Ballot Measures: the Scope of Authority in Statutory Counties
| Publication year | 2023 |
| Pages | 22 |
FEATURE | GOVERNMENT COUNSEL
BY GAVIN WOLNY
Ballot measures in statutory counties are permitted in fewer contexts than at the state or municipal level. This article outlines where county measures are authorized, where they are not, and where the law remains unclear.
Each year, voters in Colorado have the opportunity to decide ballot measures—sometimes pages of them.[1]These measures involve a range of subjects and can arise at nearly every rung of government, including at the county level.[2]Though often routine, county ballot measures have attracted their fair share of controversy[3] and have occasionally been the subject of lawsuits.[4]Potential litigation aside, county ballot measures still require complicated legal work, from drafting the question or the ballot notice to advising on signature review or ballot certification. Yet before all that comes the basic and crucial task of determining whether a p articular ballot measure is authorized or required in the first place. The authority for county measures is subject to unique parameters and is more limited than the authority for statewide and municipal measures.
This article will aid practitioners who advise county officials and other stakeholders in local policymaking by analyzing when ballot measures in statutory counties are required or authorized and when they are not. First it reviews the different forms of ballot measures and summarizes the nature of statutory counties. It then considers the power of county voters to initiate ballot measures before addressing the more complex question of county commissioners' authority to refer ballot measures.
What Kinds of Ballot Measures Are There?
At the most basic level, ballot measures can be divided into referred measures and measures by citizen petition.[5] Referred measures are those placed on the ballot by the General Assembly or the governing body of a political subdivision—for counties, this is the board of county commissioners.[6] Measures by citizen petition, on the other hand, originate with a petition signed by a set percentage of voters. These measures by petition include both initiated measures, which propose new legislation, and referenda, which seek to repeal existing legislation.[7]
Both referred measures and measures by petition can be further divided into ballot issues and ballot questions. A "ballot issue"ﾝ is defined as a measure required by the Taxpayer Bill of Rights (TABOR), the Colorado constitutional provision limiting state and local government power over taxes and debt.[8] Ballot issues are subject to specific requirements, including rules on formatting, phrasing, pre-election notices, and financial estimates. A "ballot question,"ﾝ by contrast, is simply any ballot measure that is not a ballot issue.[9]
The authority for county measures is subject to unique parameters and is more limited than the authority for statewide and municipal measures.
Accordingly, all ballot measures fall into one of four categories:
• referred ballot issues
• referred ballot questions
• ballot issues by citizen petitions
• ballot questions by citizen petitions.
These four categories not only matter for substantive reasons but also affect how measures appear on the ballot.[10] All measures from a given political subdivision are printed together, but the type of measure dictates its place within that group.[11] Referred measures precede all measures by petition, and within each of these subsets, ballot issues precede ballot questions.[12] At the county level, for example, referred measures (issues then questions) are numbered in the "1"ﾝ sequence (e.g., 1A or 1C) and appear first.[13]They are followed by measures by petition, which are numbered in the "200"ﾝ sequence (e.g., 201 or 204).[14]
Statutory Counties and the "Statutory Principle"ﾝ
In addition to the type of measure, the law governing county ballot measures depends on the type of county in which the measure arose. Colorado recognizes three types of county-level governments:
• statutory counties
• home rule counties
• consolidated cities and counties.
Of Colorado's 64 counties, 60 are statutory counties, two are home rule counties (Weld and Pitkin), and two are consolidated cities and counties (Denver and Broomfield).[15] As their disproportionate number might suggest, statutory counties are the original county type in Colorado.[16] Perhaps for this reason, the modifier "statutory"ﾝ is generally not found in statutes or in the constitution but instead is used by county officials and courts to distinguish this default class of counties from the two newer forms of county government.[17] Accordingly, unless otherwise indicated, this article uses the term "county"ﾝ to refer to statutory counties alone.
On a range of subjects, statutory counties have less leeway in how they operate than their home rule and consolidated counterparts. This more constrained nature stems in part from what this article refers to as the "statutory principle,"ﾝ which provides that counties possess only those powers expressly conferred by statute or the state constitution and the implicit authority reasonably necessary to carry out these express powers.[18] Among other things, the statutory principle helps to define the range of ballot measures permitted at the county level.[19]
County Measures by Petition
Ballot measures by citizen petition have a long history in Colorado. In fact, section 1 of article V of the Colorado Constitution (section 1) has given voters the right to initiate statewide and municipal legislation for over a century.[20] At the county level, measures by petition have been available in certain contexts for decades.[21]
County ballot measures are authorized in a number of statutes and provisions of the state constitution. They include measures to propose a county sales and use tax,[22] alter the number of county commissioners,[23] modify the way commissioners are elected,[24] transform from a statutory to a home rule county,[25] and prohibit recreational marijuana establishments.[26] However, despite this range of possible measures—and in stark contrast to the municipal and state level—there is no general right to initiate county legislation.[27] Rather, county ballot measures by citizen petition are only permitted in those specific instances where they are expressly authorized by law.[28]
In Dellinger v. Board of County Commissioners, the Colorado Court of Appeals directly considered the question of the authority for county ballot measures by reviewing whether a citizen measure to limit new development in Teller County was proper when no specific statute authorized a citizen-initiated ballot measure on the subject.[29] The plaintiffs pointed to section 1, which gives state and city voters a general right to initiate legislation.[30] They argued that because the role of county government had been expanded in modern times, section 1 should be construed to guarantee county voters the same general right.[31]
This more constrained nature stems in part from what this article refers to as the "˜statutory principle,' which provides that counties possess only those powers expressly conferred by statute or the state constitution and the implicit authority reasonably necessary to carry out these express powers.
The court disagreed, noting that section 1 says nothing about granting county voters the general power to initiate legislation.[32] The court also relied on the statutory principle, reasoning that such authority cannot be assumed where it has not been expressly granted by state law.[33]With this background, the court held that the initiative power is not generally reserved to county voters but rather is granted by the General Assembly or the state constitution in specific instances.[34]
The Tenth Circuit considered Dellinger and found that a contrary holding from the Colorado Supreme Court is unlikely.[35] That same court also held that the asymmetric division of the initiative power—with expansive rights at the city or home rule county level and limited rights at the statutory county level—presents no problem under the Equal Protection Clause.[36]
For attorneys considering the issue, Dellinger offers a clear rule on when county initiatives are permitted: a measure by citizen petition is only allowed where there is express statutory or constitutional authorization for the specific measure.
County Referred Measures
The power of a county government to refer ballot measures is both more expansive and more complex than its citizens' authority to bring initiated measures. This section seeks to clarify the issue by outlining a continuum of potential referred measures, beginning with the simple case of expressly authorized measures and moving on to those measures arising from the unsettled limits of a county's implied power.
Express...
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