now the campaign is over, and it makes no sense to pretend otherwise in the court of public opinion or a court of law.

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.