This story was produced by the Colorado Capitol News Alliance. It first appeared at cpr.org.
Colorado’s highest court on Friday rejected a late attempt to knock off the ballot a hotly contested ballot measure over a graduated income tax.
It upheld a Denver District Court ruling, turning back a legal challenge that argued the court should throw out voter signatures for Amendment 87.
That means Amendment 87 will stay on the ballot, and votes on it will be counted.
"Twice now, Colorado courts have said that more than 130,000 voters who signed this petition deserve to have their signatures count, and that Coloradans deserve to decide this question for themselves," said Chris deGruy Kennedy, co-chair of Protect Colorado's Future, and president of the Bell Policy Center. Protect Colorado’s Future is the coalition behind the graduated income tax measure.
"Justice prevailed. More than a million voters have cast their ballots while this case moved through the courts, and today's ruling means their votes on Amendment 87 will count," said Kiyana Newell, Amendment 87 proponent and policy and research director at New Era Colorado. "The people funding this lawsuit chose to hide behind it instead of making their case to voters. Now the decision belongs to Colorado voters, which is where it always belonged. We're thankful that the courts stood by democracy. The people have a right to vote on a ballot measure that they legally put on the ballot."
DeGruy Kennedy did acknowledge some mistakes that he called administrative oversights.
"We have been open about that from the start. The people behind this lawsuit have not been open about anything. They have spent what must be an enormous sum on lawyers to keep voters from having a say, and they still will not tell Colorado who they are or how much they have spent," he said.
Attorney for the plaintiff were dissatisfied with the decision.
“The result is disappointing as it leaves a system in which there will be little accountability for those who collect signatures and fail to follow the rules,” said Jason R. Dunn, an attorney representing an opponent of the proposal who filed the suit.
According to the measure, people and businesses with annual income of less than about $500,000 would see their state income taxes drop, and taxes would go up for incomes above that half a million dollars.
Consequential and contentious
The measure is one of most consequential and contentious on the fall ballot and has spawned a gazillion TV spots, mailers and social media ads from both sides.
Supporters have argued the measure will make state income taxes more fair and raise billions in new revenue, just as states like Colorado face deep federal cuts to social programs.
Opponents have countered that it’ll hurt the state’s economy and small businesses and amounts to a $2.7 billion blank check to the legislature, which has been controlled by Democrats in recent years.
The seven-member court didn’t explain its thinking in a 47-word ruling, rejecting the appeal.
“Votes cast on Initiative 2025-2026 # 195 (also known as “Amendment 87”) shall be counted,” it stated. The Court will issue an opinion in due course.”
How did we get here?
An opponent of the graduated income tax, named Michael A. Hancock (no relation to Denver’s former mayor), filed the lawsuit earlier this month. It claimed dozens of paid signature gatherers working with the coalition behind Amendment 87 failed to properly follow state rules for registration.
A judge dismissed the case, and said state law doesn't let the elections office block a proposal from making the ballot because of registration issues with signature gatherers.
Attorneys for all parties involved turned in opening briefs to the high court on Monday that gave a glimpse into the details of each argument. The plaintiff challenging the amendment, people who support it and the Secretary of State’s office responded on Wednesday to questions from the court in what are called answer briefs.
Amendment 87 opponents: Mistakes in gathering should invalidate signatures
In those briefs, attorneys for Hancock, who is from Arapahoe County, argued backers of the graduated income tax made multiple mistakes when gathering the more than 124,000 signatures required to put a proposal on the ballot. Then, they said, the Secretary of State’s office, which governs the election process, compounded the problem by never checking, before the suit was filed, to see if paid signature gatherers, called circulators, were properly registered.
That violated a provision of state law aimed at preventing fraud, wrote the lawyers, led by Dunn, a former Colorado deputy attorney general and U.S. attorney, from high-profile Denver firm Brownstein Hyatt Farber Schreck.
Proponents “failed to ensure that at least 66 of their 311 paid circulators were registered” to collect signatures for the measure, as the law requires, they wrote in their answer brief. That mistake should prove fatal to Amendment 87, they argued.
The unregistered circulators collected enough signatures that should have been invalidated to drop the measure “below the constitutional signature threshold” needed to qualify for the ballot, the brief said.
The lawyers also take to task the Secretary of State’s Office, led by Jena Griswold, a Democrat running for Attorney General.
“Her own ballot access manager testified that checking registration is not part of the office’s review process and that he was unaware of any investigations into circulator registration failures,” the lawyers write, saying the agency didn’t follow statutes state lawmakers passed to prevent “fraud, abuse or mistake in the petition process.”
Amendment 87 proponents: Nixing signatures is not the right solution to signature-gathering mistakes
The right of initiative is a fundamental right in Colorado and the initiative process should be “liberally construed” and “not hampered” by technicalities, wrote the attorney for backers of the graduated income tax.
The court should leave it to Colorado voters whether Amendment 87 becomes law, wrote Martha M. Tierney of the Denver law firm, Tierney Lawrence Stiles.
Backers of the graduated income tax substantially complied with all petition entity and circulator requirements, she argued.
The evidence at trial in the lower court showed that the extent of any noncompliance was insubstantial, and there is no evidence that “there was anything but a good faith effort” by Amendment 87 backers to follow new petition entity and circulator registration requirements.
Likewise, Tierney states, there’s nothing to suggest the circulators meant to “mislead the electorate.”
Opponents of Amendment 87 are looking for the wrong fix, she argued.
“Invalidation of petition signatures is not a proper remedy” when a petition entity fails to properly register its paid petition circulators. “Instead, petition entities can be fined or have their license suspended,” Tierney wrote.
The Secretary of State’s office: Opponents of Amendment 87 want to take the measure out of voters’ hands
Opponents of the graduated income tax don’t acknowledge or rebut “the grave constitutional problems that would result” from tossing out Amendment 87 based on their interpretation of state law, wrote attorneys for the Secretary of State’s Office in their answer brief.
That would take the matter “out of the hands of Colorado voters based on technical licensure violations,” wrote three attorneys from the Attorney General’s office of Phil Weiser, a Democrat running for governor.
Also opponents aren’t disputing the validity of the signatures at the heart of the process, they argued.
“As to the signatures that do appear on the petition”— including the signatures of notaries, circulators, and the 130,938 voters across the state who support putting the proposal to a vote — Plaintiff offers no challenge whatsoever,” they write.
The constitutional implications of the appeal by opponents “are staggering” the brief argues, saying the failure by their attorneys are a “glaring admission” that the man who brought the suit “has no valid constitutional defense of his position.”
What’s more, opponents of Amendment 87 didn’t prove the various circulators who gathered signatures were actually paid “and not volunteers for whom no registration requirement applies” when they gathered the contested signatures.
The Secretary of State’s office got what it argued for as the state Supreme Court let Amendment 87 stay on the ballot.
