Face the State

A Face The State Fact Check

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Amid allegations that the Colorado constitution is excessively long and plagued with contradictory amendments, a special committee of legislators is proposing changes to state law that would make it harder for citizen coalitions to amend it but easier for such coalitions to propose statutory changes. Face The State has conducted its own analysis, analyzing the validity of the committee's concerns.

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As Face The State has discovered by comparing Colorado’s constitution to those in other states, the state’s guiding document is far from the nation’s longest. In addition, the vast majority of the Colorado’s existing amendments have come not from citizen-led efforts, but from legislators themselves.

Our Conclusion: Colorado’s constitution—if indeed bogged down by conflicting amendments as legislators profess—faces problems not because of zealous citizen activists, but rather because of the legislature’s inability to utilize existing rules to address problems caused by conflicting and contradictory amendments. Changes proposed this month, while certain to decrease the number of citizen-led proposals that make it to the ballot, could also make constitutional reform prohibitively expensive for grassroots coalitions.

THE COMMITTEE’S PROPOSALS

Earlier this month, a bi-partisan state legislative panel led by Sen. Abel Tapia, D-Pueblo, put forth a series of suggested changes to the initiative process, mostly focusing on raising the number of valid voter signatures required to put a constitutional issue on the ballot.

Under current law, supporters must obtain signatures equal to 5 percent of all voters who voted for a secretary of state candidate in the most recent general election. Under one of the committee’s proposed changes, the number of required signatures would be decreased for proposed statutory changes, to equal 4 percent of the total number of people who voted for secretary of state, while the number required to place a constitutional amendment on the ballot would equal 6 percent of that total vote tally.

Another proposal, designed to address the fact that most signature gatherers currently only focus on major population centers, such as Denver, would require that each campaign focus on all seven of the state’s congressional districts by mandating that signatures from each district provide at least 10 percent of the signature total submitted.

The committee also proposed a change that would require two-thirds of both legislative houses to alter a statutory initiative passed by voters. Currently, only a simple majority of legislators is required. The proposals will be presented to the House and Senate for consideration, with the goal being a referred measure to this fall’s ballot.

Currently, more than 76,000 signatures are required to get either kind of measure on the ballot. If the proposed reforms were put in place based on the last election’s voter turnout, the number of signatures required for a constitutional measure would be more than 91,000.

Sen. Shawn Mitchell, R-Broomfield, a committee member, told The Rocky Mountain News that such changes were based on “a growing consensus that too many minor matters are clogging our state constitution.”

A Face The State Fact Check has discovered the following:

1. Colorado’s constitution is not excessively long, at least not when considered in the context of other state constitutions around the country.

According to Dennis Polhill, a frequent proponent of petitioner’s rights, Colorado’s constitution is average in length and number of amendments. According to Polhill, who serves as chairman of the Colorado Term Limits Coalition and is the author of “Protecting the People’s Voice: Identifying the Obstacels to Colorado’s Initiative and Referendum Process,” it contains 45,679 words. The nation’s longest, Alabama, has 310,296 words. The nation’s shortest, Vermont, has just 8,295 words.

2. While Coloradans actively use the petition process to put amendments before voters for consideration, legislators over the last century have used the process at a nearly equal rate.

Citizen-initiated amendments are called ballot initiatives, whereas amendments proposed to voters by the General Assembly are called referred measures. Polhill’s research concludes that between 1912 and 2005, voters considered 254 proposed amendments, with 129 of these proposed by citizen-led groups and 125 coming from the legislature. Less than half of these, 111, were ultimately approved by voters. Of these successful efforts, 69 were referred measures and 42 came from citizen-led coalitions.

According to Polhill, some of these 42 could have been statutory, but the vast majority had to be constitutional. “Counting entails subjectivity,” he said, estimating that one-forth could have been statutory, adding that “the target universe is small, at just ten amendments in 93 years,” that would have been more appropriately adopted as statutes.

Under Colorado law, citizen-led ballot initiatives can propose both constitutional amendments and statutory changes. While Tapia’s committee wants to make it easier to change statutes and harder to propose constitutional amendments, Polhill believes that such incentives already exist. According to his analysis, while just 32 percent of proposed amendments pass, 41 percent of proposed statutory initiatives obtain voter approval.

3. While conservatives and libertarians, including Polhill, are criticized for overutilization of the process and their support of the voter-approved Taxpayer’s Bill of Rights, well-known liberals have also backed the process successfully and frequently throughout the decades.

Jenny Flanagan, executive director of Common Cause, a liberal public interest organization dedicated to campaign finance reform, believes that the initiative process has not favored one party over the other. “It’s hard to say if one side benefits more because both take advantage of the initiative process,” she told Face The State.

When asked whether success rates of initiatives were tied to political ideology, Polhill indicated that putting the analysis in partisan or ideological terms would be disingenuous. “It’s not a meaningful exercise because a lot of these proposals are not easily defined as liberal or conservative,” he said.

In recent years, high profile liberals, including millionaire gay rights activist Tim Gill and congressional candidate Jared Polis, a Democrat, have pursued ballot initiatives. Polis was a primary backer of Amendment 41, which imposes significant restrictions on the gifts received by legislators and public employees. The ethics measure, backed by Flanagan and Common Cause, has faced constant litigation questioning its constitutionality since being passed by voters in 2006.

4. The Colorado constitution is plagued with contradictory amendments—with the media most frequently focusing on Amendment 23, an education funding mandate passed by voters in 2000, and the Taxpayer’s Bill of Rights, passed by voters in 1992. While Amendment 23 requires increases in spending, the Taxpayer’s Bill of Rights mandates that all tax increases be approved by a vote of the people.

In a March 7 Rocky report, Mitchell emphasized that the committee’s recommendations weren’t designed to dismantle the Taxpayer’s Bill of Rights. “I sometimes fear that people who drive this discussion have the primary objective to loosen restrictions in the TABOR Amendment,” he said. “I would have resisted going in the direction of dismantling TABOR. The committee doesn’t do that.”

But Polhill questioned the larger assumption that the proposed reforms were needed. “Legislators refuse to utilize their existing power to refer things back to the ballot and if the combination of TABOR and 23 were trashing the state budget, then the correct response would be to figure out how to reconcile the two, and then go back to voters to ask them to approve it.”

Polhill believes that legislators are politicizing the process unnecessarily. “They are trying to use whatever difficulty there is as a lever to attack the citizens’ voice.”

5. Increases in signature requirements could make ballot access prohibitive expensive for grassroots coalitions.

Under current law, more than 76,000 signatures are required to get a constitutional amendment or statutory change on the ballot. Under the committee’s reform proposals, the number required for a proposed amendment would rise to more than 91,000.

According to Polhill, the addition of 25,000 signatures “could add tens of thousands of dollars to the cost of doing a campaign, thus taking the average citizen out of the process.”

Flanagan said that access to the initiative process must be protected because “from a citizen perspective, it's an opportunity to take things to the people when the legislature fails to act.”