Colorado's State Bivens Law

Colorado's General Assembly has enacted a state law authorizing suits for money damages against federal, state, and local officials violating federal constitutional rights in connection with civil immigration enforcement, because the U.S. Supreme Court has declined to extend Bivens (a U.S. Supreme Court case which created a federal common law remedy in the form of a private civil action for damages for certain violations of federal constitutional rights by federal officials) to do so. The bill has not yet been signed by the Governor, but he has not publicly threatened to veto the bill either.

Ideally, it wouldn't have been limited to civil immigration enforcement, which may be the provision of the law which makes it most vulnerable to being held unconstitutional, as immigration law is a purely federal function, but it isn't at all clear that narrowing this law beyond its maximum constitutional scope invalidates it, and there is quite a bit of law (outlined in Section 1 of the bill) which supports the conclusion that this mostly unused check on misconduct by federal official is constitutional.

The limitation of the law to civil immigration enforcement, however, does limit room to complain that the waiver of various immunities would do serious mischief to the ordinary actions of law enforcement in the state at the state and local level.

The bill's full and final text is below:

Senate Bill 26-05:

Be it enacted by the General Assembly of the State of Colorado: 

SECTION 1.  Legislative declaration. 

(1)  The general assembly finds and declares that: 

(a)  Since the earliest days of the nation, the United States supreme court has held, in cases such as Little v. Barreme, 6 U.S. 170 (1804), and Murray v. The Charming Betsey, 6 U.S. 64 (1804), that federal officials may be liable in damages for violations of federal laws; 

(b)  In later 19th century cases as well, the United States supreme court held that federal officials could be liable for damages even for reasons relating to but beyond the lawful scope of federal duties, Mitchell v. Harmony, 54 U.S. 115 (1851), and in particular that state courts possessed jurisdiction to consider such damages claims, Teal v. Felton, 53 U.S. 284 (1852); 

(c)  The United States supreme court has long held that federal employees are not inherently beyond the reach of state laws simply because they are federal employees. For example, in Johnson v. Maryland, 254 U.S. 51 (1920), the court noted, "[A]n employee of the United States does not secure a general immunity from state law while acting in the course of his employment", and in Colorado v. Symes, 286 U.S. 510 (1932), the court stated, "Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law". 

(d)  Decades later, the United States supreme court continued to recognize the role of state law in holding federal officials accountable for legal violations, noting in Wheeldin v. Wheeler, 373 U.S. 647 (1963), "[w]hen it comes to suits for damages for abuse of power, federal officials are usually governed by local law"; 

(e)  When the United States supreme court recognized a federal law cause of action for violation of certain constitutional rights in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that cause of action was in addition to, rather than instead of, traditional state law remedies. Even one of the dissenting justices in Bivens noted the ongoing role of state courts, writing, "The task of evaluating the pros and cons of creating judicial remedies for particular wrongs is a matter for Congress and the legislatures of the States". 

(f)  More recently, congress has made federal statutory law the exclusive remedy for certain claims sounding in tort, but this exclusivity specifically "does not extend or apply to a civil action against an employee of the Government [. . .] which is brought for a violation of the Constitution of the United States", 28 U.S.C. sec. 2679. The prime sponsor of legislation amending the federal "Tort Claims Act" to provide for limited exclusivity took pains to clarify, "We make special provisions here to make clear that the more controversial issue of constitutional torts is not covered by this bill. If you are accused of having violated someone's constitutional rights, this bill does not affect it", 134 Cong. Rec. 15963 (1988). 

(g)  In 2022, in declining to extend the scope of the Bivens action in Egbert v. Boule, 596 U.S. 482 (2022), the United States supreme court observed that legislatures, not courts, are the better branches of government to fashion damages remedies; 

(h)  In its most recently completed term, the United States supreme court declined, in Martin v. United States, 145 S. Ct. 1689 (2025), to extend the doctrine of supremacy clause immunity beyond its traditional criminal law context; 

(i)  Violating the federal constitutional rights of residents of the United States has never been and can never be "necessary and proper" to the execution of the laws and powers of the United States within the meaning of article I, section 8, clause 18 of the United States constitution; and 

(j)  In enacting this act, the Colorado general assembly affirms its longstanding and rightful role as a sovereign state in providing forum in its courts for adjudication of claims of federal constitutional violations. 

SECTION 2.  In Colorado Revised Statutes add 13-20-1302 as follows: 

13-20-1302.  Civil action for violation of constitutional rights during immigration enforcement - relief - attorney fees - time limit to commence action - definition. 

(1)  A PERSON WHO HAS THEIR RIGHTS THAT ARE GUARANTEED BY THE UNITED STATES CONSTITUTION VIOLATED BY ANOTHER PERSON WHO, ACTING UNDER COLOR OF ANY FEDERAL, STATE, OR LOCAL LAW, IS PARTICIPATING IN CIVIL IMMIGRATION ENFORCEMENT, MAY BRING A CIVIL ACTION AGAINST ANOTHER PERSON WHOSE CONDUCT WAS THE PROXIMATE CAUSE OF THE VIOLATION. A PERSON FOUND TO HAVE VIOLATED THE UNITED STATES CONSTITUTION WHILE PARTICIPATING IN CIVIL  IMMIGRATION ENFORCEMENT IS LIABLE TO THE PERSON WHOSE RIGHTS ARE VIOLATED FOR LEGAL OR EQUITABLE RELIEF OR ANY OTHER APPROPRIATE RELIEF. 

(2) (a)  IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, A COURT SHALL AWARD REASONABLE ATTORNEY FEES AND COSTS TO A PREVAILING PLAINTIFF. IN ACTIONS FOR INJUNCTIVE RELIEF, A COURT SHALL DEEM A PLAINTIFF TO HAVE PREVAILED IF THE PLAINTIFF'S SUIT WAS A SUBSTANTIAL FACTOR OR SIGNIFICANT CATALYST IN OBTAINING THE RESULTS SOUGHT BY THE LITIGATION. 

(b)  WHEN A JUDGMENT IS ENTERED IN FAVOR OF A DEFENDANT, THE COURT MAY AWARD REASONABLE COSTS AND ATTORNEY FEES TO THE DEFENDANT FOR DEFENDING ANY CLAIMS THE COURT FINDS FRIVOLOUS. 

(3)  TO THE MAXIMUM EXTENT PERMISSIBLE UNDER THE UNITED STATES CONSTITUTION AND 42 U.S.C. SEC. 1983, A GRANT OF IMMUNITY TO A DEFENDANT, INCLUDING, BUT NOT LIMITED TO, SOVEREIGN IMMUNITY; OFFICIAL IMMUNITY; INTERGOVERNMENTAL IMMUNITY; QUALIFIED IMMUNITY; SUPREMACY CLAUSE IMMUNITY; STATUTORY IMMUNITY, INCLUDING THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10 OF TITLE 24; OR COMMON LAW IMMUNITY, DOES NOT APPLY IN AN ACTION BROUGHT PURSUANT TO THIS SECTION. 

