Archive for category Colorado Politics

On the Recalls, the Dems Have No Standing to Complain

In 82 BCE, Sulla returned to Italy, and touched off three years of Civil War.  By the end, he had killed tens of thousands of people, entered Rome by force, butchered thousands in civic buildings, and ordered the deaths of perhaps 5000 of the most prominent Romans.  He not only broke the taboo against using legions against Rome itself, he killed pretty much any Roman who had even thought to oppose him, and many who hadn’t.  As a result, he was able to leave office voluntarily, and wander the streets of Rome unprotected by any bodyguard.  His reforms took Roman governing law back to the rules it had operated under prior to the rise of Tiberius Gracchus about 60 years earlier, while still trying to deal with the land and military issues that led to Gracchus’s rise in the first place.

Sulla used radical means to achieve arch-conservative ends.  And yet, in the end, it was the radicalism that endured and the restoration that was forgotten.

To listen to the Denver Post, you’d think that the Colorado recalls were a similarly seminal moment in the destruction of our Republic.  And some Democrats agree.

Whatever the merits of using unconventional, if perfectly Constitutional, means to achieve politics ends, the Democrats have no room to complain.

The Democrats are the party that invented changing the rules in the middle of the game, and it didn’t start with Harry Reid and the Magical Disappearing Rulebook, or the Florida Supreme Court’s creative ballot accounting.

This is the party that has, here in Colorado, weaponized vote fraud this past year.  They’re the party who, in 2004, sued to allow anyone to vote a full ballot, non-provisional, in any precinct, without ID.

They’re the party that is suing its own citizens to overturn a 20-year-old Constitutional Amendment in order to raise their taxes without end.  It is the party that filibustered its own redistricting bill because it preferred its odds in court to having to negotiate Congressional districts with the other party.

The Democrats are the party that passed out of the State House a bill to overturn the Electoral College, by joining an interstate compact without Congressional sanction.  They cheerfully accepted out-of-state money for a popular referendum to apportion our Electoral votes proportionally, which would have reduced the value of winning the state from nine votes to one.

They sued to get an ineligible school board candidate declared “duly elected,” in order to have her disqualified, so that a favorable committee could appoint her successor.

It’s not as though Colorado Dems invented this game, they just learned it from their brethren elsewhere.  They’re the party that popularized the recall election in Wisconsin, after occupying the state capitol failed to achieve the desired results.  (I have half a mind to just blame this tantrum on recall-envy, given the different parties’ relative success in making the tactic stick.)  There, too, they politicized a state Supreme Court election, in an effort to overturn the laws that caused the uproar in the first place.  Most Wisconsinites weren’t aware that Supreme Court elections were partisan affairs, complete with allegations of physical assault.

In New Jersey, the late Senator Frank Lautenberg was only Senator at all because the party got a judge to agree that even though the law said they couldn’t replace Bob Toricelli on the ballot within 30 days of the election, it didn’t really mean it.

The Democrats will claim that this is just politics as usual, that the game is played by trying to change the rules on the fly.  If so, it reduces the Republicans’ sin to one of not being sufficiently shameless.

In other words, of not being enough like Democrats.

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Tidbits from the Gessler Campaign

One of the leading candidates for the Republican nomination to unseat sitting Governor John Hickenlooper is Secretary of State Scott Gessler.  Gessler has been a solid conservative, and has taken his share of arrows from Colorado’s progressive left for his insistence on ballot integrity and his resistance to the HB1013, the Democrat Weaponization of Voter Fraud Act of 2013.

This isn’t a post with an extended analysis of the governor’s race, but I did want to mention a couple of interesting items that haven’t gotten the play that I think they should have, mostly because they’re good stories.

First, Gessler essentially suspended much of his field operation (calls for contributions presumably went on as usual) in order to redeploy his staff on behalf of the Douglas County School Board reform candidates.  Those were important races not just for Douglas County, but also with state and national implications.  The unions essentially tossed everything they had into those races, reducing support to their Denver and Jefferson County candidates.  They were gambling that even if they lost there, a win in DougCo would send a warning message to other school boards.  They lost that gamble, in part because of the field support that Gessler gave them.

