A Conversation About the Colorado Constitution: Success Story or Cautionary Tale?

The Brennan Center and State Court Report regularly hold events centered on state constitutional development. One such event, which took place on October 12, 2023, in Denver, Colorado, explored the Colorado Constitution and how it’s been used to both expand and limit rights. The conversation covered topics ranging from abortion to water rights to judicial selection.

The panel included Colorado Supreme Court Justice Melissa Hart; Tom Romero, an expert on Colorado’s constitutional history and an associate professor at the University of Denver’s Sturm College of Law; and Alicia Bannon, the director of the Judiciary Program at the Brennan Center and editor in chief of State Court Report. It was moderated by Chandra Thomas Whitfield, co-host of Colorado Public Radio’s public affairs show, Colorado Matters.

The event was organized by the Brennan Center, State Court Report, and University of Colorado School of Public Affairs, as part of the Herrick Roth Community Seminars on Democracy. The Herrick Roth Community Seminars promote discussions around civic engagement, political polarization, and public policy in Colorado and beyond.

Below is a transcript that provides excerpts from the discussion. It has been edited for clarity. To see a link to the full event, please click here, or watch the embedded video below. 

Chandra Thomas Whitfield: Thank you and good evening. I’m honored to moderate this evening. Just to set this up, with a new conservative supermajority on the U.S. Supreme Court, the federal courts have limited or eliminated many federal constitutional protections, state courts and state constitutions have taken on new importance filling that role. Tonight we’ll be discussing the Colorado Constitution and its role in our state’s democracy. State constitutional innovation is not new to our state. We’ve got a long history in Colorado of turning to the constitution to expand rights, but also to limit them.

Welcome to our panelists. Let’s start with the Honorable Melissa Hart. We should note that as a Colorado Supreme Court justice, the Honorable Melissa Hart cannot answer questions about any pending cases before the state supreme court. Justice Hart, as a current member of the Colorado Supreme Court, can you speak to how the court recently has approached state constitutional issues?

Justice Melissa Hart: Thank you very much. One of the things that’s interesting about state constitutions vis-a-vis the federal constitution is that the states are free to protect constitutional rights differently than the federal constitution does. There are ways in which that can be irrelevant.

I think the example that I would give is, four years ago we heard a case brought by the Rocky Mountain Gun Owners Association about magazine capacity. The case was brought only under the Colorado Constitution. The plaintiffs did not bring a Second Amendment challenge. We were just interpreting our Second Amendment equivalent, which uses different language.

We said under the Colorado Constitution, a limit on magazine capacities is not a limit on a person’s right to carry a gun. We didn’t breach the Second Amendment question because they didn’t raise the Second Amendment question. If the U.S. Supreme Court considers this issue and says that the limitation on magazine capacity violates the Second Amendment, the fact that we said it doesn’t violate the Colorado Constitution will become irrelevant, because if it violates the federal constitution, it’s illegal in Colorado. The federal constitution always carries precedence. We can’t put limitations on what the federal constitution does, but we can protect more than the federal constitution does.

Another example is a case called McKnight, which involved a search of a car by a dog who was trained to alert to marijuana. The officer stopped the car. They brought in a drug-sniffing dog who was trained to alert to a number of different substances. One of them was marijuana. The defendant said in Colorado, after Amendment 64, it’s legal to have some amounts of marijuana. You can’t have a dog that is searching for legal things, even if they also are trained to search for things that are illegal.

A majority of our court ended up saying, in this instance, the Fourth Amendment is one of the areas where we have interpreted our constitution differently from the federal constitution. We said that given Amendment 64, the Colorado voters have said that marijuana is treated differently here. A drug-detecting dog who alerts to marijuana can’t be used on cars in Colorado because of the possibility that they’re alerting to something entirely legal. That’s a way in which we’re protecting the defendant’s rights more than the federal Constitution does.

I have absolutely no doubt that that’s not what the U.S. Supreme Court would say about the Fourth Amendment if they had this question. But the difference in our state policy makes for a different interpretation of our equivalent to the Fourth Amendment.

Whitfield: I have a follow-up for you: what do you see as the relationship between the U.S. Constitution and Colorado’s constitution when it comes to protecting rights?

Hart: One of the interesting questions that has come up is, what if, unlike the Rocky Mountain Gun Owners case, the plaintiffs bring a claim that invokes both the Colorado Constitution and the federal Constitution? How do we go about interpreting, answering the question?

We have some cases that we haven’t issued yet – so I can’t say anything about them – but they raised both federal and state constitutional questions. And we had to puzzle through, what do we answer first? Do we have to answer both? Where we’re different, how do we respect those differences? Because we are pretty committed, I think, as a state, to having in certain areas a Colorado Constitution that doesn’t simply mirror the federal Constitution, that reflects the values that Colorado voters have expressed, and that have been longtime precedent in our state. It’s something you always have to be thinking about when you’re working on an opinion. What is the relationship and what does it mean about how you write a decision?

The Rocky Mountain Gun Owners case was a really unusual one because the parties decided to bring it only under the Colorado Constitution. Much more often, we see parties who bring only under the federal Constitution and don’t raise the state constitutional question. That’s always interesting, because one of the important things about being a judge is you only get to answer the question the parties bring to you. Oftentimes, we’ll look at a case and think, “Huh, why didn’t they raise the Colorado constitutional question? There could have been an interesting opportunity to talk about the difference.” But if they don’t raise it, we don’t talk about it. It really is very much what the parties choose to bring to us, it defines what we’re allowed to talk about.

