Topics
Code Section
Colorado > Colorado Electoral Code > Initiative And Referendum

1-40-105. Filing procedure – review and comment meeting – amendments – filing with secretary of state

Statute

(1) The original typewritten draft of every initiative petition for a proposed law or amendment to the state constitution to be enacted by the people, before it is signed by any elector, shall be submitted by the proponents of the petition to the directors of the legislative council and the office of legislative legal services for review and comment. Proponents are encouraged to write such drafts in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader. Upon request, any agency in the executive department shall assist in reviewing and preparing comments on the petition. No later than two weeks after the date of submission of the original draft, unless it is withdrawn by the proponents, the directors of the legislative council and the office of legislative legal services, or their designees, shall render their comments to the proponents of the petition concerning the format or contents of the petition at a meeting open to the public. Where appropriate, such comments shall also contain suggested editorial changes to promote compliance with the plain language provisions of this section. Except with the permission of the proponents, the comments shall not be disclosed to any person other than the proponents prior to the public meeting with the proponents of the petition.

Editor’s note: This version of subsection (1) is effective until March 26, 2016.

(1) The original typewritten draft of every initiative petition for a proposed law or amendment to the state constitution to be enacted by the people, before it is signed by any elector, shall be submitted by the proponents of the petition to the directors of the legislative council and the office of legislative legal services for review and comment. Proponents are encouraged to write such drafts in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning that are understandable to the average reader. Upon request, any agency in the executive department shall assist in reviewing and preparing comments on the petition. No later than two weeks after the date of submission of the original draft, unless it is withdrawn by the proponents, the directors of the legislative council and the office of legislative legal services, or their designees, shall render their comments to the proponents of the petition concerning the format or contents of the petition at a review and comment meeting that is open to the public. Where appropriate, such comments shall also contain suggested editorial changes to promote compliance with the plain language provisions of this section. Except with the permission of the proponents, the comments shall not be disclosed to any person other than the proponents prior to the review and comment meeting.

Editor’s note: This version of subsection (1) is effective March 26, 2016.

(1.5) Both designated representatives of the proponents must appear at all review and comment meetings. If either designated representative fails to attend a meeting, the measure is considered withdrawn by the proponents. If one of the two designated representatives fails to attend the review and comment meeting, the petition is deemed to be automatically resubmitted to the directors of the legislative council and the office of legislative legal services for review and comment, unless the designated representative present objects to the automatic resubmission. No later than five business days after the resubmission, the directors shall conduct a review and comment meeting in accordance with the requirements of this section. If both designated representatives fail to attend the review and comment meeting or if the designated representative present objects to the automatic resubmission, the proponents may thereafter resubmit the initiative petition in accordance with subsection (1) of this section.

Editor’s note: Subsection (1.5) is effective March 26, 2016.

(2) After the public meeting but before submission to the secretary of state for title setting, the proponents may amend the petition in response to some or all of the comments of the directors of the legislative council and the office of legislative legal services, or their designees. If any substantial amendment is made to the petition, other than an amendment in direct response to the comments of the directors of the legislative council and the office of legislative legal services, the amended petition shall be resubmitted to the directors for comment in accordance with subsection (1) of this section prior to submittal to the secretary of state as provided in subsection (4) of this section. If the directors have no additional comments concerning the amended petition, they may so notify the proponents in writing, and, in such case, a hearing on the amended petition pursuant to subsection (1) of this section is not required.

Editor’s note: This version of subsection (2) is effective until March 26, 2016.

(2) After the review and comment meeting but before submission to the secretary of state for title setting, the proponents may amend the petition in response to some or all of the comments of the directors of the legislative council and the office of legislative legal services, or their designees. If any substantial amendment is made to the petition, other than an amendment in direct response to the comments of the directors of the legislative council and the office of legislative legal services, the amended petition must be resubmitted to the directors for comment in accordance with subsection (1) of this section prior to submittal to the secretary of state as provided in subsection (4) of this section. If the directors have no additional comments concerning the amended petition, they may so notify the proponents in writing, and, in such case, a review and comment meeting on the amended petition pursuant to subsection (1) of this section is not required.