This is called, “leadership.”  To be sure, it wasn’t entirely selfless.  The information and visibility gained in a Republican-dense county will be helpful in both primary and general election campaigns.  But showing up for a fight that nobody would blame you for sitting out builds loyalty, and shows a willingness to sacrifice for the team.  In 1966, Richard Nixon campaigned all over the US for Republican Congressional candidates, all of whom won, and all of whom remembered it in 1968.  That Gessler was willing to do the same speaks well of him.  To the extent that there’s a concern here, it’s that he hasn’t done a better job of publicizing this story.

That actually could be a serious concern, since one of Gessler’s potential picks for Lieutenant Governor, State Rep. Calrice Navarro-Ratzlaff of Pueblo, is seen by many as more moderate than Gessler.  Now, that would be, in my mind, a silly reason not to support Scott.  Lt. Governors operate at the behest of the Governor.  And as this chart shows, in Colorado, that post is a launching pad to obscurity.  You have to go back to the 2nd Eisenhower Administration to find a Lt. Governor who was later elected to a significant statewide position in his own right.  This isn’t Reagan positioning Bush as his successor.

As a district captain, I have to retain strict neutrality when it comes to primary races, but that doesn’t preclude me from writing about interesting and informative aspects of the race.

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Changes to PERA’s Assumptions Not All Good News

Friday, the PERA Board decided to make two significant changes to their actuarial assumptions.  First, they lowered their expected return on their portfolio from 8% to a more realistic 7.5%.  Second, they lowered their inflation expectation from 3.5% to 2.8%.

This is being advertised as a more realistic set of assumptions, in effect, an admission against interest that outside players such as Treasurer Walker Stapleton have been agitating for for some time.  The lower rate of return will, according to the Denver Post report, raise the unfunded liability from $23 billion to $29 billion.

It’s true that the 7,5% rate is more conservative than 8%, and closer to the average rate of return being assumed by most public pension funds around the country.  On that basis, the change is to be welcomed.  But for a long time, I’ve felt that the rate of return was very much out of line.

In fact, the lower rate of return should have no effect on the unfunded liability.  The only reason that the unfunded liability will grow is that PERA will use the lower rate of return as the new discount rate.  Of course, as we’ve discussed before, the discount rate should be independent of the rate of return; it should be the state’s long-term cost of borrowing, or even the risk-free rate of return, the 30-year US Treasury rate.

In addition, many of the benefits of the lower rate of return are more than offset by the lower inflation rate.  Before, the real rate of return was 8 – 3.5, or 4.5%; now it’s 7.5 – 2.8, or 4.7%.  PERA is decreasing the increase in future liabilities here, by lowering the expected future increase in salaries.  This means that the net effect of both changes is to increase the real rate of return.

Unfortunately, we won’t know exactly how this plays out until PERA releases its next CAFR – next July, 8 months from now.

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Who’s Funding Hudak Defenders’ Scare Tactics?

We’re not quite sure, that’s who.

Complete Colorado reported Friday on another attempt to scare Jefferson County residents away from signing recall petitions for State Senator Evie Hudak (D).  ”Democracy Defense Fund,” which had previously been responsible for door-hangers claiming that signature-gatherers were criminals, is now using robocalls for the same purpose.

A poster on the Grassroots Radio Facebook page found the TRACER record for the Democracy Defense Fund, registered on October 10, 2013, for the purpose of opposing the SD19 recall.  While the principals for DDF are local to Colorado, the Fund’s entire $25,000 bankroll came on an October 18 donation from a group named Environmental Majority, out of Washington, DC.

The PAC is expressly partisan, and solely focused on elections.

The $25,000 expenditure represents more than it had spent in the 2014 cycle up to this point.  Not more than it had spent on specific races.  More than it had spent, period.

