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The Colorado State Capitol is seen on Thursday, August 19, 2021, in Denver. (Olivia Sun, The Colorado Sun)

A Denver judge Thursday dismissed a lawsuit seeking to invalidate any votes cast in the November election for Amendment 78, leaving the plaintiffs with scant time to appeal before Election Day.

Judge J. Eric Elliff found that Bell Policy Center Executive Director Scott Wasserman and Summit County Commissioner Tamara Pogue, who filed the legal action against Colorado Secretary of State Jena Griswold and supporters of the ballot measure, waited too long to file their case. 

Ellliff wrote that Wasserman and Pogue should have submitted their lawsuit within 15 days of Aug. 31, the day the Colorado Secretary of State’s Office ruled that supporters of Amendment 78 had collected enough signatures to get the measure on the Nov. 2 ballot. 

“Petitioners did not file their Complaint until Sept. 23, 2021, eight days beyond the deadline,” Elliff wrote. “Their complaint is thus time-barred.”

Amendment 78 would require more legislative oversight over how money from legal settlements and the federal government is spent by the governor or attorney general. It was placed on the ballot by conservatives, including Michael Fields, who leads Colorado Rising Action. Bell Policy Center is a liberal-leaning nonprofit.

The measure is one of three statewide questions on the November ballot.

?️?️ ELECTION 2021: What you need to know to vote and about Proposition 119, Proposition 120 and Amendment 78. ?️?️

Wasserman and Pogue argued that Amendment 78 should not have been approved for signature circulation for the November ballot because it doesn’t have to do with the Taxpayer’s Bill of Rights. 

Odd-year elections in Colorado, like this year’s, are supposed to be reserved for questions that have to do with TABOR. Amendment 78, the plaintiffs asserted, is not a TABOR question.

Elliff’s ruling did not address the TABOR argument, but Griswold’s office and proponents of Amendment 78 argued that it does have a TABOR hook.

In a reply brief filed in Denver District Court, attorneys for the Colorado Attorney General’s Office, which is representing Griswold in the case, say the ballot measure involved TABOR because it would “exclude an entirely new category of revenue from the state’s TABOR limits as a voter-approved revenue change.”

That category is money local governments provide to the state to pay for specific programs or activities.

Wasserman said he is still debating whether to appeal the ruling, but that it’s likely he will. 

“For now, it’s important to note that the judge ruled on whether or not he felt our protest was timely and under the correct statute,” Wasserman said. “He said nothing about the substance of our claim that this 78 is not an issue arising under TABOR.”

Jesse Paul

The Colorado Sun — Desk: 720-432-2229 Jesse Paul is a political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is...