Whitfield: Thank you. Tom, as a legal historian of Colorado, you may feel like everything that’s old is new again. In the current conversation around the importance of state constitutions, what are some specific examples where you think Colorado has led the way for the country in establishing rights that go beyond the federal Constitution? What are some cautionary tales?

Tom Romero: Thank you for that question. 1875 is when we had the Constitutional Convention. Colorado’s constitution was ultimately ratified by Congress in 1876, or accepted by Congress in 1876. Those people who came together to form the constitution really had three big things that they needed to account for. There’s probably more, but for sake of time, there are three that I want us to focus on.

One is the fact that we live in this space that’s really dry. It’s the arid west. We had a lot of people that were moving here, that had come from these really wet places in which it was really easy to find water. We had people that had been living here a millennia at least, who had already begun to figure out how to capture and harness water in things like reservoirs. We had other people that ultimately became citizens. Former Mexican citizens of the United States, who settled in the San Luis Valley in southern Colorado, who had a whole system of distribution and access to water. We had to account for that.

We also had to account for the fact that we had this incredibly diverse, multicultural, multiracial, multilingual population. The Mexican American settlers were in southern Colorado, not far from where we’re at, when silver and gold were first found on the banks of the Platte and the Clear Creek. It brought all of these people from places like Germany to this particular space. They didn’t speak a lick of English. They spoke German. So we need to account for that.

Finally, and I think this is true as a general proposition about state constitutions, but particularly state constitutions in the American West, we needed to amplify a distinct program for direct democracy. We’re talking about the fact that many people moving into these spaces didn’t own real property. They were mainly transient. They were wage laborers in jobs like mining and railroads, so they were very attuned to things like corporate monopoly.

These are three really interesting and important influences in our history as Colorado and our state constitution. What are the responses to each of these? Well, first, and this is something that’s near and dear to my heart, is Article 16. Article 16 is the clause that we have in our state constitution that provides for this thing called the doctrine of prior appropriation. It really comes out of mining courts, which existed in places like California and Colorado that understood why people need access to water. The only way you can have access to water outside of Colorado, or on the other side, the eastern side of Mississippi, is if you own your own property. The biggest innovation of Article 16 is that it severs the opportunity to acquire a water right from having to own your own property. In that sense, water becomes a very durable and powerful right here in Colorado and in much of the area west. That doctrine, the doctrine of prior appropriation, comes to be known as the Colorado Doctrine.

It’s something that not only gets embedded in the state constitutions and jurisprudence of every western state, but it’s also influenced some of the larger constitutional questions that exist in places like Western Australia, as an example.

Hart: Can I obnoxiously interrupt you?

Romero: Absolutely.

Hart: Just to say people are often surprised to learn that there are only a few things that my court has original appellate jurisdiction over, and water is one of them. It’s precisely because of this, because it’s sufficiently important to our state that we just say any lower court decision, water court decision, comes directly to the supreme court for resolution.

Romero: Justice Hart and her colleagues are all water experts.

Hart: Working on it.

Romero: Second, the response to having a multiracial, multicultural, multilingual society is found in a couple of different places. For example, the state constitution’s Bill of Rights in Article 2 provides for property rights of non-U.S. citizens. Then there’s an equality of the sexes provision. And Article 9, which is our education clause, provides for the establishment and maintenance of a thorough and uniform system of education. It would be available to all between the ages of six and 21, regardless of race and color. That’s built into our constitution. Article 18 provided that all public acts, including the constitution, be printed not only in English, but in Spanish and German until the 1900s.

The third response revolves around populism. It’s largely true, as I mentioned, that in the West there are these ideas, this sense of independence. I’m a legal historian. I was trained to know about this thing called the Frontier Thesis, that self-determination was forged in places like Colorado, Nevada, Utah, California. That’s where our principles of democracy were actually captured.

The sense of independence and the idea of direct democracy, became embedded in not only our constitution, but in our constitutional practices. Colorado is one of only 20 or so states that still has its original constitution. Since 1876, however, the constitution has been amended more than 150 times. Think about that in relation to the federal Constitution as an additional matter.

Now, initially, Article 14 specified two ways of amending the constitution. You could have a typical constitutional convention, or you could have basically a legislatively referred constitutional amendment question, that could then go to a ballot for the vote of the people. That changed pretty dramatically in the early 1900s, with a group called the Direct Legislation League, and others, who thought the state legislature was basically in the pocket of corporations of industrialists, including those representing railroads and timber. They changed the state constitution and passed the state law to create a ballot initiative process to allow citizens to bring an amendment to the state constitution straight to the voters. As you can imagine, this made it very easy to change the state constitution.

Colorado became a national leader in several things because of this, including becoming the second state to give women the right to vote, which was embedded in our state constitution in 1893. More recently, we’ve had legalization of recreational marijuana and restrictions on taxation that voters passed in 1992 in the amendment called the Taxpayer’s Bill of Rights, or TABOR.

We finish up here with three cautionary tales, very brief, cautionary tales. The first two are related to the mandate of the education clause and the non-discrimination provision. First, after the TABOR Amendment in 1992, funding for public education in this state declined dramatically. Colorado, as a direct result of this amendment, went from one of the most well-funded states of public education, to one of the worst in the United States. It made that constitutional mandate of achieving a thorough and uniform system of education really, really hard.

