Book Contributions


The Initiative and Referendum AlmanacDennis Polhill contributed three chapters to The Initiative and Referendum Almanac. You may read his contributions here:

The Issue of a National Initiative Process
The Role of I&R in Aiding the Women’s Suffrage Movement
Colorado Initiative Usage

From the Publisher:

No other book has ever provided such a complete and comprehensive history of the initiative and referendum process in the U.S. Waters provides such information as the definitions of initiative and referendum; the roots of the initiative and referendum movement; the history of how the process has been utilized; regulations of the initiative process in each state; legislative attempts to regulate the process; and the role of the judiciary. The book also includes a series of essays by leading scholars and activists about the reforms brought about through the initiative process, and a brief discussion on the future of the initiative process through the eyes of activists and elected officials.

A complete listing of all relevant laws associated with utilizing the initiative and referendum process in each state, as well as a checklist of the major steps of which initiative proponents should be aware, are also included in the almanac. The appendix contains a complete listing of every statewide initiative that has appeared on the ballot since 1904; a complete listing of all the popular and legislative referenda that have appeared on the ballot since 1998; as well as other charts and graphs tracking the usage of the process since its adoption in 1898.

“This is what we have been waiting for. As penetrating and stimulating as it is thorough and even-handed, the Almanac will spark and inform debate about our most democratic process of lawmaking. It is a gift to activists and scholars alike.”
-Richard Parker, Williams Professor of Law, Harvard Law School

“This uniquely comprehensive volume provides a wealth of invaluable information about the initiative and referendum process in the United States. The volume combines detailed information about the constitutional and statutory bases of initiative and referendum usage in all fifty states; descriptions of the major court decisions and legislative attempts to regulate the process; comparisons of I&R provisions across the states; and scholarly analyses of some of the main theoretical debates concerning its use. This is certain to be a critical resource for academics, policy analysts, advocates, lawmakers, citizens, the media—indeed, anyone interested in this increasingly important method of citizen lawmaking.”
-Elisabeth R. Gerber, Professor of Public Policy, University of Michigan

“The initiative and referendum mechanisms are two of the jewels of American democracy. They have been the tools to usher in critically important reforms in society, and they serve to excite and engage the electorate. This almanac provides a detailed roadmap on the history and workings of this important process. I recommend it for any person interested in politics in America.”
-Wayne Pacelle, Senior Vice President, The Humane Society of the United States

“Water’s volume provides a wealth of statistical and factual information on a neglected topic. . . . Public and and academic libraries, as well as American politics and and public policy collections, will . . . find this a worthwhile purchase.”
-CHOICE, January 2004

“Despite presenting a wealth of information, this book is well organized and very readable. Because the information it contains is of interest to scholars, students, and laypeople, this volume is highly recommended for all but the smallest public and academic libraries, and for high school libraries that support law and government courses.”
-American Reference Books Annual

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill

The effort for I&R in Colorado was started by Dr. Persifor M. Cooke of Denver in the mid-1890s. As secretary and president of the Colorado Direct Legislation League, Cooke and the constitutional lawyer J. Warner Mills of Denver fought for I&R from 1900 until 1910, when Governor John F. Shafroth called a special session of the legislature to consider the issue. The constitutional amendments that were passed provided for initiative, referendum, and recall on both state and local levels.

Coloradans set their state’s record for initiative use the first year it was available, in 1912, by putting 22 initiatives and 6 popular referendums on the ballot. Eight of the initiatives passed and challenges to legislatively approved laws were sustained in 5 of the 6 cases. Among these were laws or amendments establishing an eight-hour work day for workers employed in “underground mines, smelters, mills and coke ovens”; giving women workers an eight-hour day; providing pensions for orphans and for widows with children; establishing juvenile courts in major cities and counties; and granting home rule to cities and towns.

Over the years Colorado voters proved sympathetic to the needs of the aged and infirm, approving initiatives providing for the treatment of mental illness in 1916 and 1920, relief for blind adults in 1918, pensions for the aged and for indigent tuberculosis sufferers in 1936, and increased pensions adjusted for inflation in 1956. Colorado voters also remained friendly to organized labor, approving an initiative statute changing the workmen’s compensation law to benefit employees in 1936 and defeating an employer-backed “Right to Work” initiative in 1958.

In the early 1970s, Coloradans passed environmentalist-backed initiatives to keep the Winter Olympics from being held in their state (1972) and prohibit underground nuclear explosions except with prior voter approval (1974). Richard Lamm, an obscure state legislator when he sponsored the anti-Olympics initiative, gained sufficient prestige from his leadership of this campaign to later win election as governor.

In 1984 Colorado became the first state to pass an initiative banning the use of state funds for abortion (the second was Arkansas, in 1988). Voters approved the measure by a single percentage point. Less controversial and more popular was the 1984 “Motor Voter” initiative, which set up a system of voter registration at driver’s licensing bureaus. This highly successful program increased the number of registered voters in Colorado by 12.4 percent in the 15 months from July 1985 to October 1986.

Hostility to the initiative process by the political establishment manifested itself in the 1976 election with a “No on Everything” campaign that outspent proponents with over 91% of all funds expended. The election was followed by a series of legislative efforts to restrict use of the initiative. Notorious for exceeding the ”reasonable regulation” guideline, Federal Courts have struck down more of Colorado initiative restrictions than any other state. Those most famous are Meyer v. Grant in 1986 and Buckley v. ACLF in 1999 – both went all the way to the U.S. Supreme Court.

Colorado is recognized for having spawned the Term Limits movement in 1990. Other states had term limits initiative in 1990 and in previous years. State Senator Terry Considine, frustrated that his peers would not consider his term limits bill, became an activist and drove the term limits law to fruition with a 71% favorable vote. Colorado’s initiative was unique in that it also sought to limit members of Congress. Large numbers of states approved term limits for members of Congress in subsequent elections. Colorado passed additional term limits initiatives in 1994, 1996, and 1998.

Coloradans would have preferred that their elected officials exercise self-restraint with taxation. Tax limit initiatives succeeded in making it to the ballot in 1966, 1972, 1976, 1978, 1986, 1988, 1990, and 1992, but failed at the ballot box until 1992. The 1992 effort sponsored by tax activist Doug Bruce and dubbed the Taxpayer Bill of Rights (TABOR), helped to revitalize the lagging taxpayer revolt begun in 1978 when Proposition 13 had been approved in California.

Recent use of the initiative peaked in 1992 with 10 initiatives on the ballot. Since 1992, use has been flat with a slight downward trend to 6 in 2000. Average is 8 per 2 year election cycle over the high use decade of the 1990s. Initiatives are blamed for long ballots, yet state issues referred to the ballot by the General Assembly generally equal the number of initiatives. Other issues referred to the ballot by local governments result in several times more referred measures than initiatives.

Statewide Initiative Usage

Number Of Initiatives Number Passed Number Failed Passage Rate
178 64 117 35%

Statewide Initiatives

Year Measure Number Type Subject Matter Description Pass/Fail
1912 1 DA Alcohol Regulation Providing for statewide prohibition. Failed
1912 10 DS Election Reform Amending election laws. Failed
1912 11 DA Initiative and Referendum Providing for the holding of special elections for voting on proposed constitutional amendments and initiated and referred laws. Failed
1912 12 DA Legal Defining contempt of court and providing for trial by jury for contempt in certain cases. Failed
1912 13 DA Utility Regulation Creating a public utilities court with exclusive power to fix and enforce reasonable rates, and for appeal direct to the supreme court from its decision. Failed
1912 14 DS Election Reform Amending election laws, and providing for a “headless ballot”. Passed
1912 15 DA Education Providing wider control of the schools by the people. Failed
1912 16 DA Judicial Reform Providing for juvenile courts in cities and counties of 100,000 population. Passed
1912 17 DS Welfare Mothers’ compensation act and aid to dependent and neglected children. Passed
1912 18 DS Administration of Government Relating to civil service and amending said law. Passed
1912 19 DS Labor Eight-hour law for work in underground mines, smelters, mills and coke ovens. Passed
1912 2 DS Alcohol Regulation Enforcement of prohibition laws by search and seizure. Failed
1912 20 DS Administration of Government Giving state highway commission control of certain funds. Failed
1912 3 DS Labor Women’s eight-hour employment law. Passed
1912 31 DA Bonds Authorizing a bonded indebtedness for public highways. Failed
1912 32 DS Administration of Government Construction of tunnel through James Peak. Failed
1912 4 DS Administration of Government Providing for the regulation of public service corporations. Failed
1912 5 DS Administration of Government Establishing a state fair. Failed
1912 6 DA Alien Rights Providing special funds for the state immigration bureau. Failed
1912 7 DS Initiative and Referendum Reducing costs of publishing constitutional amendments, initiated and referred laws, and publishing arguments for and against. Failed
1912 8 DA Administration of Government Granting home rule to cities and towns. Passed
1912 9 DA Election Reform Providing recall from office. Passed
1914 N/A DA Initiative and Referendum Giving people right to petition governor to call special elections for submitting measures under the initiative and referendum. Failed
1914 N/A DS Legal Permitting probation in criminal cases for minors and first offenders. Failed
1914 N/A DS Administration of Government Providing for codification of laws relating to women and children. Failed
1914 N/A DA Utility Regulation Designating newspapers as public utilities. Failed
1914 N/A DA Judicial Reform Providing for a 3/4 jury verdict in civil cases and permitting women to serve on juries if they desire. Failed
1914 N/A DA Alcohol Regulation Providing for statewide prohibition. Passed
1914 N/A DA Initiative and Referendum Providing that initiated measures rejected by people cannot again be initiated for six years, and if two conflicting measures be adopted at same election, one receiving largest affirmative vote shall prevail. Failed
1914 N/A DS Taxes Increasing state road fund by half mill levy for highway construction. Passed
1916 N/A DS Education Providing for the investment of public school funds in certain securities. Passed
1916 N/A DS Business Regulation Regulating the running of stock at large. Failed
1916 N/A DS Welfare Providing for the care and treatment of insane persons. Passed
1916 N/A DA Alcohol Regulation Declaring beer non-toxicating and providing for its manufacture and sale. Failed
1916 N/A DA Administration of Government Placing state civil service in the constitution. Failed
1916 N/A DS Taxes Abolishment of the state tax commission. Failed
1918 N/A DS Welfare Relief for blind adults. Passed
1918 N/A DA Administration of Government Placing state civil service in the constitution. Passed
1918 N/A DS Alcohol Regulation “Bone-dry” prohibition law. Passed
1920 N/A DS Health/Medical Appropriating $350,000 from the general fund for the establishment o the Psychopathic Hospital and Laboratory. Passed
1920 N/A DA Education Providing additional one mill levy for state educational institutions. Passed
1920 N/A DA Bonds Providing for the construction of the Moffat, Monarch and San Juan tunnels, and bond issue therefore. Failed
1920 N/A DS Business Regulation Relating to the practice of chiropractic, and providing for the regulation and licensing thereof. Failed
1920 N/A DS Administration of Government Creating the County of Limon. Failed
1920 N/A DS Administration of Government Creating the County of Flagler. Failed
1920 N/A DS Labor Fixing hours of employment in city fire departments. Passed
1922 N/A DA Bonds $1.5m bond issue for construction of public highways. Passed
1922 N/A DA Utility Regulation Creating a public utilities commission, prescribing its powers and duties, and defining public utilities. Failed
1922 N/A DA Taxes Giving legislature or people power to exempt certain intangibles from ad valorem taxation, and to impose an income tax in lieu thereof. Failed
1922 N/A DS Business Regulation Concerning experimental operations on human beings and dumb animals. Failed
1922 N/A DS Apportionment/Redistricting Revising apportionment of members of legislature. Failed
1924 N/A DA Administration of Government Establishing the office of state printer and printing building committee. Failed
1926 N/A DA Administration of Government Creating a public utilities commission and prescribing its powers and duties. Failed
1926 N/A DS Taxes Concerning the taxation of petroleum products and registration of motor vehicles, and providing that all such taxes and fees by used exclusively for roads. Failed
1926 N/A DS Business Regulation Amending law to permit dentists licensed in other states to practice in Colorado without examination. Failed
1928 N/A DA Education Providing for the election of a board of education, and for the appointment by said board of a commissioner of education to take place of superintendent of public instruction. Failed
1928 N/A DA Bonds Providing for a $60m bond issue for the construction of highways. Failed
1930 N/A DA Education Providing for the election of a board of education and for the appointment by said board of a commissioner of education to take place of superintendent of public instruction. Failed
1932 N/A DA Taxes Limiting taxation of motor fuel and ad valorem taxation of motor vehicles. Failed
1932 N/A DS Apportionment/Redistricting Reapportionment of members of legislature . Passed
1932 N/A DA Alcohol Regulation Repealing statewide prohibition, subject to national repeal. Passed
1932 N/A DA Taxes Giving legislature power to provide for a limited income tax and a classified personal property tax, to be used for public schools. Failed
1932 N/A DA Taxes Giving legislature power to provide for a graduated income tax for state purposes, abolishing property tax for state purposes, and giving any excess revenue to the public schools. Failed
1934 N/A DA Taxes Concerning the taxation of petroleum products and registration of motor vehicles and providing that such taxes and fees be used exclusively for roads. Passed
1934 N/A DS Business Regulation Imposing license fees on chain stores. Passed
1934 N/A DA Taxes Limiting tax on motor fuel to $.03 per gallon. Failed
1934 N/A DA Taxes Giving people sole power to impose or approve imposition of excise taxes through the initiative and referendum. Failed
1936 N/A DA Taxes Providing for ownership tax on motor vehicles in lieu of ad valorem taxation thereon, and for the distribution thereof. Passed
1936 N/A DS Welfare Providing for public assistance to indigent tubercular residents. Passed
1936 N/A DA Taxes Amending “uniformity clause” of constitution principally by limiting rate to taxation for all purposes to 20 mills in cities and towns of first class, and 15 mills in other divisions. Failed
1936 N/A DA Taxes Amending revenue section of constitution, principally by giving legislature power to provide for an income tax within limitations. Failed
1936 N/A DA Welfare Providing $45 per month old age pensions and designating certain taxes for the payment thereof. Passed
1936 N/A DS Labor Amending workmen’s compensation act to benefit of employee. Passed
1938 N/A DA Business Regulation Relating to the practice of the healing arts, and giving practitioners licensed by the state certain rights in tax supported institutions and power to regulate their own professions. Failed
1938 N/A DA Welfare Repeal of $45 per month old age pension amendment and giving legislature power to provide for pensions. Failed
1938 N/A DS Taxes Repeal of chain stores tax act. Failed
1940 N/A DA Taxes Providing for an income tax; requiring the legislature to levy such income tax at not lower than certain specified rates; and providing that the revenues derived there from shall replace property taxes. Failed
1940 N/A DA Environmental Reform Providing for the conservation of the state’s wildlife resources; limiting the use of game and fish revenues for such purposes; and establishing a Game and Fish Commission. Failed
1940 N/A DS Gaming Establishing a racing commission and legalizing horse and dog racing. Failed
1940 N/A DA Welfare Providing for a guaranteed old age pension of $30 per month to residents of the state over 65 years who qualify. Failed
1940 N/A DA Taxes Providing for an ad valorem tax on all intangible property in the state, and allocating the funds derived there from. Failed
1944 N/A DA Alien Rights Providing that aliens eligible to citizenship may acquire and dispose of real and personal property, and that provision shall be made by law concerning the right of aliens ineligible to citizenship to acquire and dispose of such property. Failed
1944 N/A DA Veteran Affairs Providing for preference to honorably discharged veterans and their widows in the civil service of the state and its political subdivisions. Passed
1944 N/A DS Welfare Appropriating $.5m for the then current biennium and $1.5m annually thereafter for old age pensions. Passed
1948 3 DA Alcohol Regulation Political subdivisions may adopt and thereafter modify or repeal local option proposals prohibiting the sale of alcoholic and fermented malt beverages. Failed
1948 4 DA Welfare Providing for a guaranteed minimum $55 per month old age pension and for the allocation and earmarking of certain moneys and excise taxes to pay the same. Failed
1950 3 DA Administration of Government Concerning civil service and providing for additional exemptions there from of governor’s staff. Failed
1952 4 DA Taxes Providing for a severance tax on certain petroleum products and natural gas. Failed
1952 6 DA Gaming Legalizing slot machines except where prohibited by local ordinance. Failed
1952 N/A DS Labor Making it unlawful for any municipality to employ firemen more than 60 hours a week, with certain exceptions. Failed
1954 8 DA Administration of Government Providing for four-year terms of office for certain County officers. (Art. 14, Sec. 8) Passed
1956 4 DA Apportionment/Redistricting Providing for apportionment of members of the general assembly. Failed
1956 5 DA Welfare Revising the old age pension article; establishing a monthly award of $100 to be adjusted to increased living costs; providing for a stabilization fund of $5 million. Passed
1958 1 DA Labor “Right-to-work” amendment; providing that no person shall be denied the freedom to obtain or retain employment because of membership or non-membership in any labor union or labor organization. Failed
1958 4 DA Gaming Legalizing the conduct of games of chance (limited to bingo, lotto, or raffles) by certain organizations which operate without profit to dues paying members. Passed
1960 3 DA Environmental Reform Creates a wildlife management commission and a department of wildlife conservation. Failed
1960 4 DS Daylight Savings Time Providing for and establishing Daylight Saving Time. Failed
1960 6 DA Taxes Authorizing general assembly to vest in counties, cities and towns, the power to impose a retail sales and use tax for local purposes on tangible personal property, except drugs, and food for off-premises consumption. Failed
1960 7 DA Administration of Government Authorizing governor, with consent of Senate, to appoint administrative officers of certain departments, to be excluded from civil service. Failed
1962 7 DA Apportionment/Redistricting An act providing for the apportionment of the Senate and House of Representatives of the General Assembly. Passed
1962 8 DA Apportionment/Redistricting Providing for reapportionment of the general assembly. Failed
1966 1 DS Daylight Savings Time Providing for Daylight Savings Time in Colorado. Passed
1966 2 DS Death Penalty Abolishing death penalty. Failed
1972 10 DS Utility Regulation An Act to protect the consumer of public utility services by defining just and reasonable rates, by creating an Office of Public Consumer Counsel. Failed
1972 11 DS Business Regulation Establishing a system of compulsory insurance and compensation irrespective of fault for victims of motor vehicle accidents, setting forth the basis for recovery. Failed
1972 6 DA Gaming An act to amend the Constitution to provide for a privately operated lottery, supervised and regulated by the Department of State and granting an exclusive original ten year license to the United States Sweepstakes Corporation. Failed
1972 8 DA Taxes An Act to Amend Art. 10 and 11 to prohibit the state from levying taxes and appropriating or loaning funds for the purpose of aiding or furthering the 1976 Winter Olympic Games. Passed
1972 9 DS Campaign Finance Reform Require that public officials disclose their private interests and that all lobbyists register and file periodic informational statements. Passed
1972 N/A DA Taxes Establishing a maximum limitation of one and one-half percent of the actual value on the annual taxation of property except as permitted by a vote of the qualified electors. Failed
1974 1 DA Administration of Government An act concerning the annexation of property by a County or city and County, and prohibiting the striking off of any territory from a County without first submitting the question to a vote of the qualified electors of the County and city. Passed
1974 10 DA Nuclear weapons/facilities/waste An act to amend the Constitution to establish procedural steps to be complied with prior to the detonation of nuclear explosive devises including voter approval. Passed
1974 2 DS Death Penalty Shall the death penalty be imposed upon persons convicted of Class 1 felonies where certain mitigating circumstances are not present and certain aggravating circumstances are present? Passed
1974 8 DA Education Prohibit the assignment or the transportation of pupils to public educational institutions in order to achieve racial balance of pupils at such institutions. Passed
1974 9 DA Apportionment/Redistricting Reapportioning of legislative districts by a body to be known as the Colorado Reapportionment Commission which shall consist of electors. Passed
1976 1 DA Gaming Authorize conduct of sweepstakes. Passed
1976 10 DA Taxes An Amendment adding a new Sec. 31 to Art. 10 requiring registered electoral approval of all state and local executive or legislative acts which result in new or increased taxes. Failed
1976 2 DA Taxes Classification/taxation of motor vehicles. Passed
1976 3 DA Nuclear weapons/facilities/waste An amendment requiring approval by two thirds of each House of the General Assembly prior to any construction or modification of a nuclear power plant or related facility. Failed
1976 4 DA Administration of Government Exemptions from state personnel systems. Failed
1976 5 DA Administration of Government Compensation of County officials. Failed
1976 6 DA Civil Rights An Act to repeal Sec. 29 of Art. 2 which section provides for equality of rights under the law on account of sex. Failed
1976 7 DS Taxes Exempts food and food products, with certain exceptions, from state sales and use taxes and repeal the food sales tax credit, to require the General Assembly to enact severance taxes and corporate income taxes to offset any revenue lost. Failed
1976 8 DS Environmental Reform Requires a minimum deposit refund value for beverage containers for malt liquor, including beer, and carbonated soft drinks manufactured, distributed, or sold for use in this state. Failed
1976 9 DS Utility Regulation Protects and represents consumers of public utilities services by creating a Department of Public Counselor, and concerning financial disclosures by Public Utilities Commissioners. Failed
1978 1 DA Administration of Government Office of County Commissioner, vacancies. Passed
1978 2 DA Taxes Limiting annual increases in per capita expenditures by the state and its political subdivisions. Failed
1982 1 DA Taxes Property tax assessment. Passed
1982 2 DA Legal An amendment to Authorizing the denial of bail to persons accused of a capital offense when proof is evident or presumption is great. Passed
1982 3 DA Judicial Reform Concerning the membership and appointment of the commission on judicial discipline. Passed
1982 5 DS Environmental Reform Refund on beverage containers. Failed
1982 6 M Nuclear weapons/facilities/waste To bring about the cessation of nuclear weapons component production in Colorado. Failed
1982 7 DS Business Regulation Regulate the sale of wine in grocery stores. Failed
1984 1 DA Administration of Government Appointment of Commissioner of Insurance. Passed
1984 2 DA Election Reform Providing that a person must be a registered elector in order to vote for state elected executive officers. Passed
1984 3 DA Abortion Ban the state funding of abortion. Passed
1984 4 DS Election Reform To provide for additional voter registration of qualified electors applying for a driver’s license. Passed
1984 5 DA Gaming Establish casino gambling in Pueblo. Failed
1986 1 DA Administration of Government Appointments by merit. Failed
1986 2 DA Administration of Government Compensation of County officers. Failed
1986 3 DA Initiative and Referendum Franchises subject to initiative and referendum. Passed
1986 4 DA Taxes Voter approval for tax increases. Failed
1988 1 DA Administration of Government English as official language. Passed
1988 2 DA Election Reform Reimbursement of Recall expenses. Passed
1988 3 DA Administration of Government Legislative session length. Passed
1988 4 DA Labor Concerning maximum eight-hour workday. Passed
1988 5 DA Taxes Property tax exempt non-producing mining claims. Passed
1988 6 DA Taxes Voter approval: increases in tax revenues. Failed
1988 7 DA Abortion Restore funding for abortions. Failed
1988 8 DA Administration of Government Referral of measures to committees. Passed
1990 1 DA Taxes To require voter approval for certain state and local government revenue increases. Failed
1990 2 DA Election Reform Colorado shall conduct a presidential primary election which conforms to political party rules. Passed
1990 4 DA Gaming Legalizing limited gaming. Passed
1990 5 DA Term Limits Term limits for elected officials. State legislature and Congress. 8/8 Passed
1992 1 DA Taxes Voter approval of tax revenue increases. Passed
1992 10 DS Animal Rights Prohibit taking of black bears. Passed
1992 2 DA Civil Rights Repeal local laws passed to ban discrimination based on sexual orientation and prevent similar new laws. Passed
1992 3 DA Gaming Limited gaming; surtax. Failed
1992 4 DA Gaming Limited gaming. Failed
1992 5 DA Gaming Limited gaming. Failed
1992 6 DS Education Act for system of educational standards. Failed
1992 7 DA Education Vouchers for school funding. Failed
1992 8 DA Environmental Reform The Great Outdoors Colorado program. Passed
1992 9 DA Gaming Limited gaming. Failed
1994 1 DA Taxes Would place an additional 50 cents per pack tax on the sale of cigarettes by wholesalers. Failed
1994 11 DA Labor Workers compensation benefits. Failed
1994 12 DA Campaign Finance Reform Placed limitations on elected officials compensation; enacted campaign contribution limitations. Failed
1994 13 DA Gaming To allow slot machines without a local vote in Manitou Springs. Failed
1994 15 DA Campaign Finance Reform Establish campaign contributions limits. Failed
1994 16 DA Civil Rights Would allow the control of the promotion of obscenity by the state and any city, town or County to the full extent permitted by the First Amendment to the United States Constitution. Failed
1994 17 DA Term Limits Term limits on Congress 6/12 and on all localities. Passed
1994 18 DA Administration of Government State medical assistance repayment. Failed
1996 11 DA Taxes Eliminates property tax exemptions of religious and nonprofit organizations. Failed
1996 12 DA Term Limits Term limits on Congress 6/12 and all localities. Passed
1996 13 DA Initiative and Referendum Expands initiative and referendum powers. Failed
1996 14 DA Animal Rights Concerns methods of taking wildlife; prohibits use of leg hold traps. Passed
1996 15 DS Campaign Finance Reform Limiting the amount of campaign contributions to candidate committees. Passed
1996 16 DA Administration of Government Concerns management of state’s trust lands; expands membership of the State Land Board. Passed
1996 17 DA Civil Rights Grants constitutional status to parents’ rights. Failed
1996 18 DA Gaming Allow limited gambling in the city of Trinidad. Failed
1998 11 DS Abortion Would prohibit partial birth abortion Failed
1998 12 DS Abortion Would require parents be notified prior to a physician performed abortion. Passed
1998 13 DA Animal Rights Would establish uniform livestock regulations. Failed
1998 14 DS Animal Rights Establish regulations for commercial hog farms Passed
1998 15 DS Environmental Reform Would regulate water flow meters. Failed
1998 16 DA Education Would require that payments by the Conservation District be made to the Public School Fund and School Districts. Failed
1998 17 DA Education Would establish Income Tax Credit for education expenses. Failed
1998 18 DA Term Limits Self Limit Law. Passed
2000 20 DA Drug Policy Reform Legalizes marijuana for medical purposes. Passed
2000 21 DA Taxes Amends TABOR – creates tax cuts. Failed
2000 22 DS Gun Regulation An initiative amendment to require background checks for guns purchased at gun shows. Passed
2000 23 DA Education Providing Additional K-12 Funding Passed
2000 24 DA Environmental Reform Citizen Growth Initiative. Failed
2000 25 DS Abortion This measure insures the provision of complete and accurate information to allow a woman to make an informed choice as to whether to give birth or to have an abortion. Failed
2001 26 DA Administration of Government Expends $50 million of 2001 tax refund revenues over a period of three years to fund a high-speed monorail. Passed

