Jimmy’s Colorado Politics Column | Recall curbs invite legal challenge

Written by on May 11, 2021

One week ago today, Senate Democrat leader Steve Fenberg introduced Senate Bill 250 to make it harder for Coloradans to recall elected officials, as permitted by the state constitution since 1912. SB21-250 also amends a number of other election matters, including many minor changes and some notable ones.

Overall, the legislation is a mixed bag and a giant missed opportunity to strengthen our elections. However, the part of Fenberg’s bill that gets really troubling is the part about recalls.

SB 250 declares that the “general statement” every recall petition presents (that is, the statement making the case for recalling a public official) “SHALL not include any profane or false statements.” Existing law uses the word “may.” The word change seems strange and significant.

The general statement is intended to inform electors (voters). Current statute expressly states this; SB 250 doesn’t change it. Accordingly, voters are the “sole and exclusive judges of the legality, reasonableness, and sufficiency of the ground or grounds assigned for the recall.” Furthermore, it says, the ground(s) “are not open to review.”

Wait. If the voters are the “sole and exclusive judges” of the appropriateness and legality of a recall, and the grounds are “not open to review,” why change the word “may” to “shall?” It seems to this layman that “shall” has greater force and weight of law, suggesting the grounds for recall could be challenged or struck down. But then it says they’re not open to review. This is a lawsuit waiting to happen.

Further complicating matters, SB 250 makes the opposite word change shortly thereafter. Current law says “[n]o person shall circulate a recall petition unless the person is a citizen of the United States and at least eighteen years of age.” Fenberg’s bill would amend the word “shall” to “MAY.” Why would you lessen the term “shall” to “may” if you aren’t trying to weaken the legal fortitude of the provision? Think about what this tells us about “may” to “shall” concerning the general statement for recall.

As with any ballot initiative or any effort to elect a candidate, the claims made to recall an elected official will always be subjective. The idea that the government should interfere and play “arbiter of the truth” in political matters is antithetical to the essence of the citizen’s right to recall for the citizen’s own reasons. Truth certainly matters, but in campaigns and elections, government should not get to decide what’s true.

Similarly, the legislation would let an incumbent facing a recall obtain an advance copy of the petition and then submit a “statement of the incumbent.” The committee organizing the recall will have to include the incumbent’s statement on the petition when signatures are collected. SB250 isn’t clear on where or how often it must appear, but it would require it. (Conspicuously, this opportunity isn’t provided to opponents of a ballot measure or a candidate for reelection who hopes to petition on.)

Talk about subjective “truth.” Of course an elected official is going to oppose the basis for a recall and take the chance to present a counterargument! This again flies in the face of the very premise of a recall: When citizens are empowered to recall elected officials, the presumptions are that those officials are elected to serve the people and the people have the right to hold their elected officials accountable.

By opening the floodgates to possible legal challenges of grounds for recall and then enabling elected officials to defend themselves during the petition phase, SB 250 is an affront to everything about Colorado’s system.

It would insulate politicians in power — conveniently, the Democrats who are stoking the flames of opposition with a flurry of extreme bills and have every reason to shield themselves from accountability — while weakening everyday Coloradans. That’s just plain wrong.

May the Fourth — Star Wars Day — was a rather appropriate day to introduce a bill that, in part, mandates “the truth” on recall petitions. It reminds us of Jedi Master Obi-Wan Kenobi’s wisdom in, “The Empire Strikes Back.”

Kenobi assures Luke Skywalker that, when Kenobi had told him his father, Anakin Skywalker, was murdered by Darth Vader, what he told him was “true, from a certain point of view.” Kenobi imparts wisdom: “You will find that many of the truths we cling to depend greatly on our own point of view.”

There is inherent danger in enabling those in power to determine what is true or what is not. When it comes to recalls, that’s precisely what SB 250 does.

Whether you or I support a particular recall is irrelevant. In fact, it’s already the case that the vast majority of recall efforts don’t get the number of petition signatures they need. Even on the rare occasion when that happens, the road to removal is a tough one to hoe and frequently fails. Nevertheless, recall is the constitutional right of the people.

Any reasonable person will conclude that SB 250’s new recall provisions are at best superfluous and at worst chilling to free speech and accountable government. Then again, maybe that’s the point.

Click here to read the rest of Jimmy’s May 11 column at Colorado Politics, a sister publication of The Washington Examiner.

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