The Colorado Supreme Court on Wednesday reversed the judgment of the Denver District Court in an appeal addressing whether the governor was authorized under the Colorado Disaster Emergency Act to create an exception to a requirement that petition signatures used to place initiatives on the ballot be collected in person.
The court concluded on July 1 that under Article V, Section 1 of the Colorado Constitution, ballot initiative petitions must be signed in “the presence of the petition circulator.”
“Here, we conclude that the Colorado Disaster Emergency Act … does not authorize the Governor to suspend a constitutional requirement. Thus, the Governor cannot, by executive order, create an exception to the requirement that signatures on petitions to place initiatives on the ballot be collected in person,” the court opinion states.
In a statement, Gov. Jared Polis said that the decision was “a blow to the power of the people of our state to petition, it is certainly convenient for certain groups or elected leaders have to deal with fewer ballot initiatives.” He further added that “sadly, it’s at the cost of making it much harder and even dangerous from a public health perspective for activists on all sides to get their issues on the ballot for voters to decide.” The statement notes that the governor’s office doesn’t believe “outdated process rules should interfere with Coloradans’ right to petition.”
Both Polis and Secretary of State Jena Griswold were sued over a May 15 executive order by Colorado Concern, a business group that argued the order circumvented the Colorado Constitution. Another individual plaintiff in the suit, Daniel Ritchie, said he would suffer if certain state ballot issues approved for gathering signatures became law.
The order temporarily suspended certain sections of the law in Title 1, Article 40 of the Colorado Revised Statutes, which covers language and form requirements for petitions for ballot measures. Specifically, the requirement for a petition circulator and notary to be in the physical presence of electors signing the petition. The complaint circles Title 1, Article 40 and references suspensions of sections in the article that makes petitions that do not meet signature collecting requirements invalid.
The complaint alleged that the executive order exceeded the governor’s power under the Colorado Disaster Emergency Act and that no interference with necessary action addressing COVID-19 would happen with compliance under the article.
Further, the complaint requested expedited declaratory relief and the court to stop the secretary of state’s office from making rules for remote signature gathering.
The plaintiffs were represented by Sarah Mercer and Chris Murray of Brownstein Hyatt Farber Schreck. Mercer said the case was resolved quickly because the court agreed to accept the appeal before there was even a petition for it.
The suit was deemed important enough for immediate review. The briefing was streamlined — open briefs, no answer briefs and no oral arguments. Murray said he thought the court appreciated the challenge being brought immediately and wanted to provide certainty one way or another.
“Especially the way it came down, I think that the court didn’t want folks out there collecting signatures under an unconstitutional executive order for longer than they could help it,” Murray said. He believed there were signatures obtained under the unconstitutional order. Mercer added that the Supreme Court is “especially sensitive to timing issues on election law issues.”
Previously, a judge in Denver District Court denied a request for a temporary restraining order and declaratory relief against the executive order temporarily allowing remote signature gathering for ballot measures, which was issued by Polis. Murray said if the district court ruled the way the Supreme Court had, he was “virtually certain that the governor would have appealed.” Mercer agreed, adding in terms of the tone of the court, their analysis came with an appellate tone while the district court usually has a more fact specific inquiry.
“Colorado Concern, and [Mercer] and I speaking on their behalf, want to be really clear. This case is not about what the governor’s motives were,” Murray said. “We think the governor’s motives were sincere, what he was trying to do was make it easier for folks to collect signatures in if not unprecedented, a highly unusual time.”
The disagreement was over means — that in emergencies it helps to know that the rule of law still works, and if something is in a constitution, everyone has to follow that, “especially when it’s inconvenient,” Murray said.
And, either way the case went, the Supreme Court was going to be called in, Murray said.
The tone of the public possibly would have been different if the district court had ruled in favor of the plaintiffs, as nobody would have been out collecting non-in person signatures. His view on those signatures collected are invalid because they were collected unconstitutionally. “Substantively, I don’t think there’s any difference at all.”
The Supreme Court wrote in their opinion that in 1910, Colorado voters amended the state constitution to adopt an initiative process, which included wording “in their own proper persons only.”
“Thus, the voters who added the initiative process to the constitution intended that petition signatories sign for themselves rather than permitting someone else to sign for them,” the opinion states. “Read together with the second cited requirement — that a registered elector attest to the validity of the signatures — we conclude that these provisions of article V, section 1 require that the personal signature occur in the presence of the person circulating the petition.”
Murray said in 1910, the people of Colorado put the in-person wording in, and at the time paper and pen were the options then. Today, there are more options which may work, and he could see a movement to amend the constitution to allow for remote gathering or changes.
Mercer agreed, adding that one of the important outcomes of the decision is that the court clarified that the in-person requirements are enshrined in the constitution — and if there was a desire to change in-person requirements that cannot be done by a statutory change, it would have to be done via a constitutional amendment. She added that was an open question going into the suit.
Further, the court also found that 110 years of settled practice supported their conclusion. The court also cited the United States Supreme Court case Meyer v. Grant, that involved a First Amendment Challenge to a Colorado law which made paying petition circulators a felony. In the striking of that law, the SCOTUS described the petition process that “out of necessity” involves both expression of a desire for political change and merits of the change, and thus involves explanation of the proposal nature and why advocates support it.
“Article V, section 1(6) of the Colorado Constitution requires that ballot initiative petitions be signed in the presence of the petition circulator. That requirement cannot be suspended by executive order, even during a pandemic. We therefore reverse the order of the district court and remand for proceedings consistent with this opinion,” the conclusion states.
When this case, along with the court’s ruling in the Ferrigno Warren case, revolving around ballot access and a candidate claiming she could not collect enough signatures because of the pandemic, will be viewed long from now in a future emergency or pandemic on guidance on when the constitution is flexible, Murray said.
“The answer they’ll get here is that, look, if it’s in the constitution — it applies no matter what,” he said.