Up with Ref H, but down with K

Neither measure will do much

Published October 1, 2006 at midnight

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Thanks to the July special session of the legislature, voters will have their say on two ballot measures related to illegal immigration. Referendum H would end a tax credit for any employer that fails to verify the immigration status of its workers; Referendum K would try to recover from Washington some of the tax dollars Coloradans spend on public services for illegal immigrants.

Ref H deserves approval, while K should get the hook.

Should Referendum H pass, Colorado businesses would have to verify that their employees are authorized to work in the United States. The penalty? Companies that could not would forfeit a state income tax credit that lets businesses deduct wages from their tax liability.

The fiscal note that was attached to the legislation could not estimate how much revenue this might generate for the state, and concluded that the amount might be negligible. And the costs of enforcement are expected to be minimal as well. The main expense would be to modify a line of the state tax code in computer programs.

But Ref H does reinforce an important principle: Employers should not be allowed to game taxpayers by evading the law. Vote "yes" on Ref H.

Meantime, Referendum K would command Colorado's attorney general to either initiate a lawsuit against the federal government or to join with other states in a similar action. The purpose: to collect reimbursement for the costs of public benefits to illegal immigrants that are mandated by federal law.

At first blush, this sounds reasonable. But we strongly recommend a "no" vote. If passed, Ref K would almost certainly squander state tax dollars. The chances of Colorado or any combination of states prevailing in a legal challenge are long indeed.

The main cost to state taxpayers that Washington has ducked is the expense of incarcerating illegal immigrants. In 1994, Congress passed the State Criminal Alien Assistance Program to reimburse corrections and law enforcement costs; since then it has stiffed the states. Colorado spent roughly $40 million in 2005 locking up illegal immigrants and recovered about 7 percent of that amount.

In the mid-1990s, at least six similar lawsuits were filed by individual states against the federal government. None succeeded. Ruling against the state of Florida, for example, the 11th U.S. Circuit Court of Appeals said it had no legal authority to settle what is essentially a political question: How much funding should Washington send to states to pay for mandated public services?

That reasoning was echoed in other cases. Unless some novel legal theory emerges that would give Colorado's attorney general a better chance to win in court, Ref K is little more than a quixotic endeavor. Voters should reject the measure.

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