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Legal questions on initiative petitioning continue rising in Boulder as coronavirus rapidly alters campaigns

Possible conflict with state law as in-person signatures remain required locally

Pete Fox, of Boulder, signs a petition to stop Boulder’s electric utility municipalization effort on Friday at Burke Park in Boulder. (Jeremy Papasso/Staff Photographer)
Pete Fox, of Boulder, signs a petition to stop Boulder’s electric utility municipalization effort on Friday at Burke Park in Boulder. (Jeremy Papasso/Staff Photographer)

In what has been the most persistent political discussion of the coronavirus outbreak in Boulder, amid perhaps the strangest campaign season the city has seen in a consequential presidential election year, what to do about local initiative petitions for the fall ballot continues receiving attention.

After last week’s City Council near-repeat of an April discussion, with both talks resulting in no action to change the in-person petition signature gathering efforts underway amid a pandemic fueled by close human contact, a possibly needle-moving development took place over the weekend.

A state public health order came forward from Boulder’s own Gov. Jared Polis to allow email or mail-in signatures to count toward thresholds for measures to appear before voters statewide, setting the context for yet another upcoming local consideration of the issue. Boulder’s government would have to take action on its own for email signatures to be allowed. Council leaders on Monday set a renewed discussion for next week of the local petition initiatives, which include attempts to have citywide votes in November on loosened residential occupancy limits, directing tax funding away from the municipal utility project and requiring the government to provide a lawyer to renters facing eviction.

“The Governor’s order suspends … requiring signing in person. To the extent that there was any question about this requirement in Boulder, the Governor’s order removed that question,” City Attorney Tom Carr said in an email. “The Governor’s order directed the Secretary of State to adopt procedures for the acceptance of mail or email signatures.  Under my reading of the law, for those procedures to apply in Boulder, council would need to adopt them. Council has the full authority to do so.”

The order from Polis was announced following Boulder declining to either let electronic signatures count toward the thresholds of more than 3,000 signatures each proposal has to hit to make the ballot, or have Council hold public hearings this week on whether to put any of the measures on the ballot itself. Council hesitated to support a city-drafted plan for electronic signatures to be used because of potential difficulty in verifying city voters knowingly signed onto a petition.

Timing of the announcement is a concern for Councilwoman Rachel Friend, who has repeatedly pushed her colleagues to take action to spare advocates relying on direct democracy this year the possible risk of spreading the virus through their signature gathering. A June 5 deadline is set for initiatives that do not involve changes to the city charter, such as the municipal utility tax funding matter and the legal representation for tenants in evictions idea, making Friend wonder whether any change will be too little, too late for locals.

“I don’t know that the state will have implementation rules in place by our next meeting, so given the cutoff date is rigid and fast-approaching, I’m not sure if we would have time to implement the spirit of the governor’s emergency order in time for those ballot measures,” Friend said.

There is a lack of legal precedent regarding voting laws amid a public health crises this widespread, according to Craig Konnoth, an associate professor at the University of Colorado Law School who writes on public health. The last pandemic of this scale in America, the 1918 influenza outbreak, didn’t result in the legal guidance surrounding public health restrictions and election laws and a number of other public policy matters the world is now seeking.

“In times of public health crises like we’re in now, there exists Constitutional latitude at both the federal and state levels that may restrict certain kinds of liberties. Now this (petitioning) is not something that has traditionally been considered in public health context,” Konnoth said, adding he is not an election law expert.

He downplayed the difficulty of the situation from a governing standpoint. He likened the decision-making processes for the currently competing needs to preserve rights to petition the government and protect public health, to making standard rulings on a development project.

“I think the political bodies often have to balance different interests. You might see them balancing the interests between public health and civil liberties, you might be balancing interests of different constituencies, with whether more or less building should take place in a certain area,” Konnoth said. “I do think this situation is definitely more urgent than other times. … I don’t see it as fundamentally different.”

Furthermore, residents leading petitioning efforts in Boulder have been alerted their measures, if they make the ballot one way or another and get approved by voters, could be subject to legal risk if targeted by a suit and ruled against by a judge, due to a non-virus-related discrepancy between city and state laws.

Chelsea Castellano, who is behind the Bedrooms are for People campaign for a fall vote on relaxed home occupancy limits for unrelated adults, replied with surprise on Monday when told by the city clerk’s office the group may need to turn its signatures gathered so far in by June 21 to make the ballot, per state law. City deadlines for measures that are charter amendments like that campaign’s are 90 days before the election, or Aug. 5 this year, while the state’s rules say initiatives petitions have 90 days to gather signatures from the filling of a statement of intent.

Carr said he previously told petitioners seeking to amend the city charter of the difference between local and state rules on deadlines for signatures.

“The city’s charter says that we will accept them until Aug. 5. We have to comply with our own charter. Signatures submitted more than 90 days after certification could be subject to challenge,” Carr said to the Camera. “… There is case law that says that a city can make a requirement that does not conflict with a state law requirement. It is not clear whether this would qualify as a conflict.”