Colorado Constitution

Article V: Section 1. General assembly – initiative and referendum.
(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.
(2) The first power hereby reserved by the people is the initiative, and signatures by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election shall be required to propose any measure by petition, and every such petition shall include the full text of the measure so proposed. Initiative petitions for state legislation and amendments to the constitution, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state at least three months before the general election at which they are to be voted upon.
(3) The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions, against any act or item, section, or part of any act of the general assembly, either by a petition signed by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election or by the general assembly. Referendum petitions, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly that passed the bill on which the referendum is demanded. The filing of a referendum petition against any item, section, or part of any act shall not delay the remainder of the act from becoming operative.
(4) The veto power of the governor shall not extend to measures initiated by or referred to the people. All elections on measures initiated by or referred to the people of the state shall be held at the biennial regular general election, and all such measures shall become the law or a part of the constitution, when approved by a majority of the votes cast thereon, and not otherwise, and shall take effect from and after the date of the official declaration of the vote thereon by proclamation of the governor, but not later than thirty days after the vote has been canvassed. This section shall not be construed to deprive the general assembly of the power to enact any measure.
(5) The original draft of the text of proposed initiated constitutional amendments and initiated laws shall be submitted to the legislative research and drafting offices of the general assembly for review and comment. No later than two weeks after submission of the original draft, unless withdrawn by the proponents, the legislative research and drafting offices of the general assembly shall render their comments to the proponents of the proposed measure at a meeting open to the public, which shall be held only after full and timely notice to the public. Such meeting shall be held prior to the fixing of a ballot title. Neither the general assembly nor its committees or agencies shall have any power to require the amendment, modification, or other alteration of the text of any such proposed measure or to establish deadlines for the submission of the original draft of the text of any proposed measure.
(5.5) No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls. In such circumstance, however, the measure may be revised and resubmitted for the fixing of a proper title without the necessity of review and comment on the revised measure in accordance with subsection (5) of this section, unless the revisions involve more than the elimination of provisions to achieve a single subject, or unless the official or officials responsible for the fixing of a title determine that the revisions are so substantial that such review and comment is in the public interest. The revision and resubmission of a measure in accordance with this subsection (5.5) shall not operate to alter or extend any filing deadline applicable to the measure.
(6) The petition shall consist of sheets having such general form printed or written at the top thereof as shall be designated or prescribed by the secretary of state; such petition shall be signed by registered electors in their own proper persons only, to which shall be attached the residence address of such person and the date of signing the same. To each of such petitions, which may consist of one or more sheets, shall be attached an affidavit of some registered elector that each signature thereon is the signature of the person whose name it purports to be and that, to the best of the knowledge and belief of the affiant, each of the persons signing said petition was, at the time of signing, a registered elector. Such petition so verified shall be prima facie evidence that the signatures thereon are genuine and true and that the persons signing the same are registered electors.
(7) The secretary of state shall submit all measures initiated by or referred to the people for adoption or rejection at the polls, in compliance with this section. In submitting the same and in all matters pertaining to the form of all petitions, the secretary of state and all other officers shall be guided by the general laws.
(7.3) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall cause to be published the text and title of every such measure. Such publication shall be made at least one time in at least one legal publication of general circulation in each county of the state and shall be made at least fifteen days prior to the final date of voter registration for the election. The form and manner of publication shall be as prescribed by law and shall ensure a reasonable opportunity for the voters statewide to become informed about the text and title of each measure.
(7.5) (a) Before any election at which the voters of the entire state will vote on any initiated or referred constitutional amendment or legislation, the nonpartisan research staff of the general assembly shall prepare and make available to the public the following information in the form of a ballot information booklet:
(I) The text and title of each measure to be voted on;
(II) A fair and impartial analysis of each measure, which shall include a summary and the major arguments both for and against the measure, and which may include any other information that would assist understanding the purpose and effect of the measure. Any person may file written comments for consideration by the research staff during the preparation of such analysis.
(b) At least thirty days before the election, the research staff shall cause the ballot information booklet to be distributed to active registered voters statewide.
(c) If any measure to be voted on by the voters of the entire state includes matters arising under section 20 of article X of this constitution, the ballot information booklet shall include the information and the titled notice required by section 20 (3) (b) of article X, and the mailing of such information pursuant to section 20 (3) (b) of article X is not required.
(d) The general assembly shall provide sufficient appropriations for the preparation and distribution of the ballot information booklet pursuant to this subsection (7.5) at no charge to recipients.
(8) The style of all laws adopted by the people through the initiative shall be, “Be it Enacted by the People of the State of Colorado”.
(9) The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality as to all local, special, and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws; except that cities, towns, and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. Not more than ten percent of the registered electors may be required to order the referendum, nor more than fifteen per cent to propose any measure by the initiative in any city, town, or municipality.
(10) This section of the constitution shall be in all respects self-executing; except that the form of the initiative or referendum petition may be prescribed pursuant to law.

Colorado Statutes

1-40-101 – Legislative declaration.
It is not the intention of this article to limit or abridge in any manner the powers reserved to the people in the initiative and referendum, but rather to properly safeguard, protect, and preserve inviolate for them these modern instrumentalities of democratic government.
As used in this article, unless the context otherwise requires:
(1) “Ballot issue” means a non-recall, citizen-initiated petition or legislatively-referred measure which is authorized by the state constitution, including a question as defined in sections 1-41-102 (3) and 1-41-103 (3), enacted in Senate Bill 93-98.
(2) “Ballot title” means the language which is printed on the ballot which is comprised of the submission clause and the title.
(3) (Deleted by amendment, L. 95, p. 430, § 2, effective May 8, 1995.)
(4) “Draft” means the typewritten proposed text of the initiative which, if passed, becomes the actual language of the constitution or statute, together with language concerning placement of the measure in the constitution or statutes.
(5) (Deleted by amendment, L. 95, p. 431, § 2, effective May 8, 1995.)
(6) “Section” means a bound compilation of initiative forms approved by the secretary of state, which shall include pages that contain the warning required by section 1-40-110 (1), the ballot title, and a copy of the proposed measure; succeeding pages that contain the warning, the ballot title, and ruled lines numbered consecutively for registered electors’ signatures; and a final page that contains the affidavit required by section 1-40-111 (2). Each section shall be consecutively prenumbered by the petitioner prior to circulation.
(7) (Deleted by amendment, L. 95, p. 431, § 2, effective May 8, 1995.)
(8) “Submission clause” means the language which is attached to the title to form a question which can be answered by “yes” or “no”.
(9) (Deleted by amendment, L. 2000, p. 1621, § 3, effective August 2, 2000.)
(10) “Title” means a brief statement that fairly and accurately represents the true intent and meaning of the proposed text of the initiative.
1-40-103 – Applicability of article.
(1) This article shall apply to all state ballot issues that are authorized by the state constitution unless otherwise provided by statute, charter, or ordinance.
(2) The laws pertaining to municipal initiatives, referenda, and referred measures are governed by the provisions of article 11 of title 31, C.R.S.
(3) The laws pertaining to county petitions and referred measures are governed by the provisions of section 30-11-103.5, C.R.S.
(4) The laws pertaining to school district petitions and referred measures are governed by the provisions of section 22-30-104 (4), C.R.S.
1-40-104 – Designated representatives.
At the time of any filing of a draft as provided in this article, the proponents shall designate the names and mailing addresses of two persons who shall represent the proponents in all matters affecting the petition and to whom all notices or information concerning the petition shall be mailed.
1-40-105 – Filing procedure – review and comment – amendments – filing with secretary of state.
(1) The original typewritten draft of every initiative petition for a proposed law or amendment to the state constitution to be enacted by the people, before it is signed by any elector, shall be submitted by the proponents of the petition to the directors of the legislative council and the office of legislative legal services for review and comment. Proponents are encouraged to write such drafts in plain, non-technical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader. Upon request, any agency in the executive department shall assist in reviewing and preparing comments on the petition. No later than two weeks after the date of submission of the original draft, unless it is withdrawn by the proponents, the directors of the legislative council and the office of legislative legal services, or their designees, shall render their comments to the proponents of the petition concerning the format or contents of the petition at a meeting open to the public. Where appropriate, such comments shall also contain suggested editorial changes to promote compliance with the plain language provisions of this section. Except with the permission of the proponents, the comments shall not be disclosed to any person other than the proponents prior to the public meeting with the proponents of the petition.
(2) After the public meeting but before submission to the secretary of state for title setting, the proponents may amend the petition in response to some or all of the comments of the directors of the legislative council and the office of legislative legal services, or their designees. If any substantial amendment is made to the petition, other than an amendment in direct response to the comments of the directors of the legislative council and the office of legislative legal services, the amended petition shall be resubmitted to the directors for comment in accordance with subsection (1) of this section prior to submittal to the secretary of state as provided in subsection (4) of this section. If the directors have no additional comments concerning the amended petition, they may so notify the proponents in writing, and, in such case, a hearing on the amended petition pursuant to subsection (1) of this section is not required.
(3) To the extent possible, drafts shall be worded with simplicity and clarity and so that the effect of the measure will not be misleading or likely to cause confusion among voters. The draft shall not present the issue to be decided in such manner that a vote for the measure would be a vote against the proposition or viewpoint that the voter believes that he or she is casting a vote for or, conversely, that a vote against the measure would be a vote for a proposition or viewpoint that the voter is against.
(4) After the conference provided in subsections (1) and (2) of this section, a copy of the original typewritten draft submitted to the directors of the legislative council and the office of legislative legal services, a copy of the amended draft with changes highlighted or otherwise indicated, if any amendments were made following the last conference conducted pursuant to subsections (1) and (2) of this section, and an original final draft which gives the final language for printing shall be submitted to the secretary of state without any title, submission clause, or ballot title providing the designation by which the voters shall express their choice for or against the proposed law or constitutional amendment.
1-40-106 – Title board – meetings – titles and submission clause.
(1) For ballot issues, beginning with the first submission of a draft after an election, the secretary of state shall convene a title board consisting of the secretary of state, the attorney general, and the director of the office of legislative legal services or the director’s designee. The title board, by majority vote, shall proceed to designate and fix a proper fair title for each proposed law or constitutional amendment, together with a submission clause, at public meetings to be held at 2 p.m. on the first and third Wednesdays of each month in which a draft or a motion for reconsideration has been submitted to the secretary of state. To be considered at such meeting, a draft shall be submitted to the secretary of state no later than 3 p.m. on the twelfth day before the meeting at which the draft is to be considered by the title board. The first meeting of the title board shall be held no sooner than the first Wednesday in December after an election, and the last meeting shall be held no later than the third Wednesday in May in the year in which the measure is to be voted on.
(2) (Deleted by amendment, L. 95, p. 432, § 4, effective May 8, 1995.)
(3) (a) (Deleted by amendment, L. 2000, p. 1620, § 1, effective August 2, 2000.)
(b) In setting a title, the title board shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a “yes” or “no” vote will be unclear. The title for the proposed law or constitutional amendment, which shall correctly and fairly express the true intent and meaning thereof, together with the ballot title and submission clause, shall be completed within two weeks after the first meeting of the title board. Immediately upon completion, the secretary of state shall deliver the same with the original to the parties presenting it, keeping the copy with a record of the action taken thereon. Ballot titles shall be brief, shall not conflict with those selected for any petition previously filed for the same election, and shall be in the form of a question which may be answered “yes” (to vote in favor of the proposed law or constitutional amendment) or “no” (to vote against the proposed law or constitutional amendment) and which shall unambiguously state the principle of the provision sought to be added, amended, or repealed.
1-40-106.5 – Single-subject requirements for initiated measures and referred constitutional amendments – legislative declaration.
(1) The general assembly hereby finds, determines, and declares that:
(a) Section 1 (5.5) of article V and section 2 (3) of article XIX of the state constitution require that every constitutional amendment or law proposed by initiative and every constitutional amendment proposed by the general assembly be limited to a single subject, which shall be clearly expressed in its title;
(b) Such provisions were referred by the general assembly to the people for their approval at the 1994 general election pursuant to Senate Concurrent Resolution 93-4;
(c) The language of such provisions was drawn from section 21 of article V of the state constitution, which requires that every bill, except general appropriation bills, shall be limited to a single subject, which shall be clearly expressed in its title;
(d) The Colorado supreme court has held that the constitutional single-subject requirement for bills was designed to prevent or inhibit various inappropriate or misleading practices that might otherwise occur, and the intent of the general assembly in referring to the people section 1 (5.5) of article V and section 2 (3) of article XIX was to protect initiated measures and referred constitutional amendments from similar practices;
(e) The practices intended by the general assembly to be inhibited by section 1 (5.5) of article V and section 2 (3) of article XIX are as follows:
(I) To forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits;
(II) To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters.
(2) It is the intent of the general assembly that section 1 (5.5) of article V and section 2 (3) of article XIX be liberally construed, so as to avert the practices against which they are aimed and, at the same time, to preserve and protect the right of initiative and referendum.
(3) It is further the intent of the general assembly that, in setting titles pursuant to section 1 (5.5) of article V, the initiative title setting review board created in section 1-40-106 should apply judicial decisions construing the constitutional single-subject requirement for bills and should follow the same rules employed by the general assembly in considering titles for bills.
1-40-107 – Rehearing – appeal – fees – signing.
(1) Any person presenting an initiative petition or any registered elector who is not satisfied with a decision of the title board with respect to whether a petition contains more than a single subject pursuant to section 1-40-106.5, or who is not satisfied with the titles and submission clause provided by the title board and who claims that they are unfair or that they do not fairly express the true meaning and intent of the proposed state law or constitutional amendment may file a motion for a rehearing with the secretary of state within seven days after the decision is made or the titles and submission clause are set. The motion for rehearing shall be heard at the next regularly scheduled meeting of the title board; except that, if the title board is unable to complete action on all matters scheduled for that day, consideration of any motion for rehearing may be continued to the next available day, and except that, if the titles and submission clause protested were set at the last meeting in May, the motion shall be heard within forty-eight hours after the motion is filed.
(2) If any person presenting an initiative petition for which a motion for a rehearing is filed, any registered elector who filed a motion for a rehearing pursuant to subsection (1) of this section, or any other registered elector who appeared before the title board in support of or in opposition to a motion for rehearing is not satisfied with the ruling of the title board upon the motion, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles and submission clause of the proposed law or constitutional amendment, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the supreme court within five days thereafter, the matter shall be disposed of promptly, consistent with the rights of the parties, either affirming the action of the title board or reversing it, in which latter case the court shall remand it with instructions, pointing out where the title board is in error.
(3) The secretary of state shall be allowed a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., for certifying a record of any proceedings before the title board. The clerk of the supreme court shall receive one-half the ordinary docket fee for docketing any such cause, all of which shall be paid by the parties desiring a review of such proceedings.
(4) No petition for any initiative measure shall be circulated nor any signature thereto have any force or effect which has been signed before the titles and submission clause have been fixed and determined as provided in section 1-40-106 and this section.
(5) In the event a motion for rehearing is filed in accordance with this section, the period for filing a petition in accordance with section 1-40-108 shall not begin until a final decision concerning the motion is rendered by the title board or the Colorado supreme court; except that under no circumstances shall the period for filing a petition be extended beyond three months prior to the election at which the petition is to be voted upon.
(6) (Deleted by amendment, L. 2000, p. 1622, § 5, effective August 2, 2000.)
(7) (Deleted by amendment, L. 95, p. 433, § 5, effective May 8, 1995.)
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 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 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.
(2) (Deleted by amendment, L. 95, p. 433, § 6, effective May 8, 1995.)
1-40-109 – Signatures required.
(1) No petition for any initiated law or amendment to the state constitution shall be of any force or effect, nor shall the proposed law or amendment to the state constitution be submitted to the people of the state of Colorado for adoption or rejection at the polls, as is by law provided for, unless the petition for the submission of the initiated law or amendment to the state constitution is signed by the number of electors required by the state constitution.
(2) (Deleted by amendment, L. 95, p. 433, § 7, effective May 8, 1995.)
(3) Any person who is a registered elector may sign a petition for any ballot issue for which the elector is eligible to vote.
1-40-110 – Warning – ballot title.
(1) At the top of each page of every initiative or referendum petition section shall be printed, in a form as prescribed by the secretary of state, the following:

“WARNING: IT IS AGAINST THE LAW: For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR AND ELIGIBLE TO VOTE ON THIS MEASURE. TO BE A REGISTERED ELECTOR, YOU MUST BE A CITIZEN OF COLORADO AND REGISTERED TO VOTE.