(4)  AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE REQUIRES, "CIVIL IMMIGRATION ENFORCEMENT" MEANS AN ACTION TO INVESTIGATE, QUESTION, DETAIN, TRANSFER, OR ARREST A PERSON FOR THE PURPOSE OF ENFORCING FEDERAL CIVIL IMMIGRATION LAW. "CIVIL IMMIGRATION ENFORCEMENT" DOES NOT INCLUDE AN ACTION COMMITTED BY A PEACE OFFICER WHO IS ACTING WITHIN THE SCOPE OF THE PEACE OFFICER'S DUTIES CONSISTENT WITH STATE LAW. 

(5)  PURSUANT TO SECTION 13-80-102, A CIVIL ACTION DESCRIBED IN THIS SECTION MUST BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE OF ACTION ACCRUES. 

SECTION 3.  In Colorado Revised Statutes, 13-80-102, amend (1)(k); and add (1)(l) as follows: 13-80-102.  General limitation of actions - two years.  The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, must be commenced within two years after the cause of action accrues, and not thereafter: 

(k)  All actions brought under AND PURSUANT TO section 13-21-109(2) [ed. the bad check statute]; 

(l)  AN ACTION ALLEGING A VIOLATION OF CONSTITUTIONAL RIGHTS DURING CIVIL IMMIGRATION ENFORCEMENT BROUGHT PURSUANT TO SECTION 13-20-1302. 

SECTION 4.  Severability. If any provision of this act or the application of this act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. 

SECTION 5.  Appropriation. (1)  For the 2026-27 state fiscal year, $125,604 is appropriated to the department of law. This appropriation is from the legal services cash fund created in section 24-31-108 (4), C.R.S., from revenue received from the department of personnel that is continuously appropriated to the department of personnel from the risk management fund created in section 24-30-1510 (1)(a), C.R.S. The appropriation to the department of law is based on an assumption that the department of law will require an additional 0.5 FTE. To implement this act, the department of law may use this appropriation to provide legal services for the department of personnel.

SECTION 6. Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.

Against Municipal Courts In Colorado

The Denver Post has an article highlighting the problems of having municipal courts not of record incarcerate people who aren't represented by lawyers with no record of the proceedings, and notes that a bill this session seeks to change that. The bill is HB26-1134:

Fairness & Transparency in Municipal Court: Concerning measures to ensure that municipal court defendants are subject to conditions similar to state court defendants.

The bill clarifies that municipal court defendants have a right to counsel and that municipal defense counsel have the same notice, case information, and opportunity to meet with their clients as do state-level defense counsel. Current law prohibits paying indigent municipal defense counsel on a fixed or flat-fee payment structure if the municipality prosecutes domestic violence cases. The bill applies the prohibition to all municipalities.

All municipal court proceedings are required to be open to public observation. Virtual observation is required for all in-custody proceedings, and prompt resolution of municipal cases is required.

Last year, the Colorado Supreme Court ruled that municipalities with ordinances that parallel state crimes can't have higher penalties than the state crimes, in the wake of the state legislature reducing penalties for misdemeanors, and in the wake of Governor Polis vetoing a bill that would have mandated the same result.

A different bill last legislative session addressed the problem with municipal court judges abusing failure to appear warrants in a way that led to disproportionately harsh punishments.

None of these bills address yet another problem with the municipal court system, which is that municipal court judges are not nearly as independent of the municipal legislative bodies as state court judges are because they are appointed by the Governor in a merit based system that makes state court's independent of local governments (except for Denver County Court which is quasi-municipal).

Municipal courts also leave people arrested languishing in jail for longer than the U.S. Constitution allows because they hold court less frequently than state courts.

The simple and best solution would be to abolish municipal courts entirely and to give county court's jurisdiction over ordinance violations (which could still be prosecuted by City attorneys). 

Perhaps parking violations could be made administrative proceedings of municipalities limited to fines, boot, and tow orders instead of municipal violations.

New Colorado Laws

Many Colorado laws take effect on July 1 each year. This year is no exception:

Twenty-one new laws that the legislature passed this year will kick in at the start of July. Among them are laws covering the state plumbers board, creating a new Colorado Disability Opportunity Office and adding gender identity to the state’s protected classes in bias-motivated crimes.

Several laws passed in previous years will also go into full effect Monday, including a measure approved in 2021 that allows Colorado consumers to opt out of having their personal data sold or used to generate targeted advertising. 

Another bill passed in 2021, which banned single-use plastic bags at checkout lines at the start of this year, has another provision taking effect Monday that will allow local governments to enact even stricter plastic bag limits.

Here are six other new laws set to go into effect: 

Occupancy limits . . . 

House Bill 1007 prohibits local governments from limiting how many unrelated adults can live together in an apartment or housing unit. For college towns like Boulder or Fort Collins, that means cities generally can’t cap how many roommates can live together, except for health and safety reasons. Roughly two dozen Colorado cities and towns had occupancy limits, though only a few — including Fort Collins — actively enforced them. . . . 

Sexual assault cases . . . 

House Bill 1072. . . . It blocks defendants and defense attorneys from using what a sexual assault victim was wearing as evidence of consent in court. The new law also tightly limits how the victim’s previous sexual history, including with the defendant, can be used in court. . . .

Limit on poison

Sodium nitrite is a preservative used often used in curing meats. But in higher concentrations, it can be fatal when ingested by people, and it’s increasingly been used in suicides here and elsewhere in the United States. That’s made easier by the availability of the higher-potency substance for purchase online or in sporting good stores. Starting Monday under House Bill 1081, those higher potencies will no longer be available in Colorado except for approved commercial purposes. . . . 

Fewer guns in sensitive spaces

One of several gun-reform bills passed this year, Senate Bill 131, prohibits the open or concealed carrying of firearms in public or private schools, on university and college campuses, and in child care centers. The new prohibition also covers certain government buildings and the state Capitol. . . .  The bill . . . does allow local governments to opt out of its provisions. The Douglas County Board of Commissioners did so in May. 

Elections protections . . . 

House Bill 1147, requires political ads and messaging to prominently disclose when they include a “deepfake,” meaning an artificially generated picture, video or voice that replicates a real person. . . . 

House Bill 1150, extends existing criminal penalties and fines to people who participate in attempts to organize false slates of presidential electors. Essentially, that means anyone who attempts what a group of lawyers and officials tried in 2020 in support of then-President Donald Trump will face specific criminal liability in Colorado. . . . Colorado’s new law takes existing crimes like perjury or forgery and expands them to include a person seeking to participate in a false elector scheme.

The 2022 Midterm Election Turnout And Colorado State House Results Analyzed

Turnout

Turnout in the 2022 midterm elections in Colorado this year was 2,540,666 voters who voted ballots (not necessarily in every race), out of 3,833,468 active registered voters in the state, a 66.28% voter turnout rate. Turnout in the 2020 Presidential election in Colorado was 86.54% by the same measure.

