Federal court case is off-target on TABOR

It’s not hard to understand the impetus behind the lawsuit filed in May in federal court in Denver, seeking to overturn the state’s TABOR Amendment.

TABOR often frustrates those who want to see state or local governments spend more money on various programs. And there’s no question that TABOR, combined with Amendment 23 and the Gallagher Amendment, severely limits the ability of our elected representatives to deal with budgetary matters.

But the federal lawsuit is the wrong way to address TABOR. It asks the federal court to overturn on a legal theory the will of Colorado voters on what is essentially a political issue.

Worse, despite the statements of the plaintiffs’ attorneys that this lawsuit applies only to TABOR, if its arguments were upheld in federal court, they would threaten the very right of Coloradans, and citizens of 25 other states, to use citizens’ initiatives to change state laws or amend their constitutions.

The right to use citizens’ initiatives has existed in many states for more than 100 years. Initiatives offer an additional tool in the list of government checks and balances that citizens have chosen for themselves, a mechanism to make changes when elected representatives either cannot or will not act.

We have long expressed our concerns about how the citizens-initiative process operates in Colorado. It is too easy to get measures on the ballot here, and too easy to pass them.

Furthermore, unlike legislative action, ballot measures don’t allow broad debate on an issue to amend or refine it. A small group of citizens, or even one individual, writes a measure, petitions to put it on the ballot, and citizens can only vote “Yes” or “No” on it.

We support measures to establish stricter petition requirements for initiatives, and to require a supermajority of voters to pass them. But we don’t think the judicial system is the appropriate mechanism to attempt to eliminate them.

Colorado Attorney General John Suthers and his staff filed a response to this lawsuit on behalf of the state Monday, seeking to have it dismissed. It makes a strong case that the 34 individual plaintiffs don’t have standing to file this case because they can’t show that TABOR has harmed them personally.

Furthermore, the Attorney General’s office notes that for more than 150 years, the U.S. Supreme Court has said the part of the Constitution cited by the plaintiffs in this case, which guarantees a republican form of government to each state, cannot be used by federal courts to resolve political disputes within states.

The state also says if the plaintiffs were successful, it would raise questions about similar provisions passed in Colorado and around the country, “and all of the countless laws enacted under them.”

We hope the case is dismissed. Overturning TABOR would not only affect countless decisions related to that amendment which have been made in the past 19 years, it could also throw into question 100-plus years of citizen lawmaking on everything from spring bear hunts to the state lottery to state labor issues.

Those who have problems with TABOR would do better to take their case back to Colorado voters with a citizens’ initiative, not look to the federal courts to invalidate the process that resulted in a political outcome they dislike.


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