On Friday, May 15, 2020, Colorado Governor Jared Polis issued Executive Order D 2020 065, temporarily suspending certain statutory requirements governing the distribution, signing, and certification of ballot measures for the November 2020 election. The Order would, among other things, permit campaigns for ballot measures that have titles set or pending before the Colorado Supreme Court to collect signatures electronically by e-mail or by mail, rather than requiring a petition circulator to obtain signatures in person. It would also give campaigns additional time to collect and submit the required number of signatures. The Order directed Colorado’s Secretary of State, Jena Griswold, to issue temporary rules to accommodate these changes. A coalition of business organizations immediately challenged the Order in court, questioning whether the Governor has the power to unilaterally alter the state’s election laws.
Colorado’s constitution provides for citizen-initiated legislation and constitutional amendments through a statewide ballot measure process. Once a ballot measure has been submitted and reviewed by state legislative council staff, the measure’s proponents submit the draft ballot measure to the Colorado Secretary of State. The Title Board then conducts a hearing to determine whether the measure satisfies certain constitutional requirements, including being written in plain, easily understandable language, and pertaining to a single subject. Once the title for the ballot measure is set by the Title Board, the measure’s proponents must collect a statutorily prescribed number of signatures—equal to five percent of the total number of votes cast for the office of Colorado Secretary of State in the preceding general election—in order to get the measure on the ballot.
A measure’s proponents must obtain the required number of signatures within six months after the ballot title is set and at least three months prior to the election. Under existing state law, these signatures must be obtained in person and certified by a notary. The spring and summer months are considered a critical window for signature gathering due the timing of the election cycles, the prevalence of large outdoor events, and the uptick in political rallies leading up to the election. Several campaigns have pointed to the state’s COVID-19 response, including the Governor’s “Stay at Home Order,” “Safer at Home Order,” and social distancing and business operation guidelines, as likely fatal to proposed ballot measures for November 2020. Several measures have already been withdrawn. The Order provided hope to some remaining campaigns that signature gathering would still be possible.
Colorado Concern, supported by a large group of business organizations from all over the state, filed a complaint the following Monday, challenging the enforceability of the Order. The complaint alleges that the Governor acted outside of the authority granted to his office by the Colorado Disaster Emergency Act, and cannot by executive order unilaterally relax or revise the ballot measure process established by the state constitution and elections statutes. The complaint seeks expedited review, declaratory judgment, and injunctive relief. Arguments were held via video hearing on Friday, May 22, 2020, and a decision is expected within the next few days.
As of the date of publication, the court has not yet rendered a decision, but this post will be updated as additional information becomes available. Courts in similar lawsuits in Arizona and Ohio have struck down orders purporting to revise constitutional and statutory ballot requirements.