A Colorado Constitutional Paradox: Initiatives, Referenda, and the Eclipse of Original Intent in County Governance0

• July 15, 2008

• County governments are the only legislative bodies in Colorado which are not subject to the people’s right of initiative and referendum.
• The people’s right of initiative and referendum was placed in Colorado’s Constitution in 1910 by a contentious Extraordinary Session of the Colorado General Assembly, followed by a popular vote of the people.
• Examination of the ratification history shows that application of the initiative and referendum powers to county governments seems not even to have been a subject of discussion.
• The taken-for-granted omission of county governments from the explicit reservation of the powers of initiative and referendum made sense in 1910, when counties were seen as purely administrative arms of the state government with no independent legislative powers or functions of their own.
• The nature and functions of county governments in Colorado have evolved a great deal since 1910; now, county governments manifestly exercise extensive independent legislative powers.
• In our state constitution’s structure, the only source of the county governments’ new and evolving legislative powers is the explicit or implicit delegation of power from the General Assembly; the General Assembly is, of course, subject to the people’s powers of initiative and referendum.
• The result is that if the General Assembly’s power is exercised directly, by the General Assembly itself, the exercise of that power is subject of the checks and balances of initiative and referendum. But strangely, if that same power is exercised secondhand, as when a county government exercises power delegated from the General Assembly, the exercise of the same power is not subject to the constitutional checks of balances of initiative and referendum.
• Thus, in terms of the original meaning of the constitutional amendment which created the initiative and referendum process, county governments are today operating without the appropriate opportunity for direct democracy to remedy legislative abuses or mistakes.