The Colorado Supreme Court on Wednesday unanimously rejected Gov. Jared Polis’ effort to allow signatures for ballot initiatives to be gathered by email and mail, saying that the Democrat does not have the power to suspend a requirement in the state’s constitution even in a disaster emergency like the coronavirus crisis.
“The Colorado constitution requires that ballot initiative petitions be signed in the presence of the petition circulator,” the court said in its ruling. “That requirement cannot be suspended by executive order, even during a pandemic.”
The decision marks the first court-ordered reversal of an action taken by Polis in response to coronavirus.
“The Colorado Disaster Emergency Act authorizes the suspension of certain statutes, rules, and regulations,” the ruling said, “but not of constitutional provisions.”
In a written statement, Polis said the decision is “a blow to the power of the people of our state to petition.”
“It is certainly convenient for certain groups or elected leaders have to deal with fewer ballot initiatives,” Polis said said. “It makes my life easier as governor that there will be fewer curveballs coming our way, but sadly it’s at the cost of making it much harder and even dangerous from a public health perspective for activists on all sides to get their issues on the ballot for voters to decide.”
Polis issued an executive order in May allowing signature gathering by email and mail, saying he didn’t want to sacrifice people’s democratic rights because of the pandemic.
“This is a challenging time for Colorado, but we must not sacrifice our democracy and the right of citizens to petition due to the pandemic,” Polis said in a statement at the time. “Protecting our democracy, access to the ballot and making sure citizens can qualify ballot measures and can qualify as candidates to run for office during this time is critical.”
Businesses groups, however, challenged him in court, saying he was overstepping his authority.
Initially, a Denver District Court judge said the order was OK, but the Colorado Supreme Court took up the case and reversed that decision on Wednesday.
There are a number of statewide initiatives attempting to gather signatures to make the November ballot. Those include ones seeking to create a paid family and medical leave program, make Election Day a state holiday, draft a new criminal record expungement process for convicts and reduce the state’s income tax rate.
To make the statewide ballot in November, proponents of an initiative must collect about 124,000 signatures from registered voters by Aug. 3.
The same business interests that sued to undo Polis’ executive order are against several of the proposed ballot measures.
“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,” Mike Kopp, the CEO of Colorado Concern, said in a written statement in May when the order was unveiled.
Kopp said Wednesday that he was pleased with the decision.
“Launching this litigation was a difficult choice, because there are so many important issues we are working closely with the governor on, literally in real time,” he said. “But the underlying principle was too important – protecting the integrity of the initiative process is just as important in a pandemic as it is during a time of calm.”
It wasn’t immediately clear what would happen to validity of the signatures groups had already collected by mail and email.
“The Secretary of State’s Office, in conjunction with the Attorney General’s Office, is currently reviewing how this decision impacts the rules for signature collection,” said Betsy Hart, a spokeswoman for Colorado Secretary of State Jena Griswold. “Our office will comply with all court orders and will continue to work with petitioners to ensure their legal access to the ballot.”
Groups that chose to collect signatures via email and mail were warned that they may be invalidated because of pending legal challenges.
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