Colorado Legislative Cowards Block People’s Right to Review Their Decision on Death Penalty
Today the Governor of Colorado signed the bill repealing the death penalty. Repeal is a subject that reasonable people can and do disagree on. However, in a shameless act of legislative cowardice, the Legislature put a patently false declaration in the bill for the sole purpose of defeating the power of referendum that the people of Colorado have reserved to themselves. For that, every legislator who voted for this bill deserves to be defeated at their next election.
The cornerstone of American government is the postulate that all power inherently belongs to the people, and the organs of government have legitimate power only because the people have delegated it to them. See Declaration of Independence ¶ 2 (1776); Marbury v. Madison, 5 U.S. 137, 176 (1803).
In many American States, mostly in the West, the people have chosen not to vest the entire legislative authority in their elected representatives. Instead, they have reserved a portion to themselves to be exercised by direct vote. The reserved powers typically include the initiative, to propose and vote on their own bills without the legislature, and the referendum, to vote up or down on bills the legislature has passed.
Article V, §1(3) of Colorado Constitution provides in part (emphasis added):
The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions, against any act or item, section, or part of any act of the general assembly, either by a petition signed by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election or by the general assembly.
These exceptions for “urgency measures” are contained in the referendum provisions of other state constitutions also. See, e.g., Cal. Const. Art. II § 9(a). A referendum petition puts a law into limbo until the election, and the relatively small percentage of the electorate that can put a measure to a referendum vote should not be allowed to block truly urgent legislation.
But how do the people protect their right of referendum against legislators who shamelessly, cynically insert an urgency clause in a patently non-urgent bill just to defeat that right? In California, an urgency clause requires a two-thirds vote. See Cal. Const. Art. IV § 8(c). In Colorado, the people evidently relied on the integrity of their legislators. An urgency clause requires only a majority vote, and the courts will not review the truth of the clause, no matter how patently false it may be. See In re Senate Resolution, 54 Colo. 262, 270-271, 130 P. 333, 336 (1913). That appears to have been a mistake.
The Colorado Legislative Staff Fiscal Note describes SB 20-100 in a nutshell: “This bill repeals the death penalty in Colorado and makes conforming amendments. Sentences for offenses charged before July 1, 2020, are not changed.”
Section 15 reads: “The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety.”
The death penalty has been debated for centuries. Executions in Colorado have been on hold through misuse of the reprieve power since 2013. There is nothing immediate here. There is not even a straight-face argument that “the public peace, health, or safety” will be damaged between now and the election if the people are allowed to vote on this bill. The declaration is an act of cowardice by elected representatives who are afraid to let the people vote on their decision because they know the people will reject it.
This is a shameless, cynical lie. Let us hope that the people of Colorado call their legislators to account for it in November.
District Attorney George Brauchler has this statement. His district includes Arapahoe, Douglas, Elbert and Lincoln Counties, south and east of Denver.