Opinion: Boulder’s charter amendment petition process is a mess

In 1970, Coloradans passed the “Colorado Home Rule for Local Governments Amendment,” adding Article XX, Section 9, to our state constitution. It states in part: “The general assembly shall provide by statute procedures under which the registered electors of any proposed or existing city and county, city, or town may adopt, amend, and repeal a municipal home rule charter.”
Then in 1971, the Legislature implemented this section by adopting C.R.S. 31-2. It declared in C.R.S. 31-2-202: “the policies and procedures contained in this part 2 are enacted to implement section 9 of article XX of the state constitution, adopted at the 1970 general election” and that “this part 2 shall supersede” prior parts of the state constitution.
C.R.S. 31-2-210 allows 90 days for circulating and submitting charter amendment petitions, requires submission by 90 days before the election, and requires signing by 5 percent of registered electors for “regular elections” – when council members are elected and citizens are paying attention to local issues – and 10 percent for “special elections” – all non-city council elections under both Colorado law and our charter.
As in many other home rule cities, Boulder’s requirements for initiated local ordinances are different than the state rules for initiated charter amendments: 180 days to gather the signatures of 10 percent of the average number of voters in the last two city council elections, which are due 150 days before the election.
For decades, these differences never created a problem – just different rules for different actions. But in 2016, the “Three Term Limit” petitioners were wrongly advised about the charter amendment petition format. And their numerical signature requirement was set as for a “regular election,” even thought 2016 was a “special election” since Boulder’s council elections occur in November in odd years.
The petitioners submitted 4,683 valid signatures, barely making it past the 5 percent requirement of 4,642, and nowhere near the legally required 10 percent number of 9,284. So this petition should never have made it onto the ballot.
Next came 2017’s Ballot Measure 2Q, a set of city-proposed charter amendments that created significant uncertainty to the charter process for initiated local ordinances. These problems were fixed by the 2018-2019 elections working group, in which I participated.
2Q also amended Charter Section 37 by adding the words “charter amendments” to the first sentence: “The people shall have the power … to propose charter amendments, legislative ordinances.”  It didn’t really adding anything new. Then it went on to say: “A petition, meeting the requirements hereinafter provided and requesting the council to pass a legislative ordinance, resolution, order, or vote … shall be termed an initiative petition and shall be acted upon as hereinafter provided.”
Section 37 clearly does not empower “the people” to use the “hereinafter” charter processes to try to amend the charter itself. And the elections working group was told by our very experienced outside legal counsel that the city must follow state law for charter amendments, and can only add its own rules if they do not conflict with state law.
For this year’s charter amendment petitions, in spite of the above, the city applied the charter limit of 180 days for gathering signatures, even though state law’s limit is 90 days. Then the city reversed and applied state law to set the final due date at 90 days before the election.
And the city set the signature requirement for charter amendment petitions at 5 percent of registered voters, even though 2020 is a “special election” and the number should be 10 percent. The city apparently is claiming (1) that it is allowed to set its own rules for charter amendments in spite of the state constitution’s granting that power to the Legislature, and (2) because Section 37 empowers the city to do so, even though it doesn’t.
The result is a total mess. No one really knows what the rules are. The “bedroom” petitioners missed their 90-day signature due date of June 23, and neither they nor the “mayor” petitioners are apparently clear about the 10 percent signature requirement.
Another group just proposed a charter amendment to regulate development on the CU South property. The city, confusing matters even further, told them that signatures should have been in by June 5, the due date for initiated local ordinances, not charter amendments, even though the two other charter amendment petitions were told Aug. 5.
The City Council should take responsibility and clean this mess up, demand accurate and consistent legal advice, and follow state law on charter amendment petitions, as they are legally required to do.

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