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New federal lawsuit targets Colorado law meant to persuade voters not to cut their taxes

House Bill 1321 requires that voters be informed of at least three programs and services that would be affected by ballot questions decreasing taxes
Voters enter Augustana Lutheran Church to cast their ballots Nov. 8, 2022, in Denver. (Olivia Sun/The Colorado Sun via Report for America file)

A law passed by Democrats in 2021 that is intended to make it harder to persuade Colorado voters to cut their taxes is the target of a federal lawsuit filed Monday by a conservative group that is perpetually trying to reduce the state’s sales, income and property tax rates through ballot questions.

“The initiative process exists in Colorado to ensure that citizens have a voice when it comes to enacting policy reforms in areas where the Legislature has failed to act,” Michael Fields, who leads Advance Colorado, said in a written statement. “Politicians at the Capitol have unconstitutionally stacked the deck against citizen-driven ballot initiatives that reduce taxes, and Advance Colorado is suing to ensure that ballot initiatives generated by citizens are described accurately on the ballot and not subject to compelled speech or government-enforced lies.”

Advance Colorado is what The Colorado Sun refers to as a dark-money group because it doesn’t reveal its donors. The nonprofit has taken up the Republican policy and legal mantle in Colorado in recent years since the GOP is in a historic minority at the state Capitol. The 2026 election will be the party’s next real shot at winning back a majority.

Advance Colorado also recently sued Democrats in the Colorado Senate over their use of a secret voting system to prioritize state spending.

The 2021 legislation, House Bill 1321, was passed by Democrats and signed into law by Gov. Jared Polis. It requires that voters be informed of three programs and services that would be most affected by ballot questions decreasing taxes. (For state tax reductions, that’s likely to always be K-12 education, higher education, and health care policy and financing, namely Medicaid.)

The measure mandates that ballot initiatives cutting statewide taxes appear in this format: “Shall there be a reduction to the (description of tax) by (the percentage by which the tax is reduced in the first full fiscal year that the measure reduces revenue) thereby reducing state revenue, which will reduce funding for state expenditures that include but are not limited to (the three largest areas of program expenditure)?”

The bill was a clever imitation of the Taxpayer’s Bill of Rights, the 1992 constitutional amendment and Republican heartthrob that requires all tax increases that go before voters to scream the question in this all-caps format: “SHALL STATE TAXES BE INCREASED $(AMOUNT) ANNUALLY?”

But Advance Colorado argues in its lawsuit that House Bill 1321 violates the U.S. Constitution because it requires tax-cutting ballot measures to mislead voters with “poison-pill language” in some instances.

Not all state tax cuts immediately reduce the amount of money that can be spent on state programs and services in Colorado. That’s because TABOR also caps the amount of government growth and spending each year to the annual increase in inflation and population. It requires that any tax revenue collected above that cap be refunded to taxpayers, thus making it unavailable for state programs and services.

In other words, spending on programs and services is not reduced in years when the TABOR cap is exceeded – and the cap has been exceeded repeatedly in recent years and revenue is forecast to exceed the cap through at least the next several fiscal years.

“The state is violating the First Amendment by mandating untrue language on the ballot,” Fields said in his statement.

The lawsuit says the state’s Title Board, which determines the language of ballot measures, has even noted the discrepancy.

“The Title Board has held that it has no discretion to edit or eliminate this language even under circumstances where the members of the Title Board do not believe that it accurately describes the measure at issue,” the lawsuit says.

Advance Colorado is the lead plaintiff in the case, but it’s joined by former U.S. Sen. Hank Brown, Logan County Commissioner Jerry Sonnenberg, Mesa County Commissioner Cody Davis, El Paso County Commissioner Carrie Geitner and Englewood City Councilman Steven Ward.

Troy Eid, a former U.S. attorney in Colorado under President George W. Bush, is representing the plaintiffs. Eid’s wife is a judge on the U.S. Court of Appeals for the 10th Circuit.

The defendants are Gov. Jared Polis and Colorado Secretary of State Jena Griswold, whose office is where the Title Board is housed.

Annie Orloff, a spokeswoman for Griswold, said the Secretary of State’s Office is reviewing the lawsuit.

“Generally, it is important that Colorado voters have information to adequately consider the impact of tax cuts,” Orloff said.

The governor’s office declined to comment on pending litigation.

The Colorado Sun is a reader-supported, nonpartisan news organization dedicated to covering Colorado issues. To learn more, go to coloradosun.com.

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