Colorado's 2024 Ballot Issues

This year there are 14 state ballot issues and 11 Denver ballot issues. This post addresses the state ballot issues with brief summaries and my recommendations. A separate post will address the 11 Denver ballot issues.

While I am a Democratic Party precinct organizer, these opinions are purely my own and do not necessarily reflect the opinions of the Democratic Party of Colorado or of Denver.

* Referred State Constitutional Amendment G - Tweak property tax breaks for disabled veterans. 

Weak Yes. It isn't much money and doesn't impact that many people. It has broad support and already exists in some form.

* Referred State Constitutional Amendment H - Reforms the professional ethics systems for judges.

Yes. The current system isn't very good.

* Referred State Constitutional Amendment I - Allows people charged with first degree murder to be held without an opportunity to bail out when "proof is evident or the presumption is great."

Yes. This is a small sliver of cases with a particularly high risk, and doesn't have much of an impact as bail amounts are usually set at very high levels in these cases anyway.

* Referred State Constitutional Amendment J - Remove the unconstitutional state constitutional ban on same sex marriage.

Strong Yes. In theory, this is housekeeping, but as Dobson (which repealed Roe v. Wade) showed, the U.S. Supreme Court can't be trusted to adhere to its precedents.

* Referred State Constitutional Amendment K - Tweaks deadlines for special elections. 

Yes. This housekeeping measure with broad support should be adopted.

* Initiated Constitutional Amendment 79 - Guarantees abortion rights in the state constitution.

Strong Yes. With Roe v. Wade overruled, this is necessary.

* Initiated Constitutional Amendment 80 - Creates a right to school vouchers.

No. This undermines the public schools and is an attempt to get the government to fund religious institutions.

* Referred State Statute JJ - Debruces sport betting taxation so that grow in revenue can fund water conservation instead of being refunded to casinos.

Yes. Debrucing (i.e. exempting a revenue source from TABOR) is always the right choice.

* Referred State Statute KK - Create a new 6.5% state sales tax on guns and ammo that will raise $39 million a year for mental health treatment, gun safety programs, and domestic violence victims.

Yes. The gun industry and gun owners should pay for programs that reduce the harm that the industry creates.

* Initiated State Statute 127 - Establish a misdemeanor offense for killing wildcats if one of eight exceptions (e.g. self-defense) does not apply.

Yes. Wildcats are almost endangered and are natural ways to regulate the ecosystem.

* Initiated State Statute 128 - Reduce parole eligibility for certain violent crimes.

No. Colorado's sentences for violent crimes are already more than sufficiently long, and making them a little longer for convicted felons who have aged out, doesn't meaningfully reduce recidivism.

* Initiated State Statute 129 - Create a new independent veterinary paraprofessional occupational licensing regime.

No. This complex regulatory decision shouldn't be made by an all or nothing initiative and isn't necessary.

* Initiated State Statute 130 - Increasing funding for law enforcement officers by 350 million a year.

No. Initiatives are not the place to make budget decisions and Colorado's crime rates are plummeting as it is now. Also, law enforcement funding is predominantly a local government decision and should stay that way.

* Initiated State Statute 131 - Ranked choice voting, a non-partisan jungle primary, and other election reforms.

Yes. Ranked choice voting would end the spoiler effect that makes third-party and independent political campaigns toxic in our current system. A non-partisan jungle primary would remove institutional barriers associated with a two-party system that discourages moderate candidates. There are devils in the details, like voter ID requirements for primary elections, that I don't love. But since it is a statute, the state legislature can fix those problems later. A challenge to the existing two political party system will never be secured through the legislature.

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).

Leadville In Decline

The Denver Post reports the imminent decline of the only hospital in Lake County that is home to the town of Leadville, which is 135 years old, because local voters refused to support a property tax increase needed to keep St. Vincent hospital's doors open.  The hospital also provide's the county's only nursing home and ambulance service, in addition to its emergency room.

This would appear to leave the town's urgent care facility as the highest level of medical care available in the county.  This facility amounts to Dr. Lisa Zwerdlinger and her two physicians assistants.  The good doctor is no doubt competent and hard working, but will be hard pressed to replace a full fledged hospital emergency room in a hospital complex previous staffed by 107 employees.

Lake County has 7,300 residents of whom 2,600 live in Leadville, the only municipality in the county (and the highest elevation city in the United States at 10,152 feet).  The closest hospital is now in Frisco, 33 miles away along slippery snowy roads in the winter.  About 60% of the county's residents are on Medicaid.

The closing of the hospital will cost the county about 107 jobs and will cost the local economy $8 million.  Sales tax revenues are predicted to decline by $130,000 costing the city of Leadville a job in its fire department and a job in its street department.  The City also turned away a $1,000,000 state grant and a loan from the Department of Agriculture that would have allowed the hospital to stay open when it voted down the property tax increase.

A study published in the medical journal Health Affairs in August found that when emergency rooms close, the chances of death for those steered elsewhere rises by 5 percent. In cases of heart attack, stroke and sepsis, deaths rise by 15 percent. None of the hospitals studied, however, has Leadville's wintertime challenges of nearly 14 feet of snow annually on steep, twisting roads.

The Post notes that the decision would have increased the hospital's property tax from 5.48 mills where it has sat since 1988 to 16.44 mills, an increase on each $100,000 of value in a home from $43.62 a year to $87.26 a year, and for a business from $158.94 per $100,000 in property value to $476.84 in property value.

Needless to say, the voter's decision not to fund their county hospital doesn't seem very wise.  But, perhaps they are merely recognizing the inevitable.  The Post reports that this is not the only decline that Leadville is experiencing.

Leadville has lost about 40% of its restaurants in four years (seven out of seventeen or eighteen), and one of its two grocery stories, Alco, is going out of business, leaving only one Safeway outside the city limits.

"The landmark Tabor Opera House, built in 1889, the same year as the hospital, closed as a private enterprise in August.", although a non-profit coalition is trying to the raise the $5 million needed to restore it.  In the late 1800s when it was built, it was the second biggest city in the state (in 1880 the census reported 14,820 residents in its 1.1 square miles) and was supported by silver mining.

