Three years ago, a group of primarily government plaintiffs sued in federal district court to void Colorado’s Taxpayers Bill of Rights (TABOR). TABOR allows the people, not just the legislature, to vote on most tax increases, most debt increases, and some spending hikes.
The plaintiffs argued that the 20-year old state constitutional provision violated the U.S. Constitution’sGuarantee Clause by putting Colorado out of compliance with its requirement that each state have a “republican form of government.”
In addition to its (very) late filing, the lawsuit faced a number of obstacles: It was doubtful whether, under U.S. Supreme Court case law, the plaintiffs had standing to sue. It was doubtful whether, under Supreme Court case law, any claim under the Guarantee Clause was justiciable. Previously, the Court had ruled that Guarantee Clause questions should be presented to Congress, not to the judiciary. In addition, for a case to be justiciable there have to be legal standards for deciding it, and the Plaintiffs’ legal papers were massively unclear about what the correct standards were.
Finally, the case had big problems on the merits: The evidence is crystal clear that the term “republican” as the Constitution uses the term, allows for direct public votes on policy matters. Nearly all states permit such voting to some extent, particularly on taxes, spending and debt.
That such an open-and-shut case was not dismissed immediately is a grave commentary on the efficiency of the federal judicial system. Three years later, the courts still have not reached the merits. Both the district judge and the U.S. Court of Appeals have allowed the case to proceed even though it still is unclear what legal standard of “republicanism” the plaintiffs propose to apply. Dissenting judges on the Court of Appeals argued, correctly, that enough is enough: Taxpayers should not be forced to endure additional time-wasting on a meritless case.
The Colorado Attorney General agrees with the dissent, and has filed a petition for certiorari with the Supreme Court. The term certiorari is Latin for “to make more certain,” and it is the traditional introductory wording for a court order (writ) demanding that a case be sent to it for review.
The Supreme Court, rightly, is sparing in how often it grants certiorari. This case, however, is a classic case not just for certioriari, but for summary reversal of the kind the Supreme Court ordered in 2012 in response to a baseless Montana state decision.
You can read the Attorney General’s petition for certiorari here. Most of this long document consists merely of appended documents. The argument itself is quickly read.
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