The second is related to Article 9 and Article 16, the education and the water clauses in the constitution. These came together as a result of the school desegregation battle that was happening here in the Denver Public Schools in the 1970s. In 1973, the United States Supreme Court basically confirmed the fact that the schools in Denver, their public school system, were segregated. A year later, in 1974, voters in Colorado passed two interesting amendments to the state constitution. These impacted both Article 9 and Article 20. The one to Article 9 prevented, outside of a court order, the ability to integrate schools through busing. That’s in our state constitution. It also limited the ability of the city and county of Denver to grow from annexation.

You all might be thinking, “What does this have to do with this water?” Going back to water, Denver had long been known to take the water of those that have been living on the Western Slope of Colorado. There’s this great graphic that we use, that I use, anybody that knows water law in the state uses. It basically shows 80 percent of the people that live in Colorado were tucked along the front range. Eighty percent of the water’s on the Western Slope of the continental divide. One of the ways that you can convince voters to support these anti-school integration amendments is to say, “Denver’s going to take your water if they grow.” Water and education and integration education came together, I think, in some powerful ways.

Finally, direct democracy also worked directly against the constitution’s most inclusive and multicultural aspirations. In 1988, Colorado voters added Section 30 to Article 2, making English the official language of the state of Colorado. In 1992, Colorado voters added Section 30B to Article 2, which stripped away any civil rights for the LGBTQ community. That particular amendment is unenforceable, as in the case of Romer v. Evans it was found by the United States Supreme Court to be a violation of the Equal Protection Clause.

Hart: Tom, can I ask a question? One of the things that many people find really strange about the U.S. Constitution, is that provisions that have been recognized as noxious, such as the three-fifths provision, are still in the Constitution. They just have been superseded by other things. Is that true in Colorado’s Constitution? Is Amendment 2 still part of our Constitution, just unenforceable, or did we erase it?

Romero: That’s a great question. I don’t think it’s actually been erased from our Constitution, so it still exists as part of the text. You see this in other sorts of provisions, constitutional provisions, rural property provisions, restrictive covenants. Some of you might own property that has a restriction on the ability of People of Color to move into your property. Even though those are unenforceable as a matter of law, they still exist. So I suspect something very similar in our state constitution.

Whitfield: Well, Alicia, let’s bring you into the conversation. As someone who watches trends across the nation, where does Colorado fit into patterns you’re seeing on specific issues?

Alicia Bannon: Thank you so much for that question and to everyone for joining us here today. As you said, I’m the non-Coloradan on the panel. I come from the Brennan Center for Justice at NYU Law School. The reason why I’m here today and part of this conversation is because of an initiative that we, the Brennan Center, launched called State Court Report, and I hope folks will check out the site.

We have a newsletter. Essentially, we launched a new publication that is looking at state courts and state constitutional trends across the country. The premise is that state courts and state constitutions are increasingly important sources of rights protection. There’s a lot of litigation, there’s a lot happening around state constitutional development across the country, and there isn’t a place to find all of that in one place. You don’t have a lot of different states in conversation with each other about what are the trends, et cetera. What we’re trying to do is create that place, help to build a community around state constitutions and state constitutional development. I’m someone who’s been reading a lot of state supreme court opinions from across the country, has been looking at lots of state constitutions.

What’s been really interesting to me is that there’s both a lot of commonality. A lot of states are grappling with very similar questions. There are a lot of constitutional provisions that are very similar. But then every state, every state constitution has its own unique history. State courts are going very deep into those questions, like, “What is the particular history in our state? What were the problems that our state was seeking to address in adopting this amendment?” There’s both a universal and particular at play that’s been really interesting to see.

In terms of how Colorado is fitting into some national trends, I think in a lot of different ways. One, probably the thing that’s gotten the most attention nationally, if we’re thinking about state constitutions, is around reproductive rights. I’m sure I don’t need to tell anyone in this room, the U.S. Supreme Court’s decision in Dobbs overturning Roe v. Wade has brought a tremendous amount of attention to state courts and state constitutions as an alternative source for protecting reproductive rights. In a number of states, there have been abortion bans or restrictions that have been challenged in state courts. There are dozens of lawsuits going on in states. Right now, as of now, there are 12 state supreme courts that have found constitutional protections to abortion in their state constitutions. We have several states that have enacted constitutional amendments to explicitly protect abortion rights.

In Colorado, we’re not seeing litigation right now around abortion bans, but I think the Colorado Constitution and the role that that constitution could play in more robustly protecting reproductive rights is very much in the conversation. Currently, the Colorado Constitution has a ban, a prohibition against state funding for reproductive rights services. But there’s certainly been at least initial movement around considering a constitutional amendment movement within Colorado to codify reproductive rights protections more explicitly in the state constitution.

As I said, that’s something that we’re seeing in states across the country. People are looking to state constitutions to codify those kinds of protections, and particularly in states that use initiative processes, we’ve been seeing a lot of organizing.

