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Colo. Gov. Can't OK Remote Signatures Amid Virus, Court Told

By Daniel Tay · May 18, 2020, 7:59 PM EDT

The Colorado governor exceeded his authority when he suspended laws in reaction to the coronavirus pandemic to allow remote signature gathering for ballot initiatives, including a graduated income tax proposal, a business coalition told a state court Monday.

The executive order, which was signed Friday, exceeds the authority granted to Democratic Gov. Jared Polis by the state's Disaster Emergency Act, University of Denver Chancellor Emeritus Dan Ritchie and business coalition Colorado Concern told the Denver district court. Ritchie and the coalition asked the court to find the orders' suspension of in-person collection requirements unconstitutional and bar Jena Griswold, the Colorado secretary of state, from acting on the executive orders.

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 them to collect 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.

"The governor has led our state admirably through these dark and difficult days, and so many of us have stood with him throughout," Ritchie said in a statement. "But Gov. Polis' Friday evening 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."

Conor Cahill, representative for Polis, told Law360 that the governor does not normally comment on active litigation but said Polis' order was meant to "safeguard our democracy and access to the ballot during this unprecedented pandemic."

The state Disaster Emergency Act only authorizes the governor to suspend laws that hinder action to cope with the emergency, according to the complaint. Adhering to the laws and constitutional requirements of in-person signature collection do not interfere with the state's response to the pandemic and therefore Polis cannot suspend them under the act, the complaint said.

The state's constitution requires that a voter's signature for a ballot initiative be verified in person, Christopher Murray, counsel for Ritchie and Colorado Concern, told Law360, adding that the proper way to suspend the in-person requirement would be a constitutional amendment.

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%. Under the initiative's proposal, the first $250,000 in state taxable income would be taxed at 4.58%, income from $250,000 to $500,000 would be taxed at 7%, income from $500,000 to $1 million would be taxed at 7.75% and income over $1 million would be taxed at 8.9%. According to the ballot title for the initiative, the measure would raise $2 billion in revenue.

According to the complaint, Ritchie would potentially be harmed by Initiative 271 by having his taxes increased. The governor's orders would remove or threaten Ritchie's ability to protest any initiative that collects signatures in an unconstitutional manner, Murray told Law360.

"If the executive order stands, it basically says all of these statutory and constitutional requirements that we use to determine validity of signatures? Those are out the window," Murray said. "And until there's new rules, who knows what the heck governs any of this?"

The petition is due Aug. 3, according to the secretary of state's website. Fair Tax Colorado is the group behind the campaign and must collect 124,632 signatures. According to a 2018 report by the Colorado Department of Revenue, more than 95% of taxpayers in the state would fall into the lowest tax bracket proposed by Initiative 271.

Griswold did not respond to requests for comment.

Carol Hedges, governance team member for Fair Tax Colorado and executive director of the Colorado Fiscal Institute, told Law360 that the order was "a great step in the right direction," but noted that it was still not an easy task to collect signatures during the pandemic.

"It is challenging to collect signatures when, for all intents and purposes, it's illegal to be within six feet of somebody that you're not related to," Hedges said.

Hedges said that given the economic impact of the pandemic, it was important to give voters the ability to weigh in on the initiative in November. The initiative would raise revenue from a "relatively limited" group and would provide tax relief for the vast majority of the state and avoid unemployment from budget cuts, Hedges said.

"Now is a good time, maybe the best time, to be considering such a proposal," Hedges said.

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.

--Editing by Neil Cohen.

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

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