Colorado House Bill 1326 (2009)
|Colorado House Bill 1326 (2009)|
|Legislature:||Colorado General Assembly|
|Sponsor(s):||Carroll, Shaffer, et al|
|Introduced:||March 24, 2009|
|State house:||Approved April 15, 2009|
|State senate:||Approved May 1, 2009|
|Signed:||May 29, 2009|
|State law:||Laws governing the initiative|
process in Colorado
|Impact on initiative rights|
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, specifically the portion of HB 1326 that restricted compensating paid signature collectors on a by-signature basis. Judge Philip Brimmer ultimately ruled that those sections of the law violated First Amendment rights, and they were permanently stricken HB 1326.
HB 1326 included the following provisions. The provision restricting paid circulators was not put into effect due to a judicial injunction and ruling against parts of the law:
- Restricts campaigns from paying circulators on a pay-per-signature basis to only twenty percent of a circulator's total salary. (Overturned in court)
- Establishes that people who successfully show fraudulent collection submitted signatures in court could sue sponsors of the measure to recover attorney's fee.
- Establishes that 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.
- Requires a petition sheet to carry a label to warn people that their signature will help place the question on the ballot.
- Requires circulators who collect more than 100 signatures to go through a government-sponsored training procedure before they are allowed to collect additional signatures legally.
- Establishes that people who sign a petition and later change their mind will be able to have their signature withdrawn.
- Changes the deadline for submitting signatures to require that a petition for a ballot measure election be filed "no later than three months and three weeks" before the scheduled election.
- See also: Colorado signature requirements
HB 1326 included the following section concerning 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
Some sources said that, with respect to signature-filing deadlines, HB 1326 conflicted with the Colorado Constitution and that the signature deadline was determined by a superseding constitutional clause and was, thus, still three months before the election and not three months and three weeks as HB 1326 dictated. In the 2010 election a "three months prior" deadline would have made the submission deadline for the November election August 2, while, with the additional three weeks, the deadline would have been July 12. At least one initiative sponsor had received a letter from the Colorado Secretary of State confirming the 2010 deadline to be on August 2 instead of July 12.
One provision of HB 1326 said 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 for plaintiff's attorney's fees and costs. This is the case under HB 1326 even if opponents of an initiative do not succeed in persuading a judge to actually remove an initiative from the ballot. If, in this process, the number of stricken signatures is not enough to reduce the number of valid signatures below the signature threshold required to make the ballot, HB 1326 dictates that, if a judge finds any of the submitted signatures were collected by a petitioner in a way that constitutes fraud, plaintiffs can still claim attorney's fees and costs from petition defendants.
Pursuant to this provision of HB 1326, attorney Mark Grueskin filed a lawsuit in January of 2011 against Jon Caldara and Linda Gorman, the sponsors of 2010's Amendment 63. Grueskin's lawsuit, which ultimately failed, sought 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. It alleged that 54 petition circulators put down false addresses. Caldara said that circulators whose addresses were 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 was not in Colorado to travel to Colorado and ask a Colorado resident to sign a petition.
If Grueskin's 2011 lawsuit based on HB 1326 against Caldara and Gorman had succeeded, Caldara and Gorman would have had to pay his fees from a year earlier. Since Grueskin's lawsuit failed, 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, paid Grueskin's fees. Caldara still had to pay about $100,000 for the costs of his own court and legal representation. Caldara, in an article about HB 1326, wrote, "When the opponents wanted to derail the effort, they used the new law and claimed that a paid petition gatherer misrepresented my initiative to get a citizen to sign my petition. So into court I was dragged. If the opponents won I would be liable for their legal costs. We of course won, but still, my legal costs were about $100,000. This nuisance complaint did what it was created to do – cost time and money. If, however, we’d lost, I’d have had to pay hundreds of thousands to the opponents. I would have been wiped out and in bankruptcy."
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 violated the First Amendment to the U.S. Constitution on the basis of restricting freedom of speech. Caldara also argued that by restricting pay-per-signature circulators, HB 1326 made it more expensive to conduct initiative campaigns. Arguments were heard in the District of Colorado federal court on May 13, 2010 on the matter.
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 restricted compensating petition circulators on a pay-per-signature basis were likely to be unconstitutional and could not be enforced, pending a full ruling by the court.
On Monday, April 1, 2013, Judge Brimmer fully overturned the portion of the law banning paying petitioners entirely on a by-signature basis. Judge Brimmer ruled that those sections of the law violated First Amendment rights.
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."
Mason Tvert of SAFER, a pro-marijuana-rights organization, said that the impact of HB 1326 was to boost the price of qualifying a measure for the ballot. 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."
- Changes in 2009 to laws governing ballot measures
- Laws governing petition circulators
- Laws governing ballot measures in Colorado
- Durango Herald, "Law looks to end campaign fraud," May 16, 2009
- Citizens in Charge, "Federal Judge Says Colorado Can’t Restrict How Campaigns Pay Workers," June 14, 2010
- Citizens in Charge, "A Deep Freeze Overtakes Colorado’s Petition Process," January 21, 2011
- "Copy of HB 1326"
- Speaker Carroll aims to end ballot fraud, March 24, 2009
- Face the State, "Ballot initiative promoters can lose even when they win," May 27, 2010
- Text of HB 1326
- Uncertainty clouds Colorado's 2010 signature deadline
- Estes Park Trail Gazette, "Citizen initiative rights dead," January 27, 2011
- Independence Institute, "Major Victory in Court for the First Amendment!," April 2, 2013
- The Denver Post, "Think-tank chief challenges Colorado's petition-gathering rules," May 14, 2010
- Text of Judge Brimmer's June 11 decision in Independence Institute v. Colorado Secretary of State
- Denver Post, "Judge overturns Colorado law dealing with paid ballot circulators," April 1, 2013
- Denver Post, "Heaping burdens on petitions," May 19, 2010