Before signing this petition, you are encouraged to read the text or the title of the proposed initiative or referred measure.”

(2) The ballot title for the measure shall then be printed on each page following the warning.
1-40-111 – Signatures – affidavits.
(1) Any initiative or referendum petition shall be signed only by registered electors who are eligible to vote on the measure. Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city and town, the county, and the date of signing. Each registered elector signing a petition shall be encouraged by the circulator of the petition to sign the petition in ink. In the event a registered elector is physically disabled or is illiterate and wishes to sign the petition, the elector shall sign or make his or her mark in the space so provided. Any person, but not a circulator, may assist the disabled or illiterate elector in completing the remaining information required by this subsection (1). The person providing assistance shall sign his or her name and address and shall state that such assistance was given to the disabled or illiterate elector.
(2) To each petition section shall be attached a signed, notarized, and dated affidavit executed by the registered elector who circulated the petition section, which shall include his or her printed name, the address at which he or she resides, including the street name and number, the city or town, the county, and the date he or she signed the affidavit; that he or she has read and understands the laws governing the circulation of petitions; that he or she was a registered elector at the time the section of the petition was circulated and signed by the listed electors; that he or she circulated the section of the petition; that each signature thereon was affixed in the circulator’s presence; that each signature thereon is the signature of the person whose name it purports to be; that to the best of the circulator’s knowledge and belief each of the persons signing the petition section was, at the time of signing, a registered elector; and that he or she has not paid or will not in the future pay and that he or she believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix his or her signature to the petition.
The secretary of state shall not accept for filing any section of a petition that does not have attached thereto the notarized affidavit required by this section. Any signature added to a section of a petition after the affidavit has been executed shall be invalid.
1-40-112 – Circulators – requirements.
(1) No section of a petition for any initiative or referendum measure shall be circulated by any person who is not a registered elector and at least eighteen years of age at the time the section is circulated.
(2) (a) All circulators who are not to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words “VOLUNTEER CIRCULATOR” in bold-faced type which is clearly legible and the circulator’s name.
(b) All circulators who are to be paid for circulating petitions concerning ballot issues shall display an identification badge that includes the words “PAID CIRCULATOR” in bold-faced type which is clearly legible, the circulator’s name, and the name and telephone number of the individual employing the circulator.
1-40-113 – Form – representatives of signers.
(1) Each section of a petition shall be printed on a form as prescribed by the secretary of state. No petition shall be printed, published, or otherwise circulated unless the form and the first printer’s proof of the petition have been approved by the secretary of state. Each petition section shall designate by name and mailing address two persons who shall represent the signers thereof in all matters affecting the same. The secretary of state shall assure that the petition contains only the matters required by this article and contains no extraneous material. All sections of any petition shall be prenumbered serially, and the circulation of any petition section described by this article other than personally by a circulator is prohibited. Any petition section that fails to conform to the requirements of this article or is circulated in a manner other than that permitted in this article shall be invalid.
(2) Any disassembly of a section of the petition which has the effect of separating the affidavits from the signatures shall render that section of the petition invalid and of no force and effect.
(3) Prior to the time of filing, the persons designated in the petition to represent the signers shall bind the sections of the petition in convenient volumes consisting of one hundred sections of the petition if one hundred or more sections are available or, if less than one hundred sections are available to make a volume, consisting of all sections that are available. Each volume consisting of less than one hundred sections shall be marked on the first page of the volume. However, any volume that contains more or less than one hundred sections, due only to the oversight of the designated representatives of the signers or their staff, shall not result in a finding of insufficiency of signatures therein. Each section of each volume shall include the affidavits required by section 1-40-111 (2), together with the sheets containing the signatures accompanying the same. These bound volumes shall be filed with the secretary of state.
1-40-114 – Petitions – not election materials – no bilingual language requirement.
The general assembly hereby determines that initiative petitions are not election materials or information covered by the federal “Voting Rights Act of 1965”, and therefore are not required to be printed in any language other than English to be circulated in any county in Colorado.
1-40-115 – Ballot – voting – publication.
(1) Measures shall appear upon the official ballot by ballot title only. The measures shall be placed on the ballot in the order in which they were certified to the ballot and as provided in section 1-5-407 (5).
(2) All ballot issues shall be printed on the official ballot in that order, together with their respective letters and numbers prefixed in bold-faced type. Each ballot shall have the following explanation printed one time at the beginning of such ballot issues: “Ballot issues referred by the general assembly or any political subdivision are listed by letter, and ballot issues initiated by the people are listed numerically. A ‘yes’ vote on any ballot issue is a vote in favor of changing current law or existing circumstances, and a ‘no’ vote on any ballot issue is a vote against changing current law or existing circumstances.” Each ballot title shall appear on the official ballot but once and shall be separated from the other ballot titles next to it by heavy black lines and shall be followed by the words “yes” and “no” with blank spaces to the right and opposite the same as follows:

(HERE SHALL APPEAR THE BALLOT TITLE IN FULL)

YES ______ NO ______

(3) A voter desiring to vote for the measure shall make a cross mark (X) in the blank space to the right and opposite the word “yes”; a voter desiring to vote against the measure shall make a cross mark (X) in the blank space to the right and opposite the word “no”; and the votes marked shall be counted accordingly. Any measure approved by the people of the state shall be printed with the acts of the next general assembly.
1-40-116 – Verification – ballot issues – random sampling.
(1) For ballot issues, each section of a petition to which there is attached an affidavit of the registered elector who circulated the petition that each signature thereon is the signature of the person whose name it purports to be and that to the best of the knowledge and belief of the affiant each of the persons signing the petition was at the time of signing a registered elector shall be prima facie evidence that the signatures are genuine and true, that the petitions were circulated in accordance with the provisions of this article, and that the form of the petition is in accordance with this article.
(2) Upon submission of the petition, the secretary of state shall examine each name and signature on the petition. The petition shall not be available to the public for a period of no more than thirty calendar days for the examination. The secretary shall assure that the information required by sections 1-40-110 and 1-40-111 is complete, that the information on each signature line was written by the person making the signature, and that no signatures have been added to any sections of the petition after the affidavit required by section 1-40-111 (2) has been executed.
(3) No signature shall be counted unless the signer is a registered elector and eligible to vote on the measure. A person shall be deemed a registered elector if the person’s name and address appear on the master voting list kept by the secretary of state at the time of signing the section of the petition. In addition, the secretary of state shall not count the signature of any person whose information is not complete or was not completed by the elector or a person qualified to assist the elector. The secretary of state may adopt rules consistent with this subsection (3) for the examination and verification of signatures.
(4) The secretary of state shall verify the signatures on the petition by use of random sampling. The random sample of signatures to be verified shall be drawn so that every signature filed with the secretary of state shall be given an equal opportunity to be included in the sample. The secretary of state is authorized to engage in rule making to establish the appropriate methodology for conducting such random sample. The random sampling shall include an examination of no less than five percent of the signatures, but in no event less than four thousand signatures. If the random sample verification establishes that the number of valid signatures is ninety percent or less of the number of registered eligible electors needed to find the petition sufficient, the petition shall be deemed to be not sufficient. If the random sample verification establishes that the number of valid signatures totals one hundred ten percent or more of the number of required signatures of registered eligible electors, the petition shall be deemed sufficient. If the random sampling shows the number of valid signatures to be more than ninety percent but less than one hundred ten percent of the number of signatures of registered eligible electors needed to declare the petition sufficient, the secretary of state shall order the examination and verification of each signature filed.
1-40-117 – Statement of sufficiency – statewide issues.
(1) After examining the petition, the secretary of state shall issue a statement as to whether a sufficient number of valid signatures appears to have been submitted to certify the petition to the ballot.
(2) If the petition was verified by random sample, the statement shall contain the total number of signatures submitted and whether the number of signatures presumed valid was ninety percent of the required total or less or one hundred ten percent of the required total or more.
(3) (a) If the secretary declares that the petition appears not to have a sufficient number of valid signatures, the statement issued by the secretary shall specify the number of sufficient and insufficient signatures. The secretary shall identify by section number and line number within the section those signatures found to be insufficient and the grounds for the insufficiency. Such information shall be kept on file for public inspection in accordance with section 1-40-118.
(b) In the event the secretary of state issues a statement declaring that a petition, having first been submitted with the required number of signatures, appears not to have a sufficient number of valid signatures, the representatives designated by the proponents pursuant to section 1-40-104 may cure the insufficiency by filing an addendum to the original petition for the purpose of offering such number of additional signatures as will cure the insufficiency. No addendum offered as a cure shall be considered unless the addendum conforms to requirements for petitions outlined in sections 1-40-110, 1-40-111, and 1-40-113, and unless the addendum is filed with the secretary of state within the fifteen-day period after the insufficiency is declared and unless filed with the secretary of state within the time required by the state constitution before the election at which the initiative petition is to be voted on. All filings under this paragraph (b) shall be made by 3 p.m. on the day of filing. Upon submission of a timely filed addendum, the secretary of state shall order the examination and verification of each signature on the addendum. The addendum shall not be available to the public for a period of up to ten calendar days for such examination. After examining the petition, the secretary of state shall, within ten calendar days, issue a statement as to whether the addendum cures the insufficiency found in the original petition.
1-40-118 – Protest.
(1) A protest in writing, under oath, together with three copies thereof, may be filed in the district court for the county in which the petition has been filed by some registered elector, within thirty days after the secretary of state issues a statement as to whether the petition has a sufficient number of valid signatures, which statement shall be issued no later than thirty calendar days after the petition has been filed. If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient. During the period a petition is being examined by the secretary of state for sufficiency, the petition shall not be available to the public; except that such period shall not exceed thirty calendar days.
(2) If the secretary of state conducted a random sample of the petitions and did not verify each signature, the protest shall specifically allege the defects in the procedure used by the secretary of state in the verification of the petition or the grounds for challenging individual signatures. If the secretary of state verified each name on the petition sections, the protest shall set forth with particularity the grounds of the protest and the signatures protested. No signature may be challenged that is not identified in the protest by section number, line number, name, and reason why the secretary of state is in error. If any party is protesting the finding of the secretary of state regarding the registration of a signer, the protest shall be accompanied by an affidavit of the elector or a copy of the election record of the signer.
(3) (Deleted by amendment, L. 95, p. 436, § 13, effective May 8, 1995.)
(4) The secretary of state shall furnish a requesting protestor with a computer tape or microfiche listing of the names of all registered electors in the state and shall charge a fee which shall be determined and collected pursuant to section 24-21-104 (3), C.R.S., to cover the cost of furnishing the listing.
1-40-119 – Procedure for hearings.
At any hearing held under this article, the party protesting the finding of the secretary of state concerning the sufficiency of signatures shall have the burden of proof. Hearings shall be had as soon as is conveniently possible and shall be concluded within thirty days after the commencement thereof, and the result of such hearings shall be forthwith certified to the designated representatives of the signers and to the protestors of the petition. The hearing shall be subject to the provisions of the Colorado rules of civil procedure. Upon application, the decision of the court shall be reviewed by the Colorado supreme court.
1-40-120 – Filing in federal court.
In case a complaint has been filed with the federal district court on the grounds that a petition is insufficient due to failure to comply with any federal law, rule, or regulation, the petition may be withdrawn by the two persons designated pursuant to section 1-40-104 to represent the signers of the petition and, within fifteen days after the court has issued its order in the matter, may be amended and refiled as an original petition. Nothing in this section shall prohibit the timely filing of a protest to any original petition, including one that has been amended and refiled. No person shall be entitled, pursuant to this section, to amend an amended petition.
1-40-121 – Receiving money to circulate petitions – filing.
(1) The proponents of the petition shall file with the official who receives filings under the “Fair Campaign Practices Act”, article 45 of this title, for the election the name, address, and county of voter registration of all circulators who were paid to circulate any section of the petition, the amount paid per signature, and the total amount paid to each circulator. The filing shall be made at the same time the petition is filed with the secretary of state. Any payment made to circulators is an expenditure under article 45 of this title.
(2) The proponents of the petition shall sign and file monthly reports with the secretary of state, due ten days after the last day of each month in which petitions are circulated on behalf of the proponents by paid circulators. Monthly reports shall set forth the following:
(a) The names of the proponents;
(b) The name and the residential and business addresses of each of the paid circulators;
(c) The name of the proposed ballot measure for which petitions are being circulated by paid circulators; and
(d) The amount of money paid and owed to each paid circulator for petition circulation during the month in question.
1-40-122 – Certification of ballot titles.
(1) The secretary of state, at the time the secretary of state certifies to the county clerk and recorder of each county the names of the candidates for state and district offices for general election, shall also certify to them the ballot titles and numbers of each initiated and referred measure filed in the office of the secretary of state to be voted upon at such election.
(2) Repealed.
1-40-123 – Counting of votes – effective date – conflicting provisions.
The votes on all measures submitted to the people shall be counted and properly entered after the votes for candidates for office cast at the same election are counted and shall be counted, canvassed, and returned and the result determined and certified in the manner provided by law concerning other elections. The secretary of state who has certified the election shall, without delay, make and transmit to the governor a certificate of election. The measure shall take effect from and after the date of the official declaration of the vote by proclamation of the governor, but not later than thirty days after the votes have been canvassed, as provided in section 1 of article V of the state constitution. A majority of the votes cast thereon shall adopt any measure submitted, and, in case of adoption of conflicting provisions, the one that receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict.
1-40-124 – Publication.
(1) (a) In accordance with section 1 (7.3) of article V of the state constitution, the director of research of the legislative council of the general assembly shall cause to be published at least one time in every legal newspaper, as defined in sections 24-70-102 and 24-70-103 (1), C.R.S., compactly and without unnecessary spacing, in not less than eight-point standard type, a true copy of:
(I) The title and text of each constitutional amendment, initiated or referred measure, or part of a measure, to be submitted to the people with the number and form in which the ballot title thereof will be printed in the official ballot; and
(II) The text of each referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), to be submitted to the people with the number and form in which such question will be printed in the official ballot.
(b) The charge for publication shall be at the newspaper’s then effective current lowest bulk comparable or general rate charged. The director of research shall provide all of the legal newspapers either complete slick proofs or mats of the title and text of the proposed constitutional amendment, initiated or referred measure, or part of a measure, and of the text of a referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), at least one week before the publication date.
(2) (Deleted by amendment, L. 95, p. 437, § 18, effective May 8, 1995.)
1-40-124.5 – Ballot information booklet.
(1) The director of research of the legislative council of the general assembly shall prepare a ballot information booklet for any initiated or referred constitutional amendment or legislation, including a question, as defined in section 1-41-102 (3), in accordance with section 1 (7.5) of article V of the state constitution. If it appears that any measure has a significant fiscal impact on the state or any of its political subdivisions, the booklet shall include an estimate of the fiscal impact of such measure, taking into consideration fiscal impact information submitted by the office of state planning and budgeting, the department of local affairs, any proponent, or other interested person. Prior to completion of the booklet, a draft shall be reviewed by the legislative council at a public hearing held after notice. At the hearing, any proponent or other interested person shall be allowed to comment on the accuracy or fairness of the analysis of any ballot issue addressed by the booklet.
(1.5) The executive committee of the legislative council of the general assembly shall be responsible for providing the fiscal information on any ballot issue that must be included in the ballot information booklet pursuant to section 1 (7.5) (c) of article V of the state constitution.
(2) Following completion of the ballot information booklet, the director of research shall arrange for its distribution to every residence of one or more active registered electors in the state. Distribution may be accomplished by such means as the director of research deems appropriate to comply with section 1 (7.5) of article V of the state constitution, including, but not limited to, mailing the ballot information booklet to electors and insertion of the ballot information booklet in newspapers of general circulation in the state. The distribution shall be performed pursuant to a contract or contracts bid and entered into after employing standard competitive bidding practices including, but not limited to, the use of requests for information, requests for proposals, or any other standard vendor selection practices determined to be best suited to selecting an appropriate means of distribution and an appropriate contractor or contractors. The executive director of the department of personnel shall provide such technical advice and assistance regarding bidding procedures as deemed necessary by the director of research.
(3) There is hereby established in the state treasury the ballot information publication and distribution revolving fund. Moneys shall be appropriated to the fund each year by the general assembly in the annual general appropriation act. All interest earned on the investment of moneys in the fund shall be credited to the fund. Moneys in the revolving fund are continuously appropriated to the legislative council of the general assembly to pay the costs of publishing the text and title of each constitutional amendment, initiated or referred measure, or part of a measure, and the text of a referred or initiated question arising under section 20 of article X of the state constitution, as defined in section 1-41-102 (3), in every legal newspaper in the state, as required by section 1-40-124, and the costs of distributing the ballot information booklet, as required by subsection (2) of this section. Any moneys credited to the revolving fund and unexpended at the end of any given fiscal year shall remain in the fund and shall not revert to the general fund.
1-40-125 – Mailing to electors.
(1) The requirements of this section shall apply to any ballot issue involving a local government matter arising under section 20 of article X of the state constitution, as defined in section 1-41-103 (4), for which notice is required to be mailed pursuant to section 20 (3) (b) of article X of the state constitution. A mailing is not required for a ballot issue that does not involve a local government matter arising under section 20 of article X of the state constitution, as defined in section 1-41-103 (4).
(2) Thirty days before a ballot issue election, political subdivisions shall mail at the least cost and as a package where districts with ballot issues overlap, a titled notice or set of notices addressed to “all registered voters” at each address of one or more active registered electors. Except for voter-approved additions, notices shall include only:
(a) The election date, hours, ballot title, text, and local election office address and telephone number;
(b) For proposed district tax or bonded debt increases, the estimated or actual total of district fiscal year spending for the current year and each of the past four years, and the overall percentage and dollar change;
(c) For the first full fiscal year of each proposed political subdivision tax increase, district estimates of the maximum dollar amount of each increase and of district fiscal year spending without the increase;
(d) For proposed district bonded debt, its principal amount and maximum annual and total district repayment cost, and the principal balance of total current district bonded debt and its maximum annual and remaining local district repayment cost;
(e) Two summaries, up to five hundred words each, one for and one against the proposal, of written comments filed with the election officer by thirty days before the election. No summary shall mention names of persons or private groups, nor any endorsements of or resolutions against the proposal. Petition representatives following these rules shall write this summary for their petition. The election officer shall maintain and accurately summarize all other relevant written comments.
(3) The provisions of this section shall not apply to a ballot issue that is subject to the provisions of section 1-40-124.5.
1-40-126 – Explanation of effect of “yes” or “no” vote included in notices provided by mailing or publication.
In any notice to electors provided by the director of research of the legislative council, whether by mailing pursuant to section 1-40-124.5 or publication pursuant to section 1-40-124, there shall be included the following explanation preceding any information about individual ballot issues: “A ‘yes’ vote on any ballot issue is a vote in favor of changing current law or existing circumstances, and a ‘no’ vote on any ballot issue is a vote against changing current law or existing circumstances.”
1-40-130 – Unlawful acts – penalty.
(1) It is unlawful:
(a) For any person willfully and knowingly to circulate or cause to be circulated or sign or procure to be signed any petition bearing the name, device, or motto of any person, organization, association, league, or political party, or purporting in any way to be endorsed, approved, or submitted by any person, organization, association, league, or political party, without the written consent, approval, and authorization of the person, organization, association, league, or political party;
(b) For any person to sign any name other than his or her own to any petition or knowingly to sign his or her name more than once for the same measure at one election;
(c) For any person to knowingly sign any petition who is not a registered elector at the time of signing the same;
(d) For any person to sign any affidavit as circulator without knowing or reasonably believing the statements made in the affidavit to be true;
(e) For any person to certify that an affidavit attached to a petition was subscribed or sworn to before him or her unless it was so subscribed and sworn to before him or her and unless the person so certifying is duly qualified under the laws of this state to administer an oath;
(f) For any officer or person to do willfully, or with another or others conspire, or agree, or confederate to do, any act which hinders, delays, or in any way interferes with the calling, holding, or conducting of any election permitted under the initiative and referendum powers reserved by the people in section 1 of article V of the state constitution or with the registering of electors therefor;
(g) For any officer to do willfully any act which shall confuse or tend to confuse the issues submitted or proposed to be submitted at any election, or refuse to submit any petition in the form presented for submission at any election;
(h) For any officer or person to violate willfully any provision of this article.
(2) Any person, upon conviction of a violation of any provision of this section, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.
1-40-131 – Tampering with initiative or referendum petition.
Any person who willfully destroys, defaces, mutilates, or suppresses any initiative or referendum petition or who willfully neglects to file or delays the delivery of the initiative or referendum petition or who conceals or removes any initiative or referendum petition from the possession of the person authorized by law to have the custody thereof, or who adds, amends, alters, or in any way changes the information on the petition as provided by the elector, or who aids, counsels, procures, or assists any person in doing any of said acts commits a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111. The language in this section shall not preclude a circulator from striking a complete line on the petition if the circulator believes the line to be invalid.
1-40-132 – Enforcement.
(1) The secretary of state is charged with the administration and enforcement of the provisions of this article relating to initiated or referred measures and state constitutional amendments. The secretary of state shall have the authority to promulgate rules as may be necessary to administer and enforce any provision of this article that relates to initiated or referred measures and state constitutional amendments. The secretary of state may conduct a hearing, upon a written complaint by a registered elector, on any alleged violation of the provisions relating to the circulation of a petition, which may include but shall not be limited to the preparation or signing of an affidavit by a circulator. If the secretary of state, after the hearing, has reasonable cause to believe that there has been a violation of the provisions of this article relating to initiated or referred measures and state constitutional amendments, he or she shall notify the attorney general, who may institute a criminal prosecution. If a circulator is found to have violated any provision of this article or is otherwise shown to have made false or misleading statements relating to his or her section of the petition, such section of the petition shall be deemed void.
(2) (Deleted by amendment, L. 95, p. 439, § 22, effective May 8, 1995.)
1-40-133 – Retention of petitions.
After a period of three years from the time of submission of the petitions to the secretary of state, if it is determined that the retention of the petitions is no longer necessary, the secretary of state may destroy the petitions.
1-40-134 – Withdrawal of initiative petition.
The designated representatives of the proponents of an initiative petition may withdraw the petition from consideration as a ballot issue by filing a letter with the secretary of state requesting that the petition not be placed on the ballot. The letter shall be signed and acknowledged by both designated representatives before an officer authorized to take acknowledgments and shall be filed no later than thirty-three days prior to the election at which the initiative is to be voted upon.
31-11-104 – Ordinances – initiative – conflicting measures.
(1) Any proposed ordinance may be submitted to the legislative body of any municipality by filing written notice of the proposed ordinance with the clerk and, within one hundred eighty days after approval of the petition pursuant to section 31-11-106 (1), by filing a petition signed by at least five percent of the registered electors of the city or town on the date of such notice. The proposed ordinance may be adopted without alteration by the legislative body within twenty days following the final determination of petition sufficiency. If vetoed by the mayor, the proposed ordinance may be passed over the mayor’s veto within ten days after the veto. If the proposed ordinance is not adopted by the legislative body, the legislative body shall forthwith publish the proposed ordinance as other ordinances are published and shall refer the proposed ordinance, in the form petitioned for, to the registered electors of the municipality at a regular or special election held not less than sixty days and not more that one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the state constitution. The ordinance shall not take effect unless a majority of the registered electors voting on the measure at the election vote in favor of the measure.
(2) Alternative ordinances may be submitted at the same election, and, if two or more conflicting measures are approved by the people, the one that receives the greatest number of affirmative votes shall be adopted in all particulars as to which there is a conflict.
31-11-105 – Ordinances – when effective – referendum.
(1) No ordinance passed by the legislative body of any municipality shall take effect before thirty days after its final passage and publication, except an ordinance calling for a special election or necessary to the immediate preservation of the public peace, health, or safety, and not then unless the ordinance states in a separate section the reasons why it is necessary and unless it receives the affirmative vote of three-fourths of all the members elected to the legislative body taken by ayes and noes.
(2) Within thirty days after final publication of the ordinance, a referendum petition protesting against the effect of the ordinance or any part thereof may be filed with the clerk. The petition must be signed during the thirty-day period by at least five percent of the registered electors of the municipality registered on the date of final publication.
(3) If a referendum petition is filed, the ordinance or part thereof protested against shall not take effect, and, upon a final determination of petition sufficiency, the legislative body shall promptly reconsider the ordinance. If the petition is declared not sufficient by the clerk or found not sufficient in a protest, the ordinance shall forthwith take effect, unless otherwise provided therein.
(4) If, upon reconsideration, the ordinance or part thereof protested is not repealed, the legislative body shall submit the measure to a vote of the registered electors at a regular or special election held not less than sixty days and not more than one hundred fifty days after the final determination of petition sufficiency, unless otherwise required by the state constitution. The ordinance or part thereof shall not take effect unless a majority of the registered electors voting on the measure at the election vote in favor of the measure.
31-11-106 – Form of petition sections.
(1) Each petition section shall be printed in a form consistent with the requirements of this article. No petition section shall be printed or circulated unless the form and the first printer’s proof of the petition section have first been approved by the clerk. The clerk shall approve or reject the form and the first printer’s proof of the petition no later than five business days following the date on which the clerk received such material. The clerk shall assure that the petition section contains only those elements required by this article and contains no extraneous material. The clerk may reject a petition or a section of a petition on the grounds that the petition or a section of the petition does not propose municipal legislation pursuant to section 1 (9) of article V of the state constitution.
(2) Each petition section shall designate by name and mailing address two persons who shall represent the proponents thereof in all matters affecting the petition and to whom all notices or information concerning the petition shall be mailed.
(3) (a) At the top of each page of every initiative or referendum petition section, the following shall be printed, in a form as prescribed by the clerk:

