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Group files 11th-hour lawsuit seeking to block one of three questions on Colorado’s statewide ballot this year

The plaintiffs claim that Amendment 78, which would require more legislative oversight over how money from legal settlements and the federal government is spent, should not have been approved for the 2021 election

The Colorado State Capitol is seen from the Ralph L. Carr Colorado Judicial Center on Tuesday, July 20, 2021, in Denver. (Olivia Sun, The Colorado Sun)
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The head of a liberal-leaning fiscal policy organization and a Summit County commissioner filed a lawsuit Thursday seeking to block one of three statewide measures set to appear on the November ballot, arguing the Colorado Secretary of State’s Office inappropriately approved the question and that any votes for it shouldn’t be counted. 

Scott Wasserman, of the Bell Policy Center, and Summit County Commissioner Tamara Pogue claim that Amendment 78, which would require more legislative oversight over how money from legal settlements and the federal government is spent, should be able to appear only on even-year ballots. That’s because odd-year elections in Colorado are supposed to be reserved for questions that have to do with the Taxpayer’s Bill of Rights. 

Amendment 78, the plaintiffs assert, is not a TABOR question.

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The plaintiffs are asking a Denver District Court judge to remove Amendment 78, which is backed by conservative groups, from the November ballot or to ensure that any votes cast for or against the ballot question “are given no legal effect.”

The legal challenge is an 11th hour effort to fight the ballot question. Ballots for the 2021 election have already been sent to military and overseas voters. The rest of the electorate is set to begin receiving ballots in early October ahead of the Nov. 2 contest.

The plaintiffs are being represented in the case by the Tierney Lawrence law firm, whose namesake, Martha Tierney, is a prominent Democratic elections attorney in Colorado. 

Secretary of State Jena Griswold, a Democrat, is named as one of the defendants. The other defendants are prime proponents of the measure, Michael Fields, who leads the conservative tax policy group Colorado Rising Action, and Suzanne Taheri, a Republican lawyer.

Fields said he thinks the lawsuit is frivolous and that it will be quickly tossed out in court. He said the plaintiffs should have challenged the ballot question when it was being reviewed by the Secretary of State’s Office, not weeks before Election Day.

Fields said there is a “clear TABOR hook.”

A spokeswoman for Griswold said the Secretary of State’s Office hadn’t been served with the lawsuit and thus couldn’t comment.

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Fields argues that people should have more say in how the state spends money that’s not generated by taxes. The amendment was presented as a TABOR question to the Secretary of State’s Office, which in turn allowed backers of the initiative to collect signatures to get the measure on the November ballot.

Opponents say here already is sufficient legislative oversight of such spending and that Amendment 78 is unnecessary. 

The measure comes after Republicans were angered by how Gov. Jared Polis and Democrats in the state legislature decided how to spend the first installment of federal coronavirus aid without GOP input. 

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The two other questions on the statewide ballot in November are:

  • Proposition 119, which would impose a new 3% sales tax on recreational marijuana starting Jan. 1 and increasing to 5% by Jan. 1, 2024, at which point it is projected to generate about $138 million a year. That’s in addition to the existing 15% state sales tax on recreational marijuana. The money generated by the increased taxes would go toward bolstering out-of-school learning.
  • Proposition 120, which would lower the property tax assessment rate for multi-family residential homes to 6.5% from 6.8% and lower the assessment rate for lodging properties to 26.4% from 29%.

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