Two groups — including one hoping to ask voters in November to ban abortions in Colorado after 22 weeks of gestation — have filed separate lawsuits challenging Gov. Jared Polis’ executive order allowing signatures to be gathered for ballot initiatives through email and mail.
The lawsuits appear to be the first direct legal challenges to Polis’ use of his executive powers under his disaster emergency declaration. Some critics say he’s gone too far in reacting to the pandemic.
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Polis signed the signature-gathering order on Friday in response to the coronavirus crisis. Signature gathering is traditionally only possible through face-to-face interaction at supermarkets, festivals and parks, which puts people at risk of becoming infected with COVID-19, the disease caused by the coronavirus.
The governor said the order is aimed at preventing the disease from compromising Coloradans’ democratic right to access the ballot during a time when groups are unable to canvas and gather signatures.
While his order helps a number of groups seeking to put initiatives on the November ballot — including ones pushing to lower the state’s income tax rate, create a paid family and parental leave program and make Election Day a holiday — the abortion-ban attempt was left out.
In fact, the abortion-ban effort is the only pending ballot initative that cannot benefit from the order issued by Polis, a Democrat who supports abortion access.
That’s because the initiative is currently in a 15-day “cure” period, during which Due Date Too Late, the group behind the initiative, is trying to collect an additional 10,000 signatures to qualify for the election. The group submitted its petitions in March, but missed the roughly 124,000-signature threshold needed to get on the November ballot and so can now try to “cure” the shortfall.
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Polis’ order on changes to the signature-gathering process — he had to suspend a host of state laws to make the alterations possible — likely won’t go into effect until June, when rules around signature collection by email and mail are expected to be finalized by the Colorado Secretary of State’s Office. That’s too late to make a difference for the abortion-ban effort.
Due Date Too Late also won’t be able to benefit from another clause in the order issued by Polis giving groups pushing for ballot initiatives more time to collect signatures. The directive extends the signature-collection period for any group collecting signatures until Aug. 3 whereas they would normally have only six months from the time the language of the initiative is approved.
The change applies all ballot initiatives except those in a cure period. And there’s only one initiative in a cure period: the 22-week abortion ban effort.
Due Date Too Late is suing Polis and Colorado Secretary of State Jena Griswold in federal court. The group alleges that by leaving their initiative out of the executive order, Polis and Griswold are violating the free speech and equal protection amendments to the U.S. Constitution.
“Gov. Polis set out to protect Coloradans’ constitutional rights and their health simultaneously, but specifically excluded … the volunteers, circulators, and signers of Initiative 120 from any protection,” the lawsuit says.
Suzanne Staiert, a lawyer for Due Date Too Late, said she believes Polis’ motivations are political.
“I don’t know what other reason there would be. I can’t think of any single, legitimate governmental reason why you would exclude one group,” she said. “By singling out the only initiative that’s out there circulating, he’s demonstrated his motive is not health, safety and welfare.”
Staiert, a Republican who is running for a state senate seat and used to be Colorado’s deputy secretary of state, says volunteer signature gatherers for Due Date Too Late are out in the community right now trying to get the 22-week abortion ban initative on the ballot. They are putting themselves at risk, Staiert said, and if Polis was serious about protecting public health he would have ensured his executive order applied to everyone.
Due Date Too Late says it will seek an injunction that will mandate the order also applies to its signature gathering efforts.
Polis rejected the criticism.
“No initiatives were separated out based on whether I like them or not,” he said at a news conference on Monday. “There’s many initiatives that are going to be using this that I like and many that I don’t like.”
Business groups challenging Polis, too
Colorado Concern, a group representing business leaders in the state, filed a lawsuit challenging the executive order in Denver District Court. Dan Ritchie, a powerful Denver philanthropist and civic leader, is one of the named plaintiffs.
“A governor does not have the power to unilaterally throw out Colorado’s signature gathering process,” Chris Murray, a lawyer at the Denver law and lobbying firm Brownstein Hyatt Farber Schreck, which is representing Colorado Concern and Ritchie in the lawsuit, said in a written statement.
Murray said the executive order “undermines the integrity of the in-person process that Coloradans have long demanded.” He is asking for an immediate ruling to block the directive from going into effect.
Mike Kopp, the CEO of Colorado Concern, alleges that Polis’ order serves to “wipe away critical elections safeguards in our state constitution.” He said that while the governor has had good lines of communication throughout the coronavirus crisis, “except for on this.”
“If the court does not step in and address this, chaos in our election process is the likely result, which will weaken public trust in the midst of this already fraught time,” Kopp said in a written statement.
A spokeswoman said Colorado Concern is not acting out of opposition to any specific ballot initiative, though many of the proposed 2020 initiatives would affect business interests.
Many in the business community have been opposed to the creation of a statewide paid family and parental leave system and there are also concerns about a proposal to implement a graduated income tax system in Colorado, as one initiative proposes.
“Were well aware of the downstream effects of this, certainly,” Kopp said.
But Murray said there are also ballot initiatives that would benefit Colorado Concern members as well.
The Denver Metro Chamber of Commerce says it is weighing how to respond. It, too, thinks Polis has overstepped his authority.
“We have been working with a diverse group of organizations throughout the state that are very concerned about the governor’s executive order,” Kelly Brough, president and CEO of the Denver Metro Chamber, said in a written statement. “Prior to the governor issuing the order, we shared a number of those concerns with him directly, including that we believe the proposed action violates our constitution. We are working with our coalition now to determine how we move forward, but our firm belief is that no individual or office can violate the law simply because it’s more convenient or easier than following it.”
It’s not clear if Brough was suggesting the chamber is considering a lawsuit.
Polis said Monday that he believes his executive order is within the bounds of his power.
“It would be very convenient for a governor to shut down the initiative process and say ‘Sorry, folks, I’m going to take all the power and not let the people have it,’” he said. “I think what’s most important, though, is that we don’t let our democracy be a casualty of this pandemic.”
Polis added: “Because there is a public health emergency that makes normal petition gathering next to impossible, it was absolutely critical that we honor the right of the people to place ballot initiatives … by creating a way that is consistent with our constitutional principle of the right to petition and meets the needs of this public health environment. I think we threaded that needle, working with the secretary of state.”
Three questions are already on the statewide 2020 ballot. One asks voters to reintroduce wolves on the Western Slope and another requires voters to be a U.S. citizen. A third attempts to appeal the Colorado legislature’s 2019 bill signing the state on the national popular vote compact.
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