DENVER — Even if Tuesday’s vote tally shows that Coloradans have approved Referendum C, those voters may not have the last word on whether the state can keep and spend billions of dollars of revenues that otherwise would have to be refunded.
“I will guarantee you that if by some miracle this thing passes, it won’t be long before it’s tangled up in court,” predicted Independence Institute President Jon Caldara, one of the leading opponents of Referendum C and Referendum D, its companion bonding proposal.
The Independence Institute already has a Denver District Court lawsuit pending that challenges several aspects of the two ballot measures — including the ballot language itself and the Legislature’s “blue book” ballot analysis mailed to voters last month — although Caldara said today that if C goes down to defeat, some of those things will be moot.
Colorado Springs’ Douglas Bruce, the author of the Taxpayer’s Bill of Rights, said last summer he would file a lawsuit to overturn Referendum C if it passed.
Bruce contended the ballot measure would unconstitutionally revise a provision of his 1992 TABOR initiative that generally ties state government’s annual spending increases to population growth plus inflation.
Bruce argued that Referendum C, by setting a new base level for calculating those annual spending caps, seeks to amend the Colorado Constitution’s TABOR limits through a state law rather than with a voter-approved constitutional amendment.
Bruce has specifically objected to a provision in Referendum C that would set a new threshold for calculat-ing future TABOR limits by raising that threshold to reflect the highest annual revenue collections the state experiences during the coming five years.
However, Gov. Bill Owens and legislative leaders supporting Referendum C have maintained that TABOR itself allows government to go to the voters to seek a suspension of those revenue and spending limits.
Caldara, president of the Independence Institute, also has signaled he was laying the legal ground work for a possible challenge of the ballot measure if it passed.
Earlier this fall, Caldara sought unsuccessfully to get the courts to order changes in Referendum C’s ballot language or to halt the election on that measure because the ballot title stated the additional state spending would come “without raising taxes.”
That lawsuit had asked a Jefferson County District Court judge to direct that the ballot language be rewrit-ten to say: “Shall state taxes be increased to $3,700,000,000 over five years, followed by a permanent increase in the state’s Taxpayer’s Bill of Rights spending baseline?”
Referendum C backers argued that the measure included no new taxes or increases in current tax rates, but Referendum C foes said it would be a tax increase because it would eliminate TABOR refunds for at least the coming five years.
After the Independence Institute lawsuit was dismissed from the Jefferson District Court for jurisdictional reasons, the Independence Institute re-filed legal challenges to Referendums C and D in Denver District Court, where that lawsuit is still pending.
Also still alive, regardless of the outcome of today’s election, are campaign-finance complaints the “Vote Yes on C & D” organization filed against the Independence Institute, FreedomWorks and the Colorado Club for Growth earlier this year.
Those complaints, filed with the secretary of state’s office, alleged that those anti-C and D groups violated Colorado laws requiring organizations advocating the passage or defeat of a state ballot measure to disclose contributions and expenses.
Katy Atkinson, a spokeswoman for the Yes on C & D campaign, said today that her organization is awaiting an administrative law judge’s ruling on the complaint against the Independence Institute and that no hearings have been held yet on the complaints against Club for Growth or FreedomWorks.