Other trends that we are seeing are also playing out in litigation right now in Colorado. For example, in issues around racial discrimination in jury selection. If you look at federal law, the U.S. Supreme Court has set a standard in a case called Batson: racial discrimination in jury selection is prohibited under the U.S. Constitution. But what are the tests that are used to identify whether there discrimination in jury selection? Batson is widely seen as not being a particularly protective test, so it doesn’t catch much. We’ve seen a number of states start to grapple with, “Do we need to institute, either through rules or through our jurisprudence, more robust protections to catch this kind of racial discrimination, and ensure that it’s not happening in jury selection in our state?”

For example, the Washington Supreme Court, both through rule changes as well as through cases, has adopted quite robust protections against that kind of racial discrimination. In Colorado right now, there are rule changes being considered, as well as pending cases that raise exactly those issues.

Another area where we’re seeing changes is around the rights of the victims of crimes. Thirty-seven states have some kind of Victim’s Rights Amendment as part of their state constitution. We’ve seen a lot of litigation around the scope of those victim rights protections, and particularly around the tensions that sometimes exist between protecting those victims’ rights and protecting rights of criminal defendants. There have been recent cases in Colorado. For example, in one case, the Colorado Supreme Court held that a crime victim who was attending a preliminary hearing couldn’t be required to testify without a subpoena in that hearing, giving some meat to the victims’ rights protection in the state constitution.

There’s a lot happening in the democracy space. There’s a lot happening in the environmental space. There are a lot of places where federal courts have really been inhospitable venues, and have been closing the door to the protection of rights. Those are all places where increasingly people are looking to state courts and state constitutions, and testing those claims, testing provisions. Both unique provisions to their state constitutions, as well as analogs. Because, as Justice Hart said, a state court can interpret similar or even identical state constitutional provisions differently than how the U.S. Supreme Court interprets the U.S. Constitution.

Whitfield: Thank you. Back to Justice Hart. One of the differences between Colorado’s court system and the federal system is how judges are selected. Can you explain Colorado’s system?

Hart: Yes. Can I first ask for a show of hands? How many people in the room know how judges are selected in Colorado? [Pause] Not as many as one might hope.

We have what’s known as the Missouri Plan, because Missouri was the first state to adopt it or the merit selection system. It tries to move the focus away from both politics and patronage, to a focus on the qualifications of the judge for office. We’ve had this for a little over 50 years. But before the '60s, we had an elective judge system, which is what a majority of states still have in some version or another.

But now when there’s a vacancy on a court, anyone can apply. There are minimum qualifications. I think you have to have been, for most courts, you have to be a lawyer, although we have an interesting system where in some counties, county court judges don’t have to be lawyers, rural and frontier counties. You mostly have to have been a lawyer for five years, but after that, anyone can apply. We have nominating commissions that accept and review applications. In the district court commissions, you have four non-lawyers and three lawyers on each commission. The idea there is to keep it from being too inside baseball for the legal community.

The truth is, people who aren’t lawyers, are at least as affected by the legal system as people who are lawyers, so it’s important that it not become a legal cabal. The commissions are supposed to have no more than a majority plus one of any political party. That’s supposed to keep the politics out of it and make sure that you have someone who can get the support of people across the political spectrum.

The people on the district nominating commissions have to live in their district. Each of the associate justices – so everyone except the chief justice – takes turns rotating as ex-officio chairs for the nominating commissions. I was actually the ex-officio chair for the Second Judicial District, which is Denver, yesterday, and I’ll be the ex-officio chair for a Gilpin County position in about three weeks. When your name comes up in the wheel again, you go all over the state, which is actually one of the really interesting parts of our job, because we get to see how these nominating commissions work. We get to see the kinds of questions they ask, the values they’re looking at, the things they care about. The nominating commission will interview a certain number of candidates, and then has to choose typically three names. With county court judges, they can choose two names and send those names to the governor, and the governor has to choose one of them.

If the governor doesn’t choose one of them, if the governor says, “But my best friend who I wanted to make it through the commission isn’t on here, so I want to send it back,” that’s not an option. If the governor doesn’t choose within 15 days, then the chief justice of the Colorado Supreme Court makes a pick out of those three names. That’s never happened, by the way. I’m sure there are governors who have thought about rejecting the three names, but it’s never happened that they have rejected the three names.

What I like about it is it really does try to find a way to take politics out of it as much as possible. Not just politics, but really frankly, money. If you think about the federal system, the people who can make it into the appointment process tend to be people who are politically powerful, influential within the legal community, have connections with the people who have connections with the president or the senators. It doesn’t get a very diverse group of people in any way that we might think about diversity. We try to take that out and make it as merits focused as possible.

We then have a performance commission for each of the judicial districts. The performance commission evaluates judges. That’s always complicated. It’s really hard to figure out how to evaluate judges, but they are very creative about reading opinions, visiting the courtroom to watch judges in action. There are surveys of lawyers and parties who appear in front of the judges, surveys of judges who have knowledge of the other judges’ opinions. For example, on the supreme court, we end up being asked to survey every judge in Colorado because, theoretically – and, I think, in fact – we end up seeing some work from every judge in Colorado.

Now, we have the option to say, “I don’t have enough information to answer this question,” which is the responsible thing to do when you don’t have enough information to answer the question. I think we do a lot of that, but they really try to take as much feedback as possible and provide a performance evaluation.

Then we stand for retention elections. After you’ve been appointed, there’s a probationary period of two elections after you were appointed. It can be as much as almost three years, but it’s two elections after you were appointed, then you’ll be on the ballot.