“WARNING: IT IS AGAINST THE LAW: For anyone to sign any initiative or referendum petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to knowingly sign a petition when not a registered elector who is eligible to vote on the measure.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR AND ELIGIBLE TO VOTE ON THIS MEASURE. TO BE A REGISTERED ELECTOR, YOU MUST BE A CITIZEN OF COLORADO AND REGISTERED TO VOTE.

Do not sign this petition unless you have read or have had read to you the proposed initiative or referred measure or the summary in its entirety and understand its meaning.”

(b) A summary of the proposed initiative or ordinance that is the subject of a referendum petition shall be printed following the warning on each page of a petition section. The summary shall be true and impartial and shall not be an argument, or likely to create prejudice, either for or against the measure. The summary shall be prepared by the clerk.
(c) The full text of the proposed initiated measure or ordinance that is the subject of a referendum petition shall be printed following the summary on the first page or pages of the petition section that precede the signature page. Notwithstanding the requirement of paragraph (a) of this subsection (3), if the text of the proposed initiated measure or ordinance requires more than one page of a petition section, the warning and summary need not appear at the top of other than the initial text page.
(d) The signature pages shall consist of the warning and the summary, followed by ruled lines numbered consecutively for registered electors’ signatures. If a petition section contains multiple signature pages, all signature lines shall be numbered consecutively, from the first signature page through the last. The signature pages shall follow the page or pages on which the full text of the proposed initiated measure or ordinance that is the subject of the referendum petition is printed.
(e) (I) Following the signature pages of each petition section, there shall be attached a signed, notarized, and dated affidavit executed by the person who circulated the petition section, which shall include the following:
(A) The affiant’s printed name, the address at which the affiant resides, including the street name and number, the municipality, the county, and the date the affiant signed the affidavit;
(B) That the affiant has read and understands the laws governing the circulation of petition;
(C) That the affiant was eighteen years of age or older at the time the section of the petition was circulated and signed by the listed electors;
(D) That the affiant circulated the section of the petition;
(E) That each signature thereon was affixed in the affiant’s presence;
(F) That each signature thereon is the signature of the person whose name it purports to be;
(G) That, to the best of the affiant’s knowledge and belief, each of the persons signing the petition section was, at the time of signing, a registered elector; and
(H) That the affiant has not paid or will not in the future pay and that the affiant believes that no other person has paid or will pay, directly or indirectly, any money or other thing of value to any signer for the purpose of inducing or causing such signer to affix the signer’s signature to the petition.
(II) The clerk shall not accept for filing any section of a petition that does not have attached thereto the notarized affidavit required by subparagraph (I) of paragraph (e) of this subsection (3). Any disassembly of a section of the petition that has the effect of separating the affidavit from the signature page or pages shall render that section of the petition invalid and of no force and effect.
(III) Any signature added to a section of a petition after the affidavit has been executed shall be invalid.
(4) All sections of any petition shall be prenumbered serially.
(5) Any petition section that fails to conform to the requirements of this article or that is circulated in a manner other than that permitted by this article shall be invalid.
31-11-107 – Circulators – requirements.
The circulation of any petition section other than personally by a circulator is prohibited. No section of a petition for any initiative or referendum measure shall be circulated by any person who is not at least eighteen years of age at the time the section is circulated.
31-11-108 – Signatures.
Any initiative or referendum petition shall be signed only by registered electors who are eligible to vote on the measure. Each registered elector shall sign his or her own signature and shall print his or her name, the address at which he or she resides, including the street number and name, the city or town, the county, and the date of signing. Each registered elector signing a petition shall be encouraged by the circulator of the petition to sign the petition in ink. In the event a registered elector is physically disabled or is illiterate and wishes to sign the petition, the elector shall sign or make his or her mark in the space so provided. Any person, but not a circulator, may assist the disabled or illiterate elector in completing the remaining information required by this section. The person providing assistance shall sign his or her name and address and shall state that such assistance was given to the disabled or illiterate elector.
31-11-109 – Signature verification – statement of sufficiency.
(1) The clerk shall inspect timely filed initiative or referendum petitions and the attached affidavits, and may do so by examining the information on signature lines for patent defects, by comparing the information on signature lines against a list of registered electors provided by the county, or by other reasonable means.
(2) After examining the petition, the clerk shall issue a statement as to whether a sufficient number of valid signatures have been submitted. A copy of the statement shall be mailed to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2).
(3) The statement of sufficiency or insufficiency shall be issued no later than thirty calendar days after the petition has been filed. If the clerk fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient.
31-11-110 – Protest.
(1) Within forty days after an initiative or referendum petition is filed, a protest in writing under oath may be filed in the office of the clerk by any registered elector who resides in the municipality, setting forth specifically the grounds for such protest. The grounds for protest may include, but shall not be limited to, the failure of any portion of a petition or circulator affidavit to meet the requirements of this article. No signature may be challenged that is not identified in the protest by section and line number. The clerk shall forthwith mail a copy of such protest to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2) and to the protester, together with a notice fixing a time for hearing such protest that is not less than five or more than ten days after such notice is mailed.
(2) The county clerk shall furnish a requesting protester with a list of the registered electors in the municipality and shall charge a fee to cover the cost of furnishing the list.
(3) Every hearing shall be held before the clerk with whom such protest is filed. The clerk shall serve as hearing officer unless some other person is designated by the legislative body as the hearing officer, and the testimony in every such hearing shall be under oath. The hearing officer shall have the power to issue subpoenas and compel the attendance of witnesses. The hearing shall be summary and not subject to delay and shall be concluded within sixty days after the petition is filed. No later than five days after the conclusion of the hearing, the hearing officer shall issue a written determination of whether the petition is sufficient or not sufficient. If the hearing officer determines that a petition is not sufficient, the officer shall identify those portions of the petition that are not sufficient and the reasons therefor. The result of the hearing shall be forthwith certified to the protester and to the persons designated as representing the petition proponents pursuant to section 31-11-106 (2). The determination as to petition sufficiency may be reviewed by the district court for the county in which such municipality or portion thereof is located upon application of the protester, the persons designated as representing the petition proponents pursuant to section 31-11-106 (2), or the municipality, but such review shall be had and determined forthwith.
31-11-111 – Initiatives, referenda, and referred measures – ballot titles.
(1) After an election has been ordered pursuant to section 31-11-104 or 31-11-105, the legislative body of the municipality or its designee shall promptly fix a ballot title for each initiative or referendum.
(2) The legislative body of any municipality may, without receipt of any petition, submit any proposed or adopted ordinance or resolution or any question to a vote of the registered electors of the municipality. The legislative body of the municipality or its designee shall fix a ballot title for the referred measure.
(3) In fixing the ballot title, the legislative body or its designee shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a “yes” or “no” vote would be unclear. The ballot title shall not conflict with those titles selected for any other measure that will appear on the municipal ballot in the same election. The ballot title shall correctly and fairly express the true intent and meaning of the measure.
(4) Any protest concerning a ballot title shall be conducted as provided by local charter, ordinance, or resolution.
31-11-112 – Petitions – not election materials – no bilingual requirement.
The general assembly hereby determines that initiative and referendum petitions are not election materials or information covered by the federal “Voting Rights Act of 1965”, and are therefore not required to be printed in any language other than English in order to be circulated in any municipality in Colorado.
31-11-113 – Receiving money to circulate petitions – filing.
The proponents of the petition shall file with the clerk a report disclosing the amount paid per signature and the total amount paid to each circulator. The filing shall be made at the same time the petition is filed with the clerk. Any payment made to circulators is an expenditure under article 45 of title 1, C.R.S.
31-11-114 – Unlawful acts – penalty.
(1) It is unlawful:
(a) For any person willfully and knowingly to circulate or cause to be circulated or sign or procure to be signed any petition bearing the name, device, or motto of any person, organization, association, league, or political party, or purporting in any way to be endorsed, approved, or submitted by any person, organization, association, league, or political party, without the written consent, approval, and authorization of the person, organization, association, league, or political party;
(b) For any person to sign any name other than his or her own name to any petition or knowingly to sign his or her name more than once for the same measure at one election;
(c) For any person knowingly to sign any petition relating to an initiative or referendum in a municipality who is not a registered elector of that municipality at the time of signing the petition;
(d) For any person to sign any affidavit as circulator without knowing or reasonably believing the statements made in the affidavit to be true;
(e) For any person to certify that an affidavit attached to a petition was subscribed or sworn to before him or her unless it was so subscribed and sworn to before him or her and unless the person so certifying is duly qualified under the laws of this state to administer an oath;
(f) For any officer or person to do willfully, or with another or others conspire, or agree, or confederate to do, any act that hinders, delays, or in any way interferes with the calling, holding, or conducting of any election permitted under the initiative and referendum powers reserved by the people in section 1 of article V of the state constitution or with the registering of electors therefor;
(g) For any officer to do willfully any act that shall confuse or tend to confuse the issues submitted or proposed to be submitted at any election or refuse to submit any petition in the form presented for submission at any election;
(h) For any officer or person to violate willfully any provision of this article.
(2) Any person, upon conviction of a violation of any provision of this section, shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year in the county jail, or by both such fine and imprisonment.
31-11-115 – Tampering with initiative or referendum petition.
(1) Any person commits a class 2 misdemeanor who:
(a) Willfully destroys, defaces, mutilates, or suppresses any initiative or referendum petition;
(b) Willfully neglects to file or delays the delivery of the initiative or referendum petition;
(c) Conceals or removes any initiative or referendum petition from the possession of the person authorized by law to have custody of the petition;
(d) Adds, amends, alters, or in any way changes the information on the petition as provided by the elector; or
(e) Aids, counsels, procures, or assists any person in doing any of such acts.
(2) Any person convicted of committing such a misdemeanor shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.
(3) This section shall not preclude a circulator from striking a complete line on the petition if the circulator believes the line to be invalid.
31-11-116 – Enforcement.
(1) Any person may file with the district attorney an affidavit stating the name of any person who has violated any of the provisions of this article and stating the facts that constitute the alleged offense. Upon the filing of such affidavit, the district attorney shall forthwith investigate, and, if reasonable grounds appear therefor, the district attorney shall prosecute the same.
(2) The attorney general of the state shall have equal power with district attorneys to file information or complaints against any person for violating any provision of this article.
31-11-117 – Retention of petitions.
After a period of three years from the time of submission of the petitions to the clerk, if it is determined that the retention of the petitions is no longer necessary, the clerk may destroy the petitions.
31-11-118 – Powers of clerk and deputy.
(1) Except as otherwise provided in this article, the clerk shall render all interpretations and shall make all initial decisions as to controversies or other matters arising in the operation of this article.
(2) All powers and authority granted to the clerk by this article may be exercised by a deputy clerk in the absence of the clerk or in the event the clerk for any reason is unable to perform the duties of the clerk’s office.

The Basic Steps To Do An Initiative In Colorado
Statutes And Amendments – Direct Initiative Process

Basic Procedures: Proponents must submit the original text of the measure to the directors of the Legislative Council Staff and the Office of Legal Services for review and comment. Proponents must designate two people as those representing the proponents in all matters affecting the petition. Drafts are to be submitted in typewritten form and are to be written in plain, non-technical language, using words with common and everyday meaning understandable to the average reader.

Upon receiving the proposed measure, directors set a date for a public hearing no later than two weeks from the date the measure is filed. The director of the Legislative Council Staff provides proper notice of the date, time, and place for the meeting. Measures accepted as a legal filing are a matter of public record and are available for public distribution.

Comments on proposed initiated measures are prepared by the Legislative Council Staff and the Office of Legislative Legal Services for review during the public hearing. The comments typically contain a summary of the proposal followed by a series of questions concerning the wording, intent, and purpose of the proposal. The Legislative Council Staff and Legislative Legal Services directors may request the assistance of state agencies in preparing the comments. Agencies are required to assist when so requested. Proponents receive the comments prior to the meeting, but the comments are not disclosed to the public before the hearing, except with permission of the proponents.

The public hearing conducted by the Legislative Council Staff and Legislative Legal Services is informal in nature. The purpose of the meeting is to give the public notice that a proposal on a given topic is under consideration and to review the purposes and wording with the proponents so that the proposal states what the proponents want it to state. The comments are intended to help proponents clarify their proposal, but proponents are not required to accept the suggestions made in the comments. The meeting is open to the public and, while persons who may oppose a measure are welcome to attend, no testimony or comments are accepted from anyone other than the proponents. The meeting is tape recorded for the public record.

Following the public hearing, proponents may submit the measure to the Secretary of State who chairs the Ballot Title Setting Board. The ballot title, submission clause, and summary are established by a board consisting of the Secretary of State, the Attorney General, and the director of the Office of Legislative Legal Services.

The Ballot Title Setting Board usually completes its work on the ballot title, submission clause, and summary at its first meeting. If the board is unable to complete action on all of its agenda, motions for rehearing may be continued until the board’s next meeting.

If a proponent or any registered elector claims that a ballot title, submission clause, or summary is unfair or does not fairly express the meaning of a proposal, that person may request a rehearing by the Ballot Title Setting Board. Such request must be made within seven days after the title and summary are set.

Such rehearing will be held at the next regularly scheduled meeting of the board. If the board is unable to complete action on the request for rehearing, consideration of the request may be continued until the next available day, except that if the request was to be heard on the last meeting date in May, it must be heard within 48 hours after the motion is filed.

An appeal for change in the ballot title, submission clause, and summary may be made to the Colorado Supreme Court, pursuant to Section 1-40-107 (2) and (5), C.R.S.

Once the ballot title, submission clause, and summary are established, petitions may then be circulated throughout the state to obtain the required number of signatures.

Date Initiative language can be submitted to state for November 2002: Can be submitted anytime after the first Wednesday in December of 2000.

Signatures are tied to vote of which office: Secretary of State

Next Secretary of State election: 2002

Votes cast for Secretary of State in last election: 1,611,420 (Note: Although Secretary of States are normally elected every four years, a vacancy was filled in 2000.)

Net number of signatures required: 5% of votes cast for Secretary of State in last election, for both statutes and amendments. (80,571 signatures)

Distribution Requirement: None

Circulation period: 6 months

Do circulators have to be residents: No

Date when signatures are due for certification: The petition must be filed within 6 months from when the final language is set by the Title Board and no later than 3 months before a statewide election. (August 5, 2002 for the November 2002 ballot.)

Signature verification process: The Secretary of State verifies signatures by a random sample procedure. Not less than five percent of the signatures, and in no event fewer than 4,000 signatures, are to be verified. If the sample indicates that the number of valid signatures is 90 percent or less of the required total, the petition is deemed to have insufficient signatures. If the valid signatures are found to be 110 percent or more of number required, the petition is deemed sufficient. However, if the number of valid signatures is found to be over 90 percent but less than 110 percent of the required number, the law requires that each signature on the petition be verified.

Single-subject restriction: Yes

Legislative tampering: The Legislature can repeal and amend an initiative statute passed by the voters.

General Comments: If the Ballot Title Setting Board finds that more than one subject is contained in a proposal, the proponents are permitted to change the measure. If the changes by the proponents involve only the removal of language to achieve a single subject, another review and comment hearing with the Office of Legislative Legal Services and the Legislative Council Staff may not be required. However, if the board finds that revisions are so substantial that another hearing is in the public interest, another review and comment hearing may be required.

If a proposal is revised and resubmitted to the board, a ballot title can be set or the title board can conclude that the proposal still contains more than one subject. In the event of a dispute over the single subject rule, the board can set the title without including reference to the provisions it thought was in violation of the rule. The constitution provides that, if there is any part of a proposal not clearly expressed in the ballot title, that part is to be considered void.

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill and Kim Garrett(i)

One of the first instances of the discussion of women’s suffrage was in 1776 when Abigail Adams wrote to her husband, John Adams, asking him to include women in the Declaration of Independences’ wording. John writes back with humor, stating that he understands Abigail’s views but to Abigail’s dismay, the document states, “all men are created equal.” Upset with this wording, Abigail confides in many colleagues that this lack of including women in the Declaration might be something that needed to be taken directly to the people. However, it wasn’t until the mid 1800s that women’s suffrage became a dominant issue again.

Wyoming was the pioneer equal suffrage state when its first legislative council, after its organization as a territory in 1869, passed a bill providing that women should have the same rights as men to vote and hold office. When Wyoming was granted statehood in 1890, equal suffrage was part of its constitution – before any other state had given women the right to vote. Utah followed in 1896. From 1906 to 1920, thirteen states voted on women suffrage ballot measures, both initiatives and legislative referendum; Oregon (1906 by initiative/failed), Oregon (1908 by initiative/failed), Oklahoma and Oregon (1910 by initiative/failed), California (1911 by legislative referendum/passed), Arizona and Oregon (1912 by initiative/passed), Kansas (1912 by legislative referendum/passed), Nevada and Montana (1913 by legislative referendum/passed), Ohio, Nebraska, Missouri (1914 by initiative/failed), New York (1917 by legislative referendum/passed), Michigan, South Dakota and Oklahoma (1918 by legislative referendum/passed) (ii).