Editor’s note: This version of subsection (2) is effective March 26, 2016.

(3) To the extent possible, drafts shall be worded with simplicity and clarity and so that the effect of the measure will not be misleading or likely to cause confusion among voters. The draft shall not present the issue to be decided in such manner that a vote for the measure would be a vote against the proposition or viewpoint that the voter believes that he or she is casting a vote for or, conversely, that a vote against the measure would be a vote for a proposition or viewpoint that the voter is against.

(4) After the conference provided in subsections (1) and (2) of this section, a copy of the original typewritten draft submitted to the directors of the legislative council and the office of legislative legal services, a copy of the amended draft with changes highlighted or otherwise indicated, if any amendments were made following the last conference conducted pursuant to subsections (1) and (2) of this section, and an original final draft which gives the final language for printing shall be submitted to the secretary of state without any title, submission clause, or ballot title providing the designation by which the voters shall express their choice for or against the proposed law or constitutional amendment.

Editor’s note: This version of subsection (4) is effective until March 26, 2016.

(4) After the review and comment meeting provided in subsections (1) and (2) of this section, a copy of the original typewritten draft submitted to the directors of the legislative council and the office of legislative legal services; a copy of the amended draft with changes highlighted or otherwise indicated, if any amendments were made following the last review and comment meeting conducted pursuant to subsections (1) and (2) of this section; and an original final draft that gives the final language for printing shall be submitted to the secretary of state without any title, submission clause, or ballot title providing the designation by which the voters shall express their choice for or against the proposed law or constitutional amendment.

Editor’s note: This version of subsection (4) is effective March 26, 2016.

 

 

Source: L. 93: Entire article amended with relocations, p. 677, § 1, effective May 4; (1) amended, p. 994, § 1, effective June 2.L. 2000: (4) amended, p. 1622, § 4, effective August 2.L. 2015: (1), (2), and (4) amended and (1.5) added, (HB 15-1057), ch. 198, p. 674, § 2, effective March 26, 2016.

Editor’s note: (1) This section is similar to former § 1-40-101 as it existed prior to 1993, and the former § 1-40-105 was relocated to § 1-40-109.

(2) Section 9 of chapter 198 (HB 15-1057), Session Laws of Colorado 2015, provides that changes to this section by the act apply to initiatives that are submitted for review and comment on or after March 26, 2016.

Cross references: For the general assembly, powers, and initiative and referendum reserved to the people, see also § 1 of art. V, Colo. Const.; for recall from office, see art. XXI, Colo. Const.
 
ANNOTATION
 
I. General Consideration.
II. People’s Right to Enact Own Legislation.
III. Review and Comment by Legislative Agencies.
 
I.GENERAL CONSIDERATION.

Law reviews. For article, “Popular Law-Making in Colorado”, see 26 Rocky Mt. L. Rev. 439 (1954).

Annotator’s note. (1) The following annotations include cases decided under former provisions similar to this section.

(2) For additional cases concerning the initiative and referendum power, see the annotations under § 1 of article V of the state constitution.

The purpose of the initiative and referendum embodied in the constitution was to expeditiously permit the free exercise of legislative powers by the people, and the procedural statutes enacted in connection therewith were adopted to facilitate the execution of the law. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938); Matter of Title, Ballot Title S. Clause, 872 P.2d 689 (Colo. 1994).

Provisions relating to the initiative should be liberally construed to permit, if possible, the exercise by the electors of this most important privilege. Brownlow v. Wunch, 103 Colo. 120, 83 P.2d 775 (1938); Say v. Baker, 137 Colo. 155, 322 P.2d 317 (1958).

Citizen held not to have an “interest in the matter in litigation” in mandamus proceedings. Where on protest the secretary of state refused to file or refile a tendered petition to initiate a measure under the initiative and referendum act, and mandamus is brought to compel him to file, a citizen who feels he will be injured by the measure has not such an “interest in the matter in litigation” or “in the success of either of the parties to the action”, as gives him the right to intervene in the mandamus proceeding. Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938).
 