Interpolating slightly from the state demographer's office's estimate, the voting age population of Colorado was 4,167,610 in 2019, and this probably increased by about 1.5% between 2019 and 2022. So, the voting aged population of Colorado at the time of the midterm election was about 4.23 million, so voter turnout was about 60.1% of the voting aged population in the midterm elections. Thus, about 90.6% of people who are part of the voting aged population in Colorado are registered to vote which, given disqualifications from voting for felons who are incarcerated and non-U.S. citizens, is exceptional. 

The turnout rate in Colorado was also well above the historical U.S. norm for midterm elections, almost double the long term national average turnout as a percentage of the voting age population. Voter turnout in Colorado has consistently been among the two or three highest of U.S. states in recent years, and the 2022 midterms were no exception to that rule.

The Colorado State House Race

There are sixty five seats in the Colorado state house, all of which are elected every two years. 

One of the seats won by Democrats (HD-7 in Denver) and three of the seats won by Republicans (HD-20 in suburban Colorado Springs, HD-51 in exurban Fort Collins, and HD-63 in the rural Front Range east of Fort Collins) were uncontested. The other 61 seats had at least a Democratic party candidate and a Republican party candidate. There was also a Libertarian candidate in 20 of those 61 seats, and in one of the 20 seats where there was a Libertarian candidate (HD-1 in Denver) there was also a fourth unaffiliated candidate in the race.

Democrats won 46 seats and Republicans won 19 seats in the Colorado state house in 2022, which is two more seats than the Democrats needed to have a two-thirds supermajority. Going into the election Democrats had held 41 house seats and Republicans held 24 for a net gain of five seats.

The map below from Ballotpedia is from before the election in what appear to be the newly drawn districts, but it does illustrate the geography of partisan politics in the State of Colorado.

In the Colorado state senate race, the results left Democrats with 23 seats to 12 Republican seats, a net gain of three seats and a single seat short of a two-thirds majority in that house of the Colorado General Assembly. Going into the election in which only half the seats were before the voters, Democrats had 20 seats and the Republicans had 15. That race is harder to analyze, however, because only half of the seats in the chamber were in play in this election.

Democrats also control all statewide elective offices in the state. 

The justices on the state supreme court are officially non-partisan and nominated by a blue ribbon commission in groups of three prospective candidates from which the Governor can choose. But, a majority of the current state supreme court justices (and state judges in Colorado more generally) were appointed by Democratic Governors.

Close Races

Few of the races were close, and the Republicans didn't win a single one of the six genuinely competitive races this year. Neither party won any of the other side's safe seats. If there is an overall theme is that the Democrats won in swing voting suburbs this year.

Each of the sixteen Republicans who were elected who won a contested House District race won by at least 13.6 percentage points, and the median margin of victory for a winning Republican in a contested race was 24.29 percentage points.

The Democratic Party's margin of victory in the median race in the state house, which it needed to win to secure its majority control of that house was 11.22 percentage points in HD-62 in eastern Pueblo and the San Luis Valley. 

Democrats won all 18 races where the margin of victory was less than the closest Republican win, all 11 races where the margin of victory was less than 8 percentage points (the next closest race had an 11.97 percentage point margin of victory), and all 6 races where the margin of victory for the winner was less than 5 percentage points (in which the Democratic margin of victory ranged from 0.9 percentage points to 3.37 percentage points).

The closest race was the 0.9 percentage point margin of victory in the two candidate HD-43 race in the Highlands Ranch suburb of Denver. The other two close house races that Democrats won which didn't involve potential third-party spoiler effects were HD-19, in suburban Colorado Springs, with a 3.37 percentage point margin of victory, and HD-61, which includes many mountain resort towns including Aspen and the surrounding area, with a 2.82 percentage point margin of victory.

Democrats secured an outright majority of the votes cast in 43 of the 46 house races that they won. They won three races (HD-16, HD-25, and HD-50) with pluralities that were smaller than the third-party Libertarian vote. Colorado does not have runoff elections at the state level if the plurality winner fails to receive a majority of the votes cast in the first round.

In HD-16, in suburban Colorado Springs, the Democratic candidate's margin of victory over the Republican was 2.17 percentage points and the Libertarian candidate received 2.66% of the vote. It is possible, although unlikely, that the Libertarian candidate was a spoiler in this race whose candidacy caused the Republican candidate's defeat.

In HD-25, in the mountainous portions of the Jefferson County western suburbs of Denver, the Democratic candidate's margin of victory over the Republican was 1.39 percentage points and the Libertarian candidate received 2.05% of the vote. It is plausible that the Libertarian candidate may have been a spoiler in this race whose candidacy caused the Republican candidate's defeat.

In HD-50, in Greeley, the Democratic candidate's margin of victory over the Republican was 1.89 percentage points and the Libertarian candidate received 3.51% of the vote. It is very possible that the Libertarian candidate may have been a spoiler in this race whose candidacy caused the Republican candidate's defeat.

The other 17 Libertarian candidates in house races and the 1 unaffiliated candidate in a house race, were irrelevant to the ultimate outcome of the 17 house races in which the other 18 third-party candidates contended. Likewise, third-party candidates were not potential spoilers in any of the statewide partisan races this year, all of which Democrats won with an outright majority of the votes cast.

The combined third-party candidate performance in HD-1 in Denver which had two third-party candidates was 4.53%; the Democrat won that seat by a 32.29 percentage point margin of victory. The best performance by a Libertarian candidate alone in a house was this year was in HD-15 in suburban Colorado Springs, where the Libertarian won 4.14% of the vote; the Republican won that seat by a 17.66 percentage point margin of victory.

The HD-50 race was also the marginal race that gave Democrats a two-thirds majority in the house. They could have secured a two-thirds supermajority in the house even if the Democrats had lost HD-43 which they won by 0.9 percentage points and HD-25, which they won by 1.39 percentage points. 

The Popular Vote Compared

The popular vote (including votes cast for candidates in the four uncontested races) was 53.32% for Democratic house candidates, 45.84% for Republican House candidates, 0.82% for Libertarian candidates, and 0.02% for a single unaffiliated candidate. 

If the 65 seats in the Colorado house had been allocated on that basis, as the would have been in a proportional representation list system, for example, the Democrats would have won 35 seats, the Republicans would have won 29 seats, and one Libertarian candidate would have won a seat.

Of course, this is distorted by the fact that turnout as measured by votes cast for house candidates by party omits Republican and Libertarian voters in the one uncontested house seat won by a Democrat, omits Democratic and Libertarian voters in the three uncontested house seats won by a Republican, and omits Libertarian voters in the 41 contested races that didn't have a Libertarian candidate running. It also doesn't fully account for reduced turnout by Democrats in safe districts given that there were no close partisan statewide office elections in 2022 in Colorado. Still, many statewide ballot measures gave every voters some incentive to vote, and turnout was overall quite high. 

The percentages for the aggregated house vote races aren't far outside the range of the performance of Democrats in statewide partisan races in 2022 in Colorado, although they rival the best performances that the Republicans had in any of the statewide partisan races (in part because there was a smaller third-party vote in the state house races since there were no third-party candidates in 41 of those races).