In both Arizona and Oregon the battle for equal suffrage was long and strong. For nearly fifteen years Arizona women worked without success to get their territorial legislature to confer full suffrage upon them. Nor were they successful in their efforts to get a woman suffrage clause included in the constitution when Arizona was granted statehood. A bill creating a women’s suffrage amendment to the constitution was introduced in the first legislature of the new state but lost by one vote in the Senate – although it passed in the House. The women then turned to the people, and in less than two months time succeeded in collecting the signatures necessary to place an initiative on the ballot granting women suffrage. The measure went to the voters in 1912 and won by 7,240 votes.

In Oregon, equal suffrage initiatives lost in 1906 and 1908. In 1910 suffragists tried a different approach: an initiative giving only female taxpayers the right to vote, a compromise that was rejected at the ballot box by a three to one margin. Finally, in 1912, suffragists led by Abigail Scott Duniway won their long struggle. An initiative they placed on the ballot for women’s suffrage passed – 61,265 in favor to 57,104 against.

One of the reasons the battle for equal suffrage was so difficult was the link between the women’s suffrage movement and the prohibition movement. The Women’s Crusade of 1873 and the organization of the Women’s Christian Temperance Union in 1874 (WCTU), which pioneered the movement for equal suffrage, strongly advocated prohibition. The Ohio WCTU, for example, circulated a speech by Anna Howard Shaw entitled “Influence versus Power,” which defined women’s suffrage as an important weapon in the fight for prohibition. Brewers and distillers, believing that all suffragists favored prohibition, opposed women’s suffrage vehemently and in 1911 created the National Association Opposed to Woman Suffrage (NAOWS). NAOWS was instrumental in delaying Congress from passing a women’s suffrage amendment (iii).

In 1912 Theodore Roosevelt’s Progressive Party adopted a women’s suffrage plank – a major breakthrough. In the summer of 1913, suffragists presented U.S. Senators with 200,000 signatures in support of a constitutional amendment establishing women’s suffrage – but they refused to act. They also began to speak out through hunger strikes, picketing the White House, and other forms of civil disobedience.

On March 2, 1914, U.S. Senator John Shafroth of Colorado introduced a constitutional amendment that would grant all states I&R to achieve suffrage. The “Shafroth Amendment” would have advanced both I&R and the women’s suffrage issue by empowering the people to decide within their own state. Although the amendment failed in Congress, it helped the initiative and referendum process gain public credibility as a method of dealing with these types of issues.

In 1914 and 1915, both houses of Congress again rejected women’s suffrage amendments. Finally, in 1918, President Woodrow Wilson changed his position and gave his support to a women’s suffrage amendment. His support helped get the amendment through the House, but not the Senate. Then in 1919, President Wilson once again urged passage of a women’s suffrage amendment and fifteen days after the House passed the amendment, the Senate passed it as well. The 19th Amendment became part of the U.S. Constitution in 1920 – just 14 months after Congress sent it to the states for ratification.

Carrie Chapman Catt summarized the women’s suffrage effort when she said, “[t]o get the word ‘male’ in effect out of the Constitution cost the women of the country fifty-two years of pauseless campaign… During that time they were forced to conduct fifty-six [initiative] referenda campaigns to male voters; 480 campaigns to get legislatures to submit suffrage amendments to voters; 47 campaigns to get state constitutional conventions to write woman suffrage into state constitutions; 277 campaigns to get state party conventions to include woman suffrage planks in party platforms, 30 campaigns to get presidential party conventions to adopt women’s suffrage planks into party platforms, and 19 campaigns with 19 successive Congresses.”

As Catt points out, the relationship between women’s suffrage and I&R is not trivial. When momentum began to lag, I&R appeared on the horizon to instill the suffragists with new hope, inspiration, and energy. However, even though most of the women’s suffrage initiatives were defeated at the ballot box, their presence raised the awareness of the issue and helped lead the way to the 19th Amendment.

Women’s Suffrage Initiatives (I) and Legislative Referendum (LR)

State Year Description Type Pass/Fail
OR 1906 To extend suffrage to women. I Failed
OR 1908 To extend suffrage to women. I Failed
OK 1910 To authorize women to vote under the same circumstances/conditions as men. I Failed
OR 1910 To extend suffrage to female taxpayers. I Failed
CA 1911 To extend suffrage to women. LR Passed
AZ 1912 To extend suffrage to women. I Passed
KS 1912 To extend suffrage to women. LR Passed
OR 1912 To extend suffrage to women. I Passed
MT 1913 To extend suffrage to women. LR Passed
NV 1913 To extend suffrage to women. LR Passed
OH 1914 To extend suffrage to women. I Failed
NE 1914 To extend suffrage to women. I Failed
MO 1914 To provide that females shall have the same right to vote at all elections within the state as males. I Failed
NY 1917 To extend suffrage to women. LR Passed
MI 1918 To extend suffrage to women. LR Passed
OK 1918 To extend suffrage to women. LR Passed
SD 1918 To extend suffrage to women. LR Passed

i. Dennis Polhill is the Chairman of the Initiative & Referendum Institute. Kim Garrett is a research assistant for the Institute and a student at the University of Denver.
ii. McDonagh, Eileen L. and H. Douglas Price (1984). “Woman Suffrage in the Progressive Era: Patterns of Opposition and Support in Referenda Voting, 1910-1920,” in The American Political Science Review 79 (3).
iii. McDonagh, Eileen L. and H. Douglas Price (1984). “Woman Suffrage in the Progressive Era: Patterns of Opposition and Support in Referenda Voting, 1910-1920,” in The American Political Science Review 79 (3), and Schmidt, David D. (1989). Citizen Lawmakers: The Ballot Initiative Revolution. Philadelphia, PA: Temple University Press; Connors, Arthur (1917). “ Direct Legislation in 1916,” in The American Political Science Review 11 (1).

This paper is a chapter from The Initiative & Referendum Almanac. You can purchase the book here.

By Dennis Polhill

National referendums are a regular event among the world’s democracies. With four national elections per year Switzerland has held approximately half of the 800 national referendums in world history.

One application of national referendums has been in exercising the “self determination” of a people. A referendum unified fragmented Italian states into a nation. Norway separated from Sweden in 1905 via national referendum. Only “five major democracies have never had a national referendum: India, Israel, Japan, the Netherlands, and the United States.” In recent years Israel and the Netherlands have seriously contemplated the idea of a national referendum to advance intractable issues.

The demise of the Soviet Union was a byproduct of the largest national referendum in world history; the Soviet Union’s first and last referendum. To advance his reforms Mikhail Gorbachev sought popular support by proposing the March 17, 1991 All-Union referendum. The All-Union Referendum would reaffirm the Union Treaty of 1922 that created the Soviet Union. The referendum opened a floodgate. The 15 Republics did not conform. Some redrafted the language; several added questions to the ballot; others declared their independence and still others boycotted the event. Although the All-Union Referendum passed overwhelmingly, periphery events turned out to be more relevant than the specific outcome. The Soviet Republics had discovered a way to articulate their frustration with central control and busily went about acting as independent states.

But has the national referendum process been abused?

The prospect of manipulation of a national referendum is real. Gorbachev directed the military to manage the election in Republics that boycotted the All-Union Referendum with the result that voter turn out approximated the local ethnic Russian population.

Hitler used national referendums to withdraw Germany from the League of Nations in 1933 and to consolidate his powers in 1934. The ability of the Nazi propaganda machine to insure the desired result is well known. This problem with referred measures was well expressed when Benito Mussolini said, “Give me the right to nominate and you can vote for whomever you please.” The control of the language and what questions appear on ballots is not a minor detail. A recent example is the election held in April 2002 in Pakistan. President Musharraf clearly manipulated the wording of the referendum in order to ensure he was reelected to another five year term as President of Pakistan.

So what about national I&R in the United States?

If I&R has been a means for dealing with the conflicts at the state level, why not resolve similar national conflicts with national I&R? Lincoln is said to have proposed a national vote to reconcile slavery. There have been 3 major efforts in the U.S. for national I&R: the Progressive movement (prior to 1920), the anti-war movement (during both World Wars I and II), and the environmental movement (during the 1970s).

An early advocate for national I&R was U.S. Senator and former Colorado Governor John Shafroth. The Shafroth Amendment was proposed as an amendment to the U.S. Constitution in 1914. It would have given the people of every state I&R for determining women’s suffrage. When 8% of voters signed a petition, the issue would be determined by a majority vote at the next state election. Mounting pressure eventually forced Congress to deal with the issue. Had it become law, the Shafroth Amendment might very well have expedited resolution of women’s suffrage. Perhaps more importantly, it would have set a precedent as a means of addressing other difficult national issues.

When the U.S. entered World War I, isolationists and pacifists called for a national referendum, arguing that only the people should decide whether to go to war. Advocates proposed an Amendment to the U.S. Constitution (also called the Peace Referendum) that would have required a nationwide popular vote to go to war, unless the U.S. was attacked or invaded. A similar movement emerged during World War II but was never approved by Congress.

After World War II, the use of the statewide initiative process declined and was largely forgotten by many activists until it was rediscovered in the 1970s by the environmental movement. Coincident with rediscovery of state I&R, was a renewed interest in national I&R. Senator Abourezk (D-SD) introduced the National Voter Initiative Amendment in 1977.

The NVIA would have taken an issue to nationwide vote, when 3% of voters in at least 10 states signed a petition. A majority of voters nationwide would decide the issue. The difference between the Shafroth and the Abourezk approaches merit elaboration. Shafroth empowered the people of the states, acknowledging that the Federal government is a collection of state governments. Abourezk did not account for the division of powers between Federal and State governments itemized in the U.S. Constitution or provide a means of addressing state issues. Shafroth did not provide a means for directly resolving national concerns. A well-designed system of national I&R should do both: work within the bounds of the constitution and provide a means for addressing issues reserved to the respective Federal and State levels.

National I&R Proposals

There have been two distinct approaches to obtaining a national I&R process in the United States. One is working through the states and the other is by getting Congress to pass an amendment establishing the initiative process.

In the states, several organizations, like USPIRG, have worked hard to generate support for a national I&R process. In addition to the “PIRGs”, another organization, “Philadelphia Two” has been working to establish a national initiative process. Former U.S. Senator Mike Gravel heads the group. Though their approach is somewhat controversial (basically to set up an “electoral trust” that is not accountable to the government), they are working hard to build support for a national initiative process.

At the Congressional level, between 1895 and 1943, 108 proposals to amend the U.S. Constitution by adding national I&R were submitted. Seven would have created a general I&R, that would have allowed for consideration of any issue. The others created I&R for specific issues only or that had issue-specific prohibitions. For example, Abourezk would not permit the declaring of war, calling up troops, or amending the constitution and would permit statutory modifications by Congress with a two-thirds majority or simple majority after two years. Implementation of national I&R is more complicated in the U.S. than in other nations due to the unique Constitutional division of responsibilities between the Federal and State governments. In most countries, governments are centralized to either a greater or lesser extent. Other variations of national I&R that have been proposed in the U.S. include:

  • The first proposal for national I&R was in 1895 by Populist Party U.S. Senator William Peffer from Kansas. It provided for a national vote on an issue when 20% of voters nationwide or 20% of state legislatures requested it.
  • In 1907 U.S. Representative Elmer Lincoln Fulton from Oklahoma suggested that 8% of the voters in each of 15 states could put either a constitutional amendment or statute proposal to a national vote or that 5% of the voters in each of 15 states or their state legislatures could challenge a statute passed by Congress.
  • In 1911 Senator Bristow from Kansas proposed that the Initiative be used to reign in the court. Any law held unconstitutional by the Supreme Court would go to a vote of the people. This was the first proposal for using I&R as the method by which to reconcile conflicts between the equal branches of the Federal government.
  • Socialist Party U.S. Representative Victor Berger of Wisconsin introduced the most radical proposal ever. It would have abolished the Presidency, the Senate and the Supreme Court. Five percent of the voters in three-fourths of the state could propose a law or challenge a law passed by Congress.
  • U.S. Senator Bob La Follette from Wisconsin in 1916 proposed a non-binding national advisory referendum that would be held when 1% of the voters in 25 states petitioned.
  • The National approach would require some percentage (usually in the range of 3%) of voters nationwide to sign a petition. Because elections are managed by the states and there are no national voter rolls or other election systems, leaving states out of the process would require changes in election management.
  • Nullification advocates in the 1980s and 1990s suggested that Federal statutes should go to a nationwide vote when 10% of the voters in 1/3 of the states sign a petition challenging it. Nullification proposals were in reaction to “unfunded mandates” and directives imposed upon the states by Congress. A nullification mechanism would effectively be a national application of the referendum petition or challenge petition.

The State Approach to National I&R

The question of national I&R in the U.S. is not whether it will be. Rather, the question is when it will be and what form it will have. When the Confederate States wrote their constitution, they substantially replicated the constitution they had lived under for over 70 years. Perhaps the most substantial variation cured a significant structural flaw in the U.S. Constitution: how Amendments are proposed for ratification. Recognizing that a constitution is the delegation of consent to govern and, therefore, a limitation on government, and acknowledging Congress’ inherent conflict of interest, the authority of Congress to draft proposed amendments was revoked. A proposed amendment would go to ratification when 25% of the states passed resolutions supporting the same proposal. This, in fact, is what the Founders had intended with Article V; but their intent was subsequently subverted by Congress.

The “State Approach” may be the best form for National I&R. The “State Approach” would permit a number of states (25%) to agree either by state initiative petition and vote or by state legislature resolution, that a question should be addressed nationally. When a number of states concur, the Federal statute (simple majority) or constitution (3/4 majority) is changed. Obviously, over-reaching Federal statutes could be stricken by the same means.

The “State Approach” acknowledges the respective constitutional roles of the State and Federal governments. It provides a means for addressing both state and national issues. It can cure both actions of omission and acts of commission by Congress and by individual state legislatures. It utilizes the existing election management systems of the states. It answers the problem of Congressional conflict of interest. It can deal with both Federal statutory or constitutional problems. It acknowledges the sovereignty of the people at every level. It might be a viable means for resolving conflicts between the equal branches of the Federal government or deadlocked Federal legislation. The fear of majoritarian abuse of I&R is reduced. National issues are resolved gradually via ongoing public debate and incremental approval by the states. A critical part of the Constitution is restored to the functionality intended by the Founders.

The “State Approach” also offers a practical means of implementation and can be achieved gradually by increasing the number of states with I&R until critical mass is reached. Critical mass is when the numbers of states with I&R is sufficient to press the issue nationally.

Summary

National I&R in the U.S. would offer a mechanism to address national issues that partisan politics or Congressional inherent conflict of interest prohibits a solution. Several attempts have been made in Congress and in the states – but to no avail. However, as citizens enlarge their participation in their government, it appears inevitable that the U.S. will find a way to exercise this fundamental right in the near future.

© 2007 Initiative & Referendum Institute

USC School of Law

Los Angeles CA 90089-0071

The Initiative and Referendum AlmanacDennis Polhill contributed to The Battle over Citizen Lawmaking: A Collection of Essays, authoring Chapter One: Democracy’s Journey (original version of Democracy’s Journey prior to editing).

From the Publisher:

There is little doubt that in recent years the initiative process has become one of the most important mechanisms for altering and influencing public policy at every level of government. In the last two years alone, utilizing the initiative process, citizens were heard on affirmative action, educational reform, term limits, tax reform, campaign finance reform, animal protection, drug policy reform, and the environment.

However, the initiative process has fallen prey to its own success. Lawmakers who have been most affected by this citizen’s tool have struck back by imposing new regulations on the process — regulations that serve no purpose but to deprive the citizens of the only avenue available to them to reign in unresponsive government.

These regulations have generated many questions that have so far remained unanswered or have been discussed only in specialist journals. There are legal questions about signature gathering and limits on campaign spending, political questions about implementing the relevant statutes, and philosophical questions about equality and freedom of expression. The Battle Over Citizen Lawmaking discusses the evolution of the initiative and referendum process, the need for the process, how it has been utilized, the impetus for new regulations, the major regulations that have been imposed, the role the courts have played in regulating the initiative and referendum process, what role money plays, and how the process has been regulated in other countries. This book comprehensively addresses these issues from the viewpoint of leading scholars, opinion leaders, journalists, elected officials, activists, and attorneys.

“Dane Waters has done a commendable job in bringing a focus to an edited book project that provides a new perspective on the growing literature on direct democracy. The emphasis on a legal perspective may even help bring the topic to greater attention in classes on law and politics.”
– The Journal of Politics, February 2002

This paper is a chapter from The Battle Over Citizen Lawmaking. You can purchase the book here. Also see the original version of Democracy’s Journey prior to editing.

By Dennis Polhill

Many historians will argue, and I will agree, that Democracy has its roots in Greek and Roman history. However, for the sake of time and space, I have chosen to begin the discussion of “Democracy’s journey” in the period of English history that immediately preceded the founding of America. This is relevant in my opinion because it is the undemocratic underpinnings of English governance during this period of time that lead to the push for freedom in America and eventually the adoption of initiative and referendum.

Historical Backdrop
The dominant form of government throughout all of human existence has been Kings. Sometimes called Caesar, Czar, Pharaoh, Caliph, Emperor, Kaiser, or Chief, the system was the same. One man determined all aspects of life for all of the people. Because “the King was the law” fairness and consistency were no more than occasionally dreamt ideals. Individual rights existed only to the extent that the King granted them. Because Kings were granted their power to rule from God, the King’s eldest son typically became the next King.

As society grew larger, it was increasingly difficult for Kings to oversee an enlarging geography. As a result the system of Feudalism, using lesser Kings called barons, earls, and lords evolved. To administer the increasing number of items requiring the attention of the King, the corps of advisors in service to the King grew larger, more bureaucratic and more corrupt. Together the King, the barons, earls, lords, and their advisors, made up society’s ruling class, called the aristocracy. Slavery was common and non-slaves were not much better off. The role of commoners or serfs in this caste system was to work and to pay tribute.

Island Feudalism Leads to Laws
England was somewhat insulated from the more frequent Feudalistic conflicts of mainland Europe. Thus, internal domestic concerns reached
center stage sooner. The natural tension between the King and his barons, earls and lords came to a head in 1215. A collection of barons had mutinied, defeating the King’s army. The Magna Carta was then drafted and defined Feudalistic Rights in 63 written articles. The single revolutionary notion achieved by the Magna Carta was that there should be limitations upon the absolute power of the King. The Magna Carta was a necessary step, but more time would be needed to invent democracy.

The Magna Carta did more to help the barons than the commoners. It reorganized the judicial system; it abolished tax assessments without con-sent; it standardized penalties for felonies; and trials were to be conduct-ed according to strict rules of procedure. Although the Pope voided the Magna Carta, it was reissued in 1217. In 1258, again over taxation, the barons revolted, forcing the Baronial Council to become permanent. The permanent Baronial Council was the first vestige of the House of Lords of Parliament. The Magna Carta was modified and confirmed by Parliament in 1297.

Conflict over the divine right of Kings versus limitations on his powers continued for centuries. In the 17th century, religious fragmentation and persecution, and the lack of individual liberties, fueled internal turmoil and emigration to the New World. Royal abuses had become so extreme that in 1628 Parliament passed the Petition of Rights. The Petition enumerated abuses and asked that they cease. The King responded by forcing Parliament to adjourn and imprisoning parliamentary leaders. An eleven years religious war against the Scots forced the King to convene Parliament to raise taxes. Unfriendly to the idea, Parliament was immediately adjourned and a new Parliament convened in 1640. But the new Parliament was even less friendly to the King and quickly arrested and executed one of the King’s closest advisors for treason, emphasizing the view that the King and his advisors were not above the law.

Soon after, a national referendum was proposed on the abolition of the monarchy and the House of Lords. The House of Commons was created which would be elected by universal male suffrage but limited by a bill of rights. However, the King refused to cooperate and was convicted of violating his coronation oath by attacking the people’s liberties, and was publicly beheaded in 1649. Parliament took unilateral control of government under the dictatorial leadership of Oliver Cromwell. The state-preferred religion changed, but religious persecution continued. Parliament was purged and Cromwell cruelly suppressed the Irish and Scots. Soon, the Commonwealth began to crumble. Upon Cromwell’s death, his son proved too weak to maintain control and so the son of the beheaded King was asked to return in 1660 and the Monarchy was restored.

John Locke
Events during this period influenced the thinking of John Locke, arguably the foremost political thinker of all times. Locke was born in 1632 and was educated at Oxford University. After teaching briefly, he became a physician. Uncomfortable with the restoration of the monarchy, Locke went to France in 1675. He returned in 1679 only to discover religious persecution as rampant as ever, and returned to the Continent until 1689. He was a philosophical empiricalist emphasizing the importance of experience and experimentation in the pursuit of knowledge. His two most important writings, Essay Concerning Human Understanding and Two Treatises o f Government were written in 1690. Locke attacked the theory of divine right of Kings and argued that sovereignty resided with the people, not the state. The state was limited by civil and “natural” law. It was government’s duty to protect natural rights, such as life, liberty, property, and religious freedom. He advocated checks and balances via three branches of government and separation of church and state. Locke held that revolution was not only a natural right, but also an obligation.

The contest for supremacy between the King and Parliament continued after Cromwell’s death. Finally the divine right of Kings ended with the Glorious Revolution in 1688. In a Parliamentary vote, the Crown was taken from James II and offered to William and Mary conditioned upon a written Declaration of Rights, which enumerated rights in similar fashion to what was to become the Bill of Rights in the U.S. Constitution.

Evolution of Sovereignty
During this period, John Locke introduced the next revolutionary notion: that the people were sovereign, not the King. The King-by-proxy government of the American colonies, proved both ineffective and largely irrelevant to the increasingly self-reliant colonists.