The PAC reported receipts of roughly $29,000 in the first half of the year, about $23,600 came through the site ActBlue, which serves as a small-donor platform for progressive and Democrat causes, sort of a partisan Piryx.  Of the $21,000 spent, about $9300 went to the Massachusetts special Senate election to replace John Kerry; just under $6000 went to the New Virginia PAC, other money went to various Democrat digital consulting firms. Small Potatoes.

Yet, with just over $8000 cash on hand reported at the end of June 2013, the Fund found $25,000 for scare-robocalls and scare-door-hangers in the Hudak recall race.  Admittedly, Hudak has a 100% Lifetime rating from the Colorado Conservation Voters.  But still, she’s a state senator, not a Congressman or a US Senator, and Environmental Majority states:

Our objective is straightforward: elect a pro-environment Democratic majority in the United States Congress and raise the political importance of environmental issues, especially climate change.

It appears that the decision to funnel the money through Environmental Majority, rather than immediately through Democracy Defense Fund, may have been deliberately made in order to avoid disclosure until after the signature-gathering period ended.  DDF has already been fined $50 for being late on one reporting deadline, but according to TRACER, their next filing would be due November 25.  The Hudak recall effort has until December 2 to turn in its petitions.

Since 2013 is an odd-numbered year, it appears that the FEC will only require Environmental Majority to file a new report by January 31 of next year, well after the Hudak signatures have been gathered or haven’t been.  This means that we may well not know who’s been funding the scare tactics that Hudak’s defenders have been using until the issue of there being a recall election at all is settled.

UPDATE: Colorado Observer notes that Environmental Majority has also given $5000 to Stand With Evie.

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Obamacare – When Lawlessness Under the Law Just Isn’t Enough

The Washington Post reports this morning that 10 Democratic Senators – including both Colorado Senators – have asked the Obama Administration to extend the open enrollment period for new insurance under Obamacare.  Their request stems from the well-publicized problems with the rollout of the insurance exchange websites, the primary mechanism for enrolling in Obamacare and purchasing new insurance, as required by the individual mandate.  The letter reads, in part:

Given the existing problems with healthcare.gov and other state-run marketplace websites that depend on the federally-administered website, we urge you to consider extending open enrollment beyond the current end date of March 31, 2014.  Extending this period will give consumers critical time in which to become familiar with the website and choose a plan that is best for them. Individuals should not be penalized for lack of coverage if they are unable to purchase health insurance due to technical problems.

While this may sound like a good idea, it likely won’t work without a delay in the individual mandate (See Solution #7), and is almost certainly illegal under Section 1311 of the law:

The three-month open-enrollment period isn’t statutory; instead, the ACA directs the Secretary to establish an “initial open enrollment” period. Normally she’d have the discretion to tinker with that as necessary. But the statute also requires her to establish that initial period by “not later than July 1, 2012.” Well, she’s blown through that already — and the provision appears to preclude her from rethinking the determination now. For years after 2014, the statute’s quite clear that she’s got discretion to set annual enrollment periods. But that broad discretion exists only “for calendar years after the initial enrollment period.” That reinforces the suggestion that she can’t rethink the open-enrollment period now.

Apparently, a 2700-page law that’s generated 11000 pages of regulations, includes almost unlimited waiver capacity for the President’s friends, excludes all manner of people responsible for passing and implementing it, and even permits the executive to ignore whole sections of it, still didn’t provide enough flexibility after the election.  Now, Democratic Senators who are staring political mortality in the face are encouraging the HHS Secretary – and by extension, the President – to just ignore the law altogether to help get them out of this mess.

Either Senators Udall and Bennet knew this was illegal when they signed the letter, or they didn’t.  Either way, this amounts to an abdication of responsibility of elected representatives.

If they did know, they’re encouraging not merely this Administration’s habit of arbitrary rule and lawlessness within the law, but actual black-letter lawlessness.  If they didn’t know, it’s a testament to the dangers of voting on bills you couldn’t have read, much less understood, that hand over wholesale lawmaking authority to another branch of government.  The problem with the latter is that it becomes a habit, and little by little, and then all at once, you find yourself running for an office that doesn’t matter at all, while the real power has coalesced into a single executive and an unelected civil service.

