Some people bemoan the lack of trust in government officials. Those people should read more. They could start by learning how many of Colorado’s officials ruthlessly manipulate ballot language to mislead voters and skew election results.
Jefferson County’s Ballot Issue 1A—up for a vote next month—is a case in point.
Issue 1A is a referendum under the Colorado Taxpayer’s Bill of Rights (TABOR). TABOR requires officials to ask voter permission, via referendum, for several kinds of fiscal decisions. The most important are (1) raising taxes, (2) creating debt, and (3) waiving caps on government spending (which TABOR sometimes confusingly calls “revenue”).
Knowing that government officials sometimes try to manipulate elections, the TABOR drafters inserted rules governing how tax and debt issues appear on the ballot. But they omitted similar rules for elections to waive spending caps.
The reasons for the omission are not clear. Perhaps it was an oversight. Or perhaps the drafters thought rules were unnecessary, because waivers were to last a maximum of four years. If a waiver was abused, the abuse would soon be over and voters could hold the guilty officials accountable.
But in 2002, the Colorado Court of Appeals issued a case seriously misinterpreting TABOR. The court ruled that once the voters in a particular locale approve a spending cap waiver, the waiver does not necessarily expire. The waiver may specify five years, or seven, or ten. If it does not contain an ending date, the waiver lasts forever. TABOR spending caps never apply in that locale again.
In the wake of this court decision, Colorado politicians and officials sensed a bonanza. They rushed to put long-term and permanent waivers on the ballot. To assure passage, they often flagrantly manipulated ballot language. The outstanding statewide example was the mendacious and confusing text that enabled Referendum C to win a narrow victory in 2005.
As I pointed out in my 2016 book on TABOR, ballot language abuse has become a Colorado scandal. Indeed, the titles of many revenue-waiver propositions are reminiscent of “referenda” in authoritarian countries.
Now let’s look at the language officials wrote for the JeffCo waiver election called Ballot Issue Number 1A. Following are the lowlights. (I’ve reproduced all the ballot language at the end so you can see for yourself.)
First: The text consists of 36 single-spaced lines of tightly-packed capital letters. It is jammed into a single sentence of over 300 words. This makes it nearly impossible to read—or at least to read very far. As we shall see, this obscurity is deliberate.
Second: The interminable rambling sentence includes extensive verbiage to divert the reader’s attention from the actual proposition being offered.
Third: The text begins with an irrelevancy: “Without creating any new tax or increasing the current authorized maximum county mill levy of 21.478 . . . .” In other words, it doesn’t begin by telling us what the measure will do. It begins by telling us what the measure will NOT do! It would have been just as germane to begin with, “Without maintaining any fewer doggie parks . . . ” The only reason for including this irrelevancy is to try to convince people to vote for the measure—political campaigning totally inappropriate on a supposedly-impartial ballot.
Fourth: Part of the superfluous wording is this parenthetical: “(voters should be aware that due to existing spending and revenue limits in TABOR in 2019, a single-family home valued at $400,000 received a reduction in property taxes of approximately $9 a month/$105 year).” Of course, the only reason for inserting this parenthetical is to skew the election in favor of Issue 1A.
Fifth: Still more gratuitous wording tells us that spending 1A funds will be “by the duly elected board of county commissioners as part of the annual budget process.” Why include this? Would we otherwise think spending decisions would be made by Queen Margrethe of Denmark? The answer is that this addition also is a campaign device.
Sixth: Adding to the obscurity is an allusion to “Resolution No. CC19-270”—a reference entirely unfamiliar to almost all Jefferson County voters.
Seventh: If and only if you slosh beyond the first 12 lines of muck, do you learn why the text is so long. Up to that point, it implies the waiver will last only seven years. Only later (if you have gotten that far) do you learn that most of it is permanent.
Eighth: Scam artists promoting 1A claim it provides more money for public safety. And the text itself is written to delude all but the most careful readers into believing that 1A revenue will devoted to the popular causes of public safety, roads, and infrastructure. In fact, however, 1A allows spending on much more.
Ninth: For example, 1A authorizes spending on “other new transportation improvements” instead of roads. Under 1A, every dime could go into mass transit boondoggles, leaving absolutely zip for potholes. Like how Ref C’s promoters told voters the money would support roads and police and fire pensions—but once government got the money, it spent 98 percent of it elsewhere.
