A crucial case garners very little attention

The federal appellate court hearing in Denver Monday was largely overshadowed by other events: the ongoing budget fight in Washington, the continuing cleanup of flood damage on the Front Range and that little football game on Monday night that attracted one or two fans in Colorado.

But this court case may be the most important case you’ve never heard of, or at least have paid very little attention to. The Daily Sentinel’s Charles Ashby wrote about it on Monday.

It involves legal action over Colorado’s Taxpayer’s Bill of Rights Amendment, or TABOR. But it could have implications far beyond that amendment or even the borders of Colorado.

Additionally, the case amounts to a civics textbook lesson on how our system of government works, how government decisions are to be made, and how they may be challenged.

The case began two years ago when several current and former elected officials sued the state of Colorado in federal court, claiming TABOR is unconstitutional. Their argument is that the citizens’ initiative, which sets limits on revenue for state and local government and prohibits tax increases without a vote of the people, violates a requirement in the body of the U.S. Constitution that guarantees every state will have a republican form of government. That guarantee means elected representatives in state legislatures must have the authority to determine revenue and spend money for the states, without constraint by any citizens’ amendment, the plaintiffs argue.

Colorado Attorney General John Suthers and his staff have responded that TABOR, as well as other citizens’ initiatives are part of the democratic process authorized under Colorado’s Constitution, and individual states are allowed to define their own rules.

But a federal judge has already rejected part of the state’s argument. Judge William Martinez refused to dismiss the case, saying that while citizens of Colorado have the right to amend the state Constitution, they do not have the right to approve unconstitutional provisions.

Martinez did not rule specifically on the constitutionality of TABOR. He simply allowed the case to move forward. But the state appealed that ruling, which is the reason it went before a federal appeals court in Denver on Monday. It’s expected the case will eventually end up before the U.S. Supreme Court.

If the case is ultimately decided in favor of the plaintiffs, it would nullify the TABOR Amendment, and that would be a huge change in public policy in Colorado.

But even more significant for Colorado and the many states around the country that allow citizens’ initiatives, a victory for the plaintiffs may effectively limit the initiative process, at least with respect to ballot measures that involve taxes, spending and budget matters.

That’s why, no matter what occurred with the Denver Broncos Monday night, or may occur in Washington in coming weeks, this court case could have more far-reaching effects.

COMMENTS

Commenting is not available in this channel entry.

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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