If our system worked ideally, every voter would go look in the Blue Book where our performance evaluations are included. Every voter would make a decision based on that rather than based on other things. That’s obviously not what happens. There are some people who vote yes on everyone, some people vote no on everyone, some people who leave it blank because they don’t know. But I’m given some hope by the fact that in the past couple of election cycles, the couple of judges who did not meet performance standards evaluation were in fact not retained. Which does suggest that voters are looking at the Blue Book or somehow getting that information.

That system, the combination of the nominating performance commissions and then the retention election, is designed to make sure that we are accountable, that we have good judges on the bench who are doing their jobs well. And again, it’s pulling, as much as possible, the politics out of the system.

Whitfield: Tom, can you walk us through how Colorado’s constitution can be amended and how is it different than the U.S. Constitution?

Romero: I’ll definitely take that first one. I’ll do my best for the second one beyond what I’ve already talked about. I mentioned in 1910, Colorado voters changed our constitution and they gave our citizens in the state two really important powers. The first is the referendum, and this really allows citizens a direct say on legislation the legislature passes to the general assembly. Basically, through a process of gathering signatures on a petition, it allows us to place that legislation on the ballot for voters to approve or reject.

But the more significant power is the second one, called the initiative. This allows citizens to petition to place measures on the ballot that would enact a constitutional amendment. Citizen-initiated statutes, like other laws, could later be changed by the general assembly in the normal course of legislation. But a constitutional change, a constitutional amendment, could not. In 1912 – that was the first year that this initiative option was available – there were 32 ballot initiatives, and the use of the ballot initiative to amend the state constitution peaked in that decade. After the 1920s, it was only used sporadically until a huge uptick, beginning of the 1980s and continuing until the present day.

The mechanics are pretty simple. Any person interested in placing a constitutional amendment or a statutory proposition on the statewide ballot must first draft the measure’s initial language, which I think is one of the biggest challenges. It is subject to summary review and amendment. Up until 2016, you needed to get only five percent of the people who voted in the previous Colorado secretary of state election to sign, indicating that they support the measure, in order for that measure to be placed on the ballot. As you can imagine, especially in the late 20th and the early 21st centuries, the ease of amending Colorado’s constitution made it an attractive testing ground for both national movements and many special interests.

As different amendments piled up, one problem that emerged was there’s no easy way to reconcile competing and conflicting amendments to the state constitution. All of these challenges are certainly coming to bear in the present day. One of the responses to that is Amendment 71, which our voters approved in 2016. It’s known as the Raise the Bar Initiative. Basically, it changed the number of signatures and the percentage of signatures that you needed to get from that five percent in the previous secretary of state election, to two percent of registered voters in each of the state’s 35 Senate districts. Those are the basic mechanics. One thing that has been really interesting is you’re required, in a sense, to have a footprint there in every county if you want to change the constitution.

Whitfield: Justice Hart, what would you say are the consequences of making it easier or harder to amend the state constitution?

Hart: Unfortunately, I think one of the biggest challenges is it becomes a matter of money. You need money to get out into each of the 35 senate districts. Before people could mostly get their votes from the doors of Safeways in Denver, Adams, and Arapahoe Counties, and that made it less expensive.

It also means you have fewer constitutional amendments. We were going through a period in the '90s and in the aughts, where we were seeing, I don’t even remember the highest number. But I’m going to say 16, 17, 18 constitutional amendments on the ballot, that were voted on by people who may or may not have understood exactly what the language of the amendments meant. With that much material, I think in some years, Denver’s ballot was as much as 10 pages, which is daunting for people living in Denver. There are reasons that people supported shrinking the number of constitutional amendments, but it definitely does make it a money game.

There is a board, which has a member from the AG’s office, a member from the legislative legal counsel, and a member from the Secretary of State’s office, that considers challenges to the title of an amendment. After they’ve decided what to do with it, it comes for review, a very deferential review, but review at the supreme court. What we’re seeing as now very standard is people who are running measures will propose 6, 7, 8, 9, 12, 14, multiple different kinds of language.

For example, you may remember voting on whether there should be liquor or wine in grocery stores, which we voted on in the last election, I think. “Should there be wine in grocery stores and delivery to homes,” is I think what was ultimately on the ballot. But they also proposed, “Should there be wine in grocery stores?” “Should there be delivery to homes?” “Should there be wine in grocery stores and restaurants can have a delivery to homes, but not through third-party vendors?” There were tons and tons and tons of possibilities. About all of them, the only question the supreme court is answering and the title board is answering is, “Is this a single subject?”

Then the people who are running them would go out and test them with voters to see which one seems most likely to pass. The whole process of passing an initiative has become professionalized in this quite remarkable way, which, again, means it ups the money that you need to go through this process. I think I would call that one of the unfortunate pieces about it. But on the other hand, again, it was reaching what I would call somewhat of a crisis point in terms of the high number of initiatives.

Whitfield: Alicia, to what extent are state constitutions similar to each other?

Bannon: That’s a great question. Most state constitutions have, more or less, a set of analogs to the federal Bill of Rights. You’ll see those state constitutions will have some version of those protections. Although as Justice Hart mentioned, there have been places like in the Fourth Amendment context, where those provisions have often been interpreted quite differently from how the U.S. constitutional provision has been interpreted.

