Foundation statement on complaint that Amendment 71 is unconstitutional

Foundation Statement Regarding the Complaint
that Amendment 71 Is Unconstitutional

By Ivan J. Miller, Ph.D., Executive Director

4.24.17

The Colorado Foundation for Universal Health Care is proud to host the press conference announcing Ralph Ogden’s lawsuit asking the Federal Court to prevent the implementation of Amendment 71. The issues at stake in Amendment 71 are the very tenants upon which the United States was founded — democracy and equality.

While not a plaintiff, the Foundation’s board and its thousands of supporters are very invested in the citizen’s right to initiate legislation when elected officials are not responding to those whom they govern. A democracy requires that all voters have equal value and power. As a result of a misleading campaign, the voters passed Amendment 71, which deprives future generations of the equality of their votes and undermines their ability to democratically change their Constitution.

The Foundation conducted much of the research that was used to create Amendment 69, and it advocates for universal health care. Establishing universal health care on a national basis remains unlikely, so the Foundation has an interest in future proposals for universal health care appearing on the Colorado ballot. The board members and supporters of the Foundation have substantial roles in the lawsuit. Ralph Ogden is a board member; Bill Semple, one of the plaintiffs, is a board member; and three Foundation board members were board members of the plaintiff ColoradoCareYES (Jeanne Nicholson, Ivan Miller, and Bill Semple). In addition, many supporters and volunteers from ColoradoCareYES also support and volunteer for the Foundation.

What does Amendment 71 do?

Prior to Amendment 71, to place an initiated constitutional amendment on the ballot, citizens needed only the signatures of five percent of the registered voters who voted for secretary of state, regardless of where they lived in the state. Because it is easier and cost effective, most initiative proponents solicited signatures in the densely populated counties and avoided the sparsely populated rural counties. Amendment 71 requires that of the five percent, proponents must collect the signatures of at least 2 percent of the registered voters in each of the state’s 35 senate districts, thus making it far more difficult and expensive to place an initiative on the ballot. Indeed, this is the expressed purpose of the amendment, as state by the proponents in the pre-election Colorado Blue Book published by the Colorado Legislative Council: “Requiring that signatures for constitutional initiatives be gathered from each state senate district ensures that citizens from across the state have a say in which measures are placed on the ballot. Due to the relative ease of collecting signatures in heavily populated urban areas compared to sparsely populated rural areas, rural citizens currently have a limited voice in determining which issues appear on the ballot.”

Complaint Summary

Gathering signatures to place an initiative on the ballot is a step in the voting process, and it must be conducted under the same legal fairness and constitutional requirements as voting. The complaint describes three ways that Amendment 71 is unconstitutional by violating the First and the Fourteenth Amendments.

Gives some voters more power than other voters (violation of one person, one vote principle)

The Blue Book description of Amendment 71 indicates it was intended to decrease the weight of signatures that can be easily gathered in urban areas; require that a portion of the signatures come from rural areas; and disqualify an initiative that does not obtain a quota of 2% of the registered voters from each of 35 state senate districts. This is unconstitutional because it empowers the voters in one senate district to have the power to outweigh a much larger number of voters in other districts.

  • For example, if the urban areas produce 300,000 more signatures than needed, but the voters in one senate district express opposition by not meeting the required quota, the voters in that district can veto a much larger number of signers.
  • All voters are equal, including rural voters, and the U.S. Constitution does not give rural voters special status.

Forces and restrains political speech

By requiring signatures from all 35 state senate districts, Amendment 71 requires advocates to spend money and engage in political speech in all 35 districts, and it also makes their speech less significant in populous areas where it is easier to obtain signatures. The First Amendment protects not only a person’s right to advocate for a cause, but also their right to select the method and place they believe will be the most effective.

Places an unconstitutional burden on the expression of political ideas

The Colorado Constitution gives voters the right to initiate constitutional change, but Amendment 71 creates barriers that are so difficult to overcome that the citizen’s right to advance their ideas and vote is unconstitutionally impaired.

  • Prior to Amendment 71, the test for voter support was substantial. Initiative advocates were only successful in obtaining the required number of signatures for 35% of the initiatives approved by the Secretary of State.
  • The Amendment 71 requirement for signatures amounting to 2% of registered voters from each senate district is a more difficult requirement than it appears. Because there are so many more registered voters than there are people who are politically active enough to have voted for the Secretary of State in the last election, it turns out that 2% of the registered voters can be, and in 2002 was (61,858 signatures) almost as many signatures as 5% of those who voted for the Secretary of State (62,438). What was previously a barrier that only 37% of initiatives could pass becomes enormously more difficult because Amendment 71 requires that the signatures must be evenly distributed throughout the 35 senate districts.
  • A requirement that 35 senate districts show geographical consensus of support is a burden that is a much higher than a specific number of signatures, and geographical consensus is a burden that goes beyond majority rule.
  • Some rural districts are so sparsely populated that the political speech and signature drive would require a substantial amount of time and expense. For example, in 2010 four rural state senate districts had a population density of less than five voters per square mile. For comparison, 12 urban districts had a population density between 1,000 and 5,000 per square mile.
  • These factors result in a dramatic increase in difficulty, and consequently, such a large increase in cost that all but the most heavily bankrolled initiatives would be unable to obtain the necessary signatures.

Conclusion

Amendment 71 deprives Coloradans of their Constitutional rights by giving voters in each senate district the power to overrule the statewide majority, placing requirements on where and how advocates must spend money and engage in political speech, and placing an almost insurmountable barrier on the citizen initiative process. Even though passed by the voters, the voters may not take away a citizen’s Constitutional rights. Because the 2% signature requirement is unconstitutional, and the voters voted for the Amendment as a complete package, without the sections being separable, the entire Amendment should not be implemented.

The citizen’s initiative for Constitutional change is important to Coloradans

The proponents of Amendment 71 claimed in the Blue Book that, “Because the current requirements for proposing and adopting constitutional and statutory amendments are the same, the constitution has seen the addition of detailed provisions that cannot be changed without an election. Amendment 71 is expected to encourage citizen-initiated changes to law in statute by making it harder to amend the constitution. Statutory changes allow the legislature to react when laws require clarification or when problems or unforeseen circumstances arise.” However, the very reason that citizens wish to avoid statutory initiatives and favor constitutional ones is a very real fear that the legislature, often influenced by special interests, will immediately repeal or gut a statutory initiative, something it has the power to do in the first session following the election at which the statutory initiative is passed.

Further support for the desirability of Constitutional change comes from recent history. Since 1970, there have been 81 times that Coloradans have believed that it is necessary to change the Constitution rather than propose legislation. In the future there will continue to be times that the citizens want to assert their right to make constitutional changes, and the bar should not be set so that hardly any citizen initiative can get over it.

As an advocate for universal health care, the Foundation believes that the citizen’s initiative process for Constitutional change is important to Coloradans. Polling shoes the majority of Americans supporting universal health care. Both the Colorado legislature and federal government have, at this point, not responded to the will of the voters. It is likely that the U.S. will only achieve universal health care one state at a time, and in Colorado, achieving universal health care will probably require another citizen’s initiative, perhaps as soon as 2020. Amendment 71 must be overturned to keep Coloradan’s access to an affordable initiative process.

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