In the U.S. Senate race, incumbent Democrat Michael Bennet defeated Republican candidate Joe O'Dea by a 55.88% to 41.27% margin, with the Libertarian candidate securing 1.74% of the vote, the next most popular third-party candidate getting 0.66% of the vote, and one more third-party candidate getting 0.45% of the vote.

In the Governor's race, incumbent Democrat Jared Polis defeated Republican candidate Heidi Ganahl by a 58.53% to 39.18% margin, with the Libertarian candidate receiving 1.15%, and the other two third-party candidates receiving 0.86% and 0.27% of the vote respectively.

In the Secretary of State race, incumbent Democrat Jena Griswold defeated Republican Pam Anderson, 55.1% to 42.08% (in a race Griswold was administering by virtue of holding that office), with the Libertarian candidate receiving 1.47%, and the other two third-party candidates receiving 0.71% and 0.18% respectively.

In the State Treasurer's race, incumbent Democrat Dave Young defeated Republican candidate Lang Sias, 53.67% to 43.03%, with the Libertarian candidate receiving 3.30%. The other two statewide parties didn't field candidates for this race.

In the State Attorney General's race, incumbent Phil Weiser defeated Republican candidate John Kellner, 54.74% to 43.04%, with the Libertarian candidate receiving 2.21%. The other two statewide parties didn't field candidates for this race.

In the State Board of Education At Large race, Democrat Kathy Plomer defeated Republican candidate Dan Malloit, 53.43% to 43.04%, with the Libertarian candidate receiving 2.84% and another third-party candidate receiving 0.68% of the vote.

Of course, as I have noted previously, Democrats won five U.S. House seats (CO-1, CO-2, CO-6, CO-7 and CO-8) all of which are in Denver, Boulder, and the suburbs of Denver, of which, CO-8 was a highly competitive seat that they won by only a small margin. Republicans won what should have been three safe Republican seats (CO-3, mostly CO-4 in the rural Front Range, and CO-5 in Colorado Springs), but won CO-3 covering the the mountain towns, Western Colorado, and Southern Colorado which is a heavily Republican district by only 0.16 percentage points (the race is currently undergoing an automatic recount to be completed by December 16, 2022), which was the closest Congressional race in the entire United States (although it didn't make a difference for control of the U.S. House which Republicans secured in the midterms by a thin margin). This race was absurdly close for such a safe seat because Lauren Boebert, the Republican incumbent in the race seeking re-election, was such a deeply flawed candidate.

Colorado State Legislature Results In 2022

Democrats did well in Colorado this year. 

The Colorado General Assembly results were no exception. Democrats will be about one seat short of a two-thirds majority in the state senate, and will have a two-thirds majority in the state house. Democrats held exactly two-thirds of the eighteen seats not up for re-election this year, and this year's state senate races split 11-6 in favor of the Democrats.

So, for example, to propose a state constitutional amendment, Democrats need to win over just one Republican state senator in a political climate in which, unlike Congress, historically at least, bipartisan compromise has been fairly common.

Of 100 state legislative seats between the state house and the state senate, Democrats will hold 69 of them. They managed to do this even though the 2020 redistricting process for the state legislature was handled by an independent redistricting commission that greatly reduced gerrymandering relative to a legislatively drawn map.

This is still a better performance than Democrats had in the popular vote in any statewide race. Even Governor Polis got only 58% of the vote. But, any system involving single member districts inherently will disproportionately favor the political party with a larger share of the popular vote - the federal Electoral College works the same way.

This is in addition to holding every statewide elected office, and at least five out of eight seats in Congress (the third Congressional district could still go either way).

Going into Tuesday's election, Democrats held a 21-14 advantage in the state Senate. Of the 18 seats not up for election, Democrats hold a 12-6 Republicans advantage.

If the results of every race hold, Democrats would gain two seats to hold a 23-12 advantage in the state Senate and gain five seats to hold a 46-19 advantage in the state House. Winners had not been called in all the state Senate and House races yet.

While Democrats weren't at risk of losing control of the state House, enjoying a 41-24 majority before the election, Republican candidates had hoped to flip a substantial number of seats.

From 9News.

The 2022 Election Preview

Going into the 2022 midterm Congressional and U.S. Senate elections, Democrats are at great risk of losing control of either the U.S. House or the U.S. Senate, although neither outcome is a foregone conclusion. 

This year will be close and big uncertainties, like how the outcome of the war in Ukraine and the potential of major conservative decisions in the U.S. Supreme Court (e.g. overturning Roe v. Wade) will impact voters only adds to the uncertainty.

Unless Democrats lose no more than four House seats and gain at least two Senate seats in 2022, we can expect two more years of legislative gridlock in Washington. If both houses are lost, there will be plenty of vetoes of Republican legislation from President Biden. If only one house is lost, it will look more like the status quo, but with less ambitious budget measures.

In a best case scenario, Democrats could gain as many as five Senate seats and about twenty House seats, which would give the Democrats and President Biden a comfortable governing majority and the two years that follow could be truly transformative politically. But this outcome would take a significant shift in the national political barometer (i.e. a shift towards Democrats of several percentage points in support) against the Republican party compared to where we stand today. 

A worst case scenario, in which Democrats lose at least one net Senate seat and at least five House seats, leaving Republicans in control of both Houses of Congress under a moderate Democratic President is very possible as well, although not as inevitable as doomsayers convinced that the incumbent President's midterm election curse is sure to doom them would have you think.

So far, President Biden has announced an intent to run for re-election in 2024, a decision that has only lukewarm support from the party faithful.  But the outcome of the midterms could influence whether that actually happens, as could factors like Biden's health. I believe that he would be the oldest Presidential nominee of all time in the U.S. if he ran. 

Nancy Pelosi, the current Speaker of the House from a safe Democratic district in San Francisco, and also one of the oldest persons to hold that post of all time, is also running for re-election and hasn't disavowed the possibility of holding onto the Speakership if Democrats can hold onto a majority in the House.

Top Colorado Races

The new, open seat in the 8th Congressional District in Colorado is the hottest race in the state (Cook's political report thinks it leans Republican) and will be one of the most closely fought in the nation.

Democratic incumbent Michael Bennet, and a Democratic nominee in the open 7th Congressional District race are likely to be won by Democrats. 

Colorado's gadfly Republican incumbent in the 3rd Congressional District is vulnerable, but much more so to a Republican primary challenger than to a Democrat.

Democrats are likely to hold on to control of both Houses of the Colorado General Assembly with the new districts, as well as to the statewide elective offices in play this year. The new 8th Congressional District will inject some uncertainty into control of the CU-Regents and the state school board which are also elected statewide.

It is early yet, but no major statewide ballot initiatives are making headlines yet this year.

The 2022 House Races

According to Cook's Political Report: All but six U.S. states have their 2022 Congressional maps in place. The laggards are: FL, LA, MO, NH, OH and WI remain. 

