11 October 2012

2012 Colorado Ballot Issues and Election Preview

Colorado State Ballot Issues in 2012

There are three state ballot issues this year in Colorado.

* Vote Yes on Issue S.

Issue S would amend the state constitution to modernize the state civil service system, a measure that made it onto the ballot only because it had bipartisan support and has no organized opposition. It is a carefully drafted good government measure that every voter should support. But, similar efforts have failed to pass in the past.
* Vote Yes on Issue 64.

Issue 64 is a carefully and thoughtfully drafted measure that would legalize recreational possession of marijuana for personal consumption at the state level in a taxed and regulated manner by people aged twenty-one and older that is parallel to Colorado's medical marijuana regime. Denver has already taken this step at the local level, and localities would retain considerable regulatory authority of the recreational marijuana industry. Due to the local control elements of Issue 64, the commerical side of the marijuana trade would likely be similar to gambling when the dust settles - it would be legal in perhaps a dozen jurisdictions and the rest would prohibit it out of NIMBY concerns and miss out on the economic benefits of deregulation.

Medical marijuana laws in Colorado which President Obama originally decided not to interfere with and has hence given the go ahead for federal law enforcement agencies to subject to incremental efforts to curb, would remain unchanged and have been a great success overall. Medical marijuana has not increased crime, has made treatments shown to work in published academic studies for certain conditions available to people who benefit from them without criminalizing them, has pushed disputes in the supply chain to the courts rather than the streets, gave the state's commercial landlords a critical boost in the middle of a real estate downturn, has generated considerable tax revenue from people who want to pay taxes and want to be regulated, and almost every single dollar spent on medical marijuana goes straight back into the Colorado economy to pay for labor reducing unemployment and strengthening the local economy. Medical marijuana has not driven up use of other drugs and even I, a strong proponent of it, don't disagree that some of the early prescriptions for it had a very thin medical basis and were basically recreational with a doctor's blessing.

There is no doubt that all of the commerce authorized by Issue 64 would be illegal under federal criminal laws and that federal law pre-empts state law in this instance. There is federal case law directly on point. The President could devote immense resources to having the federal government pick up the state and local slack in marijuana enforcement. But, few other states provide a more likeable test case for ending the drug war at least in part through decriminalization.

Marijuana is substantively less addictive and harmful to the public than alcohol and many other criminalized psychoactive drugs. Marijuana can be home grown preventing it from giving rise to large scale interstate drug trafficing rings. Colorado has a successful recent history and adminstrative skill set for regulating the industry reasonably. And, marijuana prohibition has grown publicly unpopular nationwide and in particular in Colorado. Also, the passage of Issue 64, even if the federal government chooses to enforce marijuana laws in the state leaves the specter of jury nullification as a likely possiblity in every single marijuana prosecution and a few jury nullification acquittals could quickly dampen federal interest in taking a crackdown approach.

Even if all that happens under Issue 64 is that Colorado successfully shifted the budgetary burden of enforcing marijuana prohibition from state and local government to the federal government, this is a win for Colorado taxpayers.

* Vote No on Issue 65.  But, what the voter's decide doesn't really matter.

Issue 65 urges state and federal legislators to pass a U.S. constitutional amendment legalizing campaign finance contribution dollar limitations, something the the Citizens United case, prior cases, and one follow up case, decided by the U.S. Supreme Court under the First Amendment to the U.S. Constitution severely limit.

This measure is mostly irrelevant. It is a preference polls or suggestion that has no binding legal effect. Unlike many ill conceived proposals that Colorado Common Cause has helped to draft, it doesn't have the minutae of details that leave room for mischief. Most people agree with the concept of campaign finance limitations, although the U.S. Supreme Court hasn't been wrong in concluding that there are grave threats to constitutionally important issues of political free speech that are implicated by campaign finance limitations. Drafting a suitably narrow constitutional amendment that has real effect while not closing the door to vigorous democratic debate when ill intentioned politicians implement is a difficult and perhaps insoluable problem.

