Action is now pending in the Colorado General Assembly to reform the State’s constitutional initiative process, which is the mechanism available to the electorate for amending the Colorado Constitution.

Under the existing constitutional structure, an initiative proposal for a constitutional amendment will be placed on the ballot for the State’s general election if the proponents can secure petition signatures from registered voters equal in number to 5% of those that cast votes at the last general election for the office of the Secretary of State (Colo. Const., Article V, Section 1(2)).  An initiative measure that reaches the general election ballot becomes law and amends the Colorado Constitution if approved by a simple majority vote (Colo. Const., Article V, Section 1(4)).

The Colorado initiative process has often come under criticism as setting too low a bar in allowing the State’s fundamental organic governing document, its Constitution, to be amended by a mere majority of voters.  Advocates of initiative reform contend that most constitutional initiative proposals would more appropriately be grist for the legislative process; while not perfect, the representative form of government arguably furnishes a policy-making filter that the existing initiative process lacks.  Supporters of the existing initiative process hold that it is a pure form of democracy, empowering the common citizen at a grassroots level.

Historically the Colorado initiative process has produced various controversial constitutional amendments (e.g., the Taxpayer Bill of Rights (TABOR); Amendment 2, which barred legislative protections based on sexual orientation and was ultimately declared unconstitutional by the U.S. Supreme Court; and authorization for medical marijuana).  In other circumstances, the constitutional initiative process has embroiled opposing factions in expensive, time-consuming political campaigns beyond those commonly entailed in legislative affairs.

Members in the two houses of the Colorado General Assembly have proposed Senate Concurrent Resolution (SCR) 11-001 to amend the constitutional initiative process.  If passed by the General Assembly, SCR 11-001 would go on the ballot for the 2012 general election.  SCR 11-001 would modify the initiative process in two significant respects:

• The petitioning process would entail a level of geographic distribution:  initiative proponents would have to obtain signatures from each U.S. Congressional District in Colorado at least equal to 70% of the total number of required signatures divided by the total number of Congressional Districts.
• The voting requirement for adopting a proposed amendment would be raised to 60% from the existing simple majority standard.

The 60% threshold would not apply to the repeal, in whole or in part, of initiatives previously adopted under the old initiative structure.  Instead those repeals would require only a simple majority vote, thereby preserving the same “playing field” for removing initiative measures adopted under the old structure. (Interestingly, though, it appears that the new geographic distribution standards in the petitioning process would apply to any such repeal efforts.)

It may be informative to contrast Colorado’s initiative structure with the requirements for amendment under the United States Constitution.  Any amendment to the U.S. Constitution has to be proposed by a two-thirds vote in each house of Congress, or by two-thirds of the state legislatures, and can be adopted only by ratification of three-fourths of the states (U.S. Const., Article V).  Apparently the founding fathers saw merit in imposing rigorous standards for constitutional amendment.