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Colorado Ballot-Initiative Rules Debated at 10th Circuit

Colorado took its fight over a federal judge’s decision to strike down voter-approved restrictions for putting initiatives on the ballot to a 10th Circuit panel Thursday.

DENVER (CN) – Colorado took its fight over a federal judge’s decision to strike down voter-approved restrictions for putting initiatives on the ballot to a 10th Circuit panel Thursday.

"Direct democracy is a creature solely of state law,” Assistant Solicitor General Grant Sullivan told the three-judge panel. “When a state like Colorado chooses to extend the right of initiative to its citizens it retains considerable discretion and control over how that process is implemented on the ground.”

Approved by 55 percent of voters in the 2016 general election, Amendment 71 requires petitioners to gather signatures from 2 percent of each of the 35 state Senate districts in order to place initiatives on the ballot. The initiative also mandates constitutional amendments be approved by 55 percent of voters.

Previously, petitioners only needed to collect signatures from 5 percent of registered voters and constitutional amendments needed only a simple majority to pass.

Those in favor of the “Raise the Bar” initiative say it empowers rural voices typically left out of the process when petition requirements are filled in heavily populated urban areas.

William Semple and health care groups sued the state in April 2017. A supporter of putting universal health care on the ballot, Semple says the new restrictions unfairly dilute urban voting power. While each of the 35 state Senate districts contain about the same number of citizens, the number of registered voters in each vary: Some districts have up to 60 percent more registered voters than others.

U.S. District Judge William J. Martinez struck down Amendment 71 this past March. In agreeing to take the appeal, however, the 10th Circuit revived the initiative for the Nov. 6 election.

“Where the district court came down on this, it elevated the interest in preventing vote dissolution to the extent of inequality of representation,” Sullivan told the appellate panel Thursday. “Here equality of representation remains an important concern.”

Sullivan pointed to the 1.4 million voters who voted to adopt Amendment 71 and the restrictions it placed on amending the state constitution.

“Coloradans as a policy matter declared that quality of representation is important in the initiative process,” Sullivan said.

U.S. Circuit Judge Carolyn B. McHugh questioned this conclusion.

“Can Colorado declare that or does it actually have to be true?” she asked, a question seconded by U.S. Circuit Judge Michael R. Murphy.

Sullivan answered by pointing to declarations on the record supporting this assertion, including dozens of amicus briefs by former governors Bill Ritter and Bill Owens, the states of Utah, Idaho, Texas and Wyoming, as well as Jackson, Mesa, Moffat and Montrose counties.

“I think when Coloradans enacted Amendment 71, they were concerned that rule-voters were being completely shut out of the process,” Sullivan said.

U.S. Circuit Judge Mary Beck Briscoe pressed Sullivan on the impact. “It started with good voting, and you look at the result, and is that good?” she asked.

Sullivan responded by bringing the issue back to states’ rights.

“Certainly as a policy matter, I think Coloradans can decide that we want all citizens across the state to have input on what goes on the ballot, and I think that’s a policy matter that Colorado gets to choose,” Sullivan said.

But Semple’s attorney Ralph Ogden countered that Amendment 71 violates the Equal Protection Clause of the U.S. Constitution, arguing the law “can only give rural voters a greater say by diminishing the votes in the urban or more populated districts.”

He added: “The state is bound by constitutional principles. Signature-gathering for initiative petitions and candidate-nominating petitions is fundamentally a ballot access issue.”

McHugh asked if the petition process allows people to engage in direct legislation instead of relying on elected representatives.

“Hypothetically,” she asked, “isn’t it true that when I sign a petition that I am serving in a representational capacity for everyone in my district?”

Ogden disagreed.

“When I cast a vote, I’m voting for myself,” Ogden said. “I’m not voting for everyone else in my district or in my family, that’s a very personal decision that I make. That’s a personal decision that I’m making, that I want to see this on the ballot. I’m not speaking for everybody else, because everybody else may or may not want to sign the petition.”

As it stands, Ogden said Amendment 71 gives smaller counties veto power over initiatives that may be supported a majority of Colorado voters.

The panel did not indicate when it will rule.

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