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Colorado House Bill 1326 (2009)

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Colorado House Bill 1326 (2009)
800px-Flag of Colorado.svg.png
Legislature:Colorado General Assembly
Text:HB 1326
Sponsor(s):Carroll, Shaffer, et al
Legislative History
Introduced:March 24, 2009
State house:Approved April 15, 2009
State senate:Approved May 1, 2009
Governor:Bill Ritter
Signed:May 29, 2009
Legal Environment
State law:Laws governing the initiative
process in Colorado
Code:Elections code
Impact on initiative rights
Citizens in Charge Foundation#Legislation ratingsCICF rating:
Reduces Access
Citizens in Charge Foundation#Legislation ratings
Colorado House Bill 1326 was signed into law by Gov. Bill Ritter on Friday, May 29, 2009. The law was sponsored in the Colorado General Assembly by politicians Terrance Carroll, Brandon Shaffer, Josh Penry, Mike May, and Lois Court.[1] HB 1326 places several restrictions on the initiative process.

On June 11, 2010, a federal judge in Colorado issued a preliminary injunction against the Colorado Secretary of State, forbidding the state government of Colorado from enforcing certain provisions of the law.[2]

Citizens in Charge said in 2011 that HB 1326 is "the biggest single legislative attack on statewide petition rights in modern history."[3]

Provisions

HB 1326 includes these provisions (some of which are not in effect due to an injunction against parts of the law):[4]

  • It restricts campaigns from paying circulators on a pay-per-signature basis to only twenty percent of a circulator's total salary.
  • People who successfully challenge the validity of signatures in court could sue sponsors of the measure to recover attorney's fee.
  • Ballot measures that change state laws (initiated state statutes) will henceforward be referred to as "propositions".
  • Requires that petition drive management companies who hire paid circulators go through a licensing process.
  • Petition sheet must carry a label to warn people that their signature will help place the question on the ballot.
  • Circulators who collect more than 100 signatures are required to go through a government-sponsored training procedure before they are allowed to collect additional signatures legally.
  • People who sign a petition and later change their mind will be able to have their signature withdrawn.[5]

Additionally, HB 1326 changed the deadline for submitting signatures.[6]

Signature deadlines

See also: Colorado signature requirements

HB 1326 says with respect to signature deadlines (text appearing in previous versions of the statute is stricken-out and NEW TEXT IS IN ALL CAPS):


1-40-108. Petition - time of filing. (1) No petition for any ballot issue shall be of any effect unless filed with the secretary of state within six months from the date that the titles and submission clause have been fixed and determined pursuant to the provisions of sections 1-40-106 and 1-40-107 and unless filed with the secretary of state within the time required by the state constitution NO LATER THAN THREE MONTHS AND THREE WEEKS before the election at which it is to be voted upon. A petition for a ballot issue for the election to be held in November of odd-numbered years shall be filed with the secretary of state within the same time NO LATER THAN THREE MONTHS AND THREE WEEKS before such odd-year election. as is required by the state constitution for issues to be voted on at the general election. All filings under this section must be made by 3 p.m. on the day of filing.[7]

Some sources say that with respect to signature-filing deadlines, HB 1326 conflicts with the Colorado Constitution and that the signature deadline is still three months (not three months and three weeks) before the election, putting the deadline in 2010 on August 2. At least one initiative sponsor has received a letter from the Colorado Secretary of State putting the 2010 deadline on August 2.[8]

Suing sponsors

One provision of HB 1326 says that if some of the signatures that are submitted on a petition are successfully challenged in court, the sponsors of the initiative may be sued in court for attorney's fees and costs.[9] This is the case under HB 1326 even if opponents of an initiative do not succeed in persuading a judge to remove an initiative from the ballot based on striking enough signatures that were previously allowed by the Colorado Secretary of State in the signature certification process to reduce the number of valid signatures below the signature threshold required to make the ballot but if, in that process, a judge finds that one or more of the submitted signatures were collected by a petitioner in a way that constitutes fraud under HB 1326.

Pursuant to this provision of HB 1326, attorney Mark Grueskin filed a lawsuit in January 2011 against Jon Caldara and Linda Gorman, the sponsors of 2010's Amendment 63.[3] Grueskin's lawsuit seeks to compel Caldara and Gorman to pay him for his legal work in a lawsuit he filed in 2010 that sought to have Amendment 63 removed from the ballot prior to a vote on the grounds that some of the signatures submitted on its petitions should not have been counted as valid by the Colorado Secretary of State. Grueskin filed that lawsuit on behalf of organized opponents of Amendment 63. If Grueskin's lawsuit against Caldara and Gorman succeeds, they will have to pay his fees. If Grueskin's lawsuit fails, the organized opponents of Amendment 63 who hired him to file the lawsuit in mid-2010 seeking, unsuccessfully, to have Amendment 63 struck from the ballot, will have to pay Grueskin's fees.[9]

Grueskin's lawsuit alleges that 54 petition circulators put down false addresses. According to Caldara, he and Linda Gorman face personal bankruptcy if they are forced to defend against Grueskin's lawsuit. Caldara also says that circulators whose addresses are being challenged by Grueskin were caught in a Catch-22 that was, itself, created by a provision of HB 1326 that a federal judge in 2010 found to be unconstitutional; namely, HB 1326's provision making it illegal for someone whose residence is not in Colorado to travel to Colorado and ask a Colorado resident to sign a petition.[9]

Federal lawsuit

See also: Independence Institute v. Colorado Secretary of State

The Independence Institute, headed by activist Jon Caldara, along with other petition rights supporters filed a lawsuit in federal court in 2010 challenging the constitutionality of HB 1326. Caldera claimed that House Bill 1326 would violate the First Amendment to the U.S. Constitution on the basis of restricting freedom of speech. Also, Caldara argued that by restricting pay-per-signature would make it more expensive to conduct initiative campaigns. Arguments were heard in the District of Colorado federal court on May 13, 2010 on the matter.[10]

On Friday, June 11, federal district judge Philip Brimmer issued a 39-page preliminary injunction forbidding the state of Colorado from enforcing several key provisions of HB 1326. Judge Brimmer's order, in particular, found that the provisions of HB 1326 that ban compensating petition circulators on a pay-per-signature were likely to be unconstitutional and could not be enforced pending a full ruling by the court.[11]

Criticism

Denver Post columnist Vincent Carroll wrote in May 2010:

"Colorado lawmakers last year were supposedly so concerned about the integrity of the petition process that they passed a 24-page bill clamping down on the way signatures are gathered. But they weren't concerned enough to apply the new law to themselves.
If mere citizens wish to petition a measure onto the ballot, they can no longer pay circulators by the signature. They must pay mostly by the hour, with no more than 20 percent of earnings related to the number of signatures collected. And they must document the pay and hours of the circulators, among other new requirements, to a degree that practically requires a bookkeeper.
If political candidates wish to petition their way onto the ballot, on the other hand, they're free to pay circulators however they like."[12]

Impact

Mason Tvert of SAFER, a pro-marijuana-rights organization, says that the impact of HB 1326 is that the cost of qualifying a measure for the ballot has increased. Tvert said:

"The cost of qualifying a measure for the ballot has increased dramatically as a result. I have been quoted about $3.50 per signature for this year, as compared to $1.50 last year."[12]

See also

References