The U.S. Supreme Court’s recent order in the case against Colorado’s Taxpayers Bill of Rights is a devastating blow to those seeking to overturn that part of the state constitution. The Supreme Court’s order amounts to a polite directive to the lower court to dismiss the suit.
Colorado voters approved TABOR in 1992. It offers several protections for Colorado’s financial health. It allows voter review when legislative bodies pass increases in taxes or debt, or adopt unusually high increases in spending. Under TABOR, the state Legislature and local councils continue to initiate all financial measures, but the people are allowed to review some of them.
Four years ago, 34 plaintiffs, including a handful of state lawmakers, sued in federal court to have TABOR declared void. They argued that allowing the people to check the Legislature’s financial powers violated the Guarantee Clause of the U.S. Constitution. That’s the section that says that “the United States shall guarantee to every state in this union a republican form of government.”
The plaintiffs’ claims are not entirely consistent with each other. But their essence is that because TABOR reduced the financial power of the state Legislature, it rendered Colorado a “direct democracy” without a “republican form of government.”
From its inception, the plaintiffs’ case has teetered on the edge of probability. Its legal problems are many.
For example, the plaintiffs allege that they have standing to sue, but they don’t identify any specific public vote that caused them personal damage. They claim their case is resolvable by the courts (justiciable), but long-standing Supreme Court precedent says the contrary. They argue that popular voting on financial measures violates the “republican form.”
But those who wrote and approved the Constitution acknowledged that many republics allowed popular voting on all laws. The plaintiffs also fail to explain why TABOR is less constitutional than fiscal restraints in many other state constitutions, or why, at this late date, the courts should hear a challenge that could have been filed nearly two decades ago.
Thus far, however, the plaintiffs have defied the odds. Their case has survived motions to dismiss from the state attorney general (who is defending TABOR) in both the trial court and the appeals court.
But now the plaintiffs’ luck seems to have run out.
On June 29, the Supreme Court sent the anti-TABOR case back to the Court of Appeals “for further consideration in light of Arizona State Legislature v. Arizona Independent Redistricting Commission” — a case the court had just decided. The Arizona case addressed a part of the Constitution different from the Guarantee Clause. But the justices’ opinions — both the majority and the dissents — leave little doubt how they would rule on TABOR.
For example, the court granted standing to the Arizona Legislature because it was suing as an institution. But the court carefully distinguished the Arizona situation from cases (such as the one challenging TABOR) in which only a few individual lawmakers were plaintiffs. The court further observed that, although some Guarantee Clause suits may be justiciable, those that challenge the right of people to vote directly on laws are not. The court quoted favorably one of many statements by the American founders (in this instance, Charles Pinckney) acknowledging that direct citizen lawmaking is “republican.” The court expressed concern that voiding a contested voter initiative would cast a shadow over many similar provisions in other states.
Most tellingly, the court praised direct democracy and held that it was “in full harmony with the Constitution’s conception of the people as the font of governmental power.”
For the TABOR plaintiffs, the dissents held more bad news. Chief Justice Roberts, writing for all four dissenters, would have struck down the Arizona initiative because it completely “supplant[ed]” the legislature. But he made it clear that merely granting voters a veto was fine. Justice Scalia, writing for himself and Justice Thomas, would have denied standing entirely in cases like this. Thomas, writing for himself and Scalia, scolded his colleagues for not being sufficiently deferential to direct democracy in other cases.
The Justices’ sentiment, in other words, is clear: TABOR stays. Let’s hope the Court of Appeals takes the hint. Colorado needs to be free of a meritless lawsuit that has already lasted far too long.
Rob Natelson is senior fellow in Constitutional Jurisprudence at the Independence Institute, a free market think tank in Denver.
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