The states with enacted maps lean 193D and 170R (with 13 of the Democratic seats and 7 of the Republican ones rated as "toss ups"). This would involve Democrats picking up four seats (three in New York and one in Illinois, three of which are open seats) that lean Democratic but are held by Republicans, and losing five seats (two in Arizona, one in Michigan, one in New Jersey, and one in Texas, three of which are open seats) that lean Republican and are held by Democrats.

But 72 districts remain to be drawn in the six remaining states. Democrats need 25 of the remaining 72 seats to retain a majority in the U.S. House (assuming Cook's Political Report is, on average, correct in its predictions for the other races). Realistically, six to ten of those remains seats will be competitive.

Those six states had 25 Democrats in Congress in 2020 (FL-11, LA-1, MO-2, NH-2, OH-4, WI-3), which, if Democrats repeated that performance in 2022 would leave Democrats with the narrowest possible majority in the U.S. House.

Those five of those six states (FL, LA, MO, OH and WI) are states where there have been efforts to gerrymander further against Democrats and this is what is delaying the process of enacting new maps. The outcome of the redistricting fights in these five states could easily dictate the final outcome of the 2022 Congressional contests.

Historically, the incumbent President has tended to lose support in the House in midterm elections. Democrats currently hold 222 seats to 211 Republican seats in the House with 2 seats currently vacant (both previously held by Republicans, on in CA and one in MN). So, while the Democrats don't have to hold every single seat, they can only afford to lose 4 seats out of 222 in the 2022 midterms in order to maintain a majority.

On the other hand, midterm losses are typically associated with lost "coattail" seats in the previous Presidential election, and it is hard to say with confidence that President Biden had any Congressional coattails in 2020, so midterm losses can be expected to be below average in 2022.

At a minimum Biden's coattails were the weakest in 60 years according to the Washington Post, a conclusion with which the Wall Street Journal agreed concluding that Biden had none, i.e. that Democrats did no better in federal legislative races than they would have without Biden running a narrowly winning Presidential race.

538 has updates from Ohio and Wisconsin's redistricting and generally speaking, makes the case that:

redistricting has created 11 more Democratic-leaning seats nationally, six fewer Republican-leaning seats and six fewer highly competitive seats. This is due to aggressive map-drawing by Democrats in states such as New York as well as court decisions overturning Republican gerrymanders in Ohio and North Carolina.

After accounting for incumbency, however, Democrats’ gains should be smaller: Democrats will likely flip around two or three seats in 2022 due to redistricting. In addition, Republicans have helped their own cause by converting light-red districts into safer seats in states like Texas.

However, there are still a few unknowns that could change these topline takeaways. Most notably, the ultimate map in Florida — where 28 congressional seats are at stake — could be worth multiple extra seats for one party or the other. Courts may also still throw out some of the maps that are currently in place, such as Ohio’s. The Buckeye State’s latest map is not much fairer than the one that was previously struck down.

The 2022 Senate Races

In the U.S. Senate there are currently 48 Democrats, 2 independents who caucus with Democrats, and 50 Republicans. There are 35 U.S. Senate elections in 2022, of which 14 are seats held by Democrats and 21 are seats currently held by Republicans. 

Three seats held by Democrats (AZ, GA, NV) and two seats held by Republicans (PA, WI) are considered toss-ups, all of which except the PA seat, have incumbents running for re-election who are generally favored however slightly.

There is also one seat (NH) that has a Democratic incumbent running for re-election, and leans Democratic but is vulnerable. There are three seats (FL, NC and OH) that have a Republican incumbent and lean Republican but are vulnerable, with only FL's incumbent running for re-election. The NC and OH Senate seats are open races.

Of the other twenty-six Senate races, nine are solid Democratic seats, one (CO) is a "likely Democratic" seat, and sixteen are "solid" Republican seats.

Democrats need to win three toss up seats and NH to hold their 50-50 majority in the Senate (it is a majority because the Vice President is a Democrat and casts tie votes). But, Democrats need to expand their Senate majority by one or two seats to have a functional majority, because two of the members of their caucus are conservative Democrats (from WV and AZ respectively, neither of whom have to seek re-election in 2022) who have thwarted the Democratic agenda on filibuster reform, packing the Supreme Court, and partially on major fiscal bills backed by the House and the President.

Historically, the incumbent President have tended to lose support in the Senate in midterm elections. Even a single seat lost by the Democrats, however, would flip the U.S. Senate to the Republicans, and their caucus is more united than the Democratic caucus in the Senate.

Unless Democrats gain two more Senate seats and hold onto a U.S. House majority, which is possible but unlikely, the nation will be stuck with two more years of political gridlock in Washington.

Notable Opening Day Bills In The Colorado General Assembly In The 2022 Session

Here are summaries of six notable bills from the eighty-five bills introduced on "opening day" of the 2022 legislative session of the Colorado General Assembly, that have a meaningful chance of enactment because they are not partisan bills with solely Republican sponsors.

* HB22-1038 "Right To Counsel For Youth: Concerning client-directed legal representation for youth in court proceedings for youth."

Current law requires the appointment of a guardian ad litem for children or youth in dependency and neglect cases. The bill requires that client-directed counsel for youth be appointed for children or youth 12 years of age or older to provide specialized client-directed legal representation.

The bill prohibits the waiver of a child's or youth's right to counsel in dependency and neglect proceedings. The bill also allows a child or youth to be a party in a dependency and neglect proceeding. For a child or youth 12 years of age or older with diminished capacity, a guardian ad litem shall remain in the role and separate counsel for the child or youth must be appointed.

SB22-023 "Deceptive Tactics Juvenile Custodian Interrogation: Concerning prohibiting deceptive tactics during interrogation of a juvenile."

The bill prohibits a law enforcement officer or an agent who assists, cooperates with, or otherwise facilitates a custodial interrogation with a juvenile (law enforcement official) from using deception and false facts or beliefs (deception) to obtain a statement or admission from the juvenile. Any statement or admission obtained during the course of a juvenile custodial interrogation in which a law enforcement official knowingly uses deception is presumptively inadmissible against the juvenile in an evidentiary hearing unless the prosecution proves by clear and convincing evidence that the statement or admission was made voluntarily.

The bill requires law enforcement officials to electronically record all juvenile custodial interrogations.

SB22-008 "Higher Education Support For Foster Youth: Concerning postsecondary education support for certain students who have been in out-of-home placement."

Colorado Youth Advisory Council Review Committee. The bill requires all public higher education institutions (institutions) in Colorado to waive undergraduate tuition and fees for Colorado resident students who have been in foster care or, following an adjudication as neglected or dependent, in noncertified kinship care in Colorado at any time on or after reaching the age of 13 (qualifying students). The institutions are required to designate an employee to serve as a liaison to qualifying or prospective qualifying students.

Under existing law, school districts and the state charter school institute must designate an employee to act as the child welfare education liaison. The bill requires child welfare education liaisons to provide students in out-of-home placement with information and assistance regarding the tuition waiver for qualifying students.

SB22-019 "Access To Suppressed Court Eviction Records: Concerning access to automatically suppressed court records of eviction proceedings."

