The Pros and Cons of Amendment 38

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The Pros and Cons of Amendment 38

by Ari Armstrong, October 20, 2006

There are good reasons to doubt that more direct democracy would protect rights better than the current scheme. Yet Amendment 38 on Colorado's ballot does improve some aspects of the petition process. The measure is difficult to evaluate precisely because it contains so many provisions. Here I discuss the good points, the bad, and the ones of ambiguous stature. By pointing out the measure's defects, no doubt I will further irritate my friends who support it. I will begin, then, with the positive points, and leave it to the reader to decide whether, on balance, the measure is worthwhile.

The Good

* Faster filing and title process. "Any review and comment hearing shall be held within 7 days of filing initiative drafts... Initiative ballot titles... shall be set within 7 days of requests made at any time... All ballot title disputes and all single-subject challenges shall be filed with the supreme court within 5 days of such settings, finally decided within 7 days of filing, and very broadly construed to aid initiatives." These seem like reasonable procedures.

* Clear single-subject rules. "Decisions that initiatives contain multiple subjects shall list in writing all words not part of single subjects. Revisions that delete those words, and add no others, shall conclusively be single subjects." This would reduce politically-motivated decisions based on arbitrary distinctions of what counts as a "single subject."

* Legislative challenges. "In each district, no more than 12 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures, with detailed descriptions of emergencies justifying the exceptions, shall be passed by 3/4ths or more of all members of the elected local board or of each house of the general assembly. State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns, and such local measures 91 days or more after post-passage publication. Initial filing of referendum petitions with sufficient gross entries before that 91st day shall delay the effective date until the election or final petition invalidation." This would reduce the tendency of the legislature to declare all things emergencies for the purpose of bypassing citizen oversight. Polhill provides examples on pages 40-42 of a recent paper.

* Longer gathering period. "Within 12 months of petition form delivery, petitions shall be initially filed with sufficient gross entries... Petitions not initially filed 3 months or more before elections may be filed for the next election." A longer period to collect signatures would give volunteer efforts a better chance.

The Ambiguous

* All districts. "Petition rights shall exist in all districts. Required district registered elector petition entries shall not exceed 5% of all district votes for secretary of state candidates in the last full-term general election for that office." The numerical standard is not bothersome. Dennis Polhill writes, "Only 10 percent of Colorado governments (272 out of 2710) now have petitions." The benefit of expanding petitions is that citizens would be able to check the violation of rights by local governments. The cost is that citizens would also be able to violate rights at the local level. Who is more likely to use the new petition powers: those who want lower taxes and better protection of property rights, or those who want higher taxes, special privileges, and more political control of property?

* Short titles. "Initiative ballot titles shall not exceed 75 words..." The benefit is that titles won't be made arbitrarily long and confusing. The cost is that some titles might be made arbitrarily short and confusing.

* Harder signature challenges. "Signers of petitions later notarized or verified shall be presumed district registered electors making valid entries until disproved in protests by clear and convincing evidence. Technical defects, minor variations, and minor omissions shall be very broadly construed to aid petitions. Listing mailing addresses shown on registration records shall be valid. Protests shall be filed in state district court within 10 days of petition filing, and not amended. Hearings shall be public, limited to itemized entries, and decided within 10 days of protest filing, using judicial rules of evidence and procedure." The benefit is that fewer signatures would be arbitrarily rejected. The cost is that more improper signatures would be accepted. Volunteer groups may have a harder time challenging special-interest petitions.

* Voter guides limited to partisan comments. "Petition agents may file up to 1,000 words for ballot information booklets and election notices sent to all active registered elector addresses. The length of actual filings shall be the maximum for summaries of comments filed by opponents. For petitions, those booklets and notices shall be limited to such written comments..." The benefit is that Legislative Council's sometimes problematic summaries would be eliminated. The problem is that taxpayers would foot the bill for a partisan debate. I'm starting to think that the whole notion of a tax-funded voter's guide is ill-conceived. [October 23 update: Another alternative would be a guide that included only the title and language of the measures, but no additional argument or analysis.]

* Limited discussion by government officials. "Except for court cases, or petition or election procedures and materials required by statute, no district or district staff shall aid spending district resources, or using any district procedure, equipment, or staff time, to discuss pending petitions after petition forms are delivered. No district resources or staff time shall aid accused violators or repay expenses. Each district and other violator shall separately pay the state general fund at once, per event and without offset, the greater of $3,000 or 3 times the value of such spending, use, aid, and/or repayment." The benefit is that officials could not spend tax dollars to advocate the passage or rejection of a measure. The cost is that officials could not offer legitimate information about measures, and officials might be fined for totally innocent and inconsequential slips.

* No legislative changes. "Unless stated in the texts or unless the texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters." The benefit is that petitioners would be less likely to try to change the constitution, and good measures would be immune from legislative interference. The cost is that badly written or otherwise problematic petitions would not be subject to legislative correction.

The Bad

* No title on the signature page. The language from Amendment 38 states, "All districts shall use the 1988 state petition forms, modified to comply with all final federal court rulings, but without summaries or county entry spaces." The Rocky Mountain News explains in an October 9 editorial that this would "eliminate the requirement that the title be put on each signature page." This would create a serious potential for error and abuse.

* Rejected legislation limited to voter approval. "Measures rejected by voters shall then be void, and measures wholly or mostly similar shall then be passed again with voter approval only." True, under this provision the legislature could not override good voter decisions. But what of bad voter decisions? Who would determine whether new legislation is "wholly or mostly similar" to old legislation? The standard is inherently arbitrary. What if voters reject something over some detail, which the legislature then fixes?

* Governments print petitions. "Within 7 days of requests for petition forms, districts shall print and deliver them and may charge actual costs up to one dollar per 100-entry form." Even if this would save money overall in the petitioning process and standardize the forms, as proponents argue, the government shouldn't be in the business of printing petitions, whether or not they're able to recoup the full costs from petitioners.

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