Colorado's Amendment 71 violates the U.S. Constitution, federal judge says

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Proponents of Amendment 71, which was approved by voters in 2016 and makes it harder for citizens to petition measures onto the ballot, were dealt a setback on Valentine's Day when a federal judge said one provision violates the 14th Amendment to the U.S. Constitution, which provides for equal protection under the law. That's because the amendment doesn't treat every citizen petition signature the same.

The idea of Amendment 71 was to prevent the state constitution from being endlessly amended by various ballot measures petitioned onto the ballot. The amendment required signatures from every senate district, as well as a number equal to 5 percent of votes cast in the secretary of state race in the previous election. Before, in order to petition an initiative on the ballot, a campaign had to collect a certain number of signatures, but it didn't matter where in the state the signatures came from.

The lawsuit was filed by interests behind Amendment 69, a measure that would have created statewide universal health care and went down in flames in 2016 by an 80-20 margin. The same interests now want to mount a new initiative in coming years.

Judge William Martinez on Feb. 14 denied the state's motion to dismiss and further ordered the state to show cause by March 9 "why the court should not enter final judgment against it and a permanent injunction against enforcing subsection 2.5 [the requirement to collect signatures from every senate districts] to the extent there exists a material difference in voter population between state senate districts."

Martinez also noted that "the Court concludes that Plaintiffs' have demonstrated a Fourteenth Amendment violation ...." and that "thus, part of the new amendment process is constitutionally infirm." He noted that because the plaintiffs hadn't filed a cross-motion for summary judgment, he's giving the state more time to "show cause why final judgment and a permanent injunction should not enter."

It's unclear how the ruling might affect the 2018 election, but it could open the door for petitioning measures onto the ballot without having to meet the "senate district" hurdle, making it easier to mount ballot questions.

Many elected officials across the state endorsed Amendment 71, including Colorado Springs Mayor John Suthers, who appeared in broadcast commercials promoting a "yes" vote.

Asked to comment on the ruling, Suthers says via email, "If Judge Martinez does not change his ruling after SOS [Secretary of State, the defendant] input, I’ll look forward to review by the 10th Circuit [Court of Appeals]."

Meantime, Colorado Foundation for Universal Health Care issued this statement on the ruling:
DENVER, COLORADO: A Federal judge on Wednesday gave the Colorado Secretary of State until March 9 to show that a section of Amendment 71 is constitutional, or he'll rule it's not.

Passed by voters in 2016, Amendment 71 made it hugely expensive to impossible for grassroots groups to change the state constitution. It required at least 2 percent of the registered voters in each of Colorado's 35 senate districts to sign a petition to amend the state constitution for that amendment to make the ballot.

It also mandated that Colorado voters had to approve any amendment that added to the constitution by a supermajority of 55 percent instead of a majority of 50.01 percent. It left intact the 50.01 percent requirement to delete an amendment from the constitution.

In April, attorney Ralph Ogden filed suit against Amendment 71 as unconstitutional in part because it allows the votes in any one senate district to bear heavier "weight" than votes in the 34 other districts combined, violating the one-person, one-vote rule protected by the 14th Amendment of the U.S. Constitution.

If proponents of a ballot initiative couldn't gather signatures from 2 percent of the registered voters in any one of the 35 senate districts, it would prevent the measure from ever appearing on the ballot, even if the vast majority of Colorado voters want it and would vote for it.

On Wednesday, Federal Judge William J. Martinez agreed, throwing out a motion to dismiss the case filed by the defendant, Colorado Secretary of State Wayne Williams. At the same time, Judge Martinez ordered the secretary of state to show cause by March 9th why the judge should not enter both a final judgment in the plaintiffs' favor and issue a permanent injunction barring the secretary from enforcing the unconstitutional part of the amendment.

He also requested Williams' office provide any info on upcoming 2018 election dates and deadlines that might be affected by the ballot initiative process.

Before 2016, 5 percent of Colorado voters from anywhere in the state had to sign a petition in order to place an initiative on the ballot. Getting that 5 percent signed was difficult, with just one-third of all citizen ballot initiative attempts over the last 10 years getting on the ballot. According to the plaintiffs' complaint, the 2 percent requirement would nearly triple the cost of collecting the required number of signatures, making it impossible for most citizens' groups to place their ideas on the ballot and ensuring that only the wealthiest organizations could do so.

"We're elated Amendment 71's unconstitutional requirements are being thrown out," said Sara Wright, director of communications for the Foundation. "Passed following a $3 million campaign funded by special interests like the oil and gas industry, Amendment 71 aimed to curb citizen groups seeking to change Colorado law in the public interest."
The plaintiffs in the case include William Semple, as an individual Colorado voter; Cooperate Colorado, the nonprofit group that garnered enough signatures to place initiative #20 on the ballot as Amendment 69; ColoradoCareYes, the nonprofit issue committee that unsuccessfully campaigned for ColoradoCare's passage in 2016; and Dan Hayes, a proponent for initiative #4 "Limit on Local Housing Growth."

Both Semple and Ogden serve on the Board of Directors of the Colorado Foundation for Universal Health Care.

The Colorado Foundation for Universal Health Care promotes a not-for-profit health care financing system at the state and national level that pays for comprehensive, high quality, affordable health care services for everyone. 
Read the ruling here:
See related PDF Am71Ruling.pdf

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