Most of its seven museums have closed, or dramatically reduced their hours.  Sales tax revenues are down too:

Leadville collected about $648,000 in sales taxes in the last fiscal year, compared with just over $754,000 the year before. Sales-tax collections fell from $352,196 in the first quarter of 2013 to $312,662 for the same period in 2014. Neighboring Buena Vista, with almost the same population, had more than twice the sales-tax revenue: $1.55 million last year, up from $1.48 million the year before, according to tax records.

These setbacks will no doubt make it even harder to attract new residents.

The town took its main hit in 1893, when Congress stopped buying silver to prop up the currency, and has been struggling direly since the Climax molybdenum mine closed in the early 1980s, and a series of marathons and ultra-marathons in the summer have become a mainstay of a local economy, already oriented towards tourism.  The reopening of the mine in 2008 with it starting production in 2010 was too little, too late to save the Leadville economy.

It is unclear from the Denver Post reporting why the last few years have seen such a decline.  A delayed impact from the financial crisis and housing bust that hit Colorado's mountain towns hard, could be a factor.  But, it is hard to point to any one thing that has happened since 2010 that had a major negative impact on the town.

The closing of the hospital, the opera house, and area businesses, and municipal layoffs will surely cause tax collections to fall further, the population of Leadville and Lake County to fall, declining property values, and more declines, although it is close enough to major resorts to continue to be a bedroom community for ski resort workers and a secondary tourism destination.

Wake Up People! Vote For Democrats In Colorado.

There are three big candidate races in the 2014 election in Colorado, for which ballots will hit mailboxes in less than two weeks.

In the Governor's office, incumbent Democrat John Hickenlooper, a popular centerist former Mayor of Denver, faces Republican Bob Beauprez, a Tea Party Republican who thinks that IUDs are murder and doesn't believe in climate change.

In the U.S. Senate race, incumbent Democrat Mark Udall faces Republican Congressman Cory Gardner.  He has spent most of his career favoring an extreme "personhood" amendment that would put U.S. law on a par with the extreme anti-abortion stance of El Salvador as a matter of constitutional law, but recently made an about face to support over the counter status for birth control pills on the theory that if it can't be banned, that employer provided health insurance and tax breaks for medical expenses shouldn't support it.

In the highly competitive 6th Congressional District, incumbent Republican Congressman Mike Coffman faces Democrat Andrew Romanoff, former speaker of the state house of representatives who served at that time from a Washington Park district.

Cory Gardner and Mike Coffman are the local embodiment of a Republican majority in the House of Representatives that has shut down the government, played games with our national credit rating by threatening to default on the national debt, shut down immigration reforms essential to improving our economy simply to deny President Obama a legislative success, and in general, have stood in the way of any positive change through legislative channels in our nation's capital for the last four years.

I have met both John Hickenlooper and Andrew Romanoff personally, and they are the two most extraordinary people in Colorado politics today bar none.  These are people who can walk into a room where a compromise, let alone positive progress, seems impossible, and produce a deal that everyone would have assumed was impossible.  Each man is exceedingly intelligent, extraordinary civil across partisan lines, a good judge of character, and has a strong commitment to doing what is right.  Both are moderate Democrats, who nonetheless generally do the right thing and when they do recognize conservative political impulses do so in a moderate way.

Mark Udall is a reliable Democrat supporter, who has gone to bat for priorities that matter to Coloradoans, although in a legislative environment of split political control, he hasn't always gotten major initiatives of his own passed.

Colorado's U.S. Senate seat is the closest race in the nation according to poll analyst FiveThirtyEight, and our Governor's race and 6th Congressional District race, according to other poll analysts are likewise among the closest in the country.

Right now, Democrats hold just 52 seats in the Senate, while Republicans hold a slim majority in the House.  If Democrats lose control of the Senate, we will have deadlock on federal judicial appointments for the next two years, and national policies will tilt sharply towards Republican priorities:

* Making it harder to vote.
* Doing everything in their power to block women's rights and gay rights.
* Reducing federal spending that benefits the poor and the unemployed.
* Ending the guarantees of the Social Security and Medicare system.
* Enlarging the ranks of the uninsured.
* Crush all unions.
* Reducing the remedies of those injured through negligence or fraud.
* Encouraging the teaching of bad science and fake history in our schools.
* Reducing funding for education.
* Reducing taxes on the rich and big corporations.
* Making it harder to immigrate to the United States or claim asylum here.
* Saying no to reforms of a broken criminal justice system.
* Making it easier to gain access to guns with no purpose other than to commit crimes.
* Gutting protections for the environment.
* Undermining the freedom of religion's establishment clause.
* Gutting campaign finance regulations.
* Letting our roads and bridges crumble.
* Shutting down funding for public transit.
* Allowing our economy to be gridlocked with excessive intellectual property protections.
* Punishing efforts to decriminalize marijuana.
* Increasing spending on wasteful military programs.
* Stopping U.S. efforts to hold war criminals accountable.

There are down ticket races as well.

A Democrat committed to improving access to the ballot box wants to replace our current notoriously corrupt Republican Secretary of State.

A Democrat who believes in the public employee retirement system wants to improve on the state's lackluster 1.4% return on investment during the incumbent's tenure.

A Democrat who believes in protecting civil rights, consumer rights, and a balanced approach to the criminal justice system, wants to replace the outgoing Republican attorney general, and his anointed successor who's signature point has been opposition to gay rights until that position was made futile by today's U.S. Supreme Court ruling denying further review for U.S. Court of Appeals rulings invalidating gay marriage bans.

Democrats very narrowly control the state house and the state senate right now.  Republican candidates, including one from a safe Republican district in Colorado Springs who the County Republican Chairman says reflects the value of the Republican party in the state, thinks that we live in a world where everything from homosexuality to the Federal Communications Commission's policies are a result of demon possession, and tried to exorcise the "demon" from a lesbian woman while he was a Navy Chaplin.

If you want gridlock and want to give power to people like him and like the extremists who have taken control of the Jefferson County School Board, vote for Republicans in the state house and state senate races.  If not, vote for Democrats who have been working for positive change in this state.

Keep in mind too, that in Colorado, neither Democrats nor Republicans can pass new taxes or increase state spending (even due to increased revenues from existing taxes) above an amount accounting for inflation and population, without a vote of the people.  Democrats in state office couldn't raise your taxes even if they wanted to do so.