How about this.  Since Senators Udall and Bennet don’t seem interested in governing, how about elect someone who is?

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Transparency At A Steep Price

This post originally appeared on Watchdog Wire Colorado (“Gov. Hickenlooper Channels His Inner Pelosi“).

 

Rep. Nancy Pelosi (D-CA) famously said about Obamacare that, “We have to pass the bill so that you can find out what’s in it, away from the fog of the controversy.”  That seems to be the line that Gov. John Hickenlooper (D) is taking with respect to PERA spending by the state’s school districts, and Amendment 66.

In a recent post that has garnered attention from both the Colorado Springs Gazette and the Denver Post, we discussed the governor’s approach to PERA spending by the districts, which is to increase transparency in order to drive public opinion:

Gov. Hickenlooper: Well, if you want to fix that, if that’s what’s happening, then we can’t legislate that. There’s a certain amount of money that goes into the districts, and that is the way our education system is structured. If you want to fix that, put it up on our website, how much of that money the district is spending on PERA. And I guarantee you the parents will go nuts.

In response to another question at that same October 8 event, Hickenlooper touted the transparency website as part of the “Grand Bargain” of Amendment 66, that the entrenched interests and monopoly power of the districts and the teachers unions would likely not have accepted the transparency without the additional money from Amendment 66′s tax increase:

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And the other question of whether you could just do this – let’s assume the website was for free, to get that into the bill, the school districts, and the school administrators, would have fought it like crazy, because it’s going to make their life hell.

The only reason they were willing to let it be in this bill was because we had a tax increase.

It’s why they call it, “The Grand Bargain.” We’ve got all this stuff that no other state – I mean – doesn’t it sound like a great idea to have that transparency? And yet why is it that not a single other state has that kind of a website. (Emphasis Added.)

In short, he’s arguing that the only way to get the transparency is to vote for the tax increase first.

However, the legislature has in the past mandated transparency, and with no objection from the districts.  In 2010, the legislature approved HB10-1036, the Public School Financial Transparency Act, virtually without objection.  Among other things, it’s the reason that school districts have to post Comprehensive Annual Financial Reports and Quarterly Financial Statements online, along with check registers and credit and debit card purchase statements within 60 days of incurring the expense.

The bill passed without dissent through both Education Committees, and registered only one “No” vote on the floor of the House.  It appears as though nobody testified against it in committee.  Our own Ben DeGrow did testify in favor of it before the House Education Committee.

If the governor is now arguing that such an extension of the transparency requirements would meet with stiff resistance from the school boards and teachers unions, he’s essentially arguing that there’s not enough support within the majority Democratic caucus in the legislature to get such a bill passed, and admitting perhaps more than he would like about union influence within that caucus.

In order to garner support for the tax increase from reluctant parties, Gov. Hickenlooper has pledged to put SB10-191′s tenure reform on the ballot in the form of a Constitutional amendment, should the expected legal challenges succeed.  If the tax increase amounts to the price to be paid for bringing his own caucus along on transparency, it calls into question his ability to fulfill that pledge once the tax increase has already passed.

 

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Hickenlooper Admits: Amendment 66 Money Can Go To PERA

This post was originally published on Watchdog Wire Colorado (“Gov. Hickenlooper Admits: Districts Can Use Amendment 66 Money For PERA“).

 

From the beginning, one of the key concerns surrounding Amendment 66 has been its prospective use to backfill the state’s public pension obligations, rather than aid Colorado students in the classrooms.

It’s a serious worry for Amendment 66 supporters- they even produced a video on this point, claiming that, “There is only one way to read Amendment 66 when it comes to where the new money goes” (visible at 1:38).

PERA’s own website references a Grand Junction Sentinel editorial denying the charge:

“Or, as the group pushing the ballot amendment states on its website, money that will be raised by Amendment 66, ‘is constitutionally and statutorily prohibited from ever being used directly to fund PERA.’”

