On the final day of its term, the U.S. Supreme Court sent a case about Colorado’s TABOR amendment back to the 10th Circuit Court of Appeals for further consideration. It is a problematic situation full of twists and ironies but one that also offers hope for fans of good government.
In Kerr vs. Hickenlooper, 34 plaintiffs sued the state of Colorado, arguing that by limiting the Legislature’s control of state finances, TABOR violates a provision of the U.S. Constitution that guarantees every state a “republican form of government.” Enacted by Colorado voters in 1992, TABOR both requires a vote of the people to raise taxes and limits how much money the state can keep from tax revenue.
The high court did not speak to that directly. Instead, it sent the case back to the lower court to be looked at again in light of another decision the court handed down last week concerning another voter-approved amendment in another state.
In Arizona State Legislature vs. Arizona Independent Redistricting Commission, the court ruled that the voters were within their rights to set up the commission to draw legislative district lines. The Legislature maintained that was its prerogative.
The idea behind the commission was to prevent whatever party controlled the Legislature from redistricting for partisan gains – gerrymandering. And it seems to have worked in Arizona. In 2012, Arizona elected five Democrats and four Republicans to Congress. In the 2014 election, it was still five to four, but the other way around.
Where the court found relevance to Colorado was in how it got to the Arizona ruling. Where Coloradans may want to look, however, is at what it approved.
The Arizona case largely turned on two issues: whether the Legislature had standing in the case and whether the word legislature can be interpreted to mean a vote of the people. In both cases, it said yes. And in both cases, those answers could apply to Colorado and the TABOR case.
The court said the Arizona state Legislature had standing, but as an institution. At least one analyst says the court was clear that was different than a situation, such as in Colorado, where only some lawmakers were involved. And in saying a vote could satisfy the constitutional meaning of “legislature,” it would appear the court essentially said a popular vote was a republican form of government. Both ideas would seem to work against the challenge to TABOR.
One ironic note is how this shakes out politically. TABOR is most popular among Republicans and generally detested by Democrats. In the Arizona case, however, it was the court’s four most liberal justices, joined by Justice Kennedy, who may have saved TABOR. The court’s four most conservative members seem to have agreed with the Legislature’s council (and TABOR critics) who argued that taking lawmakers out of the process was not how a republic works.
The 10th Circuit will, of course, decide how all that applies to the TABOR case. And it could conceivably end up back before the Supreme Court.
What Colorado voters might want to take from the Arizona case is that the court approved of putting redistricting in the hands of a non-partisan commission. More than a dozen other states have done so and Colorado could, too. And with that, it could avoid the political battles and court fights that have accompanied redistricting.
Besides, as Justice Ginsburg, quoting another redistricting case, wrote in the majority opinion “‘the voters should choose their representatives, not the other way around.’”
