Colo. Remote Signature Order Threatens Vote, Biz Group Says

By Abraham Gross
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Law360 (May 22, 2020, 7:58 PM EDT) -- The Colorado governor threatened to disrupt the state electorate when he suspended laws amid the COVID-19 pandemic to allow remote signature gathering for ballot initiatives, including a graduated income tax proposal, a business coalition told a state court.

The executive order signed May 15 by Democratic Gov. Jared Polis exceeds his statutory authority and threatens to harm the state's democratic system by undermining electoral integrity and disadvantaging rural voters, a coalition of chambers of commerce and industry associations told the Denver district court in an amicus brief Thursday.

"This is not a partisan issue. All Coloradans — no matter their political and ideological convictions — share an interest in ensuring that Colorado's democratic system functions properly," the coalition said in its brief. "Constitutional amendments come from a vote of the people, not gubernatorial fiat." 

The coalition, describing itself as a "cross-ideological, nonpartisan group committed to the rule of law in Colorado," consists of 39 signatories including local chambers of commerce and associations for industries such as oil and gas, farming, contracting, construction and manufacturing.

The brief supports the suit filed Monday by University of Denver Chancellor Emeritus Dan Ritchie and business coalition Colorado Concern that asked the court to find the order's suspension of in-person collection requirements unconstitutional and bar Jena Griswold, the Colorado secretary of state, from acting on the order.

The order by Polis suspends the law requiring in-person signature collection for ballot initiative campaigns and directs the secretary of state to create temporary rules allowing collection of signatures with email or mail options. The order also directs the state Department of Public Health and Environment to work with Griswold to develop guidelines allowing for safe in-person signature gathering.

Among the initiatives currently approved for circulation is Initiative 271, which would create a graduated income tax instead of the state's current flat tax rate of 4.63%. Circulation of petitions for Initiative 306, which would lower the corporate and individual income tax rate to 4.55%, began Monday.

In its brief, the coalition argued that the changes by Polis exceeded both the Colorado Constitution and the state's Disaster Emergency Act and that the court should be vigilant over executive actions to change electoral procedures

"Indeed, it is precisely in times like these, when the temptation to overstep is greatest, that enforcing established bounds on executive authority proves most critical to safeguarding the rule of law," the coalition said.

In support of its arguments, the coalition pointed to recent court rulings rejecting electronic options for electoral processes, including a March 13 decision by the Arizona Supreme Court denying requests for online signatures in place of in-person signatures.

The governor's order was unconstitutional, the group argued, because the constitutional requirement that "registered electors," or eligible initiative participants, sign petitions in person as witnessed by a petition circulator was an important safeguard against errors or fraud in the petition process.

Polis' actions also exceeded the class of statutes he was authorized to suspend under the state's emergency legislation, the coalition argued, adding that in-person signature gathering did not present a conflict with preserving public health and that the state allowed other forms of signature during the pandemic.

"According to the governor, you can safely provide an in-person receipt signature during a Target run. You can safely provide an in-person signature to the UPS delivery driver. But apparently you cannot safely exercise the 'fundamental right' to participate in the initiative process" by signing in person, the coalition said.

Petition campaigns have struggled to conduct signature-gathering efforts as usual while maintaining safety precautions and abiding by public health measures to combat the virus. Ballot-gathering campaigns were suspended in Nebraska and Arizona over health concerns for staffers and the public. In Montana, supporters of two proposed ballot measures for legalizing and taxing recreational marijuana began collecting signatures following a court ruling denying electronic collections.

"We think it's important for courts to understand the implication of a decision like proposing to collect signatures electronically and the inequities that it could and would create in our state," Kelly Brough, president and CEO of the Denver Metro Chamber of Commerce, told Law360 on Friday.

Catherine Stetson of Hogan Lovells, who represents the coalition, said a main focus of the brief was about limiting the governor's authority to override protections in the constitution, especially those relating to voting and elections.

"The statutes of Colorado do give the governor some authority in times of pandemic, in times of a disaster or emergency, to suspend certain regulations but not all rules are cast aside and not all bets get to be called off during a time of pandemic," Stetson told Law360.

Polis' press secretary, Conor Cahill, said in an email to Law360 on Thursday, "The governor has taken action to safeguard our democracy and access to the ballot during this unprecedented pandemic."

Betsy Hart, the director of communications for Griswold, said in a statement to Law360 that the secretary was reviewing the case in consultation with the state attorney general's office.

"Our democracy must remain accessible during this health crisis. COVID-19 has significantly affected the ability to petition in Colorado," Hart said. "The goal of this additional option of using mail and email for petition signature gathering is to maintain democratic access while protecting the health and safety of Coloradans."

Representatives of Ritchie and Colorado Concern referred Law360 to a statement saying that Polis' executive order, "which would remove vital safeguards that go to the very heart of the integrity in the initiative process, reaches beyond the power given to the governor by the people, and has to be challenged."

The coalition is represented by Andrew Lillie, Mark Gibson and Catherine Stetson of Hogan Lovells.

Ritchie and Colorado Concern are represented by Christopher O. Murray, Sarah M. Mercer, Stanley L. Garnett, Melissa Kuipers Blake and Julian R. Ellis Jr. of Brownstein Hyatt Farber Schreck LLP.

Counsel information for Polis was not immediately available.

The case is Daniel L. Ritchie et al. v. Jared Polis et al., case number 2020CV031708 in the District Court, City and County of Denver, Colorado.

--Additional reporting by Daniel Tay and Asha Glover. Editing by Vincent Sherry. 

For a reprint of this article, please contact reprints@law360.com.

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