The Colorado Supreme Court on Monday ruled that a measure seeking to repeal the state’s one-of-a-kind Taxpayer’s Bill of Rights can qualify for the 2020 ballot, overruling a state board that determined the attempt was unconstitutional.
The decision represented a key legal victory for critics of TABOR, the constitutional amendment that sets limits on state spending and requires voter approval for new taxes and debt. And, as one Supreme Court justice wrote in a strongly worded dissent, the decision could have “broad implications” beyond this question, potentially overturning decades of court precedent on what can qualify for the Colorado ballot under the state’s single subject rule.
The state title board, which oversees ballot access, ruled in January that trying to repeal TABOR in its entirety would violate the state constitution’s “single subject” rule for ballot measures and legislation. That’s because TABOR is a far-reaching amendment that covers several different issues, such as tax policy, debt, revenue growth, taxpayer refunds and elections.
But in the 5-2 opinion, the court ruled that the board’s argument is not “analytically sound,” and wrote that the purpose of the single subject rule was to make sure voters knew exactly what they were approving at the ballot.
“The initiative could not be written more simply or directly,” Justice Richard Gabriel wrote for the majority. “It essentially asks voters a single question: should TABOR be repealed in full?”
But in one of two dissents, Justice Monica Marquez wrote that the court’s decision “substantially weakens the single subject requirement,” and ignores the court’s reasoning in a 1996 case that wouldn’t allow a partial repeal of TABOR because it encompassed multiple subjects.
“Under the majority’s logic, voters could repeal our state constitution’s entire Bill of Rights through a single initiative and do away with religious freedom, free speech, protections against unreasonable searches and seizures, the right to bear arms, the prohibition against cruel and unusual punishment, and due process, among a host of other rights,” Marquez wrote.
TABOR was adopted in 1992, before the “single subject” rule was added to the constitution, so the restriction did not apply when it appeared on the ballot for voter approval.
Monday’s ruling drew cheers from advocacy groups on the political left, and a swift rebuke from conservatives who have pledged to defend TABOR at the ballot box.
“TABOR is so wide-ranging, it’s clear the courts got this one wrong,” said Michael Fields, the executive director of Colorado Rising Action, a conservative advocacy group.
But Carol Hedges, the executive director of the Colorado Fiscal Institute, which proposed the measure to repeal TABOR, called it an “empowering decision for Colorado voters” that will give them more options to address what she views as a broken tax system.
Hedges’ group and other liberal advocates are testing as many as 19 ballot strategies to dismantle TABOR and other restrictive constitutional amendments. They haven’t decided which measure to put forward, whether its a complete repeal or a combination of smaller tweaks. But Monday’s ruling could pave the way for other options on their list to qualify for the ballot.
“We think it will have an impact on setting title for these other measures,” Hedges said. But, she added, “we’re not exactly sure what.”
Neither are some legal experts. Mark Grueskin, a prominent Colorado attorney who has argued ballot questions before the state Supreme Court in the past, said he doesn’t see any clear indicators within the decision on how this could affect future ballot measures. And, he noted, the Supreme Court on Friday upheld the title board’s single subject objections to four other initiatives that were disqualified from the ballot.
“If there are politicos that think that there is no single subject requirement any more, they’re going to be dramatically disappointed,” said Grueskin, who was on the losing end of the 1996 TABOR case cited in Monday’s decision.
Even with a sizable legal hurdle out of the way, TABOR’s critics still face a long road to putting a repeal question on the ballot, including a requirement to collect more than 124,000 voter signatures. And TABOR’s central tenet of taxpayer consent remains popular, which may lead the left to coalesce around proposals that leave that portion of TABOR intact.
“This whole inquiry was not designed to say this is the right idea,” Hedges said. “This inquiry was really about what options (do) voters have?”
In the meantime, Colorado voters will decide in November whether to permanently end the revenue caps in TABOR after Democratic state lawmakers referred a measure to the ballot.
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