A crucial case garners very little attention

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Kudos to the Sentinel for alerting readers to the potentially “far-reaching” litigation now pending before the 10th Circuit in Denver (“A crucial case garners very little attention”).

As the editorial explains – and as Charles Ashby previously reported – the case raises a novel constitutional challenge to Colorado’s Taxpayers’ Bill of Rights (“TABOR”), an amendment to Colorado’s Constitution adopted by “initiative”.

While supporters of TABOR endorse its voter-imposed restrictions on the perceived budgetary indiscipline of elected legislatures, the challengers now argue that TABOR unconstitutionally prevents the legislature from performing its budgetary functions.

That argument resurrects a long-dormant provision of the U.S. Constitution (Article IV, Section 4):  “The United States shall guarantee to every State in this Union a Republican Form of Government”.  While some might misinterpret that language as an explicit endorsement of their partisan affiliation, its precise meaning remains uncertain.

At a minimum, a “republican form of government” must guarantee the “equal rights of citizens”.  United States v. Cruikshank (1875).  Thus, not only is the case crucial to the future of TABOR in Colorado, it could have broader national effects.

In Michigan, for example, Republicans re-enacted that state’s “emergency manager” statute – even after it was repealed by referendum – and then imposed it on financially troubled (and, too-often, minority) communities (including Detroit), thereby effectively disenfranchising the local electorate by overriding the authority of elected officials.

Under Citizens United – after property ownership and poll taxes had long been rescinded as prerequisites for voting – fungible property (money) was redefined as “speech” and wealthy “citizens” and corporate “persons” suddenly became “more equal” than others.

Likewise, the Supreme Court’s recent gutting of the Voting Rights Act effectively allows local jurisdictions to deprive minority citizens of “equal rights”, thereby eviscerating their guarantee of a “republican form of government”.

Hopefully, the TABOR litigation will revitalize that core guarantee.



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