Then there are also many states that have provisions that don’t exist in the federal Constitution, but exist in a lot of states. Nearly every state, for example, has some form of a constitutional protection for the right to vote, an explicit constitutional protection. There are many states, an overwhelming majority of states, have some form of access to justice provision in their state constitution. Nearly half of all states have a state-level Equal Rights Amendment, so a gender equality provision. There are a lot of common provisions that we see in a lot of states.

In some instances, these come out of different state-level movements. And in some instances, they reflect an amendment wave. For example, the state ERAs, we saw a lot of them crop up in the '70s and '80s in response to and as part of the federal movement for the adoption of a federal constitutional amendment, which we’re still waiting for. But there was a lot of success in the states.

States also have some really particularized provisions. Often, when I’m talking to law students I say, “Read your state constitutions, they’re really long.” There’s a ton of stuff in there. In the Texas Constitution, there’s a whole section regulating the use of the ATM machines. You’ll have these very specific, particular provisions. In Colorado, one provision that I would lift up that is unique is the Taxpayer Bill of Rights, which is something that there were efforts in other states to pass. But Colorado stands out as having that provision, which is a unique provision in that state. There’s both a lot of commonality, and also a lot of unique provisions.

Whitfield: If we’re used to following constitutional rights cases at the federal level, are there nuances that we may be missing when thinking about Colorado?

Hart: Because of this panel tonight, I went to take a look at what impact our Equal Rights Amendment had. On a quick search – I did a very quick search – and couldn’t find any cases that were particularly focused on the Equal Rights Amendment. I then had my law clerks do a more thorough search.

They did find that, in fact, we’ve had some cases that really pretty likely wouldn’t have been covered by any federal constitutional provision, but that did impact the law here in Colorado. There was one that I thought was really interesting from 1992, which is the most recent one that seems to have any significant substance. Colorado’s ERA has been found to have clearly established the separateness of spouses. I think all over the country, we’ve abandoned the idea that women are the property of their husband for the most part. But this idea, the separateness of spouses in this case, it was found that a board of education could prohibit a member of the board of education from becoming a teacher in the district because that would be a conflict of interest. But it could not prohibit the spouse of a member of the board of education from becoming a teacher, because again, the Equal Rights Amendment means you are separate from your spouse. You have a separate identity, so that conflict can’t be directly attributed. I thought that was a really interesting one.

Another one I thought was interesting was from 1980, from pretty early on in the interpretation of our Equal Rights Amendment. It’s a case in which there was a paternity statute which excluded unmarried men from claiming to be a child’s natural father. We have a presumption of fatherhood when a couple is married, that the father is the person who’s married to the mother. By statute, we didn’t use to allow someone else to come in and say, “I actually claim paternity of that child.” The Colorado Supreme Court in that case said, “the father has an equal right to claim paternity, as the mother would have to claim parental rights, and so that statute is unconstitutional”. Again, as I thought about it, I couldn’t think of any way that that could be reached by anything in the federal Constitution. It shows that those particular provisions can have their own unique impact, so I thought was interesting.

Bannon: That’s such an interesting set of examples. As you were talking, I started to think about something that isn’t Colorado specific. Looking at some of the reproductive rights’ litigation that we’ve seen in states across the country recently, where people have been turning to state constitutional provisions and looking at how some of those have been litigated, what’s really striking is that in many of those states, they’re really not Roe v. Wade 2.0. They’re often grounded in different legal theories. For example, in a number of states that have found state constitutional protections, they’ve been grounded in equal protection theories. Or even in one state, New Mexico, in a state ERA.

I think one thing that I would say for people who have been focused on federal litigation and thinking of those federal frameworks is it’s really important to step back and think about the provisions in front of you and what frameworks might make sense for the particularities of your state.

Also – this goes to something Justice Hart was talking about earlier – there are many states that have a whole set of doctrines about the relationship between interpreting your state constitution and the federal Constitution. Some states have very strict rules about, which provisions do you look at first? Or when do you lockstep with the state with the federal Constitution and when don’t you? In other states, it’s much more ad hoc or it depends on the issue where they really haven’t set out clear standards. Just the importance of really digging into exactly the frameworks that exist in any particular state, is something that comes up a lot if you look at how these questions have been addressed in different states.

Whitfield: All right. We have been huddling over here about some of the questions being asked by the audience. We’ll throw this out and whoever wants to jump in. What practices, if any, present an attempt to restrict access to voting in Colorado? What enhances access to voting in Colorado, and how does this impact democracy in Colorado?

Hart: I want to avoid being political. But I would say whether it’s good or bad, we are one of the states in the country that has made access to the ballot as accessible as possible. That’s legislative change, not constitutional change, but we have the all-mail system. We have made it clear that people who are in jail, meaning in jail awaiting a conviction, can vote. If you have not been convicted, you’re absolutely part of the voting population. We’ve also made it clear that once you have completed whatever time you’re expected to serve, you regain your right to vote.

There are a lot of other states that don’t do those things. Overall, our approach to democracy and to voting, both with the direct democracy of the ballot initiative and with individual rights to vote, has been an expansive approach, not a diminishing approach.

Bannon: One other example I would add is the adoption of an Independent Redistricting Commission in Colorado. A few years ago, in a case called Rucho v. Common Cause, the U.S. Supreme Court ruled that you could not bring a U.S. constitutional challenge to partisan gerrymandering, that those cases were not justiciable under the U.S. Constitution, but said that you can look to state law and state constitutions and state statutory provisions. Those could potentially offer protections that the U.S. Constitution lacks. That’s something that we’ve seen play out in litigation.