I personally think that campaign finance contribution limitations are a fundamentally flawed approach to addressing the problems of excessive influence by economically powerful individuals and institutions. Laws requiring transparency in campaign financing, moderate levels of public funding for election campaigns, and improved election laws are much better solutions that are far less prone to being hijacked or gamed. But, because this measure is merely a suggestion and lacks the poor drafting endemic to campaign finance measures, my opposition to Issue 65 is more tepid than almost any other campaign finance reform proposal that I have seen.

In a best case scenario, if Colorado and other states start to pass the measures, the constitutional amendment Colorado's state and federal legislators are urged to adopt never passes, but the U.S. Supreme Court crafts a judicial loophole to its First Amendment case law that provides a workable option for addressing the campaign contribution excesses almost akin to bribery that has undermined the faith that so many people do have in the political system.

Major Federal Partisan Race Redux

* Vote For Democrats in All Federal Elections

Polling suggests that every bit of campaigning effort in Colorado will matter this year. It is almost impossible for Romney to assemble the necessary 270 electoral votes without taking Colorado, and Colorado is a true swing state this year in which neither candidate has a lead so strong that it can shift hands in a matter of days. Romney needs to win essentially every toss up state and some Democratic leaning states to win the Presidency or tied up the race to throw it to the House of Representative to resolve.

Close Congressional races in the 3rd (Southern and Western Colorado), 6th (South and East suburban Denver and Aurora more or less), and 7th (North and West surburban Denver) all have the potential to go either way and influence which party has a majority in the U.S. House of Representative and by how much. This is the first election cycle after redistricting for these seats, so there is considerable uncertainty regarding how the incumbents will fare in new and less favorable districts (in the 3rd and 6th with Republicans hold) and in a new and somewhat more favorable district in the 7th (which Democrats hold). Odds makers favor the incumbents in all three of these races, but not heavily.

Colorado State Legislative Race Redux

* Vote For Democrats In All State Legislative Elections

Republicans currently hold a one seat majority in the sixty-five member Colorado State House, in which all seats are contested every two years. Since this is the first election cycle after redistricting and the quality of data and analysis at this level is much patchier than at the Congressional district level, more uncertainty is lurking.

Democrats have a more firm hold of the Colorado State Senate going into the election, only half of incumbent state sentators face voters this year, so the election is far less likely to change control of the state senate.

In both cases, the state legislative redistricting maps are widely viewed as favoring Democrats and Democrats are helped by the increased voter turnout in Presidential elections, so the advantage should be with Democrats in state legislative races this year.

Colorado Local Ballot Issues and Local Candidate Races

There are a number of notable local ballot issues and candidate races this year.  Many seek voter authorization for new spending and debt authority for local governments, which TABOR (the taxpayer's bill of rights) obligates governments to obtain before the taxes are levied and the debt is incurred.  Most of the time, I concur with the elected officials proposing these measures that the revenue or debt is needed.  Most voters most of the time agree with me on this point.

A number of District Attorney districts have contested DA races this year, the most interesting of which is the contested seat to fill the seat left open by controversial 18th Judicial District Attorney Carol Chambers who is term limited, where the Republican Sheriff of Araphahoe County and a recent former Republican District Attorney have endorsed the Democratic Party candidate in the race.

There are also a variety of other notable ballot issues and candidate races.

These will be discussed in a future post coming soon.

Colorado Judicial Retention Elections

In Colorado, almost all judges are nominated by blue ribbon committees, appointed by the Governor, and then subject to "retention elections" after two years in office and then after a longer period of time based on the particular judgeship in question.  One Colorado Supreme Court Justice (Justice Coats) and a number of Colorado Court of Appeals judges face retention elections this year statewide.  There are also a host of retention elections for the state's general jurisdiction court judges (District Judges), some speciality court judges in Denver, and many limited jurisdiction court judges (County Court Judges).

If a majority of voters casting ballots on retention cast no votes, the judge is not retained, and a vacancy is created for the Governor to fill (there is some slight variation in the pattern in Denver).