But that one word, “directly,” is a loophole that even Governor Hickenlooper won’t climb through, and as a result, undercuts this entire claim by proponents.

A Revealing Question

As a result of my membership on the Jewish Community Relations Council of Colorado, I received an invitation to an event on October 8 in support of Amendment 66, hosted by Cherry Hills Village residents David and Laura Merage.  The Merages are prominent entrepreneurs and founders of the David and Laura Merage Foundation, which counts education among its primary missions.  Gov. John Hickenlooper was a featured speaker and gave some remarks regarding Amendment 66 to the crowd of about 40 people, followed by a question and answer session. I took this opportunity to ask the Governor for clarification on PERA funding. The following is an audio file and transcript of our exchange:

Play

Gov. Hickenlooper: Anything else? What else?

Sharf: OK, so a question about the PERA. So, you had said that it can’t be used to backfill PERA, which is certainly true at the state level.

Gov. Hickenlooper: Yep

Sharf: Well, once the money gets to the districts…now, under SB1, which was supposed to be the fix for PERA, the districts were supposed to split – there was a lot more money going into PERA, there was some increases, some supplemental payments, that were going to go into PERA.

Gov. Hickenlooper: Right

Sharf: And, the districts were supposed to split that increase with the employees, with the unions.

Gov. Hickenlooper: Yep

Sharf: But with the exception maybe of Adams, they haven’t really. Overwhelmingly…

Gov. Hickenlooper: I’m not sure that that’s right -

Sharf: Well, Greg Smith -

Gov. Hickenlooper: They have not split it, they’ve just swallowed it.

Sharf: Right, that’s what I mean, is that they’ve basically just swallowed it.

Gov. Hickenlooper: Well, if you want to fix that, if that’s what’s happening, then we can’t legislate that. There’s a certain amount of money that goes into the districts, and that is the way our education system is structured. If you want to fix that, put it up on our website, how much of that money the district is spending on PERA. And I guarantee you the parents will go nuts.

Sharf: But do you need the tax increase to put it up on the website?

Gov. Hickenlooper: YES!  I mean, to have a website like that, $18 million, $20 million, and then to operate it, yeah! You should see – you know what it’s going to cost – I just got the budget today – you know what it’s going to cost to finally have our drivers license system for the state of Colorado, to have a simple system where you go in and you get your driver’s license? And you can do it as you’re coming in, do all the prep work on your handheld device? You know what that’s going to cost? Eighty million dollars. Just so you’re clear; we’ve been working on that for two and a half years, they just told me that today in our budget meeting. That’s just what it is.

Under the terms of SB10-001, passed in 2010 and signed by then-Governor Bill Ritter, school districts are required to make additional payments into PERA in order to help stabilize the program. PERA’s Executive Director, Greg Smith, is on record as saying that the legislature’s intent was that they split the cost of those increased payments with their employees. Smith, in legislative testimony, noted that most school districts have failed to do so.

Sen. Michael Johnston, a prime sponsor of Amendment 66′s implementing legislation, SB13-213, and advocate for Amendment 66, also seemed to believe that SB10-001 required increased employee contributions, and seemed surprised in December of last year to find out that that wasn’t happening:

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Question (at 1:21:05): The pushback that I got from our district, and quite honestly, there was no change in the contribution rate for the teachers, for the employees of the district. All the increase, at least in Jefferson County, picked up by the taxpayers and the district. They kept insisting that there was nothing they could do, so please go to the legislature and take care of that, there was nothing they could do about adjusting how much the contributions – the contributions go up really high on the taxpayer side but they haven’t moved for the teachers, at least in JeffCo. Perhaps in other districts…

Sen. Johnston: We should touch base after this, because the bill that I voted for did include increases on employee contributions, so we should talk about that.