Under existing law, a court record in an eviction proceeding is automatically suppressed and only available to judges; court staff; a party to the case and, if represented, the party's attorneys; authorized judicial department staff; and a person with a valid court order authorizing access to the court record. The bill permits an attorney, with permission of a party included in a suppressed court record, to access the record for the purpose of providing legal advice to, or evaluating whether to enter an appearance on behalf of, the party included in the record.

SB22-034 "Business Filing Address And Name Fraud: Concerning measures to counteract the filing of fraudulent business documents with the secretary of state."

Under current law, a business entity submits to the secretary of state for online filing documents that concern the creation, organization, and operations of the entity. By submitting a document, an individual affirms under penalty of perjury that the individual is authorized to file the document, the facts in the document are true, and the document otherwise complies with the secretary of state's filing requirements. The secretary of state files the document in an online database as a ministerial act and does not independently verify whether the document is accurate.

The bill creates a complaint process for a person whose business identity or personal identifying information has been used in the filing of these documents with the secretary of state without authority or for fraudulent activity. If a complaint is submitted with the secretary of state, the secretary may forward the complaint to the attorney general for further investigation. The attorney general may investigate the complaint and refer the complaint to an administrative law judge.

If an administrative law judge determines that an entity has been created fraudulently or without authorization, the secretary of state will:

* Mark the business record with a notice that the entity is fraudulent or unauthorized;

* Redact each address that was used without authorization from the entity's filing and from any other relevant filings; and

* Disable additional filing functionality on the entity's records. 

If an administrative law judge determines that an unauthorized filing was made for a legitimate entity, the secretary of state will:

* Mark each unauthorized filing for the entity to notify the public that the filing is unauthorized;

* Redact from the entity's filing and from the relevant filings each address and name that was used without authorization; and

* Mark the business record on the entity's filing to notify the public that the entity has been the victim of fraudulent or unauthorized acts.

If a person alleged to have committed fraud or unauthorized acts fails to respond to the complaint, the allegations are deemed conceded, and the secretary of state will take the appropriate steps listed above in the same manner as if the finding had been made by an administrative law judge.

Additionally, the bill states that fraudulent filings are unfair or deceptive trade practices under the "Colorado Consumer Protection Act" and as such are subject to enforcement by the attorney general's office.

SB22-013 "Boards And Commissions: Concerning requirements for boards and commissions."

The bill makes changes related to the requirements for various boards and commissions (boards).

Section 1 of the bill includes standard provisions that generally apply to boards for which membership is based in full or in part on representation from the congressional districts of the state. Specifically, unless a statute or constitutional provision creating a board provides otherwise:

* If a member appointed to represent a district no longer resides in the district due solely to a change in the district's boundaries following redistricting, the member may serve the remainder of their term notwithstanding the nonresidency;

* If a board increases in size due to the addition of a new congressional district in the state, the appointing authority shall appoint a new member to represent the new district as soon as practicable; and

* If a board decreases in size due to the loss of a congressional district in the state, the appointing authority shall determine which current member's term should be terminated, or, if the member will be replaced by an at-large or other member, which member should be replaced at the expiration of the member's term. The appointing authority must attempt to ensure that the remaining membership adequately represents the remaining congressional districts.

Section 2 establishes standard provisions that apply to all boards unless the statute or constitutional provision creating a board provides differently. The standard provisions include: requiring an appointing authority to fill a vacancy for the remainder of the unexpired term, allowing the designee of a state official to fulfill the official's duties on the board, defining the term "minimum majority" to mean the lowest number of members that is more than half, allowing members to participate in meetings of the board remotely, and clarifying how partial terms count towards any applicable term limit. 

Sections 33 and 40 update the statutes that establish the membership of the state board of education and the board of regents of the university of Colorado, respectively, both of which are elected boards created in the state constitution. 

For the state board of education, section 33 provides for the election of one new member to represent the eighth congressional district and one new member from the state at large at the 2022 general election. 

For the board of regents, section 40 requires the election of a member to represent the eighth congressional district in place of the election of a member representing the state at large at the 2022 general election. 

Sections 37, 42, 52, 60, 73, 85, 86, 90, 101, and 107 amend statutes governing boards for which membership is based on the number of congressional districts in the state. For each board, the total number of members is no longer specified. Instead, each statute provides for the appointment of members from each congressional district in the state plus, as applicable, additional members as is currently provided for each board. Provisions requiring staggering of terms and limits on the number of board members who may be affiliated with a single political party are amended to refer to a "minimum majority" of the board to accommodate any future changes in board membership resulting from changes in the number of Colorado congressional districts. 

Section 133 repeals a statute that addressed the impact of redistricting on boards following the 2000 federal decennial census, and a statute that adjusted the lengths of terms of members of certain boards in 1987.

The remaining sections of the bill make changes to statutory provisions governing various boards with appointed members, including:

* Repealing deadlines for events or actions that have already occurred;

* Repealing language setting specific expiration dates or requirements for board members' terms in order to create staggering of the board members' terms, and replacing it with a general requirement that the terms of office are staggered;

* Repealing requirements for notice and hearing before a board member can be removed for cause by an appointing authority;

* Repealing, for certain boards, the requirement that a board member serve until the board member's successor is confirmed by the senate;

* Updating archaic language to conform to current drafting standards;

* Reorganizing sections to clarify requirements related to appointments, qualifications for appointees, and terms of office;

* Clarifying requirements related to the number of board members that may be affiliated with one political party; and

* Making conforming amendments.

Abolishing Colorado's State Income Tax Is A Horrible Idea

Democratic Governor Polis floated an idea on Monday to abolish Colorado's state income tax, as nine other states have done. This is a horrible idea which almost all Democrats in the Colorado General Assembly, where they hold a majority in the state house and state senate, oppose.

Here are some basic background facts.

Colorado imposes a 4.55% flat tax rate on personal and corporate federal taxable income (including capital gains, qualified dividend income, and other investment and self-employment income) with some minor modifications and some additional tax credits. The instructions for Form 104, the Colorado equivalent to IRS Form 1040, disclose the status quo in terms of revenues, expenditures and income incidents by type of tax (as of 2017 due to a data gathering lag):

Unlike the federal government, Colorado must have a balanced budget each year and is limited in its legally authorized ability to incur debt. Any drop in revenue means a dollar for dollar drop in state government spending. Higher education usually bears the deepest brunt of cuts, but state spending cuts can effect almost everything. 

Colorado's state constitution also requires popular referendums on all tax increases and all significant revenue increases that are not refunded to taxpayers (called TABOR for the taxpayer bill of rights), imposes a minimum level of state K-12 education spending, and has a number of other quirks, although the Gallagher Amendment (which imposes differential property tax assessment rates on residential and non-residential real estate with significant state level impacts as well) was significantly reformed by a 2020 ballot measure. Federal Medicaid mandates and other federal programs and state and federal constitutional mandates impose additional involuntary spending requirements on state government. 

