After over a decade of litigation, Colorado taxpayers finally have their Taxpayer Bill of Rights (TABOR) preserved in their state constitution. The case Kerr v. Polis, which has been the subject of seven district court opinions, several 10th Circuit opinions, and an order by the US Supreme Court shows just how far anti-taxpayer lawmakers and influences are willing to go on laws that restrict lawmakers’ ability to tax their residents.
TABOR was passed by Coloradoans in 1992 and makes it unconstitutional for Colorado to pass a state or local tax increase without the voters approving the tax increases in a referendum. TABOR also places restrictions on how revenue surpluses can be spent.
The case started in 2011 when a group of Colorado state representatives, school boards, and county commissions sued then-Governor John Hickenlooper. They alleged that Colorado’s TABOR constitutional provision violated the Guarantee Clause of the U.S. Constitution, which says the United States will “guarantee every state a Republican form of government.” Their lawsuit argued that by restricting their ability to pass tax increases, Colorado is deprived of representative government. A victory for them would mean that every law that requires voters to approve certain actions by state legislatures would violate this Constitutional provision.
The argument is as frivolous as it sounds.
The Guarantee Clause has been litigated only a few times in US history and each time the lawsuits were dismissed as a nonjusticiable political question, meaning the issue of what is a “Republican form of government” is so political that the issue should be decided by legislatures instead of the courts.
The most high profile case involving the Guarantee Clause is Luther v. Borden in 1849, which was argued after a rebellion in Rhode Island against the state’s restrictive voting laws. The leaders of the rebellion formed a rival government and filed suit arguing that the original government, where only landowning males could vote, violated the Clause. Chief Justice Taney ruled that the plaintiffs’ arguments relied on questions surrounding political rights, so the Supreme Court could not hear the case. This case established the precedent that arguments involving the Guarantee Clause are “nonjusticiable,” or cannot be heard in court. Courts since have refused to apply the Clause in cases about gerrymandering and ballot initiatives.
But instead of dismissing the lawsuit immediately as a nonjusticiable “political question” the Colorado court system embarked on this decade-long journey of wasting judicial and taxpayer resources by one at a time dismissing plaintiffs for not having standing to bring the suit. The saga finally ended this month when the plaintiffs did not appeal the 10th Circuit’s final dismissal for lack of standing to the US Supreme Court. (NTUF’s Taxpayer Defense Center advised the TABOR Foundation on potential appeals.)
What lessons can be learned from this case’s long history? First, the case illustrates just how revenue hungry some state representatives and school boards are. They are willing to hire expensive private sector lawyers for 10 years to fight a law that restricts their ability to tax. For some, any restriction on their ability to tax goes too far and they are willing to make frivolous arguments in court to preserve an unlimited and unrestrained taxing and spending of power.
For some of the plaintiffs, depriving taxpayers of their rights is more than their job. Of the lawsuit’s original plaintiffs, only one state representative is still in office and only one school board member has retained her seat on the school board. TABOR remains a popular provision because Coloradians know how important it is to protect against excessive taxation.
To restrain revenue hungry state lawmakers, it is important that taxpayers are willing to fight back and that organizations like NTUF’s Taxpayer Defense Center exist to represent taxpayers free of charge in constitutional disputes over state taxing power.
The Colorado TABOR case is just one example of revenue hungry states and state representatives going to great lengths to eliminate taxpayer rights. These examples continue to prove the necessity for more taxpayer protections that empower taxpayers.