Currently, there are eight states that have found partisan gerrymandering claims justiciable under their state constitutions. But then we’ve also seen adoptions of reforms, like Independent Redistricting Commissions, in states as another way of procedural change, to try to get at the underlying concern of how to create a system where you’re more likely to end up with fair maps.

Whitfield: Here’s a question for Alicia. What are your thoughts about rifts developing between those states protecting citizens’ civil rights and those stripping its citizens of those same rights?

Bannon: That is a great and important question because what we’re seeing in a whole host of areas is a patchwork developing, where some states are having very robust protections of rights and some are not. That goes back to the role of federal law and the U.S. Supreme Court and Congress in creating national level protections. I think that’s a really important thing to hold onto as we’re talking about the role of states.

I think state courts, state constitutions, are critically important sources of rights protection, but they can’t replace a federal baseline. The U.S. Constitution should function, and U.S. statutes should function, as a floor to protect rights for all Americans everywhere across the country, not depending on where you live. In a host of arenas, we’ve seen the U.S. Supreme Court roll back or limit rights.

We’ve seen the court limit also the functioning of critical statutes like the Voting Rights Act, limiting the level of protection provided there. I do think that that a concern that we have now is that, depending on where you live, there are real variations in terms of how much protection of fundamental rights you have. At the same time, I also think even in a world where you have robust federal protections, there’s also a lot to say for looking to states.

There are a lot of particular needs, particular traditions within states that could make it really important to also have robust state constitutional provisions, even if you have robust federal protections. I would look to states to be responsive to the needs and histories of their own people as well. But I do think one thing that we’re seeing is with a number of fundamental rights, reproductive rights, voting rights, democracy issues, they’re very different environments just depending on where you happen to live.

Whitfield: If the U.S. Supreme Court reverses the decision protecting same-sex marriage, what would be the status of same sex marriage in Colorado?

Hart: I think that goes to the question that I asked Tom about Amendment 2. Our constitution still contains a provision limiting marriage to between one man and one woman. I think it would be a matter for the current polity to take up, but what our constitution currently says is that.

Bannon: I’ll just highlight that that’s true in a number of states. In the '90s and 2000s, many states adopted state constitutional amendments explicitly limiting marriage to a man and a woman. I think that’s something that is worth paying attention to. It could create opportunities for people to organize and ensure that their state constitutions protect marriage equality.

Hart: The wonders of modern technology – one of my law clerks texted me and my watch told me. My clerk just texted me to point out that currently, marriage equality is protected by federal statute. In theory, if the U.S. Supreme Court overturned Obergefell it shouldn’t matter in the states, although I suspect that would be the subject of litigation. But that is an important thing to remember, that the law has changed in other ways beyond constitutional interpretation.

Whitfield: Another question from the audience: South Africa has very robust positive rights Constitution. Do states in the U.S. have the same? Are any influenced by South Africa or other countries?

Bannon: Well, I’ll say that one of the ways that state constitutions differ from the U.S. Constitution, is that typically they do have more affirmative rights than exist in the U.S. Constitution, which is generally just, “Government, you can’t do X, Y and Z.” But not affirmatively saying, “Government, you have to provide certain protections.” That is a way state constitutions do really differ. There are opportunities to assert positive obligations. In terms of how states have looked at comparative law, it depends state by state. But in many states, there has been a stronger tradition of looking to comparative law internationally than we’ve seen in the federal context, where oftentimes federal courts have been fairly hostile to looking into international practice. Not always. But there’s been Justice Scalia, there’s been a lot of critics of that within the federal tradition. Something that I’ve heard said is that state courts are used to be compared with others, because they’re often looking to other states as well because there are all of these similar provisions.

Romero: The South African example is fascinating because within their constitution is a human right to water. It exists in California as a statutory codification, but not as a constitutional change. But international law and sovereign states in other parts of the world can maybe point to the future. We have actually seen positive rights in places like New York, Virginia, Michigan. The Montana Constitution has a human rights provision. It was passed in the 1970s. I don’t know much about it, I just know it exists. But it is one of those pieces that, again, highlights exactly what Alicia’s saying. Comparative understanding of these positive rights can point towards changes that can happen in the future.

Whitfield: Here’s another question. What is the role of more localized courts such as county courts, considering that every case makes it to a higher state court?

Hart: It’s one of the things that we’ve been grappling with in Colorado. I’m thinking particularly of the law surrounding evictions that take place in county courts. Residential evictions are 100 percent in county courts, because it has to be above a certain dollar amount to get into the district courts. County evictions also happen very fast in Colorado. There are very few appeals of county court decisions to the district courts, but they happen occasionally. They have no precedential value. If, after an appeal to the district court from the county court, someone petitions for certiorari to my court to see if they can establish some statewide standards, we almost never take it because it has no precedential value. It doesn’t fit within the standards of what we take.

County court decisions fly underneath the radar of things that get addressed at a statewide level. Again, I think one of the things that a number of people in this room have been talking about tonight is creative litigation. I think lawyers, we can only do what we get. But lawyers need to think about how to move cases out of those places where they’re protected from review, if there are things that they think would be worth having review and having some kind of standardization on. Because county courts do make decisions that affect people’s lives very significantly, but so many of them escape review.

