It’s a good thing the Founding Fathers didn’t have to run the First Amendment by the Colorado Supreme Court before sending it out to the states for ratification.
Our justices would have rejected it on grounds it violates the single-subject rule.
Does it ever. The amendment, a single 45-word sentence, contains not one, not two, not three or even four issues, but five: Freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition government.
The Fifth Amendment has the same problem: Five more issues.
But which principle is more valuable to the citizenry: The Bill of Rights or the single-subject rule? Should the single-subject rule even exist?
The First Amendment comparison was made almost two decades ago by attorney Paul Grant of Centennial while asking the federal 10th Circuit Court of Appeals to declare the single-subject rule unconstitutional.
Unhappily, he lost, and the single-subject rule remains in effect here and in 14 other states that authorize citizen-sponsored initiatives on their ballots.
This year, the rule kept off the ballot a reasonable attempt to change the way Colorado draws congressional and legislative district maps after each decennial census.
There were two propositions, No. 132 and 133. The former would would have turned legislative reapportionment and congressional redistricting over to a new 12-member commission; the latter would have established the same commission for just the legislature. The commission would have consisted of four Democrats, four Republicans and four from minor parties or unaffiliated — approximately the way Colorado voter registrations break down. Any commission action would have to be approved by eight members. Nonpartisan legislative staffers would have drawn the maps submitted to the commission for its approval.
Under current law, the legislature is supposed to handle redistricting — though in recent decades it has regularly failed to meet its deadlines due to the partisan divide and has had to surrender the job to a judge. The appointed reapportionment commission has handled the legislature.
This year’s two ballot issues were promoted by former House Speaker Frank McNulty, R-Highlands Ranch, and former Rep. Kathleen Curry, a Democrat turned independent from Gunnison.
The legislature, upset by voter passage of the Taxpayer’s Bill of Rights in 1992, put the single subject rule on the 1994 ballot, and the voters approved the referendum.
It’s ostensibly designed to prevent “log rolling” (putting disparate subjects in a single issue to attract support from various factions) and voter surprise and fraud.
Numerous political scientists have condemned the rule, pointing out that a subject is “infinitely malleable” and can be used by justices to keep any issue off the ballot that they don’t like without having to discuss its underlying principle.
When the court can’t find a second subject to disqualify an initiative it doesn’t like, it can delay the signature gathering process simply by sitting on its decision.
Last month the court found, on a 4-3 vote, that Nos. 132 and 133 violated the single-subject rule because in addition to restructuring the Reapportionment Commission, it directed the existing Supreme Court Nominating Commission to have a role in picking unaffiliated and minor-party members of the commission. The majority also maintained that removing the power to draw congressional districts from the legislature and giving it to the new commission amounted to a third subject.
Justice Brian Boatright, writing for the minority, scoffed at this argument. “Every provision in the initiatives is necessarily and properly connected to the single subject of changing how electoral districts are redrawn in Colorado,” he wrote.
He was correct, of course, but the voters won’t get a chance to decide fore themselves because the high court’s ruling prevented supporters from even trying to collect signatures.
The single-subject rule technically applies to legislative measures too. But a regular statute can’t be challenged until after it has passed. Only once in state history has the high court rejected a bill for having more than one subject, according to testimony in the 1999 single-subject case cited above.
An initiative can be challenged in advance, and is obviously held to a stricter standard than a regular law.
There are plenty of reasons to keep an initiative simple. If you combine a tax hike with, say, a change in emission control standards you aren’t likely to get very far with voters. But you should be allowed to try.
Government can and does have useful role in the initiative process now. Legislative staffers question the proponents of every initiative and help them polish the prose to meet legal drafting standards. But their role is advisory. You can ultimately keep the language as obtuse as you want.
Think again of the multi-subject First Amendment and its fate if it had to be approved by a court before ratification by the people.
As attorney Grant put it back in 1999, “Should a free people be prevented by their government from considering such complex proposals?”
Longtime Rocky Mountain News political columnist Peter Blake now writes once a week for CompleteColorado.com. Contact him at firstname.lastname@example.org You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com.
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