Colorado Democrats are overwhelmingly moderates relative to their party as a whole.  Colorado Republicans are overwhelmingly extremist Tea Party advocates who bear the intellectual legacy of the John Birch Society and the KKK that was once powerful in Colorado.  The "County Club Republicans" of the 1950s have been driven out of the Republican temple in favor of people who see it as the party of conservative, Evangelical Christian white men with Southern roots and Confederate values.

A Democratic President backed by a U.S. Senate controlled by Democrats and legislation passed by Democrats in the first two years of the Obama administration, have allowed our economy to recover from years of corporate excess, inequality and Wall Street fraud.  A Democratic Governor together with a Democratic party controlled Colorado General Assembly, has brought the state prosperity, tolerance and justice that has made it an attractive place to live nationally.

People of the State of Colorado.  Wake up!  We are in a swing state, and if we want to preserve our prosperity and desirable way of life, we need to defeat Republicans who want government to fail and care more about preserving outdated and hateful prejudices than our economic and moral progress.

In 2014, no state in the union is more purple than Colorado.  This is the nation's swing state once again and your vote matters very deeply to the future of our country.

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.

Colorado Is The Make Or Break State In 2012

Several respected political commentators have identified Colorado as the marginal state that a winning Presidential candidate must win to capture an electoral college victory in 2012. This status, as a swing state rather than a Republican stronghold, has taken place mostly in the time period after I moved here in 1996 during which the urban economy has diversified and there has been a great deal of both conservative and liberal migration into the state from elsewhere. A relatively well organized and financed Democratic party leadership and liberal support network attributable mostly to a dozen or two really strong leadership and donor figures and iconic candidates have also been critical to this shift.

The most recent poll from CNN today in the President race showed President Obama with a four percentage point lead in the Presidential race over Romney, as of last week, which is very similar to the national figure and the figure in other swing states, with a margin of error of about +/- three percentage points.

What Makes Colorado Politics Distinctive?

Most Coloradans are not natives and we don't show much of a bias towards natives in our voting behavior either. Our politics are cleaner than they are in most states and not nearly as controlled by an entrenched old guard. This is due in part to a fairly comprehensive package of good government measures and favorable political conditions. Many of the pieces of these good government institutions have individually serious flaws, but the overall picture is one of a broad commitment in the political culture to transparency and efficiency. I list some of the more important institutions and political conditions below, as well as some of the key points of unfinished business in which our institutions clearly are flawed.

Political Conditions

* a state population and geographic area that are middling compared to other states and that have not outstripped the "design parameters" of state government institutions,
* a state capitol easily monitored by the press and public in our major economic center,
* few opportunities for interjurisdictional arbitrage compared to most states since our major population centers are not near the state's boundaries,
* healthy state level civil society institutions representing all major components of the political spectrum to facilitate collective efforts to advance broad based legislative, policy and movement based agendas outside the framework for formal political parties (e.g. the Independence Institute, Focus on the Family, the Gill Foundation, the Piton Institute, the Bell Foundation, the Colorado Progressive Coalition, an active political blogosphere, etc.)
* a lack of a dominant political party in recent years due to demographic shifts and a changing state economy,
* the absence of a dominant statewide religious affiliation,
* strong and largely stable regional hetrogenity in political identity taht also limits gerrymandering opportunities,
* multiple sustained periods of economic prosperity, good Denver Mayors, and good, but moderate Governors,
* a political history that is more Yankee than Southern,
* until very recently, a highly competitive mass media market in metropolitan Denver,
* a better educated than average population,
* a multiracial rather than a monoracial or biracial ethnic makeup,
* no meaningful history of slavery,
* a relatively short state political history in which the state has had a much smaller population for most of that time period.

Some of the negative political conditions in the state, however, include a strong, relatively recent (1920s) history of Ku Klux Klan domination of Colorado politics, an excessive number of demogauges, and a lack of political will to acknowledge that taxes are a necessary way to fund governmental services that contribute real value to the state by significant proportions of our population, and the perpetual isolation of some outlying areas of the state from political power.

Electoral Process Institutions

* fairly short term limits for almost all state and local offices,
* widespread use of mail in voting, early voting and voting centers that allow people to vote in person at more than one location,
* the availability of ballot issues at the state level to break Gordian knots in the legislative process,
* fairly open ballot access mediated by political parties that have considerable power via the causus process in most cases,
* better informed decisions in the nomination process for down ticket, low profile elected partisan offices (in which the nomination process often effectively decides the outcome in the general election since the smaller geographic areas involved in these races often have a dominant political party) as a result of the ability of the caucus process to provide information to the members of the party involved in the nomination process that is not carried out very effectively by the media,
* the power of political parties to fill legislative vacancies (e.g. when they arise due to personal scandals involving the incumbents) with interim elected officials chosen by the party of the politician vacating the office,
* blue ribbon commission reapportionment rules for most state elected offices,
* strong campaign finance rules.

The most glaring institutional problem with the electoral process in the state, which is typical of most U.S. states, is its reliance on unitary partisan elected officials for election administration. Another problem is that constitutional provisions that make it too easy to get technically flawed ballot issues with a basic thrust that is population before voters. Yet another concern is the exceeding high procedural barriers to re-election faced by elected officials who change parties in the middle of a term of office.

Institutions Related To Governmental Operations and Transparency

* a fairly small, part-time legislature,
* limits on personal financial gain for politicians,
* comprehensive lobbying regulations,
* broad and effective open records and open meetings laws,
* strict state civil service restrictions,
* signficiant Gubinatorial authority to reorganize the state government organizational chart,
* merit appointment of all state judges with little local political input,
* state constitutional limitations on tinkering with the details of the income tax laws,
* a line item veto for the Governor on state spending,
* meaningful legislative oversight of new state regulations,
* joint legislative rules in the bicameral legislature including a joint budget committee,
* a strong legislative services office role in the legislative process (drafting bills, doing constituent service work, and generating revenue and expense estimates on a bipartisan basis),
* pioneering work in providing online access to matters of state and local government,
* Sunset laws,
* a strong commitment to adopting well drafted proposed uniform state laws,
* a legislatively appointed state auditor
* strong limitations on the Governor's direct authority over both K-12 and higher education,
* independently elected state executive branch officials (the state treasurer, secretary of state and Attorney General) with fairly weak bureacratic resources and fairly narrow mandates.

The most glaring institutional problems with governmental operations and transparency is an overconstrained state budget, in which it is almost impossible to comply with all pertinent state constitutional requirements, federal mandates, state laws, and political processes during periods of declining revenues; there is more than one way to solve the problem but something has to give.

