Right-to-work backers go directly to Plan B

By Chris Bragg
THE COLORADO STATESMAN

Ballot measures that have been certified by Colorado’s Department of State almost always reach the ballot.

In fact, only once in recent memory has a legal challenge caused a Colorado court to overturn the certification of a proposed amendment — in 1994 when the court upheld a challenge to the secretary of state’s decision to certify an initiative to allow gambling in Trinidad.

That decision, however, eventually was overturned.

But a recent response from backers of Amendment 47 to a lawsuit seeking to overturn the amendment’s certification could indicate that this particular legal strategy still has legs.

The backers of Amendment 47, which would make Colorado a “right to work” state, requested on June 27 that they be allowed to begin collecting “additional signatures to add to the current valid petition signatures and cure any potential insufficiency.”

The move is odd because the backers asked for the allowance after Amendment 47 had been certified for the ballot but before Denver District Court determined whether anything unlawful happened in the course of gathering the signatures.

“You don’t get a blood transfusion before you have surgery,” quipped Jess Knox of Protect Colorado’s Future, a coalition of labor groups and progressive activist groups that opposes the right-to-work initiative.

“What’s unprecedented to me is that they didn’t cure the problems when they had the opportunity,” Knox added. “Now they want a further opportunity to gather signatures without admitting they made mistakes.”

Typically, such a “curative” request to gather more signatures would be made only after a court decision has been rendered. Then again, the hard August 4 deadline to give the secretary of state’s office all signatures for all initiatives and amendments is approaching rapidly.

Backers of Amendment 47 say the request to gather more signatures is part of their backup plan. The attorney who composed the request for Amendment 47’s backers says he is using “aggressive litigation” rather than suggesting that opponents of the amendment might have a strong case.

“If that’s the standard they’re going to use, then, by the same standard you could say they’re scared to death that this right-to-work initiative is going to pass,” said Scott Gessler, a GOP election lawyer at the Denver firm Hackstaff Gessler. “I’ll bet you dollars to doughnuts that their own internal polls show that it’s going to pass.”

“The other side can spin it all they want. Whatever,” Gessler added. “The fact is, we’ll let the courts decide, but we’re pretty confident.”

Amendment 47 would ask voters to amend the state constitution to say union membership and the payment of dues or fees could not be mandated as a condition of employment. The amendment is backed by a coalition of business owners. The lawsuit against the certification of Amendment 47 names Secretary of State Mike Coffman, Aurora City Councilman Ryan Frazier and Julian Jay Cole as defendants. Frazier and Cole submitted the ballot proposal, while Coffman is named because his office certified that the measure’s supporters had enough signatures to qualify it for the ballot.

The lawsuit challenging Amendment 47 was filed on behalf of Protect Colorado’s Future and alleges 29 violations, most of them against signature-gathering companies Kennedy Enterprises and Lamm Consulting, which were hired by the backers.

Allegations include claims that signature gatherers misled people by telling them they didn’t have to be registered voters to qualify as petition signers, or that they didn’t have to live Colorado.

Qualified signature gatherers also must live in Colorado. Knox, however, has presented evidence showing circulators listed their residences at the addresses of a vacant lot, a defunct tanning salon and a payday-loan store. The lawsuit also alleges that citizens were encouraged to sign the petitions more than once and that unauthorized notaries were used to certify the signatures.

“At every step of the process there was criminal fraud and illegality,” Knox said. “This is unprecedented.”

A spokeswoman for the backers of Amendment 47 has called the charges “nothing more than a smokescreen and a sign of desperation.”

Based on a random sample of the signatures conducted by the secretary of state’s office, 94,546 signatures gathered for Amendment 47 were considered valid. That leaves a fairly narrow window of roughly 18,000 above what is required to qualify the amendment for the November ballot.

Gessler, however, said that even if some of lesser the charges against the signature gatherers were proven — for instance, that some petition circulators listed inaccurate addresses — enough signatures would remain to keep the initiative on the ballot. He contends it would be removed only if one of the “global” charges were to result in an extremely high number of signatures being thrown out.

An example of such a global charge is that petitions were not correctly numbered, a potential violation that Gessler termed “about as minor as it gets.” Gessler asserted that all potential global violations are similarly minor.

Protect Colorado’s Future, however, takes a different view. They contend, for instance, that 53,000 signatures out of the more than 136,000 signatures gathered were from unregistered voters — something that, if proven, would not be considered minor by the court.

Neither side knows exactly when the lawsuit would be settled, although state statute says a decision on the matter should be made within 30 days of the response by the backers of Amendment 47. That response was made on June 27, so the end of July should be the latest that the suit could be decided.

Knox indicated that legal challenges also could be coming against Amendments 53 and 59, two other business-backed initiatives currently being circulated for November. Knox said he’s hearing complaints about the signature-gathering processes for those possible amendments similar to the ones he heard concerning Amendment 47.