by Jerry Kopel
I hope you vote "yes" on Referendum D. I drafted the amendment, so I want that to be clear up front. Referendum D removes 12 obsolete sections from the state constitution. They range in time from 1902 to 1998. No one objects to 11 of the 12 sections. David Ottke and Dennis Polhill of the Colorado Term Limits Coalition object to repeal of one section, their 1996 term limits amendment.
That amendment required state and federal legislators to follow a strict procedural effort (1) to call for a federal constitutional convention and (2) for state legislators to ratify the exact term limit language to be put in the U.S. Constitution. If you didn't do exactly what they told you to do, you would be branded on the ballot as having "disregarded voter instruction on term limits."
In 1998 the Colorado Supreme Court ruled 7 to 0 that the 1996 amendment violated Article 5 of the U.S. Constitution. In 2001 the U.S. Supreme Court ruled 9 to 0 that a similar Missouri amendment violated either Article 5, Article 1.4 or the First Amendment on free speech.
Both the Colorado Supreme Court and the U.S. Supreme Court pointed out freedom to debate and voting by conscience are essential in a Republic and branding a legislator on a ballot with coercive language infringed on federal jurisdiction under Article 5.
Opponents haven't argued against what the courts did. But there have been sufficient debates and news stories to examine their objections. First Ottke and Polhill argue the term limit issue was not in the bill title. Well, they fail to mention that not one of the 12 sections repealed appears in the title.
That's because the legislative drafting office determines bill titles. They made the decision back in 1990 to list Articles where the repealed obsolete sections appear. Article 18 covers the term limit language repeal and Article 18 is in the title. I defy anyone to find any repealed section in the titles of the successful 1990, 1992 and 2000 amendments which removed obsolete sections.
On page 2 of the bill that passed is a summary list of what's repealed. It states "A congressional term limit amendment held unconstitutional by the Colorado Supreme Court in 1998."
Opponents claim the bill was introduced near the end of the session. There's a good reason for that. The Senate had introduced five constitutional amendments and the House had introduced eleven. We had to wait until all 16 either passed or failed to know what Articles we would be able to amend in Referendum D.
Another argument was that legislators didn't know what they were voting on. The vote in favor of Referendum D was 100 to 0. Yes, there are a few legislators who never read a bill and vote on who is the sponsor. But to claim legislators don't read at least the bill summary which follows the title and is one page in size is derogatory to legislators.
They claim the Judiciary Committee members didn't know what was in the bill they passed. I testified in both the House and Senate committees. In the House committee I engaged in a short debate with Rep. Shawn Mitchell on the term limit amendment. I saw no members leave during my testimony.
They ask "why pick on us" when there are other unconstitutional amendments that have not yet been repealed. The answer is we want to reduce the size of the constitution. We seek quantity. We are repealing six pages of which the term limit language constitutes one and one-half pages.
Finally, they claim the term limit section is not obsolete and that some court in the future could rule in their favor. The legal meaning of "obsolete" is that which is no longer used, disused, neglected, not observed. The term limit section fits every one of those definitions.
(Jerry Kopel served 22 years in the Colorado House.)
Copyright 2015 Jerry Kopel & David Kopel