DENVER State lawyers Wednesday faced tough questions from a federal judge about why a lawsuit against Colorados Taxpayers Bill of Rights should be thrown out of court.
Last year, 34 plaintiffs sued the state, saying TABOR violates the U.S. Constitution and the 1875 law that created the state of Colorado because TABOR strips the Legislature of its power to tax.
It allows tax increases only if voters approve, but the Constitution guarantees each state a republican form of government that is, a government where voters elect representatives to pass laws.
Without the Legislatures power to tax, Colorado has become more like a direct democracy, which the founders of the United States sought to avoid, the plaintiffs have argued.
Many of the plaintiffs are current or former state legislators. Their lawsuit blames TABOR, which voters passed in 1992, for Colorados slow, inexorable slide into fiscal dysfunction.
Sadly, the republican form of government here in Colorado has suffered great injury, said David Skaggs, a former Democratic congressman who argued the plaintiffs case.
Lawyers for the state argued that U.S. District Judge William Martinez should throw the case out because its a political question not suited for the courts. They pinned their argument on a 100-year-old case from Oregon.
But Martinez made clear at the beginning of the hearing that he disagreed that the Oregon case applied to the TABOR lawsuit. The judge quizzed Assistant Attorney General Megan Paris Rundlet with a hypothetical situation.
What if tomorrow, a ballot started to be circulated for the abolition of the Colorado Legislature? And what if, given how popular legislatures are these days ... it passed? Martinez said.
Rundlet paused, and then said the current case law would bar courts from overturning such a ballot measure.
Throughout history, this question of whether something violates a republican form of government has been committed to Congress, Rundlet said.
Martinez will issue a written ruling later about whether the case can proceed.