A state commission interviews every judge facing a retention election and surveys lawyers, court officials and non-lawyer litigants regarding the judges facing retention elections and reports the results and makes a recommendation.  In all but the most egregious cases, the recommendation is to retain the judge and usually the recommendation is unanimous.  The results are distributed in a pamphlet sent to every voter who votes on the judge in question.  These recommendations generally say almost nothing about the ideology of the candidate except to sometime disclose a perception of a prosecution or defense bias in criminal cases.

Often informal pressure from the commission or decisions not to seek retention or to retire from the judicial ethics body in the state keeps judges who would not receive retention recommendations from facing voter's wrath.  The appointment process also keeps most of the most volatile and unqualified candidates for judicial office who might be elected by voters or appointed by a purely political process in other states from ending up on the bench in the first place.

Judges can also be removed by impeachment in Colorado, but this almost never happens.  It is far more rare even than losing a retention election.

Most non-retention votes are driven by a personal controversy the judge is embroiled in with ethical dimensions, or by a controversial and unpopular decision in a very small number of high profile cases that the judge was involved in (even if the decisions were legally correct), rather than an overall pattern of subpar performance.

I am not a personal fan of the judicial retention election part of Colorado's judicial personnel process, even though I have nothing but praise for the manner in which it appoints its judges and have a guarded but positive view of the judicial discipline process. 

I would favor a process that is more selective in deciding which judges should face retention contests and one with more informed decision makers.  For example, I would prefer a system in which the Colorado Supreme Court, which is most informed about the matter, rather than the general public, made retention decisions regarding Colorado Court of Appeals judges.  Similarly, I would favor a system in which Colorado Court of Appeal judges made retention decisions for District Court judges, and in which District Court judges made retention decisions for County Court judges in their district.  I would leave voters with a say only over Colorado Supreme Court judges and over judges facing retention elections specifically flagged either by recall petitions with thresholds similar to those for DA or statewide or county official as the case might be, or by some threshold of performance set by the judicial retention commission for voter review (perhaps anything other than a unanimous vote to retain).  Thus, rather than having dozens of judicial retention elections on the ballot each year about which few voters know anything, there would be just a handful of the most salient  races statewide every year.

But, while these elections clutter the ballot and rely on usually ill informed opinions, the overall judicial appointment and removal process in Colorado is still one of the best in the nation overall.

In general, my attitude is to set higher standard for judicial retention than the state commission that makes retention election recommendations, and to vote no on retaining a judge whenever there are any signs in the judicial commission report that a significant minority of any class of people do not favor a judge's retention or there are any other material shortcomings in the judge's performance.  I also vote not to retain judges whom I have personal knowledge of any case in which the judge's performance has been questionable.  And, when as this year, I have a Governor I trust to make new appointments wisely, I vote not to retain judges who may be exemplary in the non-partisan components of their jobs but whose judicial ideology I am familiar with and disagree with on the merits. (See also this 2010-2011 summary of Colorado Supreme Court Justice ideologies.)

It is for the last reason that I will be voting not to retain Colorado Supreme Court Justice Coats.  His is by all accounts an ethical and diligent judge.  Unlike Wisconsin where they have had physical brawls in the Court chambers, every member of the Colorado Supreme Court conducts himself or herself in a civilized and professional manner.  Justice Coates also never fails to articulate a basis for his rulings in opinions that are at least par for the course for an appellate judge.  But, I disagree with his judicial ideology and approach to legal interpretation.

The most common split in Colorado Supreme Court is a five to two split with five "moderate liberals" in the majority, and two "conservatives" in the minority (there are plenty of cases that are decided unanimously and all manner of other voting alignments turn up now and then, the divide is not universal or monolithic).  I read a great many Colorado Supreme Court decisions.  With only very rare exceptions, I usually feel that the five judge faction's substantive judicial determination is a better intepretation of the law on the merits than the two judge minority faction.  The judges in that two judge "conservative" faction are Justice Eid and Justice Coats.  Between the two, Justice Eid is a bit sharper in her legal analysis and writing (on the writing score she is the rivial of any U.S. Supreme Court justice in recent memory) but ideologically in about the same place as Justice Coates. 