Local Government Institutions

* a non-partisan consolidated City and County government in Denver, the state's largest central city,
* home rule protections for local governments,
* strong limitations on the authority of the elected state school board over local school boards,
* meaningful school choice options within the public K-12 school system,
* well functioning non-partisan multijurisdictional local government institutions to provide services such as water basin management, public transportation, cultural institutions and sports stadiums, criminal prosecutions, general jurisdiction courts, vocational education services, special education services, suburban fire protection, suburban library services, and surburban park and recreation services,
* popular checks on elected officials via easy ballot access for recall elections and citizen initiatives at the local level,
*healthy  local government civil society institutions such as Denver's neighborhood associations, parent-teacher associatioons, organizations to address homelessness, and Glendale's local political parties to facilitate public participation in governmental activity at the local level,
* limited local government discretion over the details of property tax administration.

The most glaring fault with the organization of local government is the imbalance between authorized sources of revenues for local governments and the demand for services that flow from the authorized tax bases. There are also problems with institutions such as the conduct of partisan elections for technocratic positions like county coroners.

General Considerations

In sum, our politicans and our voters have shown bipartisan support for a variety of good government proposals. The political culture in Colorado's General Assembly, while it has recently experienced a rough spot, is also generally more collegial than in most states.

Tough taxpayer bill of rights provision in the state constitution, and other constitutional and statutory limits on government spending and authority, mute the effectiveness of many common attackes on liberal politicians, because in Colorado liberal politicans don't have the power to implement the kind of fiscal agenda that many liberals would favor without voter approval. Fairly geographically localized islands of and clines of political preferences in the state limit the usefulness of gerrymandering in Colorado. Colorado's adult population is better educated than the average state, despite the fact that the states lags in producing its college graduates locally.

The state's swing state status reflects a regionally diverse internal state geography, with liberal strongholds like Denver and Boulder, Southern style conservative strongholds like Colorado Springs, moderately liberal resort areas and college towns, mostly conservative rural communities on the Front Range, libertarian leaning rural populations on the Western Slope, conservative exurbanites, moderate first ring suburbanites, and Hispanics who trace their roots to before the places they live were part of the United States in places like Pueblo and the San Luis Valley.

While organized labor is weak in Colorado relative to former manufacturing centers in the Northeast and Rust Belt, its high level of organization and capacity to mobilize people and moderate amounts of political money mean it is still an important part of the Democratic party coalition here. Our conservatives embrace both social liberalism and economic proposals shared by Republicans, but ultimately, the conservative coalition in Colorado is a bit more economically conservative than socially conservative relative to conservatives nationally. While the numbers shift from month to month, an intuitive mental model in which active registered voters are 35% Republican, 30% unaffiliated, and 35% Democratic, while not quite right, is a pretty practical way to roughly summarize the long term average situation.

Where Are And Who Are The Swing Voters In Colorado?


Where Are Swing Voters In Colorado?


Ultimately, the make or break point within the state in a close race, when it comes to winning the state's electoral votes, boils down the winning over unaffiliated, middle class (but not upper middle class), fairly politically apathetic voters with enough of a sense of connection and civic duty to at least register to vote, who live in first ring suburbs of metropolitan Denver-Boulder.


Who Are Swing Voters In Colorado Demographically?


The generic and "average" swing voter in Colorado is white, not Hispanic, has some college but didn't graduate from college, isn't in a union, owns a modest home with a mortage in an older suburb, is neither a young adult nor elderly, and is nominally a part of some branch of Christianty but is fairly irregular in church atendance. Relatively few read a newspaper or news magazine or listen to national public radio on a regular basis.  Most are not Colorado natives.  Most have kids. At least one person in their household has a job and every adult in the household probably owns a car. But, they aren't insulated from economic hardship and are economically insecure. If they haven't been divorced themselves, they know someone who has been divorced pretty well.


Who Are Swing Voters In Colorado Politically?


The political views of these swing voters, when pressed to express them, are volatile, but fairly distinct for men versus women (not infrequently in the same household or neighborhod) who often cancel each other out at the polls. These voters tend to vote much more often when the stakes are high (such as during a relatively close President race like this year's) than when the stakes are low. These voters are driven more by character and personality and the general economic situation and ideosyncratic considerations, than by policy platforms to which they have weak commitments. They don't know a lot about politics or public policy in general, aren't well informed about candidates in down ticket races, and don't know much about any ballot issues other than the one or two have have received intense media attention. These voters are as fuzzy about theological and Christian doctrine as they are about politics. They decide who to vote for relatively late, often at the kitchen table while completing a recently received mail in ballot a couple of weeks before the actual election day. They have low levels of confidence and trust in politicians and political institutions generally. They don't go to political party caucuses or political rallies, don't donate more than trivial amounts of money to candidates, don't volunteer for political campaigns, and don't put partisan bumper stickers on their cars.

These are the people who will effectively select the next President of the United States of America. Swing voters in Colorado may be meek, but they decide who will inherit the Presidency.

Doug Bruce Convicted Of Felony Tax Fraud and Attempted Bribery

Colorado Pols summarizes the breaking news regarding Taxpayer Bill of Rights initiative (TABOR) author and former state legislator and county commissioner Doug Bruce's felony tax fraud and attempted bribery conviction this afternoon. He was convicted of not reporting about $190,000 of interest earned by a sham non-profits that he used as his own funds over a three years period (2005-2007).

Bruce's pro se defense (he is legally trained and was a deputy district attorney in California for six years, but has never been admitted to practice in Colorado and chose to represent himself in this case), was in typical Bruce style, "unconventional" a.k.a. delusional. He acted like a tax protester who didn't respect the court rather than someone making a bona fide claim of innocence of the charges against him.

Bruce faces up to six years in prison and a hefty fine at a February 13, 2012 sentencing date, in addition to any civil liability he may have for unpaid state taxes, interest and penalties. Of course, the Court would also have any number of other sanctions available to it at sentencing, such as probation. Leniency wouldn't be uncommon for a non-violent, white collar crime defendant with no meaningful criminal record (in 1995, he served eight days in jail for contempt of court), and a record of public service and civic involvement. But, the nature of his defense and his unwillingness to accept responsibility or even to acknowledge the wrongfulness of his actions makes this less likely in his case than in other white collar criminal cases.

