Opinion: Title setting for the CU South referendum

 A completely unnecessary dispute is occurring over the ballot language for the referendum vote on the CU South annexation. The referendum’s committee of petitioners think that the city’s language does not adequately identify exactly what is up for a vote. Thus, a voter who is not familiar with the situation will not know if a YES vote or a NO vote will reject the annexation, or neither. As a result, the petitioners have proposed alternative language to clarify this matter. But most of the city council is defending the staff’s proposed language as necessary and adequate.

The staff proposal is, “Should Ordinance 8483 regarding the annexation of CU South, be repealed?” The petitioners’ counterproposal is, “Should Ordinance 8483, which annexes the land known as CU South and sets the terms thereof, be repealed?” The obvious problem with the staff’s language is the word “regarding.” Unless the voter knows that 8483 is the ordinance that actually annexes CU South, he/she would wonder what 8483 does. Does 8483 modify the annexation’s terms, e.g. to get rid of the height limit on development? Does it increase the annexation agreement’s fees for excessive auto trips? And critically, would repealing 8483 stop the annexation or not?

Both the Charter and state law strongly address the need for clarity. Charter Section 48 requires the title to be “a clear, concise statement, without argument or prejudice, descriptive of the substance of such measure…”  CRS 31-11-111(3) states, “In fixing the ballot title, the legislative body or its designee shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a ‘yes’ or ‘no’ vote would be unclear…”

I think that the problem lies with some council members not understanding how a citizen referendum on a council-passed measure works. Once enough valid signatures have been gathered, the process for ordinances like 8483 that were passed “by emergency” is defined in Charter Section 50: “Measures passed as emergency measures shall be subject to referendum like other measures, except that they shall not be suspended from going into effect while referendum proceedings are pending. If, when submitted to a vote of the electors, an emergency measure be not approved by a majority of those voting thereon, it shall be considered repealed, as regards any further action thereunder, and all rights and privileges conferred by it shall be null and void; provided, however, that such measure so repealed shall be deemed sufficient authority for any payment made or expense incurred in accordance with the measure previous to the referendum vote thereon.”

Therefore, council members do not need to worry about the breadth of the ballot language. If a majority of voters vote YES on the ballot item, then, per Section 50, Ordinance 8483 is “repealed” and “all rights and privileges conferred by it shall be null and void.” That’s rather definitive. What the council should be focusing on is making sure that the ballot language is so clear that all voters know that voting YES means that the annexation is repealed, and NO means that the annexation remains in place.

This dispute probably would have been avoided if the council had consulted with the petitioners regarding the title before voting on it. Charter Section 48 requires such consultation for initiatives, but not for referenda and recalls. This consultation requirement was suggested by the elections working group (that I served on) a few years ago. But including all three types of direct legislation in the consultation requirement got dropped somehow. The council should reinstate it.

One possibly acceptable way for the council to avoid continuing this dispute would be to change the title on the third reading next week “by emergency,” so that they could get the ballot language to the County Clerk by Sept. 9, the due date 60 days before the election. The council could use the summary language the City Clerk provided when certifying the petition last year, and modify it to read as follows, “Shall Ordinance 8483, annexing the land generally known as CU South and setting the terms and conditions thereof, be repealed?” This is clear and complete and should assuage council members’ concerns.

I would also like to correct a fact from a recent piece. I said that the charge assessed on excess vehicle trips at CU South did not have an inflation adjustment. But the final annexation agreement added an inflation adjustment, though limited to 3% per year. Better than nothing, but inadequate given this year’s inflation spike.

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