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Ballot Measure 2Q: Destroying the Local Initiative Process


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Ballot measure 2Q has a number of problems, but the biggest problem by far is the huge level of uncertainty it unnecessarily inserts into the local initiative process.

Joe Mabel [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Initiatives are done because the citizens are not satisfied with a decision of the City Council or city manager, or because the citizens see an issue that has not been addressed. So initiatives are necessarily adversarial to the local power structure, at least to some extent. Therefore, it is CRITICAL that the rules be clear and unambiguous, and not subject to unnecessary discretion by the city staff or the City Council.

Up until now, the charter’s rules have been pretty clear and unambiguous, so the process has proceeded smoothly for local initiatives. And most people that have done these initiatives have not run into significant problems.

But under 2Q, the whole initiative timeline and decision making process for that timeline is up in the air. 2Q grants a huge amount of discretion to the city manager to set the timing of the process—discretion that is unreviewable by even the City Council. So any group attempting to use the initiative process has no reasonable way to determine its timeline. This could affect anyone, from a business group that want to reduce impact fees to an environmental group that wants to increase protection for endangered species on Open Space.

To make things worse, anyone protesting any of the city manager’s or city clerk’s decisions has to deal with yet more uncertainty, because the city manager gets to arbitrarily set the rules for the protest, again without even any possibility of review by the city council. Even the relationship between the state law and the city manager’s rules is unclear. And the timing for setting these rules is also uncertain.

The City Council should pull 2Q from the ballot, and ask the county clerk to not count the votes.  Since they are unlikely to do that, it’s important that we vote “NO on 2Q.”

Note on charter amendments: 2Q does NOT apply to charter amendments. The charter amendment process is regulated by state law, not by rules in the city’s own charter. Unfortunately, the last time one was done— the Three Term Limit—there was confusion created by the city staff applying the wrong state law. They applied the state law that regulates local initiatives, not charter amendments, to the format of the petition. No amount of legislation will fix such bad staff work, only a council that is willing to hold the city staff accountable, something that has been lacking in recent years.

The Schedule Under the Current Charter

Currently the schedule for doing local initiatives is clear:

  • At the front end, the city manager has 15 days to review the petition as to format, which has specific rules, and as to substance, to make sure that there are no obvious problems with implementation. (This is in section 38B.)
  • Then the signatures need to be certified by the clerk as to sufficiency by 120 days before the election in order to go on the next November ballot. (This is in section 41.)
  • The clerk has to review the initial submission of signatures within 10 days of submission, the Petitioners have 10 days to submit more, and the clerk has another 10 days to review those (section 39).

The petitioners take all this into account when deciding when to start.

Suppose that the petitioners think that it will take them, say, 2 months to gather enough signatures for the first submission, knowing that they can gather some more after that during the review and cure periods. So then they just work backwards—the election is early November, so 120 days before that is early July, then 30 days for signature review starts in early June, then 2 months to gather the first batch of signatures, so they need to start the signature gathering in early April.

The city manager gets 15 days to review the draft petition as to format and content, so this draft petition then needs to be submitted by the middle of March at the latest, or to take into account that it may have to be reviewed twice, the initial draft must be ready by the beginning of March.

The petitioners need to begin a few months before that to get organized, vet their ideas, write them up, get legal review, etc. This means starting late in the prior year in order to have plenty of time.

The Proposed Schedule Under 2Q

Under 2Q, there are no fixed schedules for either for review of the petition for format and substance, or for the signatures. And worse, there are not even fixed times as to when these schedules must be set.

The only apparent limit in 2Q is that the city manager must set them before the state law schedules on petition format review and signature review kick in, or at least that is what the language in 2Q that references state law (in Sections 38B and 39) appears to mean.

No doubt someone will claim a different interpretation regarding when the city manager can set the rules, but that means hiring lawyers and going to court to resolve any dispute, and for no good reason. This language should have clearly laid out the schedule, but it actually provides nothing, and just turns it all over to the city manager.

State law requires review of the draft petition as to format to be completed within 5 days, and does not require review as to substance. The current charter language requires review as to substance as well as form. That is much better than state law, because the petitioners get some feedback on substance, though they do not have to follow it. That is definitely worth the extra 10 days of review currently allowed.

But under 2Q, after the submission of the petition draft, but prior to the 5 days allowed for format review in state law, the city manager must set the schedule for review as to format and substance, or else presumably state law kicks in.