An appeal from Bruce is almost certain, but is unlikely to prevail.

The prosecution was made in state court, but the federal government has every right to prosecute him on nearly identical civil and criminal federal tax evasion charges if it wishes to do so.

Bruce tried to evade subpoenas and faced investigations related to civil campaign finance non-disclosure charges in 2010. He was ultimately not held in contempt of court in September, 2010, after a several day long trial in which he was represented by an attorney, although he was ordered to provide testimony in that case. In December of 2010, in the same case, a charity he founded ("Active Citizens Together") was fined $11,300 for campaign finance violations in connection undisclosed initiative contribution.

He has also recently been accused of engaging in the unauthorized practice of law in Colorado and served with an order to show cause why an injunction requiring him to refrain from doing should not enter in June of 2011, while he was representing himself in a TABOR related lawsuit that he brought. He filed a bombastic answer in the case, Colorado Supreme Court case no. 10UPL058 aka case no. 11SA154, on July 7, 2011. The civil Colorado Supreme Court case in which a petition was filed on May 23, 2011, is currently pending against Bruce in the Colorado Supreme Court and requests fines as well as the injunction.

Lobato Case Confounds Colorado Budget Makers

A Denver trial court in the Lobato case has held that the State of Colorado has not met its state constitutional duty to provide "a thorough and uniform system of public education." In the full ruling (182 pages), the Court stated that:

It is also apparent that increased funding will be required. These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall "provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution."

The Court's mandate to the state is on the order Of $2-$4 billion. Current state education funding is on the order of $3 billion out of $7 billion. An appeal is certain, and in prior cases of this type in other states, enforcing this kind of order has proven harder than declaring the violation of a state constitutional mandate, often taken years and providing little in the way of concrete results.

Voters rejected a moderate new tax increase for public education in 2011 by a large margin, and except to the extent that this constitutional ruling overrides TABOR, which is also a part of the state constitution and is more recently adopted than the general school funding mandate upon which the judge in the Lobato case relied, any new efforts at school funding will need to overcome the same hurdle. On appeal, the Lobato decision could also be overruled on the grounds that Amendment 23 to the state constitution, which sets minimum funding levels for state education funding in specific dollar terms, covers the same subject more specifically in a more recently adopted provision.

Adequate funding of public education in accordance with the Lobato decision without new tax revenues would eat up all, or very nearly all, of the general fund budget, leaving no funds left for higher education, for prisons, or Medicaid, for mental health services, or for much of anything else.

In this case, as in past school funding cases in other states, it simply isn't obvious that a court order can change the political reality sufficiently enough to allow either the increased taxes necessary to fund education adequately, or the reduced spending on other programs needed to secure education funds, even under the pressure of a court order.

On the other hand, this isn't simply a case of judicial activism by a lone judge. The Lobato case was appealed to the Colorado Supreme Court in 2009 which set forth specific guidelines and mandates for the trial that was just completed, which it has followed:

To be successful, [Plaintiffs] must demonstrate that the school finance scheme is not rationally related to the constitutional mandate of a “thorough and uniform” system of public education. The trial court must give significant deference to the legislature’s fiscal and policy judgments. The trial court may appropriately rely on the legislature’s own pronouncements to develop the meaning of a “thorough and uniform” system of education. If the court finds that the current system of public finance is irrational, then the court must provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.

The Colorado Supreme Court also held on the first appeal that the Plaintiffs wuld prevail if they could prove that:

[T]he [Public School Finance Act] base funding amount and statutory increases are based on "historical compromise," as opposed to a rational determination of the amount it would cost to implement the "thorough and uniform" mandate or the cost of providing an education that meets the standards and goals mandated by education reform efforts. Citing an independent cost study, plaintiffs allege that the current funding levels do not allow students the opportunity to meet the standards and objectives established in education reform legislation. In addition, plaintiffs allege that funding for underserved student populations and capital construction is insufficient and irrationally dependent on local property taxes. Plaintiffs further allege that the state's public school financing system is unconstitutionally irrational because it prevents the district from implementing the education clause mandate at a local level.

Given a clear mandate from the Colorado Supreme Court regarding what they had to prove to prevail, and what remedy would result, the Plaintiffs proved their case and the judge agreed and imposed the remedy that the Colorado Supreme Court in its 2009 ruling in this case proposed. As the rulinng further explains:

Pertinent to the foregoing, in its Order dated July 14, 2011, this Court has previously ruled that:

In the name of the Education Clause, the General Assembly has established a comprehensive system of educational goals, methods, and measures, all of which it requires school districts to implement successfully. A system intended to finance a constitutional mandate cannot be rationally related to that purpose if it is created and funded without reference to the costs of providing the mandated services.

The Court further held that the “General Assembly has expressly linked its duties under the Education Clause with student performance”, and that, therefore: Under the standards-based education system adopted by the General Assembly and implemented by the Defendants, educational opportunity is defined in part by statutorily mandated academic content standards and measured by student achievement or qualitative outcomes. It is but one factor to consider in determining whether the Defendants have met their constitutional duty.

This Court has previously ruled that the following issues raised by the Defendants are not at issue in this case: (1) that public education is not the only required or important state service; (2) that it is rational for the General Assembly to “control the public debt”; (3) that it is rational for the General Assembly to “further local control over instruction” and (4) that it is rational for the General Assembly to “balance appropriations among public services.” The Court has also ruled that the TABOR and Gallagher amendments do not conflict with the mandate of the Education Clause; that TABOR was not intended to restrict the growth of government; and that TABOR should not be interpreted to cripple basic government services, such as the constitutional mandate to establish and maintain a thorough and uniform system of free public schools. Given the remedy specified by the Supreme Court, the interpretation of the Education Clause does not need to be harmonized with either TABOR or the Gallagher Amendment, nor does the Court need to reach the issue of the TABOR revenue restrictions.

Given that the trial court viewed its mandate to determine the adequacy of state school funding levels without regard to TABOR, Gallagher, or competiting budgetary constraints, or the costs of providing educationa at all, it is little wonder that the Court found that Colorado didn't spend enough on education.