II.PEOPLE’S RIGHT TO ENACT OWN LEGISLATION.

People have reserved to themselves right of initiative in § 1 of art. V, Colo. Const. In re Second Initiated Constitutional Amendment, 200 Colo. 141, 613 P.2d 867 (1980).

No discretion rests with administrative officials to pass upon the validity of an act proposed by the people. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

The people then undertake to legislate for themselves. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

And the initiative and referendum laws, where invoked by the people, supplant the city council or representative body. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

And in the exercise of their right to vote upon such proposal, wisely adopt or reject it. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

And the town or city clerk is required to perform certain statutory duties in connection therewith, for failure of which he is subject to penalties. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

Because it is not within the discretion of the clerk and city council to question the acts of their principal, the people. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

The people express their sanction and approval of the ordinance by their vote, and its enforcement is attempted by one whose rights are affected, then the courts are open to pass upon the question of its validity. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

But a proposed ordinance is clothed with the presumption of validity and its constitutionality will not be considered by the courts by means of a hypothetical question, but only after enactment. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

And neither the supreme court nor any other court may be called upon to construe or pass upon a legislative act until it has been adopted. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

The only exception to this rule is the constitutional provision authorizing the general assembly to propound interrogatories to the supreme court upon important questions upon solemn occasions (§ 3 of art. VI, Colo. Const.). City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).

Therefore, it is clear from the provisions of the initiative and referendum act and the penalties provided thereby that the legislature has been careful and diligent to safeguard the primary right of the people to propose and enact their own legislation. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956).
 
III.REVIEW AND COMMENT BY LEGISLATIVE AGENCIES.

Any proposed initiative must be submitted to the legislative research office and the legislative drafting office before it is submitted to the initiative title-setting board regardless of whether it is substantially similar to a previously proposed initiative. Without such submittal, the board lacks jurisdiction to set a title. In re Title Pertaining to “Tax Reform”, 797 P.2d 1283 (Colo. 1990); In re Amendment Concerning Limited Gaming in the Town of Idaho Springs, 830 P.2d 963 (Colo. 1992).

But where legislative service agencies indicate that they have no additional comments beyond those made on first version of essentially the same proposal, it is not necessary to convene a second review and comment hearing. In re Second Proposed Initiative Concerning Uninterrupted Serv. by Pers. Employees, 613 P.2d 867 (Colo. 1980).

And where one feature of a proposal is not specifically pointed out by legislative service agencies, but is included in titles and summary, the measure needs not be remanded. Matter of Proposed Initiative for an Amendment Entitled “W.A.T.E.R.”, 875 P.2d 861 (Colo. 1994).

No resubmission of the amended proposed initiative was required by subsection (2) since the amendments made by the proponents to the original proposed initiative were made in response to the comments of the directors of the legislative council and the office of legislative legal services. Matter of Proposed Initiative 1997-98 No. 10, 943 P.2d 897 (Colo. 1997).

Where changes in final version of initiative submitted to secretary of state were in direct response to substantive questions and comments raised by directors of the legislative council and the office of legislative legal services, the proponents of the initiative were not required to resubmit the initiative to the directors. In re Ballot Title 1999-2000 No. 256, 12 P.3d 246 (Colo. 2000).

While particular change was not made in direct response to the directors’ questions, court concludes that, in the context of the amendment as a whole, it was a clarification and not a substantive change. Accordingly, change did not require resubmission to the directors. In re Ballot Title 1999-2000 No. 256, 12 P.3d 246 (Colo. 2000).

Change made in response to director’s comment about a suggested grammatical change and comment regarding the overlap of terms used in the proposed initiative did not require proponents to resubmit initiative. In re Ballot Title 2007-2008 No. 57, 185 P.3d 142 (Colo. 2008).