Locke’s ideas soon took hold in the American colonies. Thomas Jefferson, a reader of Locke, based many of his beliefs on Locke’s theories, which can easily be seen in his writings. A perfect example is Jefferson’s belief that “[t]he people.. . are the only sure reliance for the preservation of our liberty.” It’s that principal, that one simple statement, that best summarizes not only Jefferson’s and Locke’s beliefs, but also the beliefs that America was founded upon.

The Evolution of Initiative and Referendum in the United States
It wasn’t long before the American colonies had tired of the undemocratic governance by the Crown and soon gained their independence. Then came the tough job of designing a system of government that would recognize the sovereignty of the people while creating a strong government that would insure the stability of a newly formed country. Even though many historians believe initiative and referendum was a subject of discussion, it was left out of the original constitution- as was women’s suffrage and the abolishment of slavery.

However, Jefferson was a strong and vocal advocate of the referendum process, which in his view recognized the people to be the sovereign. Where-as the King of England spoke of his power to govern being derived from God, Jefferson knew that those chosen to represent the citizenry as envisioned in a republican form of government were only empowered by the people.

James Madison, as did Jefferson, knew too well the possibility that in a republic, those chosen to rule can and would on occasion become consumed with their power and take actions not consistent with the Constitution- actions that represented their self-interest and not the interest of the people. For this reason, a series of checks-and-balances were placed in the U.S. Constitution in order to right the errors caused when elected representatives chose to rule unconstitutionally or in their own self-interest. Not only did the Founding Fathers create these checks-and-balances by one branch of government over the next, they created a provision in Article V of the Constitution that allowed the people the right to make change and/or restore our Constitution absent action by the Government. Unfortunately this process still relied on some form of action by those in power and therefore can be argued as being unusable by the citizenry since it has never been utilized in over 200 years.

The Founding Fathers at the state level created republican governments on a smaller scale that mirrored that of the Federal Government. In these constitutions a series of checks-and-balances were created to take into account the possible abuse of power by elected representatives and to protect the people from an out of control government- when and if that were to happen. But what the citizens began to realize in the late 1800s was that no matter what checks-and-balances existed, the people had no direct ability to reign in an out-of-touch government or government paralyzed by inaction.

Then came the Populist Party of the 1890s. Its members had become outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control. They soon began to pro-pose a comprehensive platform of political reforms. They advocated women’s suffrage, secret ballots, direct election of U.S. Senators, primary elections and initiative and referendum. Difficult as it would be to envision modern political systems without these reforms, they were considered quite extreme changes in the 1890s.

Perhaps the most revolutionary Populist reform was initiative and popular referendum. These forms of initiative and referendum, as well as the already established legislative referendum- which Jefferson championed in the late 1700s- acknowledged that the authority to legislate and govern was delegated by the people and reaffirmed that the people were the only true sovereign- as Jefferson and Locke had envisioned. They right-fully believed that government without the consent of the governed was tyranny and because authority, but not responsibility, can be delegated, a mechanism to un-delegate, when appropriate, was a proper check on the process of legislating.

It should be noted and emphasized that the move to establish initiative and referendum was not a movement to change our system of government or abolish representative government- but to enhance it. Our Founding Fathers at the state and federal levels created wonderful documents, but they were documents based on compromise. They realized that they would need to be changed which is why they created a mechanism to alter them when necessary. The system of checks and balances were created as a theoretical system based on how to check the power of one branch of government with another- but it was an unproven system. As time progressed, the citizens discovered that this theoretical system of checks and balances at the state and federal level worked- but not good enough- for their were times when elected officials chose not to act in the people’s best interest. For this reason, the Populists/Progressives strove to strengthen the system of checks and balances on government at the state level and advocated the initiative and referendum process. Additionally it must be remembered that we have two tiers of Founding Fathers in this country- those at the federal level and those at the state level. The Founding Fathers of Oklahoma and Alaska, for example, chose to put initiative and referendum in their states’ original constitutions. It would be wrong in my opinion to pass judgment that the Founding Fathers at the state level were in some way inferior to our Founding Fathers at the federal level.

In 1897, Nebraska became the first state to allow cities to place initiative and referendum in their charters. One year later, the Populists adopt-ed methods from the 1848 Swiss Constitution and successfully amended them into the South Dakota Constitution. On November 5, 1898, South Dakota became the first state to adopt statewide initiative and popular referendum. Oregon followed in 1902 when Oregon voters approved initiative and popular referendum by an 11-to-1 margin. Other states soon followed. In 1906 Montana voters approved an initiative and popular ref-erendum amendment proposed by the state legislature. Oklahoma became the first state to provide for the initiative and popular referendum in its original constitution in 1907. Maine and Michigan passed initiative and popular referendum amendments in 1908.

In 1911 California placed initiative and popular referendum in their constitution. Other states were to follow- but even with popular support in many states, the elected class refused the will of the people and did not enact this popular reform. In Texas; for example, the people actually had the opportunity to vote for initiative and popular referendum in 1914, but voted it down because the amendment proposed by the legislature would have required that signatures be gathered from 20% of the registered voters in the state -a number twice as large as what was required in any other state. The proponents for initiative and popular referendum felt it was more important to get a useable process than one that would have maintained the status quo and provided no benefit to the citizenry. However, the legislature used this defeat as an excuse to claim that initiative and popular referendum was not wanted by the people and therefore effectively killed the movement in Texas.

Eventually, between 1898 and 1918, 24 states adopted initiative or popular referendum- mostly in the West. The expansion of initiative and popular referendum in the West fit more with the Westerners belief of populism- that the people should rule the elected and not allow the elected to rule the people. Unfortunately in the East and South this was not the case. Those that were in power were opposed to the expansion of initiative and popular referendum because they were concerned that blacks and immigrants would use the process to enact reforms that were not consistent with the beliefs of the ruling class.

In 1959, when Alaska became a state, the citizens had adopted the power of initiative and popular referendum. Then in 1972, Floridians adopted statewide initiative. Mississippians in 1992 restored initiative and referendum to their constitution, 70 years after the state Supreme Court invalidated the election creating the process. Mississippi became the newest and last state to get this valuable tool.

The credit for the establishment of initiative and popular referendum in this country belongs with the Progressives. They worked steadily to dismantle the political machines and bosses that controlled American politics by pushing reforms eliminating the influence the special interest had on political parties and the government. Their goal, as is that of today’s proponents of the initiative and popular referendum, is to ensure that elect-ed officials remain accountable to the electorate.

Conclusion
The evolution from tyranny to democracy has been a long and difficult road- a road that is never ending. But as you can see, the evolution of initiative and referendum is not contrary to the evolution of representative democracy- but an enhancement to it. The two are designed to work hand-in-hand with each other. The following chapter by Rob Natelson specifically addresses this issue.

The long journey for democracy that began with the Magna Carta is far from finished. Though its future form may be unclear today, we can be certain that democracy will increase and that initiative and referendum will play a role in determining future democratic systems.

Initiative and Referendum Historical Timeline
This information compiled from research contained in David Schmidt’s Citizen Lawmakers and from independent research conducted by the Initiative & Referendum Institute.

1775 In his proposed 1775 Virginia state constitution, Thomas Jefferson includes a requirement that the constitution must be approved by the voters in a statewide referendum before it can take effect. Unfortunately, because he was hundred of miles from Virginia at the time attending the Continental Congress, delegates to the Virginia Convention did not receive the proposal until after the convention was already over.
1776 Georgia delegates gather in Savannah to draft their state’s constitution. The constitution includes a provision that would allow amendments whenever a majority of voters in each county signed petitions calling for a convention, but the provision is never invoked.
1778 Massachusetts becomes the first state to hold a statewide legislative referendum to adopt its constitution. The voters reject it by a five-to-one margin, forcing the legislature to rewrite its proposal.
1792 New Hampshire becomes the second state to hold a statewide legislative referendum to adopt its constitution.
1830 Voters in Virginia demand the power to veto amendments to their state constitution and are given it.
1834 Alabama, Connecticut, Georgia, Maine, Mississippi, New York, North Carolina, and Rhode Island adopt provisions preventing their state constitutions from being amended without the approval of the voters.
1848 The Swiss Constitution includes provisions for initiative and popular referendum.
1857 Congress requires that voters must approve all state constitutions proposed after 1857.
1885 Father Robert Haire, a priest and labor activist from Aberdeen, South Dakota, and Benjamin Urner, a newspaper publisher from New Jersey become the first Americans to propose giving the people statewide initiative and popular referendum power.
1897 Nebraska becomes the first state to allow its cities to use initiative and popular referendum.
1898 South Dakota becomes the first state to adopt statewide initiative and popular referendum.
1900 Utah becomes the second state to adopt statewide initiative and popular referendum.
1901 The Illinois legislature creates a statewide nonbinding advisory initiative process.
1902 Oregon becomes the third state to adopt statewide initiative and popular referendum. In Illinois, using a statewide nonbinding advisory initiative process, citizens place an advisory question on the ballot asking whether or not Illinois should adopt a real initiative and referendum process-voters say yes, but the legislature ignores them.
1904 Oregon is the first state to place a statewide initiative on the bal-lot. In Missouri, voters defeat a measure that would have established statewide initiative and popular referendum.
1905 Nevada adopts statewide popular referendum only.
1906 Montana adopts statewide initiative and popular referendum. Delaware voters approve an advisory referendum put on the bal-lot by the state legislature, asking whether they want the initiative process- but the legislature ignores the mandate.
1907 Oklahoma becomes the first state to provide for statewide initiative and popular referendum in its original constitution.
1908 Michigan and Maine adopt statewide initiative and popular referendum. Unfortunately, Michigan’s initiative procedures are so difficult that, under them, citizens are unable to place a single initiative on the ballot. Missouri adopts statewide initiative and popular referendum.
1910 Arkansas and Colorado adopt statewide initiative and popular referendum. Kentucky adopts statewide popular referendum. Illinois voters again approve a citizen- initiated nonbinding advisory question in support of statewide initiative and popular referendum- and the legislature again ignores them.
1911 Arizona and California adopt statewide initiative and popular referendum. New Mexico adopts only statewide popular referendum.
1912 Idaho, Nebraska, Ohio and Washington adopt statewide initiative and popular referendum. Nevada adopts a statewide initiative process, complementing its statewide popular referendum process adopted in 1905. A majority of Wyoming voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Wyoming’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails. A majority of Mississippi voters voting on a constitutional amendment to adopt statewide initiative and popular referendum also approve the amendment; but, like Wyoming, a constitutional requirement that all amendments also receive a majority vote of all voters voting in the election, defeats the measure.
1913 Michigan initiative and popular referendum supporters lobby the legislature to pass amendments simplifying its statewide initiative and popular referendum process, a process so difficult that it is unusable. The legislature passes the amendments and voters approve them.
1914 Mississippi and North Dakota adopt statewide initiative and popular referendum. Wisconsin and Texas voters defeat measures creating a statewide initiative and popular referendum process. A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the amendment; but Minnesota’s constitution requires that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- so the measure fails.
1915 Maryland adopts popular referendum.
1916 A majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum again approve the amendment; but the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself- again dooms the measure.
1918 Massachusetts adopts statewide initiative and popular referendum. North Dakotans vote and approve a more lenient initiative process. The amendment passed by the North Dakota legislature and adopted by the voters in 1914 had such strict procedures that no initiatives qualified for the ballot in the following election, so initiative proponents put an initiative on the 1918 ballot to ease the procedures.
1922 The Mississippi Supreme Court overturns Mississippi’s initiative and popular referendum process.
1956 Alaska adopts statewide initiative and popular referendum as part of its new constitution.
1968 Wyoming adopts statewide initiative and popular referendum. 1970 Illinois adopts a very limited initiative process.
1972 Florida adopts statewide initiative.
1977 Hardie v. Eu is decided by the California Supreme Court which finds unconstitutional the Political Reform Act’s cap on expenditures for qualifying ballot measures since it violates the First Amendment of the U.S. Constitution. The District of Columbia adopts initiative and popular referendum. The U.S. Supreme Court rules in First National Bank o f Boston v. Bellotti that state laws prohibiting or limiting corporate contributions or spending in initiative campaigns violates the First and Fourteenth Amendment.
1980 For the third time, a majority of Minnesota voters voting on a constitutional amendment to adopt statewide initiative and popular referendum approve the measure; but for the third time the Minnesota constitution’s requirement that all amendments also receive a majority vote of all voters voting in the election, regardless of whether or not they vote on the actual amendment itself dooms the measure. The U.S. Supreme Court rules in Pruneyard Shopping Center v. Robins that state constitutional provisions that permit political activity at a privately- owned shopping center does not violate federal constitutional private property rights of owner.
1981 The U.S. Supreme Court rules in Citizens Against Rent Control v. Berkeley that a California city’s ordinance to impose a limit on contributions to committees formed to support or oppose ballot measures violates the First Amendment.
1986 Rhode Island voters defeat a measure establishing statewide initiative and popular referendum.
1988 The U.S. Supreme Court rules in Meyer v. Grant that states cannot prohibit paid signature gathering, saying that initiative petitions are protected political speech.
1992 Mississippi adopts statewide initiative for the second time.
1996 Rhode Island voters approve a nonbinding advisory question put on the ballot by the legislature asking if they would like to have a statewide initiative and popular referendum process- but the legislature ignores them.
1998 The Initiative & Referendum Institute is formed to study and defend the I&R process on the 100 year anniversary of the adoption of the statewide initiative and popular referendum process in America
1999 The Minnesota House of Representatives approves a constitutional amendment that would establish a statewide initiative and popular referendum process. The U.S. Supreme Court declares in Buckley v. American Constitutional Law Foundation that, among other things, states cannot require that petition circulators be registered voters.
2000 The Minnesota Senate kills the initiative and referendum bill passed by the House the year before. The Initiative & Referendum Institute files suit against the U.S. Postal Service’s 1998 prohibition on collecting signatures on initiative petitions on postal property.

Force of Finance: Triumph of the Capital Markets

Force of Finance: Triumph of the Capital Markets

“The Force of Finance: Triumph of the Capital Markets” by Reuven Brenner, Stoddart Publishing Co. Limited, Toronto, 2002 and Texere Publishing London & New York, challenges unsupported conventional thinking in many areas including economics, finance, capital markets, prosperity, freedom and democracy.

“Prosperity is the consequence of one thing and one only: matching talent with capital, and holding both sides accountable,” as illustrated by the economic successes of 17th century Netherlands and the modern Asian Tigers. Brenner warns of the injury caused by public policies of confiscation and unproductive regulations, but reports, “for the moment, the U.S. alone has the fundamentals right.”

Chapter 2 considers the relationship between capital markets and democracy and elaborates extensively about the 1997 observations of Arthur Schlesinger, Jr., “democracy requires capitalism, but capitalism does not require democracy.” More simply stated capitalism thrives where democracy cannot. The legal recognition of private property, open capital markets and dispersion of political power augment both democracy and capitalism. More than any other single factor, “low taxes” bring “economic miracles.”

Brenner calls macroeconomics the “twentieth-century pseudo-science” because it is built on the false Keynsian view that governments can or should manipulate economic outcomes.

In Chapter 4 Brenner points out that “voting rights were not much of an obstacle to governments intent on doing harm.” Thus, Brenner reasons that democracy and capitalism are safer when politicians possess less, rather than more, power: “referenda significantly diminish the power of politicians and bureaucrats.” Experimentation with political change and tools of citizen involvement was truncated and stalled by the Great Wars, the Depression, and the Cold War; but now the time is ripe for renewed interest in reforms, which should be cause for optimism.

Chapter 7, titled “Extracting Sunbeams out of Cucumbers,” explores how “ideas that have no foundation gain scientific status.” For decades economists have used the lighthouse analogy to advocate government intrusion. If government did not provide lighthouses, then there would be none. However, private-sector lighthouses existed for centuries. How could so many great minds get this fact wrong? Ronald Coarse published the historical correction in 1974, but the false analogy continues to appear in new textbooks. Students “arrive at the intended but utterly misleading conclusion. The frequently repeated idea thus passes for fact.” “Students are not being taught science; instead, they are being taught obscure linguistic exercises masquerading as science.” “Matching ideas to real-world events is the meaning of being scientific. It is unscientific to either ignore or reject discovered patterns.” The non-science of the social sciences and humanities hide in a maze of obscure rhetoric designed to bar critical review by outsiders and to ridicule innovators as lacking understanding. “Aesop was right: Obscurity often brings safety.” It is the conformist who survives. “Followers are taught to be blind.” Chinese inventiveness ceased when state power increased; it always does.

That so many politicians and economist were attracted to Keynesian views is simply evidence that people respond to incentives. The opportunity for bigger and more intrusive government benefited both groups irrespective of whether the ideas had merit.

“Precedents are incorporated into behavior and institutions, and often outlive the circumstances that created them.” “Prosperity requires people to abandon old industries and old ways of doing things, and bet on new ones and new ways.”

“Backward-looking societies stay poor.” “Stable currency does not guarantee prosperity” … but “it is a necessary part.” “Out-of-the way Iceland, Australia, and New Zealand are all prosperous and technologically up to date. They are not close to either big markets or principal sea routes. … they have open capital markets.”

“In the absence of democratized capital markets, “freedom” is an empty word.” “With open markets the poor can move up.” “Limiting access to capital markets is the means by which groups can stay in power.” “Indeed, the democratization of financial markets and the adoption of the institutions of direct democracy are, the keys to lasting prosperity.”

“The United States has its share of bad laws, outdated regulations, complex taxes, and controls inherited from the past, many of these are still unquestioned.”

“… as a condition of receiving Western capital, countries should open up their financial markets.” Brenner predicts, “If Putin carries out his promise to impose a 13 % flat tax … Russia will soon prosper, attracting critical masses of talent and capital, reducing corruption, and leapfrogging over many other countries.”

In short “The Force of Finance” offers a comprehensive vision for freedom not yet appreciated by many leaders. All peoples will benefit when economic and political freedoms are enlarged. The key is the opening of and access to financial markets and the dispersion of political power, which tends more to interfere with, rather than facilitate, open financial markets. The sooner people gain the courage to confront and change archaic regulatory and political institutions the sooner people will benefit from increased wealth and freedom.

“The Force of Finance” is recommended reading for those interested in deeper understanding of the interdependency of economic and democratic freedoms.

Governments Need Job Descriptions

By Dennis Polhill

An advantage that private sector entities have over public sector entities is clarity of purpose. The parts of private sector entities function like a well-tuned and well-oiled machine. Both the purpose of the overall entity is clear (to produce widgets) and the purposes of the respective subordinate functions are equally clear (to produce left front widget wheels). Private sector human resources and talent are intensely focused at producing more and better widgets. This intense focus yields an endless stream of innovative ideas. Innovations discovered are quickly identified and implemented. Individuals who add value are rewarded. When left front widget wheels malfunction, the problem is quickly realized and corrected. Both individuals and organizations perform more efficiently and more effectively when they know their purpose.

Governments are deprived of the advantage of clarity of purpose. Governments operate under a vagueness of purpose that frustrates its workers and preempts the efficient disposition of its charge. The disadvantage of government is augmented by the sweeping trends of the last century wherein the New Deal encouraged and facilitated massive expansion of the dominion of government. The proliferation of multitudes of fragmented governments has not mitigated, but has compounded, the problem. Currently, there are over 86,000 governments in the U.S. The number is growing by 4,000 per year or eleven per day. Colorado has nearly 2,000 governments.

Governments do, of course, have charges, and they perform many critical functions. However, those charges, by virtue of the very nature of government, must remain vague. The need to sustain reasonable decision making latitude, supports the argument for vagueness. The temptation for elected officials to respond to the desires of special interests by directing public resources into new areas is evidently irresistible. The result (rightfully or wrongly) in a practical sense is a public policy of dynamic perpetual change and waffling. To the employee committed to results, the situation is untenable. Goal achievers and self starters either stop being self-starters or leave government service. To the extent that vagueness can be minimized by virtue of a more clearly defined specific purpose, efficiency will result.

Given the assignment to define the role of government, one would quickly find oneself confounded. Defining what government should do is very difficult, if not impossible, particularly in specific terms. Since it is so difficult to define what governments should do, perhaps the best approach is to search for activities that governments obviously should not do.

In a socialist society, all goods and services are produced and distributed by the state (the government). In a capitalist society, goods and services are of two types: public goods and private goods. Private goods are produced and distributed by the private sector. Private goods are acquired by an individual consumer for his individual private consumption. Examples are shoes, radios, oranges, and automobiles. They are divisible. Private goods can be produced in units sufficiently small for individual households to purchase. The satisfaction, benefits, and costs are limited to the individual purchaser. Those who are not willing or are not able to pay the market price for private goods are excluded from the benefits and enjoyment such goods confer. This exclusion is called the exclusionary principle.

Public coeds (sometimes called social goods or collective goods) are goods and service that provide benefit to the general public as a whole. Examples are police protection, fire protection, transportation systems, flood control, regulations, and national defense. Public goods are goods that are not likely to exist without the benefit of government sponsorship and subsidy. Public goods are not divisible. They are of such large units that individuals cannot purchase them. They yield widespread benefits to the entire community. Public goods cannot be supplied on the basis of buyer initiative. The exclusionary principle does not apply to public goods. Everyone receives benefit.

There are many examples of governments at all levels that have crossed over the line, and have entered into the provision of private goods. When governments compete in the same market with private businesses, the businesses can be injured and, in many cases, destroyed. When governments use their power of tax exemption, liability exemption, and regulation exemption to injure their competition unfairly, many groups are injured.

