(CN) — The Tenth Circuit is set to determine whether Colorado officials can add language to the titles of citizen-driven ballot initiatives aimed at reducing taxes that points out which government programs would be affected financially by the measures.
“It is outrageous for the state to say it can co-opt and hijack a citizen’s speech that is supposed to be a check on government,” attorney Jennifer Weddle told a three-judge panel during oral arguments Tuesday morning in Denver.
The Greenberg Traurig attorney represents Advance Colorado, a conservative nonprofit that is sponsoring the two tax initiatives in the November election.
State officials, as required by a 2021 law, added language to the titles warning voters that the measures "will reduce funding for state expenditures that include but are not limited to health and human services programs, K-12 education, and corrections and judicial operations.”
Advance Colorado sued Colorado Secretary of State Jena Griswold in August 2023 claiming the law violates the First Amendment by compelling private speech to include the government’s opinion on the initiative and potentially mislead voters. Because Colorado is projected to be at a profit surplus for the next few years, there’s no guarantee that any tax cut would reduce the amount spent on public programs, the organization argues.
During Tuesday's hearing, the circuit judges seemed to side with a federal judge who denied a preliminary injunction motion, finding that while the text of a citizen-led initiative is private speech, its title is government speech.
U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, said the delineation between the government's title and the citizen-authored text of an initiative was clear enough that voters wouldn't be confused. Text above the title indicates it was written by the Title Board, not the initiative author.
“It’s been set by the political body of the government opposed to the speech,” Weddle interjected.
“I don’t care,” McHugh replied. “It’s the title. That’s not you speaking. It’s the government speaking.”
Weddle reiterated that the government in this case wasn't a neutral body, as it should be when writing titles.
“Then isn’t your remedy to vote them out of office?” McHugh asked.
Weddle said the remedy was the First Amendment.
The state added the language to the titles under a statute enacted in 2021, passed by Colorado’s Democratic majority, that requires citizen-driven ballot initiatives that would reduce taxes to inform voters of three public programs or services that would be most affected by the tax cut.
Tasked with adding that language is Colorado's Title Board — composed of the secretary of state, attorney general and the director of the office of legislative legal services, or their designees — which typically reviews ballot initiative titles to ensure they accurately represent proposed changes.
Advance Colorado appealed to the Tenth Circuit in September 2023. The case has since been stayed pending appeal.
On Tuesday, Weddle told the appellate court her client has a constitutional right to present its message “undiluted” by speech it doesn’t agree with, and which may not be true. She said the added speech in the title distracts from her client’s message and confounds the initiative’s purpose, priming voters to interpret it from the viewpoint of the Democratic lawmakers behind the requirement.
Michael Kotlarczyk of the Colorado attorney general's office argued it didn't matter whether the Title Board was a neutral body. Because it is made up of government officials, it is itself the government, and therefore the titles it writes are government speech.
U.S. Circuit Judge Joel Carson, a Donald Trump appointee, asked Kotlarczyk if he agreed with the projections that Colorado will see a profit surplus over the next few years. Kotlarczyk said he generally agreed, though circumstances may change.
“Doesn’t that suggest that the title in this case is false, or is at least misleading?” Carson asked.
Kotlarczyk disagreed with the implication. The titles specify that funding for state services would be reduced by the measures — not that spending would be be reduced. In the case of a profit surplus, a funding reduction would mean a reduction of that surplus.
Carson countered: “The title suggests that services will be cut.”
Kotlarczyk said anyone who disagreed with the language could appeal it to the state Supreme Court, which Advance Colorado hasn’t done. It did appeal the title of a similar ballot initiative it ran in the 2022 election, though the Supreme Court didn’t find it to be misleading.
Weddle said the court didn’t answer the First Amendment question, which she wants this panel to do.
The panel was rounded out by U.S. Circuit Judge Michael Murphy, a Bill Clinton appointee.
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