Background
Proponents Tanya Nathan and Lindsey Rasmussen submitted two paired ballot initiatives to Colorado’s Ballot Title Setting Board. Initiative #241 would have replaced the constitutionally-established independent congressional redistricting commission with an identical statutory commission — but only if Initiative #242 simultaneously passed. Initiative #242 would have created a new temporary congressional district map for the 2028 and 2030 elections — but only if Initiative #241 simultaneously passed. The two measures were thus expressly cross-contingent: neither could take effect unless voters approved both. The Title Board, by a two-to-one vote, found each initiative contained a single subject and set titles for both.
A third initiative, #328, submitted by petitioners John Brackney and Robyn Carnes, was nearly identical to #242 but proposed a different temporary district map. It too was conditioned solely on passage of Initiative #241. Here the Title Board reached the opposite result, declining by a two-to-one vote to set a title because the measure’s dependence on a separate initiative meant it did not constitute a single subject.
Petitioner Robert Balink sought review of the Board’s approval of #241 and #242, arguing the cross-contingency created multiple subjects. Brackney and Carnes sought review of the Board’s rejection of #328, arguing it was no different from #242. The Colorado Supreme Court consolidated all three cases and decided them together.
The Court’s Holding
The court held unanimously that an initiative violates Colorado’s single-subject requirement whenever its effectiveness is expressly conditioned on the passage of a separate, independent initiative. The court reasoned that if the subjects of #241 and #242 were combined into a single measure — restructuring the redistricting commission while simultaneously adopting a specific new district map — that combined measure would plainly contain at least two distinct subjects with no necessary and proper connection between them. Proponents could not cure the multiple-subject problem by splitting those subjects into separate-but-interlocked measures, because each initiative’s contingent effective date meant that both subjects were, in substance, the subject of each initiative.
The court also identified the logrolling concern central to the single-subject rule: a voter who might support moving the redistricting commission from the constitution to statute could oppose the specific map in the paired initiative, or vice versa. Cross-contingent measures force a package vote on multiple subjects, exactly the mischief the rule is designed to prevent. Allowing proponents to proceed with such interlocking measures would permit them to achieve indirectly what they could not achieve directly.
Applying these principles, the court reversed the Title Board’s approval of titles for Initiatives #241 and #242 (case nos. 26SA122 and 26SA123) and affirmed the Board’s refusal to set a title for Initiative #328 (case no. 26SA157). The Board therefore lacked jurisdiction to set titles for any of the three initiatives.
Key Takeaways
- Cross-contingent initiatives — where measure A takes effect only if measure B also passes, and vice versa — are treated as containing multiple subjects under Colorado’s single-subject rule, even when the two measures are nominally separate filings.
- The test is substance over form: splitting a multi-subject proposal into paired, interlocking initiatives does not cure the constitutional defect that would exist if the subjects appeared in a single measure.
- The logrolling rationale applies with full force to cross-contingent initiatives because they compel a bundled vote on distinct subjects, preventing voters from accepting one subject while rejecting another.
- The Title Board lacks jurisdiction to set a title for any initiative that contains multiple subjects; the court will affirm a Board’s refusal to set a title on that basis and reverse a Board’s erroneous title-setting on the same basis.
Why It Matters
This decision closes a potential loophole in Colorado’s direct-democracy process. Sophisticated initiative campaigns might otherwise use paired, cross-contingent measures to present voters with what is functionally a multi-subject package while technically satisfying a per-measure single-subject review. The court’s rule — that contingent effectiveness imports all linked subjects into each measure — forecloses that strategy and preserves the anti-logrolling purpose of Article V, Section 1(5.5) of the Colorado Constitution.
For practitioners, the decision signals that initiative proponents must ensure each measure can stand entirely on its own legal footing, without reliance on the simultaneous passage of any companion initiative. It also illustrates the tension inherent in cross-state redistricting responses: the underlying initiatives were designed to counteract mid-decade gerrymanders in other states, but that political objective could not override Colorado’s structural ballot requirements.