Change would enforce voting limit to citizens

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Opponents worry ballot question may cause confusion, lead to voter suppression efforts

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By Lucy Haggard, The Colorado Sun

On first glance, Amendment 76 looks redundant. 

Colorado’s current constitution states that “every citizen” of the U.S. who is 18 or older, has state residency and is registered to vote can participate in elections. Amendment 76 seeks to change that language to “only a citizen.” Federal, state and local elections in Colorado are already only for U.S. citizens. 

Yet with further inspection, one detail stands out: Amendment 76 would limit all voting in the state to those who are 18 years of age or older. 

This was already the case in Colorado up until last year, when the Democratic-controlled state legislature passed the Colorado Votes Act along party lines and Gov. Jared Polis signed it in May 2019. The law allows 17-year-olds to vote in a party’s primary election, so long as they will be 18 by the November election. 

For the 2020 primaries, the first time that the law applied, 9,942 17-year-olds voted in the presidential primary and 4,380 voted in state primaries.

If Amendment 76 were to pass, it would override that law, as well as close the door for future statewide changes of its nature. One example: this past spring, a bill proposed in the state legislature — and that ultimately died in committee — would have opened the door for 16- and 17-year-olds to vote in school board elections. 

The amendment needs support from 55% of the state’s voters to win approval, since it adds language to the constitution. Colorado voters approved the higher threshold for constitutional changes in 2016 as a way to deter frequent amendments.  

Home rule: The balance between state and local authority

Amendment 76 would shut down potential legislative attempts to expand the qualifications for who can vote in statewide elections. Yet the jury’s still out on whether or not it would actually affect voter qualifications for the municipal level, which is one of the ballot measure’s main intentions.

It comes down to a concept called home rule. In Colorado, home rule has been part of the constitution since the early 1900s. A municipality can usher in a charter that essentially functions as a localized constitution, giving them the ability to self-govern by collecting local sales taxes and additional kinds of excise taxes, as well as customizing local elections, courts and more. Colorado has 103 home rule municipalities and is one of over 30 states in the country with this kind of local self-governance.

Home rule is codified in Article 20 of the state’s constitution, which reads, “Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.” In other words, home rule can essentially override a state law when the issue at stake is a matter of specifically local concern.

A few home rule cities around the country, such as Chicago and San Francisco, allow noncitizens to vote in certain local elections. There is not currently a home rule municipality in Colorado that has different voter qualifications from those designated by the state, and Amendment 76 intends to keep it that way. 

But based on the amendment’s language, it may not actually matter. Kevin Bommer, executive director for the nonpartisan Colorado Municipal League, said the organization isn’t taking a side on Amendment 76 because the ballot measure does not explicitly state that it takes precedence over local control. In contrast, previous referendums, including the state’s 1992 tax overhaul known as TABOR, have included a clause overriding home rule in no uncertain terms.

“Could you say absolutely that (Amendment 76) doesn’t apply? No, of course not, it would be open to interpretation by the judiciary,” Bommer said. “But based on how they’ve managed that before, we feel like we’re on pretty solid ground that (Amendment 76) doesn’t apply to home rule elections.”

Bommer noted that if a municipality with home rule status wanted to change who was eligible to vote, that would only affect local elections, not statewide or federal elections.

As the law already is, statewide elections are only for citizens. Noncitizen legal residents, such as green card holders, can’t vote in Colorado, according to Hunter Knapp, a postdoctoral fellow at the University of Colorado Law School. And this isn’t just in the constitution; it’s also codified in state law

“Given the preexisting requirements in Colorado law, (Amendment 76) does seem to be a solution without a problem,” Knapp said.

Knapp said the amendment may be more about galvanizing conservatives who are concerned with voter fraud to turn up at the polls this fall. There’s a chance that the courts may take it up to consider its effect on home rule should it pass, but “somewhat surprisingly,” Knapp said, “it doesn’t really affect citizens or noncitizens.”

Who’s in favor of Amendment 76?

The measure is supported largely by Colorado Citizen Voters, a local branch of the Florida-based Citizen Voters, Inc. 

Founded by former Missouri politician John Loudon and his wife, Gina, the national 501(c)(4) has backed similar measures around the country. John Loudon is also a former policy adviser for America First Policies, which is aligned with the Trump administration’s foreign policy goals, especially around immigration. Gina Loudon is a conservative media personality and co-chair of Women for Trump 2020. 

Currently two states — Arkansas and North Dakota — use the language proposed in Amendment 76 to govern who votes in their elections. 

George Athanosopoulos, one of the amendment’s petitioners in Colorado and a former Republican U.S. congressional candidate, said the measure is more “preventative,” intended to ensure only U.S. citizens of a certain age and residency can vote.

“This isn’t about evidence or what’s currently going on, this is about what could happen based on our current vague, inclusionary constitutional language,” Athanosopoulos said. 

Athanosopoulos thinks that the amendment is within the legal bounds to override home rule and says that’s precisely the point.

“Home rule is great, but at the same time, we have the constitution for a reason, that is the foundational document in the state of Colorado that other statutes and ordinances are built upon, and we have to have consistency,” Athanosopoulos said.

Who’s opposed to Amendment 76?

Critics of Amendment 76 argue that it’s a veiled attempt at voter suppression, and if passed, could become a slippery slope. 

ACLU of Colorado is leading the Campaign for Real Election Protection, a coalition of local organizations rallying against the measure. Julian Camera, the campaign’s manager and a field organizer for ACLU of Colorado, said that if the ballot measure passes, switching from inclusionary to exclusionary constitutional language would have more consequences than voters may realize.

“With that one word, it looks like a simple change, but it takes away any future opportunities” to expand voting rights, Camera said. 

Camera also called the ballot language confusing, especially for voters who may have just finished the citizenship process. He and the coalition worry that should Amendment 76 pass, it could open the door for more direct attacks on voting equality, whether that’s discrimination at the polls or future voter identity laws. 

“This opens the door for discrimination against those that don’t fit some people’s perceived idea of what a registered eligible voter looks like,” Camera said. “Voting is a right, not a privilege.”

The measure’s impact on 17-year-old voters is another reason opponents want Colorado voters to reject it at the ballot box. One of the Campaign for Real Election Protection’s member organizations, Student Voice Student Vote, led the unsuccessful effort for the school board voting bill this year. 

The measure’s impact on 17-year-old voters is another reason opponents want Colorado voters to reject it at the ballot box. One of the Campaign for Real Election Protection’s member organizations, Student Voice Student Vote, led the unsuccessful effort for the school board voting bill this year.