Colorado’s highest court on Friday rejected a late attempt to overturn the vote on a hotly contested progressive income tax measure.
He upheld a Denver District Court ruling rejecting a legal challenge that the court should reject voter signatures for Amendment 87.
This means that Amendment 87 will remain on the ballot and votes on it will be counted.
“Twice, Colorado courts have held that the more than 130,000 voters who signed this petition deserve to have their signatures counted and that the people of Colorado deserve to decide this issue for themselves,” said Chris deGruy Kennedy, co-chair of Protect Colorado’s Future and president of the Bell Policy Center. Protect Colorado’s Future is the coalition behind the progressive income tax measure.
“Justice has prevailed. More than a million voters cast ballots as this case went through the courts, and today’s decision means their votes on Amendment 87 will count,” said Kiyana Newell, Amendment 87 supporter and director of policy and research at New Era Colorado. “The people funding this lawsuit chose to hide behind this lawsuit instead of making their case to voters. Now the decision is up to the voters of Colorado, which is where it always belonged. We are grateful that the courts upheld democracy. People have the right to vote on a ballot measure that they legally put on the ballot.”
DeGruy Kennedy acknowledged some errors that he called administrative oversights.
“We’ve been open about this from the beginning. The people behind this lawsuit haven’t been open about anything. They’ve spent an enormous amount of money on lawyers to prevent voters from having a say, and they still won’t tell Colorado who they are or how much they spent,” he said.
The plaintiff’s lawyer was not happy with the decision.
“The result is disappointing because it leaves a system in which there will be little accountability for those who collect signatures and don’t follow the rules,” said Jason R. Dunn, an attorney representing an opponent of the proposal who filed the lawsuit.
Under this measure, people and businesses with annual income below about $500,000 would see their income taxes decrease, and taxes would increase for income above that half-million dollars.
Consequential and controversial
The measure is one of the most important and controversial on the fall ballot and has spawned billions of TV spots, mailers and social media ads on both sides.
Supporters argued the measure would make state income taxes fairer and raise billions in new revenue, just as states like Colorado face deep federal cuts to social programs.
Opponents countered that it would hurt the state’s economy and small businesses and amount to a $2.7 billion blank check for the Legislature, which has been controlled by Democrats in recent years.
The seven-member tribunal did not explain its thinking in a 47-word judgment, dismissing the appeal.
“The votes cast on Initiative 2025-2026 No. 195 (also known as “Amendment 87”) will be counted,” it says. The Court will issue an opinion in due time.
How did we get here?
An opponent of the progressive income tax, named Michael A. Hancock (no relation to the former Denver mayor), filed a lawsuit earlier this month. He claimed that dozens of paid signature gatherers working with the coalition behind Amendment 87 failed to properly follow state registration rules.
A judge threw out the case and said state law doesn’t allow the elections office to block a vote on a proposition because of registration problems with signature gatherers.
Lawyers for all parties involved presented an opening brief to the high court on Monday, outlining the details of each argument. The plaintiff challenging the amendment, people supporting it and the secretary of state’s office responded to the court’s questions Wednesday in what are called response briefs.
Opponents of Amendment 87: Collection errors should invalidate signatures
In the brief, lawyers for Hancock, an Arapahoe County native, argued that progressive income tax supporters made multiple errors in gathering more than 124,000 signatures required to place a proposition on the ballot. Then, they said, the secretary of state’s office, which governs the election process, made the problem worse by never checking, before filing the complaint, whether the paid signature gatherers, called circulators, were properly registered.
This violates a provision of state law intended to prevent fraud, wrote the attorneys, led by Dunn, a former Colorado assistant attorney general and U.S. attorney, of the high-profile firm Brownstein Hyatt Farber Schreck in Denver.
Supporters of the measure “failed to ensure that at least 66 of their 311 paid broadcasters were registered” to collect signatures for the measure, as required by law, they wrote in their response. This error should prove fatal for Amendment 87, they argued.
Unregistered mailers collected enough signatures that should have been invalidated to bring the measure “below the constitutional signature threshold” needed to qualify for the ballot, the brief says.
The lawyers are also taking on the secretary of state’s office, led by Jena Griswold, a Democrat running for attorney general.
“Its own ballot access manager testified that registration verification was not part of the office’s review process and that he was not aware of any investigation into circulation device registration failures,” the attorneys write, saying the agency failed to follow laws passed by state lawmakers to prevent “fraud, abuse, or errors in the petition process.”
For supporters of Amendment 87: deletion of signatures is not the right solution to signature collection errors
The right to initiative is a fundamental right in Colorado and the initiative process should be “liberally construed” and “unfettered” by technicalities, the lawyer for progressive income tax supporters wrote.
The court should leave it to Colorado voters to decide whether Amendment 87 becomes law, wrote Martha M. Tierney of the Denver law firm Tierney Lawrence Stiles.
Supporters of the progressive income tax have largely complied with all demands of petitioning entities and outreach organizations, she argued.
Evidence presented at trial in the lower court showed that the extent of any noncompliance was insignificant, and there was no evidence that “there was anything other than a good faith effort” by Amendment 87 supporters to comply with the new registration requirements for petition entities and broadcast organizations.
Likewise, Tierney asserts, there is no indication that the broadcasters were intended to “mislead the electorate.”
Opponents of Amendment 87 are seeking the wrong solution, she argued.
“Invalidation of petition signatures is not an appropriate remedy” when a petition entity fails to properly register its paid petition circulaters. “Instead, requesting entities may be fined or have their licenses suspended,” Tierney wrote.
Secretary of State’s Office: Opponents of Amendment 87 want to take the measure out of voters’ hands
Opponents of the graduated income tax neither recognize nor refute “the serious constitutional problems that would result” from rejecting Amendment 87 based on their interpretation of state law, attorneys for the secretary of state’s office wrote in their response.
That would take the case “out of the hands of Colorado voters based on technical permit violations,” wrote three attorneys in the attorney general’s office of Phil Weiser, a Democrat running for governor.
Moreover, opponents do not dispute the validity of the signatures at the heart of the process, they argued.
“As for the signatures that appear on the petition” — including the signatures of notaries, traffic officers, and the 130,938 voters statewide who support putting the proposition to a vote — plaintiff offers no challenge,” they write.
The constitutional implications of the opponents’ appeal “are staggering,” the brief asserts, arguing that their attorneys’ failure is a “blatant admission” that the man who filed the lawsuit “has no valid constitutional defense of his position.”
Furthermore, opponents of Amendment 87 have not proven that the various traffic officers who collected the signatures were actually paid “and not volunteers for whom no registration requirement applies” when they collected the disputed signatures.
The Secretary of State’s office got what it asked for as the state Supreme Court let Amendment 87 remain on the ballot.
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