14 May 2008

Denver's Primary Ballot Issue Title Deceptive

Damn! I have to remember to vote on August 12, 2008, Denver, Colorado's primary election date, despite the fact that there are no contested primaries in the Democratic party for voters in my precinct.

Why? Denver has an initiative on the ballot. Worse yet, the title that will appear on the ballot is deceptive.

The title (according to a link provided by At Large City Councilman Doug Linkhart) will be as follows:

Shall the voters for the City and County of Denver adopt an ordinance requiring that a motor vehicle operated by an unlicensed driver be impounded and that releasing such vehicle shall require that the owner post a two-thousand five-hundred dollar bond to insure no unlicensed driver operates such vehicle for a period of one year and pay a one-hundred dollar impoundment land acquisition fee?

This isn't an accurate statement of what the measure actually proposes. Some unlicensed drivers don't get their cars impounded under the measure, while others who have licenses which are valid for driving in Colorado do have their cars impounded. In fact, this is really an anti-immigrant measure with a deceptive title designed to slip under the radar by appearing on the ballot at a time when turnout is typically low. It really provides that:

(1) Definition. As used in this section “Illegal alien” means a person who has entered the United States illegally or is residing in the United States illegally after entering legally.

(a) Sec. 54-811 (10) is amended by an addition to subsection (10) to read: or when a driver of a vehicle is an illegal alien;

(1) A vehicle operator without a valid driver’s license but with convincing corroborating identification, vehicle registration, and a valid driver’s license of record may, at the discretion of the attending Police Officer, be issued a summons for driving without a license without impounding the vehicle. Such summons along with proof of a valid driver’s license shall be submitted within three working days to a Denver County Court for validation or such vehicle shall be ordered impounded.

(b) Sec. 54-811 is amended by the addition of a new subsection (20) to read: Sec. 54-811 (20) When a driver operating a vehicle registered in Colorado possesses a driver’s license from another country and does not possess proof that they are in the country legally, the owner of record, if ascertained, or any lienholder, if ascertained, shall be issued by certified mail, a notice of pending impoundment requiring proof that such driver was not an illegal alien or such vehicle shall be ordered impounded thirty days from the day the violation notice was issued.

(c) Sec. 54-813 is amended by the addition of a new subsection (c) to read:
Sec. 54-813 (c) The release of a motor vehicle impounded as provided in 54-811(10) or 54-811(20) shall require that a two-thousand five-hundred dollar bond be posted within thirty days of impoundment in favor of the City and County of Denver or the motor vehicle is subject to disposal by the city by auction or otherwise. This requirement is not applied when the operator of such vehicle is found to have had a valid driver’s license with such vehicle being released upon payment of towing and impoundment charges by owner. This bond shall be held for a period of one year and forfeited if such vehicle is operated by an unlicensed driver in Colorado within that time. For this section a one-hundred dollar impoundment land acquisition fee shall be paid to the city prior to the release of vehicle.

(d) Legislation may be enacted to facilitate the operation of this ordinance by the Mayor and City Council but in no way shall such legislation limit or restrict the provisions of this section or the powers herein granted.

Thus, Denver police are permitted but not required to give a driver with a suspended license (e.g., for DUI) a ticket rather than impounding a vehicle, but a Mexican tourist or Canadian or European tourist in Denver (all from places where one doesn't have to have a visa for tourism purposes) could have a car impounded despite having a driver's license from another country which is legal for driving in the United States.

Also, because this law regulations the exclusively federal province of immigration, and varies from comprehensive state rules on driver's licenses (which contains exemptions from having driver's license at Colorado Revised Statutes Section 42-2-102 for certain non-U.S. driver's licenses and for certain other persons), rather than confining itself to the issue of impounding vehicles driven by unlicensed drivers, it may very well be unconstitutional or pre-empted, under the federal and/or state constitutions or laws.

I am also disappointed that such a measure would be approved by the City Council with a deceptive title. While the City has a duty to place certain initiated matters on the ballot, it is not at all clear that inaccurate titles must be honored.

The initiative is a bad proposal and you should vote "No" when you go to the polls on August 12, 2008 (or on your mail-in ballot).


Piper said...

What a great analysis! We've been organizing against this ballot initiative ourselves. Thanks for writing so clearly and eloquently on the meat of the proposal.

I was just getting ready to write a blog entry on it myself and now I think I'll link to yours instead. (http://coloradansforimmigrantrights.blogspot.com/

Unknown said...

Thanks for putting this up.