A ballot initiative seeking to repeal the Taxpayer’s Bill of Rights, known as TABOR, can go forward, the Colorado Supreme Court ruled Monday.
The ballot measure, Initiative No. 3, is the brainchild of the Colorado Fiscal Institute.
Voters approved TABOR in 1992 as a check on government growth. It requires voter approval for new taxes and debt and for any spending above limits it imposes, based on the rate of inflation and population growth.
In February, the three-member Title Board denied the ballot measure, claiming it violated the single-subject rule required by the Colorado Constitution. The Title Board is made up of attorneys from the Secretary of State’s Office, Legislative Legal Services and the Attorney General’s Office.
In its 5-2 ruling Monday, however, the state’s highest court disagreed.
The “initiative effectuates one and only one general objective or purpose, namely, the repeal of TABOR,” says the majority opinion, written by Justice Richard Gabriel. “It does not treat incongruous subjects in the same measure, and its subject matter is necessarily and properly connected. ... we perceive nothing in Initiative #3 that could be deemed to be surreptitious or hidden in the measure,” to put it outside the single-subject rule.
On this decision, Jackson said, the court is focused on one ballot measure, though the single-subject rule likely will be challenged again based on the Monday ruling.
Said Carol Hedges, executive director of the Colorado Fiscal Institute: “In answering this important question today, the Colorado Supreme Court has given voters additional options for addressing the fiscal challenges the state faces.
“Today’s opinion clarifies voters’ role in making changes to their state constitution. I’m thrilled that those options include a full repeal of a provision that has made Colorado an outlier on state tax policy for nearly 30 years.
“This decision provides a new wrinkle in ongoing community-led conversations regarding inequities in our constitutional tax system. Our ability to keep Colorado an awesome place to live, work and play starts and ends with fixing our upside-down tax code, and we now have an important new tool to fix the problem,” Hedges’ statement said.
TABOR author and tax felon Douglas Bruce said the Colorado Supreme Court has only ruled in favor of TABOR once in 25 years. That was the 1996 ruling on the single-subject rule.
The justices now have reversed themselves, Bruce said, calling the decision an act of “intellectual dishonesty” that pulled “the rug out from under the three attorneys (on the Title Board), who know the single-subject rule better than anyone else.”
Bruce said “someone got to” the court, given that Democrats control both houses of the General Assembly. The court doesn’t have to do anything to placate fiscal conservatives, he said.
“The law hasn’t changed, and the single subject rule hasn’t been rewritten in the past 23 years,” Bruce said, calling the justices “the worst example of activist judges that you can imagine.”
Among TABOR supporters, Jesse Mallory of Americans for Prosperity Colorado said, “Politicians and big government organizations have been calling for an end to the Taxpayer’s Bill of Rights for years. Now they get their chance to try to convince the people of Colorado that they don’t deserve to vote on tax increases — a right AFP firmly believes Coloradans should have. Every elected official in Colorado will have the opportunity to publicly state which side they fall on.”
The one-line ballot measure simply states: “Repeal Section 20 of Article X,” the TABOR section of the state constitution.
The initiative now goes back to the Title Board to resume the process to put the measure on the ballot. Should its backers gather the more than 124,000 signatures needed to place it on the ballot, it would be voters’ first opportunity to repeal TABOR. It could show up on the ballot as soon as this year.
The ruling helps clarify what’s legally possible, said Elliott Goldbaum of the Colorado Fiscal Institute.
The ballot measure would require only 50% plus one voter’s approval, rather than the 55% approval required for additions to the state constitution, set in Amendment 71 in 2016.
About 90% of requests by local governments to “de-bruce” have passed, meaning voters allow them to spend all the revenue they collected.