In essence, the ruling requires the state to first determine what it would cost to meet the aspirational standard for education set forth in the state constitution and the statutes that interpret it, and to promise that at least that much will be spent, and then to find the funds to do so, no matter what it takes to do so. The bottom line order of the Court is that (emphasis added):

Injunctive relief enters in favor of the Plaintiffs, and all of them, and against the Defendants, and all of them, as follows:

1. Defendants are enjoined from adopting, implementing, administering, or enforcing any and all laws and regulations that fail to establish, maintain, and fund a thorough and uniform system of free public schools throughout the state that fulfills the qualitative mandate of the Education Clause and the rights guaranteed to the Plaintiffs thereunder and that is in full compliance with the requirements of the Local Control Clause; including, without limitation the Public School Finance Act of 1994 in its entirety, categorical funding programs, and capital construction funding laws and regulations;

2. Defendants are further enjoined to design, enact, fund, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause;

3. The Court hereby stays the enforcement of the injunctive relief set forth hereinabove in order to provide the State with a reasonable time to create and implement a system of public school finance that meets the mandates of the Education Clause and the Local Control Clause. This stay shall continue in effect until final action by the Colorado Supreme Court upon appeal of the Court’s decision; provided that if appeal is not perfected to the Colorado Supreme Court, this Court shall review the stay upon application of either party submitted no earlier than the conclusion of the 2012 legislative session. While this stay is in place and until further action by the Supreme Court or this Court, the present financing formula and funding may remain in effect.

SO ORDERED this 9th day of December, 2011.
BY THE COURT
Sheila A. Rappaport
District Court Judge

From a pratical perspective, this is the straw that has broken the camel's back. The State of Colorado is now clearly overconstrained. No matter how well meaning Governor Hickenlooper and the Colorado General Assembly are in 2012, they do not have the capacity to enact a budget that does not violate one provision of the state constitution or another or one or more federal laws or constitutional provisions, without a vote of the people in favor of a state constitutional amendment or voter approval for ta tax increase, in the face of the political reality that measures similar to the ones necessary for Colorado to meet its state constitutional requirements have been soundly defeated by Colorado voters in the past, repeatedly. So, it is very hard to see what difference one more legislative session of deliberation will make as a reult of this decision.

What Colorado needs is some way to break the Gordian knot of the state constitutional and federal law barriers that stand in its way in this overconstrained environment, perhaps in the form of direction from the courts regarding which of its conflicting obligations it is allowed to breach. Federal law, when mandatory, pre-empts state law, but when it merely assigns consequences fiscally for disobedience, as is the case in the Medicaid program, the case is not so clear. Determining which state constitutional provision can be ignored isn't easy either.

But, the Courts, in depanding action from elective officials, aren't much better situated that the monarchs facing the original legislatures in England and France because they needed tax funds to meet their spending objectives. The principle that I call "sovereignty of the group" comes into play any time voters or a legislature is called upon to decided anything. They act without regard to the existence of outside constraints with impunity, and the process effectively guarantees their right to make decisions that courts or any other rational observer would find to be irrational.

In the end, I don't disagree that education is underfunded in Colorado, but I don't see a politically possible way to resolve the problem unless the Courts give the Governor and legislature the authority to ignore TABOR in order to enact a constitutional funding system for education.

Exhibit A Of The Case Against Citizen Democracy

TABOR daddy Douglas Bruce — the man who wrote some of the most significant tax laws on the books in Colorado, whose e-mail address starts with “taxcutter” and who once gained notoriety as a state representative by kicking a news photographer — went on trial yesterday on charges of tax evasion. . . . Yesterday’s hearing had a late-arriving Bruce, verbal jousting with the judge and the suggestion from the accused that his prosecutors are collaborating with the CIA. And that was before there was even a jury seated.

From here.

Does it really make sense to develop a system of lawmaking that gives the power to write tax laws that bankrupt the state in the hands of a guy like him without any public input into the details?

There may be times when putting issues to a public vote does make sense, but having random political activists write laws that can't be amended without any kind of elected representative filter is just plain stupid.

Suthers Indicts Doug Bruce For Failing To File Taxes

Colorado's best known anti-tax activist, Doug Bruce, has been indicted for failing to file taxes by the state attorney general's office. Colorado's attorney general, John Suthers, is a Republican.

If convicted of the charges, Bruce could face up to six years in prison and a $500,000 fine.

Colorado Springs police officers arrested Bruce Friday at a post office in Colorado Springs. He was booked on a $10,000 bond into the El Paso County Jail, where he remains.

It couldn't happen to a more deserving defendant. Some of the evidence regarding his tax fraud was developed in connection with his failure to comply with subpeonas regarding a ballot initiative (taht were ultimately defeated) which he supported in contributions that were not reported on campaign finance form in 2010. He filed a false tax return alleging that he had zero income in 2005 and filed no return despite earning considerable income that was funnelled into a non-profit organization that he used for his personal benefit in 2006 and 2007. The amount of income not reported was in the hundreds of thousands of dollars.

Doug Bruce is famous for getting TABOR (the taxpayer' bill of rights) into the state constitution, leading to serious problems with the fiscal viability of the State of Colorado during recesions.

Should Colorado Restore The Pickup Tax?

If Congress takes no action this year on estate tax legislation, in 2011, the status quo is that it will revert to an estate tax exemption of $1,000,000 per decedent, with graduated rates that start at 37% for the first marginal dollar beyond the exemption amount, a top normal rate of 55%, and a "bubble rate" of 60% that reclaims the benefits of lower progressive rates in large estate before reverting to 55%.

Under the old regime that we will revert to if Congress remains in deadlock, there was a credit against the federal estate tax due for state estate taxes that did not change a person's overall estate tax liability. It simply allowed states to "pick up" a share of the federal tax due.

Colorado repealed its pick up tax when the estate tax legislation in effect through this year was passed, because the state estate tax credit was repealed and replaced with a deduction. But, if the state estate tax credit returns to the tax code for a while due to Congressional inaction, should Colorado re-enact its pick up tax?

A Congressional deadlock is unlikely to last for very long. The President and a plurality of Democrats want to return to something close to the 2009 status quo, with a $3.5 million exemption amount, at 45% tax rate on non-exempt assets, and no state estate tax credit. A small number of Democrats and most Republicans want to increase the exemption and lower estate tax rates, or to abolish the estate entirely. Only a small minority of Democrats actually want the estate tax to be restored to the levels it will unless Congress acts otherwise. So, sooner or later, some sort of deal will probably be reached to abolish the utility of a pick up tax again.

