Full TABOR Repeal Proposal Can Proceed, Colorado Supreme Court Rules

June 17, 2019
Photo: Colorado Supreme Court Exterior 2, Snow
The Colorado Supreme Court building.

Published 10:59 a.m. | Updated 6:05 p.m.

The Colorado Supreme Court on Monday gave the green light to a proposed ballot measure that would fully repeal Colorado’s Taxpayer’s Bill of Rights.

The Taxpayer’s Bill of Rights, known colloquially as TABOR, is a wide-ranging set of fiscal limitations on all levels of government in the state. It also requires voter approval for all tax increases, a provision that’s proven popular over the years.

The court’s decision hinged on whether the repeal violated the state’s requirement that ballot measures only address a single issue, a standard passed two years after voters approved TABOR in 1992.

The court, in a 5-2 decision, sided with backers of the initiative to repeal TABOR.

"The initiative could not be written more simply or directly,” Justice Richard Gabriel wrote for the majority. “It essentially asks voters a single question: should TABOR be repealed in full?"

The court did not weigh the merits of TABOR or the repeal proposal, Gabriel wrote.

“... to conclude that the initiative here comprises multiple subjects would require us to read language into the initiative that is not there and to address the merits of that initiative and suggest how it might be applied if enacted,” he wrote. “As noted above, however, we are not permitted to do so.”

In her dissent, Justice Monica Márquez said the majority’s opinion “profoundly weakens” the single subject requirement.

“To offer an extreme example, under the majority’s logic, voters could repeal our state constitution’s entire Bill of Rights through a single initiative and do away with religious freedom, free speech, protections against unreasonable searches and seizures, the right to bear arms, the prohibition against cruel and unusual punishment, and due process, among a host of other rights,” she wrote.

The court’s ruling overturned an earlier decision from the State Title Board, the gatekeeper for ballot initiatives. It means that groups backing the repeal, including the liberal-leaning Colorado Fiscal Institute, can proceed to collect signatures and meet other requirements to get the measure on the 2020 ballot.

Carol Hedges, executive director of the Colorado Fiscal Institute, said a 2020 ballot measure is a possibility — but not a certainty.

"This was an inquiry to find out what was possible,” she said. "What this ruling does is it provides clarity that the option for repeal is one thing that is available to voters. But it does not presume that it will be the measure that gets considered in 2020."

TABOR defenders, including conservative groups like the Independence Institute and Colorado Rising Action, have vowed to fight any effort to weaken the measure.

"I thought it was judicial activism,” said Michael Fields, Colorado Rising Action’s executive director. Various court rulings have chipped away at TABOR over the years, he added. “Knowing that that's the case, we've been ready for this battle for awhile.”

Gov. Jared Polis said he doesn't back of complete overhaul of TABOR -- but there are parts if it he doesn't like. He says he'd have to see specific language of a ballot measure to weigh in on anything. 

"I strongly support the right of voters to be able to vote on tax increases. The problem that you get into with TABOR is that is also has very complex formulas that effectively don't allow the state to be able to invest," he said. 

Voters will face another TABOR question later this year: The legislature referred a measure, Proposition CC, to November’s ballot that would allow the state to keep revenue that would have otherwise been refunded under TABOR. Fields said that vote will be telling.

"If they can't pass Prop CC, there's no way they're going to pass a full repeal of TABOR,” Fields said.