Double Standard

The five percent rules for amending city charters and the state constitution vary considerably


With the upcoming November election, there has been some controversy surrounding the number of petition signatures required to put a charter amendment on the ballot in the City of Boulder. This is sparked, in part, by two proposed amendments by Livable Boulder, a local citizen’s group concerned with the issues of development and growth.

In order for a citizens initiated amendment to be put on the ballot, state statute C.R.S. 31-2-210 requires petitioners in a municipality to gather signatures from 5 percent of the total registered voters, active and inactive, at the time of filing. However, the process to modify the Colorado Constitution by way of a citizen’s amendment requires the petitioners to gather signatures from 5 percent of the total votes cast in the last general election for the office of secretary of state, as specified in Art. V, Section 1 of the state constitution.

These numbers can differ drastically. 

For example, the electoral register at the time Livable Boulder filed their intent counted 89,321 active and inactive voters. An active voter is classified as someone who either voted in the last general election, registered to vote since the last general election or updated their voter information since the last general election. Someone becomes inactive only after the County Clerk’s office receives some indication they no longer live at the address on their voter registration, such as a returned mail-in ballot. But they might still reside in Boulder and, if so, are eligible to vote in current elections. Therefore, they aren’t removed from the electoral register.

The most recent estimates from the U.S. Census Bureau show a total Boulder population of 103,166, including students. Using the 18 and over population percentage (86.1) from the U.S. Census Bureau data, it’s fair to estimate there are approximately 89,000 Boulder residents of voting age.

They can’t all be registered to vote. U.S. Census Bureau research also shows only 70 percent of the U.S. voting population is registered.

“We’ve always known that, because Boulder is a college town, we have an inflated voter registration list. Kids who register to get an in-state tuition may not do a change of address when they leave,” says Boulder City Clerk, Alisa Lewis.

Since 2013, however, voters can be removed from the register if they have filed with the National Change of Address database through U.S. Postal Service and the electoral register is updated constantly, Lewis says. “If anything, recent changes in state law have actually allowed us to purge more than what we’ve been able to in the past,” she says.

Using the current active and inactive voter numbers, petitioners with Livable Boulder need to gather 4,466 signatures by the July 22 deadline to put their amendments on the ballot.

However, only 46,513 ballots were cast in the 2014 secretary of state election in the City of Boulder, according to the county clerk’s office. Applying the same requirements the state uses for amendments to the constitution, petitioners would only need 2,326 signatures instead of 4,466.

“That’s what we are thinking would be a more appropriate number for doing petition signatures in the City, would be people who actually voted in, say, a previous election … That you actually had people who voted not just people who were registered and might not live here anymore,” says Allyn Feinberg, a petitioner with Livable Boulder. “Asking us to get 5 percent of more voters than there actually are in the city doesn’t seem to be, you know, a really appropriate measure.”

For now, Livable Boulder is focusing on gathering the 4,466 signatures the law currently demands.

“It became pretty clear that with the distinction between what the state required and what was allowed for a municipality in charter amendment, that we were probably just going to have to buckle down and get signatures of 5 percent of those registered voters whether they were alive, dead, resident in the city or whatever because there wasn’t going to be enough time to challenge that and get it resolved and straightened out,” Feinberg says.

City charter amendments are governed by Colorado state law, so the discrepancy was created there and not by the City of Boulder itself. Interestingly, the language in the state constitution dates back to the original draft of Art. V in 1876, whereas the language in the city charter statute is from 1973, says Tim Griesmer, Public Information Officer at the secretary of state’s office.

“You’re talking about a century difference in when they were put into place. In terms of why the different standard exists, absent a legislative declaration, I really couldn’t tell you that unless you were able to locate the original debates over that stuff,” he says. He admitted he has never been asked about it before.

Regardless of the reason for this difference, the City cannot change the signature requirements for charter amendments because it is “dictated” by state law, Lewis says.

“We can be more stringent than state law but we cannot be less stringent. So we cannot change or alter the state law which modifies charter amendments,” Lewis says. After confirming the 4,466 required signatures for Livable Boulder’s petition, Lewis continues, “The city has no power to change that number.”

When asked her opinion about the different signature requirements the state uses to amend the constitution, Lewis says, “State law has statutes that deal with municipal elections. To look at a statewide process for a local issue doesn’t make sense to me. It really is oranges to apples.”

Had Livable Boulder put forward their petitions as initiated ordinances, instead of charter amendments, there could have been more leeway. Boulder, as a home rule city, does have authority to change signature requirements for an initiated ordinance, since that isn’t dictated by state law. Currently, the number of signatures required for an initiated ordinance is the same as a charter amendment — 5 percent of both active and inactive voters.

“Even if we wanted to change our own initiative process, we would have to put it on the ballot and have the people vote to change it because that’s established as something in our charter and a charter is formed by a vote of the people and it can only be changed by a vote of the people,” Lewis says.

At the state level, the law allows the legislature to update the municipal statute for signature requirements, and they could change it to reflect the same values that are used for constitutional amendments if they wanted to. But they would have to know about the discrepancy.

“Nobody has called it to my attention in the seven years that I’ve served here,” says state Sen. Rollie Heath a Democrat representing Boulder. “It’s a very interesting issue. It might be something we ought to look at for the next legislative session. I don’t know how the city would feel about it.”