Proponents’ failure to indicate changes as specified in subsection (4) justified board’s refusal to set a title. Matter of Proposed Initiative 1997-98 No. 109, 962 P.2d 252 (Colo. 1998).
Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. C.R.S. § 1-8.3-102.

Definition [Ballot]

(a) A federal write-in absentee ballot;

(b) A ballot specifically prepared or distributed for use by a covered voter in accordance with this article; or

(c) A ballot cast by a covered voter in accordance with this article.

(2) “Covered voter” means:

(a) A uniformed-service voter defined in paragraph (a) of subsection (9) of this section who is a resident of this state but who is absent from this state by reason of active duty and who otherwise satisfies this state’s voter eligibility requirements;

(b) An overseas voter who, before leaving the United States, was last eligible to vote in this state and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements;

(c) An overseas voter who, before leaving the United States, would have been last eligible to vote in this state had the voter then been of voting age and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements; or

(d) An overseas voter who was born outside the United States, is not described in paragraph (b) or (c) of this subsection (2), and, except for a state residency requirement, otherwise satisfies this state’s voter eligibility requirements if the last place where a parent, legal guardian, spouse, or civil union partner of the voter was, or under this article would have been, eligible to vote before leaving the United States is within this state.

C.R.S. § 1-8.3-102.

Definition [Person]

Any natural person, partnership, committee, association, corporation, labor organization, political party, or other organization or group of persons. Section 2(11) of article XXVIII of the state constitution.

Definition [Secretary]

The Colorado secretary of state. C.R.S. § 1-1.5-102.

Cases

Colorado Cases

Out-of-State Cases

Case State: colorado

Case Name: Brownlow v. Wunsch

Citation: 103 Colo. 120, 83 P.2d 775 (1938)

Year: 1938

Case URL: https://perma.cc/M4QQ-2T6L

Case Summary:

  1. Colo. Stat. Ann. ch. 86, § 6 (1935), states that, in case an initiative petition be declared insufficient in form or number of signatures of qualified electors, it may be withdrawn by a majority in number of the persons representing the signers of such petition, and may, within 15 days thereafter, be amended or additional names signed thereto as in the first instance, and refiled as an original petition. The amended petition here was timely refiled under § 6. The six-month limitation for the original petition did not apply.
  2. § 6 and Colo. Const. art. V, § 1 intended that the identity of the affiant as being a qualified elector might be established prima facie by a recital to that effect in the affidavit. It is certain under the express words of the Constitution that a petition so verified shall be prima facie evidence that the signatures thereon are genuine and the persons signing the same are electors.
  3. To the extent that the fraud charged in a protest of an initiative petition is premised on advertisement for circulators and the latter being paid for names procured, it is sufficient to say that this practice is not prohibited by either the Constitution or statutes.

Case State: colorado

Case Name: Matter of Title, Ballot Title S. Clause

Citation: 875 P.2d 207 (Colo. 1994)

Year: 1994

Case URL: https://www.ravellaw.com/opinions/06b43747f627891c8c41e26104104500

Case Summary: We conclude that the title, ballot title and submission clause, and summary adopted by the Board clearly, fairly, and accurately express the primary features and the true intention and purpose behind the "Initiative for a Bright Future." We also hold that the title, ballot title and submission clause, and summary need not include a reference to the fact that the initiative may be determined to conflict with a separate proposed initiative selected for the same election. We affirm the title, ballot title and submission clause, and summary adopted by the Board.

Case State: colorado

Case Name: In re Second Initiated Constitutional Amendment

Citation: 613 P.2d 867 (1980)

Year: 1980

Case URL: https://www.ravellaw.com/opinions/c09f8e8cd5a2ec29eef8a16d3c41ab3b?query=613%20P[...]

