Opponents of the budget measures on November’s ballot have filed a lawsuit against Referendum D, laying the groundwork for further legal challenges should the measures pass.
“Vote No; It’s Your Dough” filed suit in Denver District Court last month, claiming that the official guide sent to voters by the state, called the “blue book” after its blue cover, did not include constitutionally required information about the measure.
Jon Caldara, Vote No’s chairman, said the group also is readying arguments against Referendum C should it pass November 1.
“I will guarantee you, if by some miracle this tax increase passes, the constitutionality of it will be challenged,” Caldara said.
The measures relax state spending limits and allow the state to take on more debt.
The lawsuit contends that the text of Referendum D and its enabling legislation should have been included in the blue book. The fact that the blue book was written largely by lawmakers, rather than nonpartisan staff, violates the state constitution, the suit says.
The lawsuit originally asked that the court stop the distribution of the blue book.
But since the book has already been shipped to voters, the plaintiffs would like to see the court: order a supplemental blue book be sent out, delay the election or, if the measure passes, invalidate the results and order a new election, said Vote No attorney Rob Corry.
Attorneys for the state and General Assembly, which are named in the suit, said the constitution requires only that the nonpartisan staff be involved in drafting the book; it doesn’t prohibit lawmakers from drafting it.
The constitution requires that the blue book’s description be “reasonable,” and “it’s perfectly legal,” said Maurice Knaizer, an assistant deputy attorney general.
Rick Daily, a Denver election lawyer, agreed with Knaizer’s reasoning.
“The odds are something on the order of 999,000 to 1 against that kind of lawsuit prevailing because it’s largely a political process and everyone acknowledges it’s a political process,” said Daily, who doesn’t represent either side but said he is a supporter of the measures.
If the opponents want to use these issues to bring a later legal challenge should either of the measures pass, Daily said, they would have to prove the issues would have changed the outcome of the election – “an almost impossible test.”
Referendum D would allow the state to take out $2.1 billion in loans largely for road and school improvements.
Referendum C asks state voters to let the government keep $3.7 billion that would otherwise be returned to them under the Taxpayer’s Bill of Rights. Referendum D only goes into effect if both are passed by voters.
The fight over Referendum C’s legality is just starting to take shape, Caldara said. Opponents could make the case that the measure’s wording is unconstitutional. They also could argue that statutorily tweaking TABOR’s constitutional spending limit is against the law.
Mark Grueskin, lawyer for the Vote Yes campaign, said the state Supreme Court “has considered this exact claim and rejected it flat, outright.”
“This is intended to be a diversion; the problem is that it’s not even a good one,” Grueskin said. “Nobody in the yes campaign lost a minute’s worth of sleep over this lawsuit.”
Staff writer Chris Frates can be reached at cfrates@denverpost.com or 303-820-1633.