Romero: I’ll add, I think it’s a great question and I just believe that state courts are worthy of a lot more attention and a lot more study. I think county courts, local courts, city courts, municipal courts, that’s the place actually that most people encounter the rule of law. They’re not going to be at the Colorado Supreme Court, at the Ralph Carr Center, not the appellate court. They’re going to be at their county court, their traffic court, and municipal court. That is really, I think, if we want to test where democracy happens, it’s a place and it fails, I think that’s one of the places that we should be paying a lot more attention to.

I also want to point out too, and I think just in the same ways that our federal Constitution creates really interesting questions about sovereignty and rights between federal government and state government, state constitutions do the same thing. Here in Colorado, we have a clause in our Article 20 that really divides power between state government and municipal government. You get all sorts of really interesting and novel questions about what our cities can do independent of the state legislature.

Going back to water law, I’ll give you an example. Two of our cities of Colorado, Ridgeway and Niwot, they have passed, with their powers that exist in the Colorado Constitution, a right to the river, of the stream of the river that goes through their towns and their cities. Again, there are these novel ways in which state constitutions can empower cities to be really creative, in terms of thinking about the rights that can exist within at least their own sovereign jurisdictions.

Whitfield: Last audience question. Has the current makeup of the U.S. Supreme Court, and recent federal decisions, heightened refocus on state courts?

Bannon: Has the conservative supermajority on the U.S. Supreme Court brought more attention to state courts? Absolutely. I’ll just give one example. In Wisconsin this year, in April, there was a judicial election. We were talking about different ways that states choose their judges. That’s an important thing to think about, as we’re thinking about state courts as sources of rights protection. Thirty-eight states use elections as part of their system of choosing judges. In Wisconsin, there was a conservative majority on that court for 15 years. Then there was an open seat and an opportunity to shift the ideological composition of that court. Due to $50 million spent in an April election in Wisconsin, it got national attention, a huge amount of politicization. You had very explicit discussions of abortion on the ballot, partisan gerrymandering on the ballot. The liberal candidate won, and there were then subsequently threats to impeach her, which recently pulled back.

I think one thing that we’re seeing is state courts are becoming real focuses of attention for better and for worse. I think one thing that we’re going to have to grapple with is what that politicization, at least in some states, means for the ability of state courts to play the role that we need them to play, as places for deciding the laws as providing fair and impartial justice.

Hart: I’ll just say I don’t think I know a single judge in Colorado who would be a judge if we were an elective judge state. Not because they couldn’t get elected if they wanted to do that. But because it’s actually really important to our identity as judicial officers, that we do stand independent of the political system, and I’m really glad we’re not an elective judge state.

Whitfield: What is the one thing you want our audience to walk away with this evening? We can start with you, Justice Hart.

Hart: I guess I think the thing that all of this raises for me is the importance of people getting involved. Whether it’s getting involved in who your judges are, or getting involved in looking at what the ballot initiatives are. I said it takes money now to get an initiative on the ballot, but it also takes volunteers. You can bypass the money if you’ve got volunteers.

There are things people care about. Democracy requires engagement. I just want to shout out that there are a number of law students here from Colorado University and a number of high school students from East High School here, who are exhibiting the value of being engaged by even participating in this conversation. That gives me hope for our future.

Romero: That’s hard to follow up on. I think what I would hope you all – as we think about the larger arc of the history and the development of the Colorado Constitution – remember it was rooted in a very particular place. This is just, of course, built in my DNA, it’s why I do what I do.

This document stitched us together in some really interesting and important ways. We’ve seen over time too, the way that it’s also worked to create divisions. Really start taking into account that history, understanding the nature and the complexity of that change over time. I hope that if you’re thinking about this constitution, you understand that it does have this really rich past that’s tied in particular to this larger place that we call Colorado.

Bannon: These are very hard acts to follow. I’ll just say the takeaway that I would give is state courts matter, state constitutions matter. When I was growing up, if you talked about the constitution, you just meant the U.S. Constitution. If you were thinking about courts, you were thinking about the federal courts, to the extent you were thinking about them at all. I hope we can encourage conversations across the country, and that people expand their sense of which institutions matter for our democracy, really learn about them, pay attention to them, and be engaged citizens.

Whitfield: Thank you. Let’s thank our panelists and I will remind you of who they are. The Honorable Melissa Hart, a justice on the Colorado Supreme Court. Tom Romero, an expert on Colorado’s constitutional history and an associate professor at the University of Denver. Alicia Bannon, director of the Brennan Center’s Judiciary Program and editor in chief of State Court Report.

Also, our thanks to the Colorado University School of Public Affairs, the Brennan Center for Justice’s State Court Report, and our co-sponsoring organizations this evening. Please attend future events in the Roth Community Democracy Series, and please sign up for the free State Court Report newsletter.

My final plug, listen to Colorado Matters, 9:00 AM and 7:00 PM Monday through Friday and 10:00 AM on Sundays, and send us your ideas. Thank you so much.

Suggested Citation: Nancy Watzman, A Conversation About the Colorado Constitution: Success Story or Cautionary Tale?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 26, 2024), https://statecourtreport.org/our-work/analysis-opinion/conversation-about-colorado-constitution-success-story-or-cautionary-tale.