Kerr v. Polis: Does the Colorado Taxpayer Bill of Rights Violate the Republican Form of Government?, 0721 COBJ, Vol. 50, No. 7 Pg. 14

PositionVol. 50, 7 [Page 14]

50 Colo.Law. 14

Kerr v. Polis: Does the Colorado Taxpayer Bill of Rights Violate the Republican Form of Government?

Vol. 50, No. 7 [Page 14]

Colorado Lawyer

July, 2021



The Guarantee Clause of the US Constitution promises that the federal government "shall guarantee to every State in this Union a Republican Form of Government."1 But what, exactly, is a republican form of government and what does it mean for the United States to guarantee it?

Both those questions are central to the merits in Kerr v. Polis,2 along-running case initiated in May 2011 by a coalition of Colorado interests, led by then State Representative Andy Kerr, in an attempt to invalidate the Colorado Taxpayer Bill of Rights (TABOR).3 In illustration of how slowly the wheels of justice can turn, the case has been proceeding for 10 years but has not yet reached the merits. To date, it has generated two district court opinions,4 three substantive Tenth Circuit opinions,5 two Tenth Circuit decisions on en banc petitions,6 and a US Supreme Court order,7 all limited to questions of jurisdiction, standing, and justiciability.

The latest opinion from the Tenth Circuit upheld the standing of a subset of the current plaintiffs and remanded the case back to the district court for proceedings on the merits. However, in October 2020, that opinion was vacated when the Tenth Circuit granted a petition for rehearing en banc and directed the parties to brief specific standing questions.8 So, it is still not clear if the case will ever reach the merits.

Nevertheless, the merits questions are worth considering, both as to the meaning of "a Republican Form of Government" and its application to TABOR. The latter was added to the Colorado Constitution by voter initiative in 1992, the result of work by a committed group of Colorado citizens who sought to check the growth of government by limiting the government's taxing and spending power.9 At its core, TABOR prevents the state legislature, local governments, and school boards from increasing tax rates or enacting new taxes without voter approval.10 Since its enactment, many politicians have chafed under its restrictions, and the government has adopted numerous methods to avoid its application.11 The plaintiffs in Kerr v. Polishave taken a more direct route of attack: they argue TABOR violates the Guarantee Clause by removing the legislature's taxing power and placing it in the hands of the people. According to plaintiffs, the republican form of government prevents the direct exercise of political power by the people and requires all such power— including the taxing power—to reside in the hands of elected representatives. Because the US Constitution requires the United States to guarantee a republican form of government, plaintiffs are asking the federal courts to declare TABOR unconstitutional.12

The meaning and application of the Guarantee Clause has been litigated before, but in most circumstances courts have preferred to dismiss such claims on jurisdictional grounds, holding them to be non-justiciable political questions. In Luther v. Borden, a case arising out of the 1840s Dorr's Rebellion in Rhode Island, the Court refused to determine which of two rival governments was legitimate.13 It held the case was non-justiciable because the question at issue was political and reserved to Congress:

Under this article of the Constitution [the Guarantee Clause], rests with Congress to decide what government is the established one in a State. For as the United States guarantee [s] to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.14

In Pacific States Telephone and Telegraph Co. v. Oregon, a case like Kerr v. Polis that challenged the constitutionality of enacting state law through initiative or referendum, the Court refused to reach the merits because it considered the matter a political question outside its jurisdiction.15 Notably, the Court reached that decision in part because it looked at the logical consequence of any finding that the Guarantee Clause had been violated, namely, that all laws enacted and actions taken by the state government since the adoption of the initiative and referendum process, not just those laws created by initiative or referendum, must be deemed invalid because the state government itself would be invalid.16 In 1946, the Court cited Pacific States for the categorical proposition that "[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts."17

In more recent cases, the Supreme Court has signaled a retraction of this categorical approach and left open the possibility that the justifiability of Guarantee Clause claims should be decided on a case-by-case basis. In New York v. United States, for example, the Court observed that the contemporary jurisprudence "has suggested that perhaps not all claims under the Guarantee Clause present non justiciable political questions."18 The Tenth Circuit relied in part on this language in the first appeal in the Kerr v. Polis case to reject defendant's argument that the case should be dismissed as anon-justiciable political question, instead analyzing the justiciability question and upholding its jurisdiction under the six-factor test articulated in Baker v. Can.19 Whether the Tenth Circuit resolved this question correctly remains an open question, as that aspect of the case has not yet been addressed by the Supreme Court.

If Kerr v. Polis ever does see a merits determination, what might be the result? Notwithstanding the majority of Supreme...

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