When government owned businesses do not pay taxes, other governments are deprived of revenues that they need, and to which they are entitled. Who wins when Winter Park does not pay property tax? Winter Park generates jobs, housing, people and kids. The kids need to have a school to attend. If the Grand County School District does not get operating revenue from Winter Park, how is it expected that the School District can carry on its function? The Federal Center produces traffic, flooding, and other impacts on the City of Lakewood. When the Federal Center does not pay its fair share, Lakewood’s operating costs are elevated and revenue base is diminished. Is this fair?

When government owned businesses are exempt from or limited in their liability, consumers are placed at risk. Why should a consumer at Water World in Federal Heights be at a greater risk than at Southshore Water Amusement Park in Arapahoe County? If a consumer becomes a quadriplegic at Water World, why should that individual be limited to damage recovery of $250,000? Is it not reasonable for the injured party to expect the same damage relief irrespective of who the owner of the property is?

When government owned businesses are exempt from regulations, both the public and consumers are at risk. When special districts claim to be exempt from zoning codes and procedures, then do the procedures truly protect the public from injury? The same is true of all laws: building codes, sign codes, fire codes, inspection procedures, plan reviews, the permit process, flood plane infringements, environmental impact reviews, curb cuts, etc. How can a government function in an objective regulatory role (without conflict of interest) when it is in the same business as a private business upon which it wishes to impose regulations?

Unrelated Business Income Tax (UBIT) laws came into existence to curb abuses by non-profit corporations that overstepped the bounds of their charge to perform charitable work. Similar controls on errant government activity are needed.

Further Reading

Dennis Polhill. Unfair Government Competition Against Small Business, Independence Institute issue paper no. 12-93 (July 9, 1993).

Colorado in the BalanceDennis contributed several parts to the Independence Institute’s 1995 Book “Colorado in the Balance.”

  1. Transportation and Infrastructure
  2. The Colorado Department of Transportation
  3. Financing Transportation
  4. Colorado Highway Maintenance
  5. Water Policy
  6. Population Growth and Development
  7. Providing Definition to Privatization
  8. Unfair Government Competition with Small Business

by Dennis Polhill & Stephen Mueller

Action Agenda

Principles

  • There is no impending catastrophe in the economy, in the environment, in technology, or in the availability of resources that will force society to give up the freedom of automobile and truck transportation.
  • The evolution of technology will generally augment the freedom and wealth of people. Pertinent examples of this new technology include the information highway, electric cars, and “Intelligent Vehicle Highway Systems (IVHS).” Free market mechanisms such as congestion pricing and weight-distance highway user fees can be used to help implement these new technologies.
  • Transportation is fundamentally a private good, because the benefits accrue to the individual using the service, not to society. Thus, it is inappropriate for government to subsidize transportation.

Transportation Finance

  • The priority order for using Highway User Tax Fund (HLTTF) revenues should be:
    1. Preservation of the existing system.
    2. Capacity enhancement.
    3. Capacity improvement.
    4. New construction.
  • The gasoline tax is a user fee that is imprecise and inadequately assigns the costs and benefits of system usage. The gas tax should be replaced or supplemented with more direct user fees such as congestion pricing, weight-distance fees, and toll roads.
  • Although HUTF revenues increased significantly, the condition of Colorado’s roads has diminished. The current policy is failing to adequately to maintain Colorado’s roads and is putting the capital investment in highway infrastructure at risk. To reverse this trend and to mitigate this risk, the following HUTF operating policies should be adopted:
  • “Off-the-Top” expenditures from the HUTF should be stopped. Administration of the fund should require less than I%.
  • Use of HLJTF revenues by the 331 government agencies should be applied to protecting the already existing infrastructure first. That is, HUTF funds should not be used for new construction, bonded indebtedness, appurtenances, etc. when the condition of roads is declining.
  • Congestion pricing and deregulation will create the market-driven incentives that increase the acceptance of carpools and vanpools. In anticipation of this new demand, a plan to develop an enlarged system of (High Occupancy Vehicles) HOV lanes should be developed.
  • Improve infrastructure financing and accountability. Require local governments to establish separate funds to accept HUTF distributions. Promote dedicated financing sources for infrastructure maintenance.

Colorado Department of Transportation

  • Divest CDOT of highway ownership and operation.
  • Do not allow CDOT to consume and integrate RTD and other transportation providers into a bigger and more bureaucratic organization.
  • Use private sector solutions, not large government programs, to help solve transportation problems. Loosening regulations designed to protect government monopolies will help provide more transportation service at lower cost. Pursue private sector funding of transportation. Employ more user fees so that the costs of services can be borne by the individual benefiting. Oppose RTD-only bus lanes that limit public access to publicly funded projects.

Highway System Operation

  • Develop and implement a modern pavement management system to insure that the proper maintenance is done at the proper time at a minimum cost.
  • More sophisticated systems of enhancing highway capacity should be implemented. These include traffic signal synchronization, ramp metering, and driver information systems.
  • Begin planning a system of Congestion Pricing, and Intelligent Vehicle Highway Systems (IVHS). Encourage studies of other cities with IVHS in place. Conduct pilot programs on selected highways, and back the idea and launch a legislative effort to implement a market-incentives program.
  • Strictly prohibit overweight vehicles on roads and/or develop a weight-distance pricing structure so that economic incentives work properly.

Mass Transit

  • Stop expansion of light rail (LRT) until the viability of LRT technology can be successfully demonstrated in the Denver metro area. The MAC was sold as a demonstration project and should be used as such.
  • Implement pricing systems that allow government and private transit services to operate on uncongested HOV lanes.
  • Remove existing regulatory restrictions that restrict competition and restrain trade in transportation.

Air Quality

  • Support carpooling programs through expanded HOV/bus lanes. Encourage use of high occupancy vehicles (HOV).
  • Design and adopt an emissions pricing system. This acknowledges that there is a finite quantity of air to allocate and assigns a user fee to those who consume the limited resource. To be fair, the system must apply equally to all (including governments) and to fixed-site emission generators.

By Dennis Polhill

The U.S. Department of Transportation (DOT) was created in 1966 when numerous transportation related functions were brought together in one cabinet level department. The U.S. DOT currently consists of:

  • Federal Aviation Administration (FAA)
  • Federal Railroad Administration (FRA)
  • Federal Highway Administration (FHWA)
  • Federal Transit Administration (FTA) [formerly Urban Mass Transportation Administration (UMTA)]
  • Maritime Administration
  • National Highway Traffic Safety Administration (NHTSA)
  • Coast Guard
  • Saint Lawrence Seaway Corp.
  • Research and Special Programs Administration
  • Office of Commercial Space Transportation

From 1966 to the present, massive amounts of federal funds filtered through U.S. DOT, and through its respective administrations, to the 5states. It was, therefore, expedient for the states to copy the organizational model of the U.S. DOT. Colorado was one of the last states to conform. In 1991, the Colorado Department of Highways was renamed the Colorado Department of Transportation (CDOT). The only other transportation function consolidated under CDOT is the Division of Aeronautics (DOA). DOA sustained the Aeronautics Board as an oversight entity. The Aeronautics Board reports to the Transportation Commission.

Now that Colorado has positioned itself to more effectively compete with other states for federal funds, the game may no longer be the pursuit of federal funds. The passage of the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991 by
the U.S. Congress, signifies a probable end to the era of massive federal subsidies. Although ISTEA appropriations decreased only slightly in 1991, the handwriting is on the wall. ISTEA consolidates appropriations to the respective states into one intermodal pool of funds. Did Congress relinquish control of funding to give states more control or to veil the inevitable future constriction of federal appropriations to the states?

The Federal Highway Trust Fund was established in 1956 with a 2C per gallon gasoline tax in order to finance the construction of the interstate highway system. The federal gasoline tax is now at 18.3C per gallon, and the fund has been building up a surplus since about 1980. The surplus has been loaned to the general fund, which will probably never be able to repay the loan. Prospects are high that federal gasoline tax will rise even more, and that Congress will allocate less to the states for transportation. As more of the gas tax is siphoned off to finance the national debt and other programs, less money will be available to be returned to the states for transportation purposes.

If the provision of adequate transportation services is to become increasingly the responsibility of the states, then a serious look at Colorado’s sources and applications of transportation resources is appropriate and the organizational model of a centrally controlled umbrella transportation entity may or may not best serve Colorado’s future transportation needs.

The assumptions that supports the concept of a state DOT are that technological experts are integrated under one roof to facilitate communication and interaction of competing modes. Policies established by the Legislature can be more effectively implemented and enforced through a central bureaucracy. Transportation resources that may be generated disproportionately among modes can be allocated via a centrally controlled plan of priorities.

Although CDOT is primarily a highway department, personnel have been assigned to the functions of aviation, transit, and railroads. Other U.S. DOT functions are not relevant to Colorado. In Colorado, these transportation services are provided by a variety of local governments, authorities, districts, private corporations, and non-profit corporations. Is it CDOT’s destiny to gobble up these disparate providers of transportation? Or is CDOT’s role more appropriately to facilitate, oversee, communicate, and coordinate? The principle of “subsidiarity” is that “no government task should be assigned to a body larger than the smallest that can satisfactorily perform it.” Subsidiarity is merely government’s version of Tom Peters’ book, In Search of Excellence, which has served to transform corporate America. Simply stated “the enemy is size.” Large bureaucratic corporations with unwieldy overhead cannot minimize expenses and find it difficult to compete. Thus, for corporations to capture efficiencies, they must down-size. Subsidiarity says that governments should do the same.

As long as CDOT is the owner and controller of Colorado’s highways, it cannot evolve into an efficient DOT. The perspective of its people will continue to slant toward highways rather than transportation.

Subsidiarity applied to Colorado’s transportation needs suggests that CDOT is appropriate, but that its role should be limited to facilitating, overseeing, communication, planning, coordinating and possibly research, technology transfer, and finance. Government owned and controlled monopolies are suspect and should be considered prospects for divestiture, devolution, privatization, contracting out, delegation, or decentralization. The big examples include highway ownership, operation and maintenance, and mass transit. The technological limitations that caused highways and mass transit to be natural government monopolies in past generations have disappeared.

By Dennis Polhill

Few people dispute the importance of efficient transportation in an open and free society. As individuals gain in personal affluence, they willingly allocate a portion of their new wealth to increased mobility and freedom. As long as the wealth of society increases (both collectively and on a per capita basis), demand for transportation that efficiently responds to the individual needs of people will increase.

Until the creation of the gasoline tax in 1956, government was unable to respond to the demand for paved roads. The gasoline tax provided appropriate user fee financing. The access to land and the mobility that paved highways offered caused real estate to escalate in value. Free movement of goods and services provided greater access to a wider variety of options and increased market competition helped to lower costs to consumers. The direct benefit to the economy of construction of the 40,000 mile interstate highway system was at least five dollars for each dollar spent on construction. Highway construction adds value via mobility to existing economic generators. When highways are constructed where there are no preexisting economic generators, no economic development benefits result because there are no markets or resources to access. This is a reasonable test for the viability of transportation projects. If mobility and access are improved, the benefits of the project can be balanced against the costs.

The advent of the gasoline tax was simultaneous with the Federal Highway Trust Fund. As interstate highway construction progressed and the power of the gasoline tax was recognized, use of the trust fund was expanded. Federal matching share increased. Funds became more readily available for appurtenances, relocations, environmental, archeological, safety, and other project considerations. Subsequently, trust fund moneys became available for an expanded federal aid system, off-system projects, and maintenance. The trust fund has also been accessed to subsidize other transportation modes: mass transit, aviation, railroads, waterways, and bike paths. Last, but not least, the gasoline tax user fee has been accessed by Congress to finance a portion of the national debt. So the original concept of a user fee for transportation has been greatly expanded and co-opted. The gas tax has become part user fee and part tax based on consumption.

Currently the Colorado tax is $.22 per gallon and the federal tax is $.183 per gallon for a total of slightly over $.40 per gallon. If an average vehicle gets 20 miles per gallon, the user fee is $.02 per mile. However, users have a degree of control over their tax rate. Some own vehicles that get 40 miles per gallon and thus pay only $.O1 per mile user fee. Some get less than 10 miles per gallon and pay $.04 per mile user fee. Advocates of other-than-auto transportation quickly point to subsidies from other sources that go to highways. The Brookings Institution estimates these subsidies at about $22 billion per year nationwide, slightly less than $.O1 per mile. Rush hour traffic congestion points to the fact that not all vehicle-miles traveled are equal. A rush hour vehicle-mile is more valuable than a non-rush hour vehicle-mile.

Heavy vehicles do not pay their fair share of highway costs as measured by structural damage to the facility. A vehicle that weighs twice as much produces 16 times as much road damage (2 to the 4th power). Similarly, due to the fee structure, there is little incentive to avoid overloads, unbalanced loads, or to configure vehicles to mitigate damage. Conversely, truckers argue that autos do not pay their fair share of the highways since they are few compared to the many that consume the capacity of the system.

Mass transit advocates argue that highway taxes should pay for mass transit because congestion is relieved when commuters ride mass transit. Because transportation economics has been contorted by the distortions of subsidies, it is difficult to rationalize logically the role of mass transit in the entire picture. Without massive public subsidies to mass transit, it could not survive. Mass transit ridership nationwide continues to decline in spite of massive subsidies. Currently, ridership is less than 5 % of all commuters. Roughly 5 % of commuters walk to work and 15 % use carpools. It is unlikely that a system of fixed routes and fixed schedules can meet the needs of an increasingly diverse, mobile, affluent, and unconstrained population. It is, however, clear that economic distortions and subsidies to highways work to the disadvantage of viable mass transit. A public policy that subsidizes highways to the detriment of mass transit and then requires additional taxpayer subsidies to mass transit to offset the damage is not rational.

Transportation is a private good, wherein the benefits accrue primarily to an individual. Thus, transportation is a service that receives public subsidy inappropriately. Historically, it has been virtually impossible for aspects of transportation to recover their costs in user fees. However, recent technological advances make it feasible to assign the true cost of transportation services more directly to those who benefit.

The gas tax as a user fee may be inadequate and obsolete. ISTEA (the 1991 Federal Transportation Act) liberalizes the use of congestion pricing, weight-distance
fees and toll roads. As society moves in the direction of free market governance, such fees can be expected to evolve into common usage. The sooner Colorado comes to recognize the future condition, the sooner Colorado can capture the benefits that a more liberal free market approach can yield.

By Dennis Polhill

In 1986, Colorado drivers were paying a gasoline tax of $.12 per gallon. Since then, the tax has gone up 83 % to $.22. Over that same period, what has happened to the condition of our highways?

Roads have gotten progressively worse to the point where many have the look and feel of a third-world nation. By the state’s evaluation, in 1987, 18% of our roads were in “poor” condition. Five years later, in 1991, after all of that extra money was spent, had our poor roads improved? Not exactly-in fact, 42% of our roads were judged “poor.”

Colorado’s highway system is 78,043 miles long. The distribution of operation and maintenance responsibilities is:

Colorado State Department of Transportation 9,160 miles
Colorado’s 267 cities 10,725 miles
Colorado’s 63 counties 58,158 m

Road Mileage Distribution

Colorado’s condition monitoring system is limited to a good-fair-poor visual rating performed by each of the 331 entities that share the Highway Users Trust Fund (HUTF). HUTF is funded by Colorado’s gasoline tax which is currently at $.22 per gallon – 20% above the national average state gasoline tax of $.1832 per gallon. Money drawn from HUTF is based on a formula established by the State Legislature that accounts for condition, miles, and population. Local entities have wide latitude on how to use HUTF funds, including planning, design, construction, maintenance, appurtenances, and the assumption of bonded indebtedness. The $.22 per gallon tax generates $505,900,000 per year which is currently shared: $248,100,000 to CDOT; $95,100,000 to counties; $61,000,000 to cities; and $101,700,000 to bridges, overhead, and miscellaneous.The trend in surface condition of the State highway system has not been reflective of the increased funds available.

Surface Condition
Surface Condition

1987 1988 1989 1992 1921
Good 42% 42% 41% 32% 21%
Fair 40% 38% 41% 40% 37%
Poor 18% 20% 18% 28% 42%

 The proportion of roads in poor condition has increased from 18 % to 42 % (a 133 % increase). The proportion of roads in good condition has decreased from 42 % to 21 % (a decrease of 50%). In other words, over twice as many roads are in the poor category and half as many roads are in the good category. In spite of the significant increase in revenues for roads, condition has plummeted. The probable cause is that the resources are not being managed efficiently.Colorado’s gasoline tax was below the national average until 1986. In 1986, it was increased 50% (from $.12 to $.18). Subsequently, the gasoline tax was raised to $.20 in 1989 and to $.22 in 1991 (roughly 10% more each time). The total increase from 1986 through 1991 was from $.12 to $.22. This $.10 increase represents an 83.3 % increase in just six years.

Colorado’s Gas Tax

The idea of pavement management grew from the infrastructure crisis of the 1980s. Pavement management recognized that:

  1. Limited resources are available for maintenance.
  2. Pavements, like all physical facilities, deteriorate at an accelerated pace as they age.
  3. Maintenance can be applied at appropriate times to extend life, sustain service levels, and reduce long term costs.
  4. Computer technology and sophisticated mathematical techniques can be employed to manage massive amounts of data and seek optimal application of resources (i.e., maximum benefits for minimum cost).

The potential benefits of such management systems are enormous. Nationally about $15 billion per year is spent on maintenance. Few governments use pavement management systems; however, most experts agree that at least 50% of the $15 billion is lost due to inefficient use of resources. This, of course, is only a fraction of the total cost. Because the roads operates at lower service levels, car repair is greater; delay and travel time is greater; accident and personal injury is greater; and less comfort or service is supplied to the customer at a higher fee. The costs of all of these factors combined total several hundred dollars per capita per year.

Sophisticated management systems are most quickly adopted by the most professional and least political governments. These governments tend to be those with the shortest chronological history and the most limited bureaucracy. Thus, the most innovative governments tend to be cities with populations between 50,000 and 250,000 people. State agencies, which often must lead, cannot lead because of their entrenched decision making structure and tradition. Colorado is no exception. The Colorado Department of Transportation has been very slow to recognize the benefits of pavement management systems and to attempt to capture benefits. In recent years, CDOT has begun the regular and consistent collection of some condition data over the full extent of the CDOT portion of Colorado’s highway network. Far more work is needed to evolve this data into a full fledged management system.

Without the benefit of pavement management systems, it is very tempting to apply the cosmetic approach to highway maintenance. That is, thin overlays that make roads look new for the short term-until after the next election. Long term benefits are sacrificed. The following graph provides an understanding of pavement performance, serviceability, and the benefits of properly timed maintenance.

Pavement Life Cycle

  • Area “A” represents the service benefit of a thin overlay placed at time “A” on a pavement’s life cycle.
  • Area “B” represents the service benefit of the same thin overlay placed at time “B” on a pavement’s life cycle.
  • NOTE: In both cases the benefit is the relative area under the respective curve.

Since the cost of “A” and “B” are the same, it is clear that “A” is the wiser choice. “A” produces far more benefit than “B.” As the graph illustrates, pavement maintainance earlier in the pavement life cycle produce much more long-lasting road quality improvement than the same maintainance later in the pavement life cycle.

What may have happened in 1986 when more money was available for roads, pressure to show immediate results motivated a public policy of mismanagement in which resources were applied for effect rather than for results. A fully functioning pavement management system would have helped to avoid this public policy error.

The other trap that policy makers fall into when they do not have the information that pavement management systems provide, is that money is diverted from maintainance and into construction. The result is that a politician gets to cut a ribbon in the short term. In the long term user fees have been diverted to subsidize growth on the urban fringe and maintenance has been deferred and will cost more money latter.

By Dennis Polhill

Water Quantity Action Agenda

  • Convert state and federal water projects to private ownership.
  • The key to minimizing waste of water is to have the rights freely transferable between private owners in a free market. The owners of a water resource should bear the opportunity cost of wasting it. The approach is equally applicable to surface diversion, instream flows, and non-tributary ground water.
  • Allow private rights for instream flows. Change Colorado water law so that water simply left flowing in a stream for environmental reasons becomes a legally protected use.
  • Because markets are good at allocating resources, reliance on markets becomes more essential as a particular resource (water) becomes more essential.

Analysis
The availability of a reasonable quantity of good quality water is critical to the survival of human beings. The operative word is “reasonable.” Water law in the U.S. has followed two paths: riparian law and appropriation law. The 100th meridian bisects Kansas. Because of the climate of the continent (i.e. annual rainfall), states east of the 100th meridian are governed by riparian law. States west of the 100th meridian are arid in climate, have more limited water resources, and are governed by appropriation laws. The basic riparian philosophy is that there is more than enough water to go around, and everyone can have as much as they want, at any time, and for any purpose whatsoever. Appropriation law conversely treats water as a limited resource. Water is recognized as a property right. Definition of water rights is accomplished through a body of laws, a system of water courts, and a staff of state water engineers. Reasonably sophisticated free markets have evolved in appropriation states where water rights are regularly bought and sold.

The historical view that we as a culture have had of water tends to distort thinking about water. Essentially, the culture has been (even in appropriation states) to waste, to contaminate, and to throw away water. With growing population and diminishing reserves of naturally available clean water, society’s culture of free and wasteful water use will have change.

In Colorado, the old culture has stimulated much public debate and controversy-most
recently over the Two Forks Dam project. The arguments for the project are rooted in the old culture of ample cheap water-readily available to be contaminated and wasted. Sustaining the old culture is not in the best interest of society.