So the petitioners will not necessarily know until they submit their petition how long the review will take and when it will be complete. Thus they have no way to figure out their schedule ahead of time. And because the city manager’s decision is unreviewable by the Council (because it’s at the sole discretion of the city manager under Section 38B in 2Q), there is no recourse if the city manager sets the time to complete the review at 2 weeks, or 3 months, or whatever. And even if the city manager sets the time just before the petition is submitted, this does not improve matters much.

This situation is made worse by the uncertainty on the timeline for signature review. State law allows 30 days for that. So under 2Q, presumably, the city manager must set the time for signature review before that 30-day timeline ends. But that means that the city manager (at his/her sole discretion) could conceivably wait until 29 days have passed before even deciding how long the signature review would take and when it would end. And, even if the city manager sets the timeline before the signatures are submitted, the city manager could set it at longer than the 30 days allowed in state law, like 60 or 90 days (Section 39).

Worse, 2Q throws out the current requirement that signatures have to be certified by 120 days before the election (Section 41). All it says is that the initiative cannot go on the ballot unless the election is more than 56 days after “final council action.” And the council is allowed two 60-day review periods prior to that action. So, unless the city manager decides differently, the petitioners must have their signatures certified at least 176 days before the election on which they want to get on the ballot (60+60+56=176).

That means that, even if the city manager is reasonable and says the signature review will only take 30 days, the petitioners still have to deliver their full number of signatures 206 days at least before the election. That’s in the middle of April!

And if the city manager allows 60 days for signature review (remember the city manager can act totally arbitrarily), then signatures will be due in the middle of March!

In fact, the only timeline that has any certainty is the 180-day rule (section 39) that says signatures must be dated no more than 180 days “prior to the date of filing.” But since the period for review of the petition as to format and substance, and the time allotted for signature certification, are both indeterminate until the city manager decides (and that apparently can be after the petition, or signatures, are submitted), there is no certainly as to when to actually start work in order to make the next November’s ballot.

The Protest Process

Ballot measure 2Q says the rules are what is in “Colorado law and rules adopted by the city manager” (Section 39). So if the petitioners or a third party don’t agree with the clerk’s determination about some signatures, they don’t know what the rules are for protesting that until the city manager comes up with his/her rules, and there is no set date or timing for that, and these can be totally arbitrary. Also, because under 2Q the clerk has access to the real signatures that the petitioners or other parties don’t have (see Section 39’s one sided access provision), the process is unbalanced, and effectively makes protests unworkable. And again, there is no appeal even to the City Council.

Conclusion

I could go on and on coming up with scenarios, but the point is that 2Q makes everything highly uncertain and arbitrary: The petitioners can have NEVER have certainty that they will make it through the process in time to make the next election, no matter when they start, and they have no certainty as to how to protest the city’s decisions.

I repeat what I said at the beginning—the initiative process is in place to provide a path for the citizens to address issues that the Council and the city staff are not addressing. So for the initiative process to be fair and useful, it must be clear, certain, and not unduly burdensome.

The current process works pretty darn well—just ask anyone who has done a local initiative. But 2Q is exactly the opposite—it is unclear, it creates huge uncertainty, and imposes a totally unnecessary burden on the citizens of Boulder.

Ballot measure 2Q should be pulled from the ballot, and the county clerk instructed to not count the ballots. Then it should be done over, and this time done right, with input from people that know how this process works.

Addendum

There are other problems with 2Q:

  • In section 29, 2Q prescribes what happens if a candidate withdraws before the election. But because that is so poorly written, if a candidate withdraws on Day 66 before the election, what happens is left indeterminate. How this obvious gap was missed is beyond me.
  • In section 39, the number of signatures is still based on 5% of the number of “registered electors,” which, as the Secretary of State’s office acknowledges, far exceeds the number of real voters. This is a result of the federal laws that make it very difficult to remove names from the list.

Boulder’s population is somewhat over 106,000, but there are over 14,000 out of state CU students that are counted in that population. Yet, magically, the number of “registered voters” is well over 92,000.

The signature requirement should be tied to something real, like the number that voted in the last presidential election, the last secretary of state election (like the state does), or something else related to a real number.

  • In section 41, 2Q eliminates the 15% petition—this makes it impossible for the citizens to correct an egregious mistake by the council in a timely fashion.
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