'We're not giving up,' initiative activist says

State Supreme Court shoots down ballot proposal to deny services to illegal immigrants

Sara Burnett, Rocky Mountain News

Tuesday, June 13, 2006

The group backing an initiative to deny illegal immigrants many government services said Monday it'll keep fighting, despite a Colorado Supreme Court ruling that the measure cannot appear on the November ballot.

"We're not giving up," said Fred Elbel, director of Defend Colorado Now. "We're carrying forward the will of the public."

Elbel said the group will ask the state Supreme Court within the next two weeks to reconsider its decision.

But legal experts say that's a long shot. And with the filing deadline for new initiatives passed, the most likely scenario is that Defend Colorado Now will wait until 2008 to try again.

That was cause for celebration for Keep Colorado Safe, the group opposing the ballot measure.

"Today's Supreme Court decision is a victory for the people of Colorado," said former Denver Mayor Federico Peña, the group's chairman, who described the measure as "poorly written, ill-conceived and mean-spirited."

The proposed ballot initiative would prohibit illegal immigrants in Colorado from receiving all taxpayer-funded public services except those required by the federal government - K-12 education, emergency medical care and assistance in the event of a public safety emergency.

Defend Colorado Now did not outline exactly what services would be prohibited, choosing instead to leave that decision - and how the measure would be enforced - to the legislature.

But in a 4-2 opinion, with one justice abstaining, the Supreme Court ruled Monday the proposed constitutional amendment violates a requirement that ballot questions deal only with one subject.

In the majority opinion, Justice Alex J. Martinez wrote that the measure asks voters to approve two subjects: decreasing taxpayer funds for medical and social services, and restricting "administrative services" such as registering a vehicle or filing property deeds with the county recorder.

That could put voters in the position of voting for one matter they don't support in order to enact a matter they do support, Martinez wrote. He also said the wording hides some effects of the initiative by not listing the exact services that would be denied.

Peña said Defend Colorado Now may have been purposely vague about specific services, as a way of keeping the public in the dark.

But Elbel said the list of services is too long to include in the ballot language and that the measure was "streamlined and clear cut."

He also joined a chorus of voices accusing justices of playing politics.

Among the loudest critics was U.S. Rep. Tom Tancredo, who said Martinez and the justices who agreed with him should be ousted.

"It was just a decision made by people who don't want the amendment on the ballot," said Tancredo, a leading voice in Congress for tougher immigration policies. "It was not a decision made by judges who were looking at a legal issue. It's incredible, and it's embarrassing."

Tancredo said Gov. Bill Owens could call state lawmakers back into session and urge them to pass legislation putting the initiative on the ballot. The governor's spokesman, Dan Hopkins, said a special session was "not something that to this point has been discussed."

Former Gov. Richard Lamm, a co-director of Defend Colorado Now, called the ruling "raw, naked politics."

"This is outrageous judicial activism, Exhibit A in how courts disregard precedent to reach a political result," Lamm said.

John Andrews, another co-chairman and former president of the Colorado Senate, also said Defend Colorado Now will continue "full speed ahead" with gathering signatures in the event the measure qualifies for the ballot.

According to Elbel, the group already has collected more than 30,000 signatures - about half of those needed by the Aug. 7 deadline.

The Supreme Court had approved a similar proposal for the 2004 ballot, rejecting a challenge that its title was misleading.

Proponents were unable to gather signatures and it did not get on the ballot.

The 2004 decision was one reason Defend Colorado Now was surprised by Monday's ruling, Elbel said.

He and other backers had argued this year that the court could not reverse its decision from 2004.

The court disagreed, saying the measure had been challenged on different grounds and that state law requires the justices to review any challenges.

In a dissent, Justices Nathan Coats and Nancy Rice expressed concern that the decision was influenced by the motives of the measure's proponents and by its potential effects.

They said the court has inconsistently applied the single-subject requirement, giving justices "unfettered discretion to either approve or disapprove virtually any popularly initiated ballot measure at will."

Justice Allison Eid did not participate in the ruling because she was a member of the Title Board when it approved the initiative's language.

Justices Mary Mullarkey, Gregory J. Hobbs Jr. and Michael Bender agreed with Martinez.

Denver election attorney John Zakhem noted it would take just one justice changing his or her mind for Defend Colorado Now to be successful in its appeal, assuming Eid abstains again. A tie vote would favor the group.

But he also said it's not often the court changes its position.

"It's always possible," Zakhem said. "It's an uphill battle."

And even if the group returns in 2008, members of Keep Colorado Safe say they'll be back as well.

"I'll be here, and I'll be ready and I'll be waiting," said Manolo Gonzalez-Estay, a political consultant and the petitioner in Keep Colorado Safe's challenge. "It's that important to me to keep this off the ballot."

What Defend Colorado Now will ask court to reconsider

Will initiative proponents appeal the ruling?

Yes. Defend Colorado Now, the group backing the ballot measure, plans to ask the Colorado Supreme Court to reconsider its decision.

Is the initiative finished for this year?

Most likely. No statistics exist on how often the court reverses a decision, but observers say it's rare.

Can proponents revise the initiative in time for the ballot?

No. The deadline to have a ballot question approved was May 17.

Do proponents plan on trying again if they can't get on the 2006 ballot?

Yes. The earliest they could try again would be 2008. If the measure isn't successful then, Defend Colorado Now leaders say they'll keep trying. "We're going to be around forever," director Fred Elbel said.

Do they plan any other kind of effort?

Elbel said Defend Colorado Now will keep working to stop illegal immigration, whether through this measure or others.

What do opponents of the initiative plan to do next?

Keep Colorado Safe, led by former Denver Mayor Federico Peña, will meet soon to discuss its future, Peña said. The group could stay together to work on national immigration reform efforts.

How much money does each side have on hand?

Defend Colorado Now reported $14,112.59 on hand as of May 26. The group has raised $119,573 since the beginning of the year. Keep Colorado Safe reported having $52.09 on hand as of May 26. It had raised $10,397.45 since Jan. 1.

What happens to that money?

Defend Colorado Now plans to keep the money it's raised to continue the fight against illegal immigration. Keep Colorado Safe will decide after meeting in the next few days.

burnetts@RockyMountainNews.com or 303-892-5343.