Every alternative form of revenue to replace a state income tax is more regressive, i.e. it disproportionately favors people with higher incomes. Alternatives like funding schools with property taxes (which Colorado does partially now) also create regional disparities in school funding that violate the state constitution.

The standard deduction means that single people with incomes of less than $12,550, heads of households with incomes of less than $18,800, and married couples with incomes of less than $25,100 a year pay zero state income tax. In many cases, additional above the line and itemized deductions, and tax credits further reduce their state income tax burden. State income taxation only begins above this threshold. So, for example, a married couple with a $30,000 adjusted gross income that takes the standard deduction and receives no state tax credits would pay $223 in state income tax for the year.

Colorado's state sales tax rate is 2.9%. Local sales taxes from multiple levels of local government range from 0% to 8.3% and averages 4.6%, for a combined sales tax rate, on average, of 7.5%. The sales subject to sales tax are not exactly identical between state and local sales taxes, but they are very similar.

Colorado's state government (excluding local government) gets 70.6% of its tax revenues from income taxes, 18.9% from regular sales and use taxes, and 10.5% from other taxes such as gas taxes, alcohol taxes, tobacco taxes and car registration fees.

In Colorado, 36.7% of all state and local tax revenues come from the state income tax, 32.1% from property taxes, 25.0% from regular sales and use taxes, and 6.2% from other taxes such as gas taxes, alcohol taxes, tobacco taxes, car registration fees, and occupational licensing fees.

Each one percentage point of state sale tax rates generates 6.4% of the state's tax revenues.

Each one percentage point of state income taxes generates 15.2% of the state's tax revenues.

A 2.375% state sales tax rate generates the same income as a 1% state income tax rate.

To replace Colorado's state income tax on a revenue neutral basis with a state sales tax would require a state sales tax rate of 13.7% in addition to an average 4.6% local sales tax rate, would result in a combined sales tax rate of 18.3%. The top combined state and local sales tax rate would be 22%.

Conversely, Colorado could abolish its state sales tax entirely by increasing its state income tax rate to 5.77%. This would reduce the average combined local sales tax in Colorado from 7.5% to 4.6%.

Sales taxes in Colorado, and in most states, exempt rent, real estate purchases, groceries, and services like medical care charges. Most non-U.S. value added taxes have a much broader tax base that includes these things, but still effectively exempts unearned income from taxation.

Many states without a state income tax impose a back door tax on business income with no deduction for wages paid, which is effectively a 0% tax rate for investment income and a similar tax rate, imposed indirectly, on business income and wage and salary income. 

States without a state income tax are also sometimes supported by natural resource taxes (like Alaska), taxes on gambling (Nevada), or state property taxes. Colorado has no dominant driver of the economy that can be taxed in this manner, but could impose state property taxes in lieu of state income taxes. Property taxes would have to increase by 215% across the board if state property taxes replaced state income taxes.

States with no state income tax tend to have the most regressive tax systems overall (the chart is as of 2017; Colorado is the second from the right yellow bar in the chart the the most rightward yellow bar being Utah, Alaska is the further right blue bar, the other blue bar is New Hampshire; the green bars are Montana, Oregon and Delaware).

Disruptive Stress Tests

Senate Bill 20-217, a comprehensive police misconduct prevention bill that passed the Colorado General Assembly today with bipartisan majorities, and will almost certainly be passed by Democratic Governor Jared Polis in a few days, leaves me more hopeful than I have been at any time in the last three months.

Our society has faced some major stress tests in the last few years. It has faced the far right, openly racist agenda of Donald Trump's Presidency. It has faced COVID-19 which has killed 116,825 people in the United States so far as I write this post, and has shut down the economy in an uncoordinated response of mixed effectiveness, and will almost surely have killed twice as many people before the year ends. It has raced national and global mass protests and riots over police brutality on a scale not seen in my lifetime.

Seeing protests produce lasting policy changes, a sea change in public opinion and another big wave of eliminating Confederate symbols from the U.S. landscape is gratifying. 

It is looking increasingly likely that Biden will defeat Trump in November and that Republicans will lose control of the U.S. Senate, while Democrats hold onto control of the U.S. House. Republicans may suffer down ticket losses in state and local races as well.

The impact of COVID-19 will be multifaceted and complex. But, I have little doubt that the end result will be a society that is more resilient, more environmentally sound, better able to cope with future epidemics, and will have a better safety net.

The armed far right rallies for the right to get haircuts and not use face masks, which resulted in many protesters getting sick and changing their tune, paled in comparison to the protests on the left that followed a few weeks later against police brutality, which accomplished far more.

The right is well aware that it is crumbling. Trump was yet another Republican President to win the electoral college while losing the popular vote, and he won the electoral college by the thinnest of margins in a handful of swing states. Most Americans, I believe, and an even larger share of American elites, understand that the American people made the wrong choice when they elected Trump, who has done unfathomable damage to our nation. 

The right has recognized that it can stay in power only with gerrymandering, voter suppression, threats of violence, and other illegitimate means of maintaining power, and that it will not be able to do so forever. Little by little, the left has chipped away at these unsustainable dirty tricks.

Trump's victory has irrevocably forfeited for the Republican Party the support of Generation X, Millennials, women, and everyone else who isn't a white conservative Christian, for all time by large margins.

He has used the bully pulpit to legitimatize a far right made up of white nationalists, neo-Confederates, and neo-Nazis, swelling their ranks dramatically and encouraging open acts of hate. He has won over straight white Christians who are older, uneducated, rural, and Southern, but that is a shrinking demographic. With every election, a disproportionate share of voters who have died since the last election are Republicans, and young people are not becoming more conservative with the passage of time as they age. 

Trump has done so at the cost of alienating business elites, mainline Christians and other more moderate conservatives. Businesses historically aligned with the GOP have moved quickly to shut down overt racism and violent rhetoric by employees within their ranks. The international standing of the United States has plummeted by almost every measure.

Their culture, like their side in the Civil War, is a lost cause. Trump's movement is a rag tag collection of losers who are out of touch with reality, whose leader is the most flawed man ever to occupy the White House, a deeply corrupt, mean spirited, idiot and pathological liar.

When Disney is touting a new series appropriate for gay pride month, and a conservative majority on the U.S. Supreme Court has legalized gay marriage, it is too late to turn back the clock on gay rights.

Throwing shade at President Obama, the most popular American political leader in a generation whose personal character was unblemished, is not an effective political tactic with anyone but hard core converts to Trumpism.

Trump's victory was a major battle won by the cultural right in the culture wars that have been raging since before the American Revolution, but they are losing the war and Trump has discredited their movement and party with too many of the people whose support they need to win elections going forward.

The 2020 election is also the last hurrah of a generation of politicians who will soon have no choice but to pass the torch to the next generations.

Anti-SLAPP and Internal Affairs Investigation Records Access Laws Passed

Colorado's General Assembly has passed an anti-SLAPP bill that is likely to be signed by Governor Polis. House Bill 19-1324, which targets strategic lawsuits against public participation, also known as SLAPP suits.

