Tuesday, October 10, 2006

Amendments 38 & 40

We received a brochure from Active Citizens Together encouraging us to vote yes on Amendments 38 and 40. Amendment 38 is Petition Rights and 40 is Term Limits for Judges.

I like the idea of being able to petition local governments, which 38 would codify universally. However, 38 seems to have been drafted by people who had trouble getting enough legitimate signatures to get their pet issues on the ballot.

I didn't even have to read past Table 1 to decide against Amendment 38.

1. Minimum Requirement - State and municipal clearly give reasonable numbers to attain, 5% for state, 5 - 15% for municipal. Amendment 38 requires "not more than 5% ... ." I think, since some municipalities require more than 5%, 38 would limit all municipalities to 5%, but allow for smaller percentages. I think 5% should be the minimum.

2. Signatures - currently signatures are counted and verified against voter registration files, and faulty or duplicate signatures, or those that don't appear on the files, are discarded; the burden falls on the petitioner to prove eligibility. The new law would simply count and not verify, leaving some un-named party to protest suspect signatures.

3. Protests - The above is more problematic when coupled with the protest time limit. Currently, state and municipal requirements for challenging an inauthentication are 30 and 40 days respectively. The new law would limit the time to 10 days for the authenticity of the signatures to be challenged, and a requirement to resolve the matter within another 10 days.

4. Time Limit - Currently, petitioners have up to 6 months to gather signatures, and if the minimum number aren't collected or turned in on time, the signatures are void. Under 38, petitioners would have 12 months, which isn't necessarily completely objectionable. However, if the proponents do not gather enough signatures or turn them in on time, the same signatures can be submitted for the next November election, giving petitioners in effect 2 years to collect signatures.

When combined with the signature and protest requirements, this last issue is proof positive that this Amendment makes it way too easy for marginal issues with little support to make it onto the ballot. Six months is a much more reasonable time frame to hold people to their decisions. In two years, a person may change their mind, move out of state, die -- things which are not necessarily reflected in voter registration files. Petitioners get to turn in a two-year-old signature while giving the opposition checking the signatures (whoever that may be) ten days to protest and only ten days to verify.

This Amendment is ridiculously weighted to create way too many ballot issues at all levels of government, and when I vote, I'm already going to have a heck of a lot of issues to decide. If petitioners can't get enough signatures in a timely fashion, then there is not enough initial support to waste everybody's time on election day when lines are long.

Arguments for Amendment 40 limiting the terms of judges are contradictory and ignorant, especially considering the previous argument in favor of 38.

First the brochure says, "Courts need to be more accountable. Judges too often legislate like politicians, ignoring the constitution. Their job is to apply the laws, not rewrite the laws." Then it says, "Outrageous court rulings have allowed 12-year-olds to marry ... ." That ruling was a perfect example of the courts applying law, not rewriting it.

Where written laws do not exist, common law does.
In 1877, the United States Supreme Court stated, in an action which questioned the validity of a nonceremonial marriage, that marriages which were valid under common law were still valid unless the state passed a statute specifically forbidding them. Meisher v. Moore, 96 U.S. 76 (1877). Since the Colorado legislature has never enacted such a statute, Colorado is part of the minority of states which recognize the validity of common law marriages.

In fact, what was described as surprising about the decision was not that it lowered the common law age of marriage to 12, but that it set one at all. Previously, Colorado common law had no minimum age. The court went by English common law as precedent, which sets the minimum for girls at 12.
Harhai said that, while surprising, the appellate decision was not logically or legally flawed and was in line with other established Colorado law.

Therefore, said Harhai, it would likely require action by the state legislature if Coloradans are uncomfortable with the result of Thursday's ruling.

In fact, the ruling seemed to offer an "invitation" to legislative correction, Harhai said, by including the phrase "in absence of a statutory provision to the contrary."

There was no law to rewrite, only precedent and common law. There may be failings in the courts, decisions we disagree with; but the failings of so-called anti-activist zealots in their understanding of the law at all far outweighs those shortcomings. The complaint against "activist judges" only comes when people are upset about a ruling they don't like. And then they complain when judges aren't being activist and legislating from the bench about things they support.

This is indeed a bald attempt to make the judiciary more subject to the short-term, uninformed whims of the body politic.

I'm voting "no" on Amendment 40, as well. Both Amendments seem designed to give too much power to marginal, uninformed, uneducated boobs who want to make it easier to push their marginal, uninformed, uneducated agendas on the general populace.

Progressive Women's Blog Ring
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