Case Summary:

  1. The people have reserved to themselves the right of initiative in Article V, Section 1, of the Colorado Constitution, and the duties of the Board with respect to initiatives are in sections 1-40-101, et seq., C.R.S. 1973 .
  2. The initiated measures' title as set by the Board must be proper and fair, and must correctly and fairly express the true intent and meaning of the proposed measure. The ballot title and submission clause must be brief, and the summary must be a fair, concise, true and impartial statement of the intent of the proposed measure. The summary may not be an argument for or against the measure, nor can it be likely to create prejudice for or against the measure. The summary is to include an estimate of any fiscal impact upon the state or any of its political subdivisions with an explanation thereof
  3. We agree that there has been substantial compliance with the statutory prerequisites because the proponents are not required to accept  any comments made by the directors and because the directors indicated they had no further comments.
  4. Our review of the record confirms that  the language chosen by the Board reflects the true meaning and intent of the initiative.
  5. The Board correctly found that the fiscal impact of the proposed amendment cannot be determined because of the many variables involved.
  6. We affirm the Board's denial of the motion for rehearing on each of the Petitioners' contentions.

Case State: colorado

Case Name: City of Rocky Ford v. Brown

Citation: 293 P.2d 974 (Colo. 1956)

Year: 1956

Case URL: https://www.ravellaw.com/opinions/bbcc15cb8984dcef5befc0d64f5485dc

Case Summary:

  1. Neither this, nor any other court, may be called upon to construe or pass upon a legislative act until it has been adopted. The only exception to this rule is the constitutional provision authorizing the legislature to propound interrogatories to the supreme court upon important questions upon solemn occasions.
  2. Whenever the provisions of the initiative and referendum laws are applied as here, to local and municipal affairs, the city or town clerk shall perform the duties specified, and upon failure to perform these mandatory duties, or shall refuse to submit any petition in the form presented for submission at any election, is subjected to the penal provisions of the statute providing for a fine and imprisonment. C.R.S. '53, 70-1-19.
  3. No discretion rests with administrative officials to pass upon the validity of an act proposed by the people.The people in the exercise of their right to vote upon such proposal, wisely adopt or reject it. If they express their sanction and approval of the ordinance by their vote, and its enforcement is attempted by one whose rights are affected, then the courts are open to pass upon the question of its validity.
  4. The separation of governmental powers must be held inviolate, therefore the trial court or this court may not intrude upon the legislative powers through an advisory opinion.

Case State: colorado

Case Name: In re Amendment Concerning Limited Gaming in the Town of Idaho Springs

Citation: 830 P.2d 963 (Colo. 1992)

Year: 1992

Case URL: https://www.ravellaw.com/opinions/e13e03b40686a26d5edb5e4cf7511fbd

Case Summary:

  1. We conclude that the Board lacked authority to fix the title, ballot title and submission clause and summary to the proposal in the circumstances of this case and that those documents are impermissibly misleading.
  2. Several basic principles govern our review of final determinations of the Board. This court's primary function is to ensure that the documents prepared by the Board fairly, accurately and concisely reflect the central features of the initiated measure.
  3. Article V, section 1(5), of the Colorado Constitution and section 1-40-101(1) require that a proposed initiative be presented to the legislative offices for comment and discussion at a public meeting prior to the fixing of any ballot title.
  4. We will not interfere with the Board's discretion in choosing language if that choice clearly and concisely reflects the central features of a proposed initiative.
  5. The proposed amendment is intended to have only limited geographical application. Because the term "statewide" appearing in the title, ballot title and submission clause and summary does not suggest any geographical limitation on the effect of the proposed amendment, such term can only mislead voters who rely on those documents in determining whether to adopt or reject the proposal.

Case State: colorado

Case Name: In re Second Proposed Initiative Concerning Uninterrupted Serv. by Pub. Employees

Citation: 613 P.2d 867 (Colo. 1980)

Year: 1980

Case URL: https://www.ravellaw.com/opinions/c09f8e8cd5a2ec29eef8a16d3c41ab3b?query=613%20P[...]