But, given that most outsider observers were sure that compromise legislation would be enacted by late 2009, and in fact, estate tax legislation is almost certain not to be passed any sooner than after the election in 2010, there is a real chance that there will be a temporary chance for Colorado to secure some pick up tax revenues from those decedents unlucky enough to die in early 2011 with the toughest estate tax in a decade, rather than in late 2010, during which there was no estate tax in force.

From a policy perspective, it seems clear that Colorado should put a pickup tax back on the books. A pick up tax imposes no additional taxes on Colorado decedents, costs almost nothing to collect since the auditing and return processing work is done by the federal government, and provided a meaningful source of state revenue to a cash strapped state when it was in force. It would cease to collect revenue automatically, however, when and if Congress were to reach a compromise abolishing the state tax credit again.

Practically, however, this kind of nimble action may be out of reach, because enacting a "pick up tax" would probably be counted as a new tax for TABOR purposes, which requires a popular vote to be approved, and that probably couldn't happen swiftly enough for Colorado to take advantage of what will probably be a temporary revenue opportunity. Still, is a tax really a tax if it doesn't require anyone to may more to the government than they did before it was enacted? This seems as fair a way as any to define a tax for constitutional purposes under TABOR, and constitutional language should be interpreted with an eye towards the measure's intent, which is clearly focused on revenues raised as much as it is on formal labels.

It would certanly be worth a try in the 2011 legislative session. At best, it raises millions of dollars that could be devoted to activities under budget stress, like higher education. At worst, a little legislative time out of a largely fixed supply of legislative time and money will go towards the bill and it will be declared in violation of TABOR, with no real harm done.

Alternately, Senators Udall and Senator Bennet, along with Senators from other similarly situated states, could try to squeeze legislation into must pass omnibus spending and tax extender bills in the lame duck session this year that would transfer the amount that would otherwise have been due to states under their pickup taxes, as unrestricted block grants to those states, in the event that no further compromise is reached on estate tax reform. This would be something of a long shot, but given that so many states are hard pressed budgetarily, and the way it appears to a sense of fairness among the states that matters more in the U.S. Senate than anywhere else, it might have a ghost of a chance of making it into legislation that becomes law in 2010.

Colorado's State Budget In A Nutshell

Colorado's General Fund Budget (2011-2012 fiscal year): $7 billion

Colorado's Anticipated Shortfall in Revenues: $1 billion

Portion of General Fund budget for K-12 that can't be cut per the state constitution: $3.1 billion.

General Fund budget categories for the $3.9 billion of general fund spending from which $1 billion of cuts must be made:

Health care (mostly Medicaid): $1.3 billion*
Higher Education: $0.6 billion
Human Services: $0.6 billion
Corrections: $0.6 billion**
Transporation: $0.0 billion***
Other: $0.8 billion****

* Only modest cuts in Medicaid funding are allowed due to federal mandates associated with the program, and each dollar of cut in local spending reduces the budget gap by only 50 cents due to lost federal matching funds.

** Existing contracts and judicially imposed prison sentences in force limit the degree to which the corrections budget can be reduced in the short term without mass commutation of criminal sentences for felons.

*** There is no transporation funding in the general fund budget. It is financed only through earmarked gas taxes and other transporation related charges.

**** Includes spending for the Departments of Public Safety, Public Health and Environment, Judicial and Revenue. There are constitutional limits on reductions in judicial salaries, and the Judicial Department spending also includes spending for supervision of convicted criminals on probation for sentences already imposed. Reducing spending on the Department of Revenue would probably reduce tax revenues by more than the reducing in spending on the Department.

Due to TABOR, no taxes can be increased for the 2011-2012 tax year, since a vote on tax increases cannot be held in that time frame. The Colorado Supreme Court has held that tax reducing legislative provisions like tax exemptions can be enacted by the legislature consistent with TABOR, however.

Required percentage cut if all categories But K-12 and Health Care are subject to an across the board cut and revenues are not increased: 38%

Likely outcome:

(1) Elimination of all or almost all state funding for higher education in Colorado (where state support for higher education is already lower in Colorado than in any other state in the nation),

(2) deep cut to human services programs for the developmentally disabled and mentally ill,

(3) moderate cuts to Medicaid, and

(4) cuts to rehabilitative programs in state prisons that will increase recidivism in future years.

NOTE: If Ballot Issues 60, 61, and 101 pass, it becomes virtually impossible to balance the budget constitent with the state constitution and federal law. The budget shortfall that must be closed out of the $3.9 billion of non-K-12 programs increases to about $2 billion and revenue increasing opportunities are reduced.

Ref C, Recession Have Defanged TABOR

Referendum C suspended revenue limits under Colorado's TABOR (taxpayer bill of rights) amendment for five years, and then ended by resetting those revenue limits higher than they would have been otherwise. As a result, it will take a major increase in tax revenue before TABOR limits the ability of Colorado's state government to collect revenue.

Legislative economists had projected that, under Referendum C, the state would collect $3.6 billion more over five years than it otherwise would have if refunds were required. The state did collect that amount, but it did so in the first three years of Referendum C, with revenues falling so far in the last two fiscal years that the state retained no additional revenue.

Current projections show that, under the new Referendum C revenue limit, the state will retain $748.4 million in the current fiscal year that it would have had to refund to taxpayers if the old TABOR limit had been in place. Under the new limit, the state budget would have to grow by $1.4 billion before refunds were required.

From here.

Voter approval is still required for tax increases (as opposed to revenue increases or tax benefit abolition), so the legislature can take advantage of reset TABOR revenue limits to pass new taxes.

The problem at the moment for Colorado's state budget is a projected shortfall of $1 billion in a $7 billion general fund budget for the current fiscal year, rather than excess revenue.

Colorado Springs Broke

Colorado Springs is the most conservative urban center in Colorado and this conservatism has a strong anti-government, "starve the beast" tenor to it. This is the home of Doug Bruce, the man behind TABOR. Residents has refused to back any kind of tax increase or borrowing. So, spending cuts are the only way that the city can deal with declining sales tax revenues during this recession.

The beast is starving (hat tip to Square State):

More than a third of the streetlights in Colorado Springs will go dark Monday. The police helicopters are for sale on the Internet. The city is dumping firefighting jobs, a vice team, burglary investigators, beat cops — dozens of police and fire positions will go unfilled.

