Ballot initiative to eliminate Colorado TABOR law can proceed, Supreme Court rules

Colorado Supreme Court
Posted at 12:22 PM, Jun 17, 2019
and last updated 2019-06-17 20:25:56-04

DENVER – The Colorado Supreme Court ruled Monday that a group wanting to eliminate Colorado’s Taxpayer’s Bill of Rights (TABOR) can proceed with a proposed ballot initiative in 2020.

The state’s high court ruled in a 5-2 opinion that the state Title Board should not have rejected the proposed initiative from the Colorado Fiscal Institute, saying that the proposed ballot question did indeed constitute one single subject – a requirement of ballot initiatives under the state Constitution.

Many have argued that the 1992 TABOR law, which was passed by Colorado voters as a constitutional amendment, contained too many moving parts to be repealed all at once after state voters passed a single-subject rule. The amendment requires tax increases, the issuance of bonds and increases in spending to go to statewide voters. The back-and-forth over the positive and negatives of the law have been hashed out for years without concrete conclusions.

But the majority’s opinion, delivered by Justice Richard L. Gabriel, concluded that the proposed initiative, Initiative #3, indeed constituted a single subject.

“The initiative effectuates one and only one general objective or purpose, namely, the repeal of TABOR,” the majority wrote in its opinion. “…And we perceive nothing in Initiative #3 that could be deemed surreptitious or hidden in the measure. … Nor can we see how Initiative #3 could be read so as to pose a risk of surprise or fraud on voters. … The initiative could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?”

The majority said it was not “adopting an exception to the single-subject rule for repeal measures” and said that finding the measure constituted more than one subject would have forced them to read into the language of the initiative, which the majority said they were not permitted to do.

The Colorado Fiscal Institute and director Carol Hedges will now have to decide whether to proceed with the ballot initiative now that they will be allowed to begin collecting signatures to try and get the question onto the ballot next November.

In a statement, Hedges praised the court’s decision but did not say definitively what the Colorado Fiscal Institute’s next steps might be.

“In answering this important question today, the Colorado Supreme Court has given voters additional options for addressing the fiscal challenges the state faces. Today’s opinion clarifies voters’ role in making changes to their state constitution. I’m thrilled that those options include a full repeal of a provision that has made Colorado an outlier on state tax policy for nearly 30 years,” Hedges said in the statement.

Justices Monica M. Marquez and Brian D. Boatright delivered the dissent for the court.

Marquez wrote that the majority “rewrites history” and “close to a quarter century of this court’s case law” in its decision, saying the majority was “inventing a new exception for repeal measures and, remarkably, it justifies doing so using the very policy arguments that Colorado voters rejected when they adopted the single subject amendment.”

She argued that TABOR indeed included multiple subjects and served as the groundwork for the 1994 adoption of the single-subject rule for ballot initiatives.

“The majority essentially overlooks this important historical contextual point: in adopting the single subject requirement for citizen initiatives, voters sought to prevent multi-subject initiatives like TABOR from being placed on the ballot in the future,” she wrote. “Yet ironically, today the majority blesses an initiative that would, once again, place all of TABOR on the ballot, directly contrary to the intent of the single-subject requirement.”

Bell Policy Center President Scott Wasserman called the majority’s decision a “much-needed breath of fresh air.”

"Whether it’s a full repeal of TABOR or a wholesale modernization of our tax system, we need to start considering other tools in our toolbox and stop limiting ourselves with conventional wisdoms,” he said in a statement. “The court's historic ruling offers a chance for us to think differently for the better of our state and those in it."

Hedges said the CFI’s discussions would continue.

“This decision provides a new wrinkle in ongoing community-led conversation regarding inequities in our Constitutional tax system,” Hedges said. “Our ability to keep Colorado an awesome place to live, work, and play, starts and ends with fixing our upside-down tax code, and we now have an important new tool to fix the problem.”

Rep. Dylan Roberts, D-Avon, summed the court’s decision up succinctly: “Whether you agree or disagree with TABOR, we are about to have a huge and important statewide discussion about it over the next 1.5 years,” he tweeted.

This is a developing story and will be updated.