Opinion: Election issues compound with court’s ‘no jurisdiction’ decision

 

I attended the court hearing last Thursday on the challenge to the ballot title for the referendum on the CU South annexation passed by the council a year ago. (Note: The council could have held a special election last January, avoiding eight months of delay.)

The judge ruled that she did not have jurisdiction, basically because of the council’s amendment a few years ago to the Boulder Revised Code that said that no state laws apply to the initiative, referendum and recall processes, other than those related to certain criminal offenses. (The Code contains laws passed by the council; the Charter can only be amended by citizen vote.) Since neither the Charter nor the Code contain any procedure for challenging ballot titles, the judge, and the rest of us, were left hanging. 

Additionally, because of this amendment to the Code, there is not even a legally required format for the petition itself. So that gets made up by the city (also unchallengeable, by the way). And that turns out to have been the source of the problem with the title. If Boulder had followed state law, as we did before this change, the petition would have had a “Petition Summary” and “Text of the Measure”, but no “Petition Title” as the city added to the format. And the city clerk would have been empowered to set the ballot title. Then the clerk would likely have just converted the original summary provided by the petitioners into a question, “Should Ordinance 8483, annexing the land generally known as CU South, be repealed?” It would have been a perfectly clear and understandable ballot title.

The previous council had been informed of problems with this Code change, but it has not been addressed. To fix them, the council could simply: 1) delete this Code amendment from a few years ago; 2) add provisions to require consultation with the petitioners before title setting for referenda and recalls, not just for initiatives as currently in the Charter; and 3) set up a process for title challenges, like what’s in state law already. But don’t hold your breath.

Shifting gears, a friend forwarded me a campaign email from the Boulder Progressives advocating their positions on the city ballot issues. Interestingly, their street address toward the bottom of the email was “1777 Broadway.” In case you are wondering — yes, this is the address of the Municipal Building where the city council holds its meetings.

I also was forwarded info on $50,000 in contributions by the Boulder Library Foundation, a 501(c)(3) “charitable organization,” to the Library Champions, who are pushing to create a library district. All were made in 2019 or 2021. Apparently, a 501(c)(3) cannot spend money to support political candidates but can spend a limited amount on “lobbying” of this sort. Irrespective, I’d guess that some Foundation donors will be upset since the Foundation’s purpose is apparently to support the Boulder Public Library (see the Foundation’s website donation page.) But other donors might appreciate being able to, in effect, make tax-deductible contributions to the “district” cause.

And, finally, back to CU South. The “500-year” flood detention pond, per the city’s Concept Design Report, Section 5.5.3.3, page 35, February 2020, is technically feasible (emphasis added; excuse the Report’s bad grammar):

“The 108-inch-diameter outlet would increase peak flows through the US36 bridge by about 6 percent but would not cause additional flooding downstream of South Boulder Road. It is possible that the increases in flow through the bridge may not cause negative impacts (i.e., scour) or that negative impacts could be mitigated by installing scour protection through the bridge. Additional analyses would be required to identify if mitigation is needed. It is also possible that a small increase in outlet capacity could maintain peak flows through the bridge without causing incremental increases in downstream flooding.”

But CU had already said, in their May 2019 letter:

“We are writing to you today to provide notice that the university, as the landowner, does not agree to Variant I 500. Due to the March 28 response which did not offer the university a feasible path forward around the additional acreage the city is asking for under Variant I 500, we are informing the city that any further expenditure for the development of preliminary designs for Variant I 500 should cease. Again, the university will not agree to that option. Neither of our organizations should expend further staff or financial resources to continue to pursue Variant I 500.”

Apparently, CU’s growth appetite tops Boulder’s flood protection.

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