Both of these Justices, in my opinion, are somewhere to the ideological right U.S. Supreme Court Justices Kennedy and former U.S. Supreme Court Justice O'Connor, and somewhere a bit to the ideological left of U.S. Supreme Court Justices Thomas, Scalia and Alito.  These two judges are probably the closest match ideologically to Chief Justice of the United States Wiliam Rehnquist.

In my view, it is legitimate to make a judical retention election decision based on on judicial ideology and mode of legal interpretation, even though the commission that makes retention election decisions doesn't consider this factor and even though that commission has unanimously recommended that he be retained and did not receive exceptionally high level of dissent in the surveys regarding his performance.  Indeed, the real reason to have judicial retention elections, in my view, is to allow the public to weigh in on issues of judicial ideology.

It is much harder to weigh Colorado Court of Appeal judges because they write so many opinions, because they set on many varied panels that make their rulings harder to analyze, and because there are so many more of them.  Nothing in the judicial retention commission report suggests that any of them should not be retained, all were unanimously recommended for retention, and at least one of them, Judge Casebolt, I have a personally high opinion of him (I notice his opinions because he was formerly an attorney at a firm were I worked a long time ago).

I may address judicial retention elections for notable trial judges and for other members of the Colorado Court of Appeals, in a future post.
Colorado Voter Registration Redux
In early September, Republicans had a 72,585 voter edge in that category - or 4.6 percent. One month later, that edge has shrunk to 30,347 voters - 1.6 percent overall. 
From Fox 31 via Colorado Pols.

The Republican voter edge going into the election is really greater than raw voter registration numbers would suggest, because Republicans vote more reliably than Democrats.  Democratic voter registration gains are a combination of hard work registering voters and the fact that there are more unregistered voters to register.  Overall, there are about 3.6 million registered voters in Colorado.

Despite their voter registration edge, the difficulty that Republicans face going into the election is that independents have in recent years in Colorado, more often ultimately voted for Democrats than for Republicans.

Colorado Election Administration

Ballots will begin to be mailed to non-military voters this Monday, October 15 (at least where I live), and votes will begin to be cast the next day, three weeks before the November 6, 2012 election day. This greatly limits the impact of any "October surprise" on election outcomes in Colorado, but the most fickle voters also tend to be procrastinators, so there is still considerable room for last minute factors to influence voting outcomes.

Republican Secretary of State Scott Gessler has been severely criticized for his handling of a variety of election administration issues and of his own financial and ethical dealings with the Colorado Department of State by the state county clerk's assocation (whose executive director is a former Republican Clerk and Secretary of State), and the press, and rightly so.  Most recently, as many as thousands of voters seeking to register to vote may have been denied that opportunity on the October 9, 2012 registration deadline for this year's Presidential election due to entirely foreseeable computer hiccups in his office's voter registration system.

So far as I know, a high profile fight over mailing ballots to inactive voters (a term far to rigorously defined under Colorado election law) remains in play in the courts, just days from the date for mailing ballots.

Gessler's highly hyped claim that there were as many as 11,000 non-citizens on Colorado's voter rolls in the end revealed less than 200 possible non-citizens on the rolls many of whom may be exonorated in uncoming hearings, while harassing thousands of legistimate voters.  Only 35 people over the court of five elections, no more than eight in any one county, were found to have been possible non-citizen voters and these cases again, are instances where hearings have not been held and government paperwork errors could be at fault.  Republican misconduct in the voter registration process in the 2012 election has produced more fraud and that is being prosecuted.

1 comment:

timdavenport said...

Great post on coats! I was struggling. I mentioned this in passing to an attorney friend of mine and he agreed with your assessment. I would love some guidance on the additional justices...