On a per-pupil basis, this becomes clear. Statewide, the overall increase in PERA contributions (left axis) strongly parallels the increase per-student contribution to PERA from the districts, while the per-pupil contribution from the employees has barely budged (per-student on right axis):

2012-PERA-School-Contrib

Source: PERA CAFRs and Colorado Department of Education

District Versus State Rules

Because teachers are employees of the school districts and not the state, the overwhelming portion of the employer’s PERA contribution to the School Fund comes from the districts to begin with.

(One major exception is Denver teachers, whose retirement plan recently merged with PERA and has its own fund.  Under the terms of the merger, DPS payments are currently offset by the interest payments on the debt DPS floated in 1997 and 2008 to fund their pension obligations.)

The governor’s candid admission that once the money leaves for the districts, the state has no real control over how it’s spent, severely undercuts one of Amendment 66′s supporters’ key claims about how much of the $1 billion in additional tax money is required to make it to the classroom, and how much will be diverted to the pension fund.

And the districts’ recent behavior gives taxpayers little cause for optimism, either.

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Amendment 66 – Exacerbates The Revenue Problem

Rather than aid poorer school districts, Amendment 66 will, in the long run, likely end up hurting them, making budgeting harder for those districts, and lives more difficult for both the students and teachers who live and work there.

The state is complaining that it’s chronically short of cash for education, both as a result of decreased tax revenues since the recession, and the state’s budget restrictions.  In response, they have proposed a two-tiered income tax system, the first in over a quarter of a century in Colorado.

Currently, Colorado has a flat, 4.63% income tax rate from the first dollar of income.  The proposed system would raise that to 5% for income under $75,000 and to 5.9% for income over $75,000.  Colorado has roughly 1.8 million filers in the first bracket, and just under 600,000 filers in the proposed upper bracket.  Proponents claim this would raise roughly $1 billion a year in new revenue, which they also claim would go largely to the poorer and neediest school districts.

How could a $1 billion tax increase make things worse for these districts?  Because the income tax, unlike the property tax, is pro-cyclical.  When the economy is doing well, incomes are highers, and receipts from the income tax rise.  The income tax varies much more with the business cycle than the property tax does because incomes vary much more than property values do.

This conclusion is borne out by a 2010 Tax Foundation study comparing variations in various sources of state and local income nationwide.  Corporate income tax was the most volatile, with personal income tax next.  A more recent analysis, also by the Tax Foundation, confirmed this result, and found that over the last 20 years, the least volatile source of state and local revenue has been the property tax, the primary source of income for school districts.

This has particular resonance for Colorado.  In 2008-2009, Colorado ranked 36th in year-over-year percentage change in state tax revenues; increasing the state’s dependence on personal income taxes will likely make them more volatile, and adding a progressive component will make them more volatile still.

Under Amendment 66, the state will backfill much of the difference for poorer districts.  This means that those poorer districts will find themselves more dependent on a more volatile source of income: personal income taxes.  When times are good, this will help them.  But when the next recession inevitably hits, it’s those poorer districts, the ones that Amendment 66 claims to help the most, who will in fact, suffer the most.

 

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Fairness and Compassion, Liberal-Style

One of the manifest failings of conservatives in the battle for public opinion has been to cede arguments based on fairness and compassion to the Left.  Conservatives care about fairness and compassion every bit as much as liberals do.  However, following the advice of Milton Friedman, they have been reluctant to make arguments on that basis. In part, this is because they pride themselves on making fact-based and (in the case of the more libertarian-inclined) philosophically clean arguments.  In part, this is because they consider fairness and compassion to be subjective, and a slippery slope to accepting the basic liberal thesis of an activist government.

Ultimately, this has been a mistake, leading many in the middle to conclude – incorrectly – that since conservatives only talk about poverty in terms of numbers, rather than people, conservatives don’t really care about poor or vulnerable people.