Case Summary:

  1. We affirm the Board's denial of the motion for rehearing on each of the Petitioners' contentions.
  2. The people have reserved to themselves the right of initiative in Article V, Section 1, of the Colorado Constitution, and the duties of the Board with respect to initiatives are in sections 1-40-101, et seq., C.R.S. 1973.
  3. Here, the hearing was begun and substantially completed on the statutorily required date. A continuance to the next day in order to comply fully with other statutory requirements does not frustrate the purpose of the statute. We believe that to invalidate this initiative on the basis of such minimal delay would be contrary to the spirit of the Colorado Constitution providing the right of initiative. The Colorado Constitution, as well as the statutes which implement it, must be liberally construed so as not to unduly limit or curtail the initiative rights of the people.
  4. Because we have a duty to make all legitimate presumptions in favor of the Board's action, we conclude that the titles and submission clause set by the Board should not be disturbed by this Court.
  5. Our review of the record confirms that  the language chosen by the Board reflects the true meaning and intent of the initiative.

Case State: colorado

Case Name: Matter of Proposed Initiative for an Amendment Entitled “W.A.T.E.R.”

Citation: 875 P.2d 861 (Colo. 1994)

Year: 1994

Case URL: https://www.ravellaw.com/opinions/3ea24b1cf41400d3640dfce5d6d7bc96

Case Summary: The Board is not required to include a description of every feature of a proposed measure.

Case State: colorado

Case Name: Matter of Proposed Initiative 1997-98 No. 10

Citation: 943 P.2d 897 (Colo. 1997)

Year: 1997

Case URL: https://www.ravellaw.com/opinions/af63e4d7bf6df3d511320b975fad5d3c

Case Summary: Holding that board acted within its discretion in preparing fiscal impact statement without speculating about whether transportation commission would impose tolls; titles and summary for proposed initiative tracked language of initiative with respect to transportation programs and sources of revenue and were not misleading; and amendments to portions of proposed initiative were made in response to comments of directors of legislative council so that resubmission of amended draft to directors before submitting it to secretary of state was not required.

Case State: colorado

Case Name: In re Ballot Title 1999-2000 No. 256

Citation: 12 P.3d 246 (Colo. 2000)

Year: 2000

Case URL: https://www.ravellaw.com/opinions/2b12669d64aa50a40b5f4e0d4980d684?query=In%20re[...]

Case Summary: Holding that proponents' amendments to the original draft of the initiative petition were not required to be resubmitted to the directors of the legislative council; initiative to add “Citizen Management of Growth” provisions to the state Constitution did not violate the single-subject requirement; and titles and summary were not misleading.

Case State: colorado

Case Name: Blake v. King

Citation: 185 P.3d 142 (Colo. 2008)

Year: 2008

Case URL: https://www.ravellaw.com/opinions/2d73b8420e54ed7ffcf6f79c5584d63d

Case Summary: We conclude that Initiative # 57 contains a single subject in accordance with the Colorado Constitution. Further, we find that the titles set by the Title Board are fair and accurate, and do not contain an impermissible catch phrase. Finally, we determine that because the proponents' amendments to the measure were made in direct response to comments from the directors of the Legislative Council, the initiative was not required to be resubmitted to the directors and the Office of Legislative Legal Services prior to its submission to the Title Board. Accordingly, we affirm the action of the Title Board.

Case State: colorado

Case Name: Brownlow v. Wunch

Citation: 102 Colo. 447, 80 P.2d. 444 (1938)

Year: 1938

Case URL: https://perma.cc/AE5L-4AR8

Case Summary: Holding that a party fearing injury due to a ballot initiative may not intervene. The secretary of state's actions were merely ministerial acts, which did not mandate consideration of the potential intervenor's grievances.

Case State: colorado

Case Name: In re Title Pertaining to “Tax Reform”

Citation: 797 P.2d 1283 (Colo. 1990)

Year: 1990

Case URL: https://www.ravellaw.com/opinions/12156fcd3b3452c9915392f242888373

Case Summary: Holding that an advisory board must provide additional procedure, and scrutiny, before voting commences on a proposed ballot initiative to amend the state constitution. This includes providing additional clarity on the financial impact of the proposal due to the initiative's effects on state taxes.

Federal Cases

Regulations & Guidance