DENVER – A federal judge in Denver on Wednesday found parts of the voter-approved Amendment 71, the “raise the bar” initiative, to be in violation of the U.S. constitution, but gave the state about three weeks to argue otherwise.
U.S. District Court of Colorado Judge William J. Martinez decided not to find the entire ballot initiative unconstitutional, but rather focused the scope on part of it that requires ballot initiative signature gatherers to get signatures from each state Senate district.
Voters approved Amendment 71 in the 2016 general election with 55.7 percent of the vote.
It amended the state constitution so that people wanting to get a constitutional amendment on the ballot would have to get signatures from at least 2 percent of the total number of registered voters in each of the state’s 35 Senate districts. Proponents said Front Range urban areas were getting too much of a say on constitutional ballot initiatives and leaving rural communities without a say.
It also upped the threshold that ballot initiatives would need to get in order to pass on the ballot. After the change, ballot initiatives to change the state constitution need 55 percent of the popular vote, rather than the previous threshold of just 50 percent.
The state already required anyone hoping to get a constitutional amendment initiative on the ballot to gather enough signatures that they equal 5 percent of the total number of votes cast for all candidates for the Secretary of State’s office in the previous general election.
The groups that sued last April, arguing that Amendment 71 was unconstitutional, said that the Senate districts have widely-ranging populations of registered voters, and the new rules thus violated the “one person, one vote” rule in violation of the 14th Amendment to the U.S. Constitution.
The suit was filed by a host of ballot drive leaders and ColoradoCareYes, a group that opposed a failed universal health care initiative in 2016.
But the state argued that some of the facets of Amendment 71 could be severed from the rest of the amendment – particularly the part that relates to the 2-percent threshold in each Senate district, and that the court shouldn’t toss the entire amendment.
On Wednesday, Martinez agreed, in part, with both sides.
He wrote in his decision that the plaintiffs were wrong in saying the amendment couldn’t be dissected and parts of it deemed unconstitutional, but wrote that the section regarding the Senate district threshold indeed violates the Constitution’s protections under the Equal Protection Clause.
Part of the new amendment process is constitutionally infirm—it is, however, severable from the remainder of the new requirements,” Martinez wrote.
But he gave Colorado Secretary of State Wayne Williams, the named defendant in the case, until March 9 to show cause as to why Martinez shouldn’t grant the injunction in favor of the plaintiffs.
“If Colorado has a good faith basis for believing it can develop empirical data showing that vote dilution is not actually occurring as between the various state senate districts, the Court will not foreclose that opportunity,” Martinez wrote. He added that the response should include dates relevant to the 2018 election, as the judge’s decision in the case could have wide-ranging effects on ballot initiatives for the November 2018 election.
Williams on Friday said he was confident he could provide the court with the data, and pointed to the support the initiative garnered from voters.
“Amendment 71 enjoyed widespread support across the state, passing in 60 of Colorado’s 64 counties in 2016,” Williams said in a statement. “I’m heartened that the court upheld the 55 percent threshold for constitutional amendments and believe that when the additional evidence Colorado submits is considered the court will also uphold the geographic distribution of signatures.”