The parks department removed trash cans last week, replacing them with signs urging users to pack out their own litter.

Neighbors are encouraged to bring their own lawn mowers to local green spaces, because parks workers will mow them only once every two weeks. If that.

Water cutbacks mean most parks will be dead, brown turf by July; the flower and fertilizer budget is zero.

City recreation centers, indoor and outdoor pools, and a handful of museums will close for good March 31 unless they find private funding to stay open. Buses no longer run on evenings and weekends. The city won't pay for any street paving, relying instead on a regional authority that can meet only about 10 percent of the need. . . .

Some residents are . . . arguing that cuts to bus services, drug enforcement and treatment and job development are attacks on basic needs for the working class. . . .

The deep recession bit into Colorado Springs sales-tax collections, while pension and health care costs for city employees continued to soar. . . . The 2010 sales-tax forecast is almost $22 million less than 2007.

Voters in November said an emphatic no to a tripling of property tax that would have restored $27.6 million to the city's $212 million general fund budget.

The city spent $19.6 million on parks in 2007; this year it will spend $3.1 million. . . .

[P]olice and firefighting still lost more than $5.5 million this year. Positions that will go empty range from a domestic violence specialist to a deputy chief to juvenile offender officers. Fire squad 108 loses three firefighters. Putting the helicopters up for sale and eliminating the officers and a mechanic banked $877,000. . . .

The city cut three economic-development positions, land-use planning, long-range strategic planning and zoning and neighborhood inspectors. It also repossessed a large portion of a dedicated lodgers and car rental tax rather than transfer it to the visitors' bureau. . . .

The city-run Colorado Springs Utilities will shut down 8,000 to 10,000 of more than 24,000 streetlights, to save $1.2 million in energy and bulb replacement. . . .

Broadmoor luxury resort chief executive Steve Bartolin wrote an open letter asking why the city spends $89,000 per employee, when his enterprise has a similar number of workers and spends only $24,000 on each.

Businessman Fowler, saying he is now speaking for the task force Bartolin supports, said the city should study the Broadmoor's use of seasonal employees and realistic manager pay.

The folks running the show aren't profiting from the cuts:

Mayor and council are part-time jobs in Colorado Springs, points out Mayor Rivera, that pay $6,250 a year ($250 extra for the mayor).

Denver pays its Mayor and council members about fifteen times as much.

You wouldn't guess it from the City's financial situation, but Colorado Springs is actually growing in population, due to a consolidation of military bases that favored the area's bases.

Colorado's Government Needs A Freezer Card

Unless voters agree otherwise, the State of Colorado has to fund its operating expenses from current tax and fee revenue. It isn't permitted to borrow money as the federal government does.

Most states require balanced state budgets, and in the long run, is is probably good policy to avoid getting the state too deeply into debt. But, an absolute fetish against borrowing for current expenses no matter how great the short term need for operating expenditures is bad policy. The state should be allowed to borrow money to partially make up for lost tax revenues on a short term basis in bad economic times.

At the household level, even financial planners who counsel against taking on too much debt, will sometimes advise clients to have a literal (or figurative) freezer card: a credit card encased in a block of ice in the freezer for use only in emergencies. Colorado's state government should do have the same kind of resource at its disposal.

State government expenditure demands are countercyclical. State government administers and funds, at least in part, the unemployment insurance system (whose costs go up with increased unemployment), Medicare (which provides health care for the poor), low income health care clinics and public hospitals (that get more use in bad economic times), food stamps, the welfare system, higher education and job training (which is always in higher demand when the job market is weak), mental health programs (whose clients needs are greater when jobs and hence private health insurance are more scarce). State government is also expected to ramp up public funded employment, particularly public works projects, when the private sector construction industry is weak, to buffer the industry in times of weak private sector demand.

State government revenues are cyclical. Sales tax revenues fall in tough economic times because people buy less. Income tax revenues fall because incomes are stagnant and people are losing their jobs. State government doesn't rely on property taxes as some local governments do, which provide more stable revenue streams.

The results are predictable. In tough economic times, state revenues fall and state expenses rise, requiring big budget cuts at a time when they don't make sense.

Raising taxes and users fees in tough economic times is another response. But, TABOR makes it hard to do that in a timely fashion, and from an political and economic perspective, a weak economy may not be the best time to increase government revenues from taxes and users fees significantly.

Recessions are also, frequently, times when interest rates are low, and when the interest rate spread between low risk and high risk debt is high. The Federal Reserve's instinctive response to a weak economy is to lower interest rates, as it has done now.

State governments, because they have the power to tax, because it isn't clear that they are permitted to go bankrupt and discharge their debts, and because they tend to have low debt loads, usually have relatively good credit ratings and thus, can borrow money with low interest rates.

Finally, recessions are typically short. Two or three years is a long recession. This means that the time available to response is too great for anything that requires voter approval to be timely. It also means that the budget crunches created by recessions tend to last for only a small number of fiscal years.

As a result, automatic stabilizers are one of the policy responses that seems to make sense to deal with recessions.

Nobody questions that a "rainy day fund", which sets aside some revenue growth for bad economic times, is good state fiscal policy. A state "freezer card" where the state is allowed to borrow some of the money it loses due to declining tax revenue (perhaps half or a third) in recessions on a short term basis is the same policy in reverse order. A roughly three to five year amortization period, similar to credit card debt, makes sense in this case, because most recessions clear up in that time frame and are followed by rising state revenue and reduced pressure on state operating expenditures. Recessions are rarely that close together.

An ability to raise funds with bond offerings is bad economic times also meets the increased investor demand for safe investment options in that time frame (the flight to safety is so great at the moment that Treasury bills are carrying negative interest rats), and may actually help the credit worthiness of the state. Political deadlock in the budget process is particularly prone to happen in times of decreasing revenues and increasing expenditures. And, state political deadlock on budget matters can produce defaults on a state's financial obligations as we have seen in California and Illinois, which issued IOUs for payments it was required to make, because it didn't have enough money to pay its obligations. Avoiding budget deadlock and the need to issue IOUs makes a state government more creditworthy.

This doesn't mean that the state should routinely have annual state budget deficits. The authority to borrow in order to make general fund spending should have a trigger, like declining government revenues, so that debt doesn't spiral out of control as it has at the federal level. But, a policy that prohibits any short term debt can do as much harm as one that allows debt financing on debt when it is poor fiscal policy.