It has also clarified that law enforcement internal affairs investigation reports are public records which may be obtained in Colorado Open Records Act enforcement actions.

Colorado's Legislative Session Ends Tomorrow

Colorado's General Assembly ends its 2016 session tomorrow (by state constitutional mandate) and since every bill must be heard in its final chamber on two different days, today is the last day to get bills that have passed one house out of committee in the second house for a floor vote.

Among the bills that are down to the wire are a bill to gradually phase in grocery store sales of wine and full strength beer, and a bill to replace Presidential election year caucuses with an open primary system in 2020.  There are better than even odds that both bills will pass.

A repeat bill to ban most red light cameras has also passed both houses but faces a likely veto from the Governor.  Critical bills like the annual state budget have already passed and been signed into law despite the fact that there is divided control of the Colorado legislature with Republicans narrowly controlling the state senate and Democrats less narrowly controlling the state house and Governor's mansion (complete with line item veto power).  But, TABOR give anti-spending Republicans considerable leverage nonetheless.

A Modest Proposal For Health Care Economics

A committee in the Colorado House of Representatives has passed a bill, on a narrow party line vote, that would require stand alone ERs to disclose their charges so that people utilizing a stand alone ER as opposed to an urgent care facility where charges are much lower for the same treatment, make an informed choice.

I would like to see a law that would make disclosure of all health care provider charges with and without insurance, before providing treatment, and condition precedent to collection of such charges. 

There could be an exception if the patient was incapable due to a health condition of comprehending the charges and there was no other responsible person to whom disclosure could be made who could be located before treatment was necessary, in which case only the average amount paid for insured patients could be charged.

One of the biggest problems with health care economics is that there is rarely meaningful disclosure of prices in the industry, which renders impotent the market forces that usually control prices through competition.  There is really no other industry in the U.S. economy that I can think of which operates in this way (e.g. while lawyers aren't required to provide firm estimates of the total charges in advance, they are at least required to disclose their hourly rates and any standard additional charges to clients in advance as a matter of professional ethics and are also subject to reasonableness requirements that are not infrequently enforce by the courts).

This consumer protection reform would be a good first step towards putting the health care industry on an economic footing that even remotely resembles a rational one.  As it is, there is no real rhyme or reason for the charges for particular health care services in the absence of binding health insurance contracts between insurance companies and their provider networks.

Caucus Nomination System Strong In Colorado (Updated and Corrected April 12, 2016)

Background

In Colorado, there are two ways that a candidate for a major political party (i.e. Democrat or Republican) can get on the primary ballot to be the party's nominee for a particular political office. You can be nominated through the caucus process, or you can file a petition to be placed on the primary ballot.

Party insiders who advance to county and subsequent conventions following a closed precinct caucus selection of the nominees to be placed on the primary ballot in the other 94% of the primary races and an even smaller percentage of all candidates utilized this route.

A candidate needs 30% support in the caucus process to get on the primary ballot, so no more than 3 candidates can make it onto the ballot that way.  Unsurprisingly, petitions come mostly in races with crowded fields of candidates where there is no incumbent running and the person who win the party nomination has a reasonable chance of being elected in the general election.

This can produce surprises.  Incumbent Republican Congressman Lamborn came very close to not making it onto the primary ballot this year with just 35% support in the caucus process in a race against one of his former aides.  He was just 18 Congressional District Assembly votes away from losing the race (which would have dispensed with a primary and since there is not Democratic candidate for the safe Republican CO-5 seat, would have immediately made the caucus winner the Congresswoman elect in the district).

The first candidate in the race for the GOP nomination in the U.S. Senate race, an African American Air Force veteran, won more than 70% of the caucus process vote on the strength of a good stump speech, removing the widely assumed front runner in the race (a sitting state senator) from the primary ballot, along with two other contenders seeking a place on the ballot through the caucus process.

On the whole, this is a good thing.  The caucus process insures that candidates nominated reflect the political views of the rank and file of the party that they claim to represent, and caucus participants typically hear speeches from each candidate before voting, so their decisions are often better informed than those of primary voters, especially in down ticket races that get less media attention. Caucus participants also tend to be more familiar with the political players in a particular electoral district and so will often know or know someone who knows many of the candidates in advance of hearing the speeches.  

The process of campaigning for a seat through the caucus process, while arcane, is also much less expensive than a campaign directed at the general public.  Primary voters weigh in only in a few hotly contested races that get more media attention and have substantial active factions of the party supporting each candidate.  The cost of running someone for an office where there is an uphill battle in the general election is also lower, reducing the number of uncontested races.  The caucus process also reduces expenditures for the Secretary of State's office, which need only consider petitions of candidates who opt out of that process.

The petition process often draws only candidates who are less popular with the party rank and file, and I suspect that petition candidates do less well on average, in primary elections, than caucus candidates, although I haven't run the numbers.

This Year's Races

Federal Offices

This year, there are nine federal offices that come before the voters (President-Vice President, U.S. Senate, and seven House of Representatives seats).  

All of the candidates except four of the dozens plus Republicans seeking the party's nomination for U.S. Senate to challenge incumbent Senator Bennett filed petitions to get on the primary ballot (there is no Presidential primary in Colorado).

Thus, of the 16 possible nomination races in which a petition option was available, just one actually had candidates petition onto the primary ballot (about 6%).

Colorado General Assembly

In the Colorado General Assembly this year, there are 65 seats in the state house, and 18 seats in the state senate up for election. Thus, there are potentially 166 state legislative primary races in which petitions could be filed, but petitions were actually filed in just 8 of them (about 5%).

Two Democrats and one Republican filed petitions in state senate races (each in a different district). Five Democrats filed petitions in four state house races and four Republicans filed petitions in four state house races.

Miscellaneous State Offices

There are 22 district attorney offices, and 3 on CU-Regents seats and 3 state school board seats at issue this year.

There are also eight non-partisan retention elections for Colorado Court of Appeals judges and many non-partisan retention elections for Colorado District Court and County Court judges. There are also eight RTD board seats up for election in 2016, but those races are non-partisan. Also notably, Castle Rock will be having a non-partisan recall election of three members of its City Council including its Mayor, over annexation and growth issues.

Two Democrats filed petitions in the District 1 CU-Regent Race (greater Denver), one Democrat filed a Petition in the District 2 (Denver) District Attorney race, and one Republican filed a Petition in the District 17 District Attorney race (Adams and Broomfield counties in suburban north Denver).

Thus, of about 56 possible miscellaneous races, petitions were filed in 3 of them (about 1.4%).  

Summary of All Partisan 2016 Races

In all, of about 238 races were petitioners to be placed on the primary ballot were available, petitions were filed in just 12 of them (about 5%) by 17 candidates (at least one of which has been rejected as having insufficient signatures).  Only 3 races (about 1.4%) had more than one candidate seek primary ballot access by petition. Each of these races also have candidates getting onto the ballot via the caucus process.

The final list of primary election candidates will appear at the Colorado Secretary of State's website and will be finalized by May 2, 2016.