Colorado has ample water for domestic consumption through 2040. Market forces can be used to motivate wiser use of this valuable and limited resource. Two Forks Dam is probably unnecessary and likely will never be built. About 80% of Denver Metro peak water
consumption is used in lawn irrigation. With restricted supply and increased demand, prices will increase. Lawn irrigation systems will have the incentive to be more efficient and lawns will get smaller.

On a more global scale, about 90% of all water consumption is used in farm irrigation. Price increases will yield ample water for domestic consumption. A 10% efficiency improvement by farmers doubles the amount of water available for domestic consumption. It is estimated that a 10% increase in cost of water to farmers would be enough to motivate a consumption reduction of 1.0%.

As water becomes more valuable and more expensive, society will be less willing to throw it away. Wastewater effluents will continue to be cleaner and secondary usage of wastewater treatment plant effluents will increase, mostly for industrial and irrigation purposes.

Only 1 % of domestic water consumption is actually taken internally by human beings. Thus, if domestic water prices skyrocketed, duplicate systems with different quality standards would quickly evolve. Closed water recycling systems are not likely to become commonplace for at least 100 to 200 years because of economics, aesthetics, and abundance. Technology is not the limiting factor in the evolution of closed systems. People physically consume only 2 gallons of every 10,000 gallons that comes to the U.S.

The problems of domestic water supply are economic. As long as free markets are inhibited by government interference, availability problems and resultant environmental problems will tend to be exaggerated. A rational Colorado water public policy suggests that the State should foster, not inhibit, the evolution and operation of free market mechanisms.

by Dennis Polhill

Population
In 1940, the Denver Metro area had a population of 350,000. By 1990, it had grown to 1,900,000. This amounts to a compounded annual growth rate of 3.8%. If the Denver Metro area continues to grow at 3.8% per year, there will be a population of 4,000,000 in 2010; a population of 12,000,000 in 2040; and a population of 79,000,000 in 2090. If the growth rate declines to 2%, Denver’s population will be 2,800,000 in 2010; 5,100,000 in 2040; and 13,800,000 in 2090.

From 1980 to 1990, the Denver Metro area grew by 13.6 % or a 1.28 % compounded annual growth rate. From 1990 through 1994, Colorado’s population jumped by 11 % or 2.64 % per year. The US Census Bureau recently reported that Colorado’s growth rate of 2.9 % between July 1, 1992 and July 1, 1993 was 2.6 % . The Colorado State Demographer projects 1995 population growth to be 1.8 %.

Denver’s Economic Cycle
The last economic crash occurred in the early 1980s when oil and mining simultaneously collapsed. In the late 1980s, emigration was offset by births to yield zero population growth. When National Consumer Price Index (CPI) increases were 4 %, Colorado’s inflation was at zero for several years, motivated by a survival struggle of retail businesses. Economists agree that Denver “hit bottom” about 1988.

By 1990, it was clear that the economy was rapidly improving. Boom growth (defined as unsustainable and reflected by rapidly escalating rents, property values, employment, population, and retail sales) occurred in 1992 and 1993.

As Denver began to reach the top of the new peak, rates of growth diminished in 1994. At the end of 1994, U-Haul reported the 1 % more families had moved out than had moved into Colorado. Comparing the number of first mortgages recorded to the number 12 months earlier (to remove seasonal variations) showed a steady decline throughout 1994 (compared with 1993) with the final five months all showing negative growth and the final two months with significant negative growth (approximately 20%).

Entrepreneurial Capital
Colorado is positioned in time and in geography to become the entrepreneurial capital of the world. Some of the assets of Colorado are aerospace and defense technology, computer firms (IBM, HP, Apple), telecommunication firms, biotechnology firms, geography information systems and global positioning systems firms, an educated work force, and one of the highest new business start-up rates. The collective economic effect of these major assets should be enough to propel Colorado’s economy for the next several decades.

Realistic Planning Window
Looking back 100 years exposes the folly of attempting to plan 100 years into the future. The rapid pace that new technologies and the interaction that multiple paradigm shifts are impacting our lives is so significant that even a 50 year long range plan is impractical. It was only a decade ago that microcomputers and VCRs were becoming commonplace. Two decades ago it was photocopy machines. In the next decade, we will see the impacts of the information highway, interactive TV, holography, HDTV, genetically improved foods, new therapies to treat diseases, virtual offices, smart cards, wireless video transmitters, biodegradable plastics, E-money, voice recognition technology, electronic shopping, and explosion of economic wealth in far off parts of the world. The result will be a lifestyle of increased freedom and increased economic affluence for most people. How does all of this add up so as to yield a reasonable guess of what the world will look like in 20, 30, or 50 years? What are likely to be the burdens on and shape of the infrastructure?

Population Density
The conventional wisdom that the Denver Metro area population will be 3,000,000 in 2020 and 4,000,000 in 2045 is reasonable.

The population densities of today are the product of dramatic 20th century innovations in transportation and communication. Those who influence public policy appear generally of two opposing minds. One philosophy is that current densities are too low and public tax subsidies should be used to influence higher density. The other philosophy is that current densities are desirable and public tax subsidies should be used to facilitate more of the same. The result is a schizophrenic public policy that in one instance tries to encourage high density growth and in another instance tries to encourage low density growth, both via public tax subsidies. In some cases the same advocates insist on tax dollars to build light rail and in the same breath insist on more tax money for open space that makes light rail less viable. Is there any way to give these folks what they want when it seems that they themselves do not know what they want? Could it be that they want it both ways?

Development Fees
For over a decade the people have demanded more user fees. Policy makers have failed to comprehend the deep meaning of this demand. Aside from more and higher permit fees, plan review fees, photocopy fees, map sales fees, and the like, little has been done.
Colorado has 3,500,000 people living on 103,598 square miles for an overall density of 33.8 people per square mile. The six county Denver Metro area has a density of 411 people per square mile (12/29/94 Rocky Mountain News). Lakewood, representing what is typically perceived to be normal urban density, has about 130,000 people living on about 40 square miles or about 3250 people per square mile. On the average this density is 5 people per acre or 2 dwelling units per acre. Since most homes are on quarter acre lots, the difference is accounted for by park lands, schools, shopping centers, office buildings, rights of way for streets and utilities, and undeveloped parcels.

Undeveloped and underdeveloped parcels create a social cost in terms of public services. A vacant lot has access to a street, sidewalk, water line, sewer line, telephone line, electric line, gas line, drainage, and other facilities. The vacant lot does not experience the capital cost, the maintenance cost, or the operating cost of these facilities. Since the proportional costs are not recovered from the vacant lot, other taxpayers must make up the shortfall. Since it is impossible to enlarge facilities (telephone lines, streets, etc.) incrementally each time an infill lot is built on, the facilities must be sized and constructed under the assumption of full development. Until an area is fully developed, the balance of the community financially supports the undeveloped land. Until a pricing system is developed that fairly assigns construction and carrying costs of infrastructure to undeveloped and underdeveloped land, taxpayer dollars are being used to subsidize individual properties, to reduce density and to increase building on the suburban fringe. Properly assessed infrastructure costs not only would encourage infill development but fringe development would occur more completely and consistently. A barrier to such fees is that suburban cities are competing with each other for growth. Fair or unsubsidized pricing systems would tend to divert growth to other cities.

Similar subsidies occur when cities, counties, and utilities extend infrastructure at less than cost to new development. Every 2000 dwelling units constructed generates a need for one additional elementary school. If those 2000 homes do not bear the cost of the school, then all taxpayers must bear the cost collectively. But didn’t the pre-existing 2000 homes already pay for the pre-existing elementary school that they use? It is similarly true for fire stations, police stations, snow plows, sewage treatment plants, extra pavement lanes and thickness, traffic signals, libraries, telephone switching stations, electric transforming terminals, and so on. If the marginal costs of social facilities are assigned to new development through appropriate impact fees, the cost of development is higher and for a project to be viable the economics must shift. The end result of ending development subsidies is that urban densities will increase, housing costs will increase, much more infill development will occur; infrastructure will be used more efficiently, yielding economies to governments in their operating budgets, and lower property taxes.

Population Distribution in 2020
The disparity of densities serves to illustrate the inefficiency with which society elects to use its land and infrastructure resources. Typical suburban density is 3250 people per square mile. Yet, the six county Metro average density is 411. If the 6 county urban area was fully built up to typical suburban density (3250 people per square mile), them it could house over 14.5 million people. At city of Denver density (nearly 7000 people per square mile) over 31 million people could be housed.

Because it costs more to build taller buildings, the height of building reflects the value of the land on which it is built. Thus, planners have discovered that core city skylines tend to approximate 3 dimensional normal probability distributions.

Aberrations occur where cities are adjacent to rivers, lakes, oceans, mountains, major highways or other physical barriers. These distributions can be visualized as similar in shape to a World War I army helmet.

The removal of subsidies to fringe development would tend to normalize economic forces and elevate the value of land in the core city and developed suburbs. The army helmet would in effect be raised slightly. A 10% density increase by 2020 in the core city and developed suburbs could accommodate 150,000 people (15 % of expected population growth in Colorado).

The remaining additional 850,000 population growth can be accommodated by additional developed suburbs (about 240 square miles) or by increased density in the urban-rural fringe (from 160 to 360 people per square mile). The third option is that population will spill out beyond the boundary of the 6 county metro area. If the 850,000 fall into the three categories equally, developed suburbs will increase by nearly 80 square miles; the current suburban-rural fringe of about 160 people per square mile will consume 1800 square miles (1.7% of Colorado’s land.)

Air Quality
The “brown cloud” will continue to decrease. By 2010 deicing sand will be replaced by more expensive and environmentally neutral chemicals. By 2000, 2 % of automobiles will be electric powered. Other clean fuels (such as propane, compressed natural gas, and alcohol) already in use will become more popular. Catalytic converter technology will make even more significant impacts in auto emissions. The older autos that compose 10% of Denver’s 2,000,000 automobiles and generate about 60% of Denver’s bad air problem will be essentially retired by 2005. The development of hydrogen as a clean burning fuel source for automobiles will likely never reach the market as it will be unnecessary and ultimately yield to less expensive options.

Water Quantity
Colorado has ample water for domestic consumption through 2045. Market forces can be used to motivate wiser use of this valuable and limited resource. About 80% of the Denver Metro peak water consumption is used in lawn irrigation. With restricted supply and increased demand, price will increase. Lawn irrigation systems will have the incentive to be more efficient and lawns will get smaller. As water becomes more valuable and more expensive, society will be less willing to throw it away. Wastewater effluents will continue to be cleaner and secondary usage will increase, mostly for industrial and irrigation purposes.

Highway Transportation
Since densities will not change significantly (less than 20%), the local carrying capacity of the existing infrastructure is generally adequate through 2045. Most residential streets and parking areas can accommodate a 20% increase without any significant change to capacity, structure, or geometrics. Arterial streets and highways will have to be the focus of highway managers. About 80% of suburban arterioles can either accommodate a 20% increase as is, or with attention to “bottle necks” in the system (intersections, interchanges, bridges, tunnels, signal coordination, curb cuts, and parking configurations). Only 20% of suburban arterioles will require significant capacity increases in the form of lane additions. A somewhat greater capacity increase will be needed on core city arterioles.

Telecommuting
Telecommuting will grow along with use of the information highway. More people will work at home, but more importantly, telecommuting will facilitate the evolution of “virtual offices” (people can work anywhere) and “flexplaces” (shared office space with personal lockers, some people will have several strategically located). Coupled with more flexible working parameters, such technologies will have significant impact on the need for infrastructure. Because people can travel during off-peak time, the underutilized off-peak highway capacity will be used more efficiently. When a highway has to be sized to accommodate an 8:00 am and 5:00 pin rush hour, it must be twice as big as it needs to be 80% of the time.

Rapid Transit
With a top speed of 55 miles per hour, light rail can never evolve to fill society’s need for rapid transit. Rapid transit is a train that travels from 100 to 200 miles per hour. It will evolve as a viable transportation alternative between population centers of medium range distance (60 to 200 miles). Rights of way should be reserved along interstate highways for future implementation of rapid transit. The route that will become economically viable first is Denver to Colorado Springs and Pueblo, followed shortly by Denver and Ft. Collins to Cheyenne. Commuters, shoppers, tourists, and sport fans will use it. The Denver – Colorado Springs trip would take 20 minutes. The train may be underground or elevated, may be in a tube, and may be magnetically levitated. Rapid Transit is not expected to become economically feasible before 2045.

Power Systems
Recent technology has been generally stagnant. Power plants using heat engine technology have been at practical maximum efficiency of about 30% for some time. By 2010 there will be new technological approaches in geothermal, wind power, propane, and natural gas. Super-thin films will make solar energy cost-competitive. Room temperature superconductors will reduce power-transmission losses. Cold fusion may even become a reality.

On the low tech side, deregulation of power utilities will foster price and service competition. One predictable result will be rate structures that charge less for power used off-peak demand. So folks who can program their computer to run their refrigerator or recharge the automobile at the right time will save money. Of course, power storage technology will continue to make giant leaps

by Dennis Polhill

Privatization is a word that is greatly misperceived and unfairly imaged. Its very mention causes adrenalin rushes in government employees. Privatization is a word that is used with great caution, suspicion and trepidation in the public sector… if we don’t
talk about it, maybe it will go away. The premier national trade group of the public works field lost members the first time it offered a seminar on privatization. One can witness bureaucrats shifting brain circuits when certain words register.

Private Sector
To build an understanding of privatization, one must begin with reasonable and rational definitions. Who is the private sector and who is the public sector? The public sector is all of us collectively and the private sector is all of us individually. This
applies both to actions and to property ownership. In all societies both must coexist. One cannot exist without the other.

Privatization
There are two types of privatization: contracting out (or out-sourcing) and divestiture. When the failed socialist states of the world mention the word privatization, they are referring to divestiture. Under Margaret Thatcher from 1980 to 1988 the
United Kingdom divested itself of 40% of its state sector. When Russia, Poland, Venezuela, and Mexico use the word privatization they are not talking about contracting out. In the US, the definitional perception is the opposite. Privatization means contracting out. People carry on protracted conversations using the word privatization without the faintest perception of divestiture ever entering their thoughts. U.S. business owners even talk about “privatizing” functions in their private companies that they cannot perform efficiently in-house. In the US, privatization typically means out-sourcing.

Divestiture
Divestiture is putting ownership and control of assets in the hands of the people (private parties). Control by the people means allowing the people to exploit the assets by using them to create value by filling unfilled needs. In US history, divestiture has been effectively used to foster economic growth and individual freedom. There is no better example than the Homestead Act. The federal government owned all of the land and sold it off cheaply to farmers on the condition that they would “work” the land. This divestiture program did much to make America the economic success that it is today.

Divestiture is a method used by countries to stimulate economic growth. The
greatest economic success of the post World War II Marshall Plan was West Germany. Though Germany’s per capita share of the Marshall Plan was small (only 45 % of the average) Germany’s annual economic growth rate of 22.5 % was nearly triple the economic growth rate of other Marshall Plan countries (8.4 %). This is attributed, in part, to Germany’s quick decisions to divest itself of state owned businesses and property.

Other economic success stories that put property ownership in the hands of the people as part of an overall divestiture strategy include Japan, Hong Kong, South Korea, Taiwan, and Singapore.

Deregulation
Deregulation is the third prong of the privatization triad-the first two being contracting out and divestiture. Had the Homestead Act provided cheap land, but denied them the freedom to work it, no value could have been created by the people. Similarly, West Germany’s post World War II transition was. from a fascist state to a free market. A fascist states allows private ownership of property, but controls critical aspects such as quantity of goods, product mix, resources to be used, product specifications, etc.

A current example worthy of note is that Argentina outright abolished 36 regulatory agencies. In the last few years, Argentina has gone from a 300% annual inflation rate to one of the strongest economies in South America. The point is that the free use of property permits people to create value via innovation. Every regulation denies at least a tiny degree of freedom to the owner and results in a cost to society’s economy. Excessive regulation can be the death of 1,000 cuts to property ownership and to an economy. Regulations should be imposed discretely and sparingly. Where regulation is excessive or no longer necessary, it should be rolled back.

Why does privatization work? As the economic theories of Marx., Engels, Lenin, and Keynes are discredited, the names Hayek, Friedman, and Sowell are ascending as the new leaders of dominant economic thought. In Free to Choose, Friedman identifies four categories of spending.

  • Category I – You spend your money on yourself.
  • Category II – You spend your money on someone else.
  • Category III – You spend someone else’s money on yourself.
  • Category IV – You spend someone else’s money on a third party.

The efficiency with which purchasing trade-off decisions are made diminishes sequentially from Category I to IV. Consider the example of buying a wristwatch and deciding to pay an extra $10 for an extra feature. The trade-off decisions are made with less efficiency as the category number increases. The decisions of the most efficient bureaucracies of the world (sole proprietors) are all Category I spending decisions. As organizations grow in size, decisions creep in that are increasingly Category II, III and IV. Thus, large organizations are very often less efficient than small ones. All government spending decisions are in the least efficient Category IV. Obviously when government functions can be moved out of Category IV, economic efficiencies result.
When does privatization make sense? Economic efficiency is what elevates society’s total wealth and standard of living. Conversely, economic inefficiency detracts from the total (and in turn individual) wealth. Thus, the test for privatizing (whether it be divestiture or out-sourcing) should be an economic test. If the activity can be performed more efficiently privately then it should be privatized.

The term economic efficiency has sometimes become rhetoric to create a smoke screen to forestall privatization. Government accounting does not yield true cost-of-service information, but private contracts do. Various overhead, administrative, tax, regulatory, and liability expenses are typically misallocated or not counted at all by governments. Not recognizing costs does not mean that they do not exist. It merely means that they are hidden. The aforementioned economic efficiency test should be applied fairly and honestly. To do this, government cost accounting must become complete, accurate, and honest.

How much savings can be expected by privatizing? This is difficult to answer because so little has been done, because government cost accounting is so poor, because the bureaucracy generally does not buy into the concept of economic efficiency, and because the definitions have become garbled. Precision-tuned numbers will not exist until the previous list of obstacles is diminished. In terms of conceptual numbers, even Ted Gaebler, author of Reinventing Government, an friend of big government irrespective of cost, has quoted 22% as the inherent cost burden that government must bear just to be open. Obviously the savings potential is a function of the quality of the contract, the sophistication of the activity (high tech versus low tech), the availability of qualified bidders, measurability of the work, the amount of uncertainty that the bidder must account for in the bid, the extent to which incentives can be installed in the contract, and so on.

Institutional Resistance
Since implementing privatization amounts to shifting the paradigm and contradicting conventional bureaucratic thinking, it is a much easier matter to bungle away the savings (either intentionally or not) than it is to succeed. The questions that follow failure are far easier to address: “Everyone knew it wouldn’t work. This proves that we are already as efficient as is humanly possible” versus “Why didn’t we do this sooner? Are there more savings to capture? Think of the money that has been wasted and the other things that could have been accomplished.”

The incentives that are offered to government managers need to change. Because of ease of measurement, a bigger budget and a bigger staff implies more responsibility and, in turn, more status, power and salary. To succeed in making government more efficient through privatization is counter to basic instincts. To say that privatization is a tool to be used by managers when appropriate, is to say that privatization will not be done.

Action Items

  • Government cost accounting should be modified to identify all cost components of producing various services. The units of service produced and the cost per unit should be reported to the public and the media.
  • Clarify the respective duties of various government entities and prohibit them from declaring themselves exempt from each other’s laws. If a county has jurisdiction over zoning, a park district cannot declare itself exempt. If a city has jurisdiction over building codes, fire codes, and sign codes, school districts must yield to city rules and procedures.
  • Governments should specify in clear terms why they are being formed and the scope of their functions. This can be called an annual business plan. These functions should be subject to periodic sunset review by a vote of the citizenry.
  • Governments should not compete with each other. The same services should not be supplied by two governments to the same geographic area or to the same customer base.
  • Governments should be governed by their own laws. Since regulations exist to protect the health, safety, and welfare of the public, it is inappropriate for a government to be exempt from any regulation. This applies equally to regulatory procedures, such as plan reviews, permitting, testing, and inspection. This is especially true when a government operates in competition with private businesses.
  • Governments that compete with private businesses should avoid the conflict of interest that exists when they function as a regulator. Their regulatory responsibility should be reassigned to an independent agency.
  • Government agencies that supply private goods to consumers in competition with taxpaying businesses should not be exempt from taxes or fees.
  • Government agencies that compete with private businesses should not be exempt from laws and regulations designed to protect consumers. Examples of such laws include exemption from liability and from anti-trust statutes.
  • Develop procedures and guidelines for governments to divest from services when government monopoly is no longer needed. This occurs when there is a technology shift or when there is an evolution in market demand creating the opportunity to grow private sector competitive suppliers.
  • CRS Title 24, Article 113, “State Government Competition With Private Enterprise” should be amended and enlarged:
    • To apply to all governments, not just the state.
    • To provide damage relief to injured businesses and individuals.
    • To impose penalties against individuals personally who knowingly participate in injury to existing businesses.
    • Remove the complaint and administrative responsibility for this law from the Colorado Office of Regulatory Reform (ORR) and reassign it to an advocacy branch of the state that is more likely to be concerned with saving jobs and protecting private property than enlarging government.
  • The advocacy agency should:
    • Define and streamline the complaint process.
    • Make the public aware that there are protections.
    • Log and track all complaints and remedies.
    • Report annually to the Governor and the Legislature.
  • Finally, activate the State’s Privatization Commission. Give it a charge such as enforcement or monitoring of CRS 194-24-113. Appoint commissioners dedicated to protecting small business, rather than protecting the government.