Tenth: Only near the end does the text tell us that 1A also allows JeffCo politicians to spend its proceeds on any “services traditionally offered by Jefferson County and other Colorado county governments.” In other words, pretty much anything.
Eleventh: Nor does any of the language disclose something else: Passing 1A does not prevent county government from doing something Colorado state government did after it got its Ref C funds: use the new cash to merely backfill new cuts. For example, under 1A JeffCo can slash road spending by a million dollars, blow the million on politically-correct rot, and then use 1A funds merely to restore all (or part) of the road budget.
I find it astonishing that while Coloradans have grumbled about ballot issue abuse for the past two decades, they have not moved to end it. The legislature can do this, or we can do it by voter initiative.
Such a reform would be popular—because the cause of free and honest elections is one that everyone can understand.
Here is the language of 1A as it appears in the JeffCo notice of election. Happy reading!
WITHOUT CREATING ANY NEW TAX OR INCREASING THE CURRENT AUTHORIZED MAXIMUM COUNTY MILL LEVY OF 21.478 WITHOUT FURTHER VOTER APPROVAL, SHALL JEFFERSON COUNTY BE PERMITTED TO RETAIN AND SPEND OR RESERVE ALL REVENUES RECEIVED DURING 2020 AND EXPIRING AFTER 2026 (7 YEARS), NOTWITHSTANDING LIMITATIONS ON SPENDING AND REVENUE CONTAINED IN THE TAXPAYER’S BILL OF RIGHTS, ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION (TABOR) AND APPLICABLE STATE STATUTES, PROVIDED THAT, THE MAXIMUM AMOUNT WHICH THE COUNTY MAY RETAIN AND SPEND OR RESERVE ABOVE SUCH LIMITS IN 2020 MAY NOT EXCEED $16.1 MILLION (VOTERS SHOULD BE AWARE THAT DUE TO EXISTING SPENDING AND REVENUE LIMITS IN TABOR IN 2019, A SINGLE-FAMILY HOME VALUED AT $400,000 RECEIVED A REDUCTION IN PROPERTY TAXES OF APPROXIMATELY $9 A MONTH/$105 YEAR); AND SHALL THE COUNTY BE PERMITTED TO RETAIN AND SPEND OR RESERVE BEGINNING IN 2027 AND THEREAFTER AN AMOUNT OF COUNTY REVENUE THAT EXCEEDS CURRENT SPENDING AND REVENUE LIMITATIONS BUT IS NO GREATER THAN THE EXCESS LOCAL REVENUES CAP, WHICH CONTINUES TO LIMIT FUTURE REVENUE GROWTH AS PROVIDED IN RESOLUTION NO. CC19-270, PROVIDED THAT ANY NON-PROPERTY TAX REVENUE RECEIVED IN 2027 OR THEREAFTER MAY BE RETAINED AND SPENT OR RESERVED, NOTWITHSTANDING LIMITATIONS ON SPENDING AND REVENUE CONTAINED IN THE TAXPAYER’S BILL OF RIGHTS AND APPLICABLE STATE STATUTES; AND SHALL SUCH REVENUE BE USED TO FUND THE COST OF COUNTY GOVERNMENT FOR:
-PROVIDING FOR THE SAFETY OF THE PUBLIC INCLUDING MAINTAININGADEQUATE JAIL BEDS, STAFFING THE DISTRICT ATTORNEY’S OFFICE,ADEQUATE PATROL PERSONNEL, AND WILDFIRE MITIGATION;
-MAINTAINING ROADS, BRIDGES AND OTHER NEW TRANSPORTATION IMPROVEMENTS;
-PRESERVING PUBLIC FACILITIES AND INFRASTRUCTURE INCLUDINGBUILDING SECURITY AND MAINTENANCE; AND
-PROVIDING SERVICES TRADITIONALLY OFFERED BY JEFFERSONCOUNTY AND OTHER COLORADO COUNTY GOVERNMENTS ANDSTATUTORILY REQUIRED SERVICES,
WITH SUCH SPENDING TO BE REVIEWED AND DECIDED UPON BY THE DULY ELECTED BOARD OF COUNTY COMMISSIONERS AS PART OF THE ANNUAL BUDGET PROCESS?
Rob Natelson is Senior Fellow in Constitutional Jurisprudence at the Independence Institute. He was formerly a constitutional law professor at the University of Montana, where he had extensive experience with state ballot issues.