At Monday night’s City Council meeting, we got a chance to see what happens when conservatives make fairness and compassion arguments, and defend the poor and vulnerable.  Virtually every one of those testifying against the Bag Tax brought up the fact that it would disproportionately hurt the poor.  Here’s how liberal Democrat Paul Lopez, who was a strong supporter of Occupy Denver, responded:

 

If you’re on SNAP benefits, you’re food is paid for. If you can carry five bags, that’s fifty cents. It’s not that big of an impact.

In his manner, his style, and his words, he sounded exactly like every liberal’s caricature of a conservative talking about how the poor don’t carry their weight.

Here was Councilman Debbie Ortega:

 

You know, I get the Mayor’s concern about the fee and the impact to people. I just had the budget office pull for me a list of all the fees that we’ve done in the last two years, and we’ve got over twenty-three different fees that have been brought forward, so to say that we’re concerned about a 5-cent fee when – and, and that’s not all of them that are on the table. We’ve got some others that are being discussed right now. So I’m not real sure what the real angst is, about a 5-cent fee…

Wow, we’ve already jacked up fees on poor people twenty-three times over the last two years, so why do they care about about five cents every time they pick up some groceries?

This is what happens when conservative learn to properly point out that liberal policies hurt the poor the most, and conservative policies offer them the best chance at a better life. Liberals react by saying the same, tone-deaf things that conservatives have earned a reputation for saying over the last few years.

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A New Challenge to Amendment 66

Late this afternoon, a lawsuit was filed challenging the validity of many of the signatures gathered by the supporters of Colorado Initiative 22, now Amendment 66, which seeks to raise state income tax and create a two-tiered tax system for the state.

The lawsuit was filed in Denver District Court by a bipartisan pair of former state legislators, Norma Anderson (R) and Bob Hagedorn (D), and has not yet been scheduled for hearing. According to the press release by Coloradans for Real Education Reform, its primary charge is that the IDs of many of the petition-gatherers were not properly validated by notaries.

If upheld, this challenge could invalidate as many as 39,000 of the nearly 90,000 signatures ruled valid by the Secretary of State’s office. (Initiative supporters had turned in just over 165,000 signatures, of which just under 76,000 were rejected as invalid.) The Initiative needs a little over 86,000 signatures to qualify, so this section alone would invalidate far more than enough to keep the measure off the ballot.

Colorado had long had what was regarded as one of the nation’s least restrictive ballot access requirements for both statewide initiatives and proposed constitutional amendments. A 2009 law, HB09-1326, passed with strong bipartisan majorities in both houses of the legislature, tightened up those requirements in a number of ways. It contained restrictions on signature-gatherers, including those that are being challenged in this section of the lawsuit.

Part of the 2009 law requires that circulators sign an affidavit on the petition sections they submit, stating that all of the signatures on that section were gathered in their presence, and that to the best of their knowledge, the signers’ information is correct.

The revised section, Colorado Revised Statutes 1-40-111, reads that:

(C) The circulator presents a form of identification, as such term is defined in section 1-1-104 (19.5). A notary public shall specify the form of identification presented to him or her on a blank line, which shall be part of the affidavit form.

(II) An affidavit that is notarized in violation of any provision of subparagraph (I) of this paragraph (b) shall be invalid

The plaintiffs argue that in many cases, the circulator himself wrote down the form of ID that was presented, rather than the notary, as is required by law. This would seem to defeat the purpose of having the notary verify the identification.

The 2009 law also inserted language stating that, “that he or she understands that failing to make himself or herself available to be deposed and to provide testimony in the event of a protest shall invalidate the petition section if it is challenged on the grounds of circulator fraud.” This would seem to mean that signatures gathered by any circulator whose affidavit is being challenged, and who won’t or can’t testify for this case would be thrown out, as well.

While a 2010 lawsuit (Johnson v. Beuscher) did challenge the validity of some signatures under the new law, this particular section was not used in that suit.

It would also seem that the filing of the suit by members of each party, neither of whom has a reputation for anti-tax activism, would lend it credibility. Part of the reason for the late date of the suit is the late date of the filing deadline; signatures were submitted in August, and the Secretary of State only issued his ruling on the petition on September 4.

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