Opponents of RTD’s FasTracks plan on Tuesday asked Colorado’s second-highest court to void the 1 1/2-year-old election that authorized the transit expansion because what they say was a phony ballot summary was mailed to voters before the election.
Their lawsuit has stalled bond sales for the $4.7 billion project, costing taxpayers up to $250 million over the long term, according to RTD.
A member of a pro-FasTracks campaign committee submitted false and misleading comments against FasTracks to state election officials to “dilute” the arguments of legitimate opponents, attorney Robert Corry Jr. told the three-judge Colorado Court of Appeals panel.
“This case is about the integrity of elections in Colorado,” Corry said, adding that the ruling “will set the rules” for all similar ballot measures in the state.
Corry represents Taxpayers Against Congestion, which led the fight against FasTracks.
The Taxpayer’s Bill of Rights (TABOR) requires that elections on tax measures have ballot summaries, including pro and con commentaries, sent to voters.
The question over the FasTracks statement is another in a string of controversies about who provides such information for local or statewide elections.
With statewide measures, nonpartisan staffers at the legislature prepare draft ballot summaries and pro and con statements, then solicit comment on the proposed text, said Pete Maysmith, executive director of the public interest group Colorado Common Cause. Legislators can also contribute to the final language sent to voters.
That legislative intervention has led some to try to change the process of preparing the resulting “blue book,” either by legislation or lawsuit.
Maysmith said his group favors removing legislators from the process.
A month and a half before the November 2004 FasTracks election, Rebecca Barnes, an official with the FasTracks Yes committee, submitted comments against the transit measure to the Colorado secretary of state.
The law requires Barnes, or anyone else, to submit comments as individual voters, without reference to affiliation.
Barnes said FasTracks was too limited and should provide rail service to Fort Collins, Colorado Springs, the mountains and along E-470.
These and other comments were folded into the con statement that was sent to voters.
As the designated election official, Regional Transportation District attorney Marla Lien prepared the pro and con summaries. Corry told the court that RTD and Lien took on the role as “editor” of the submissions and “censored the legitimate comments of real opponents.”
Lien told the judges her role was defined by law: Voters had a right to file comments and it was the government’s responsibility to accurately summarize them.
The appeals court will rule on the case at a later date.
RTD “performed the duties assigned to us” by TABOR for the FasTracks ballot summary, said RTD manager Cal Marsella, after attending Tuesday’s court session.
But Independence Institute president Jon Caldara, a leader of Taxpayers Against Congestion, said the court’s decision will affect every future tax election in the state.
If the law continues to allow false comments to be incorporated into ballot summaries, he said, “That will be standard operating procedure.”
Staff writer Jeffrey Leib can be reached at 303-820-1645 or jleib@denverpost.com.
