Colorado Government – Fall 2008 Contents A. History of the Colorado Constitution 1 1. Geography 1 2. Colorado Territory, 1861-76 1 3. The 1875-76 Constitutional Convention 4 4. Amendments 5 5. Constitutional Events 6 B. The Bill of Rights and Voting Rights—Articles II and VII 14 1. Religion 15 2. Search and Seizure 25 3. Due Process, Constitutional Equality, and Special Legislation 31 4. Retrospective Legislation, Gun Rights, Eminent Domain, and Juries 33 5. Voting Rights 34 C. The General Assembly and the Governor’s Veto Powers 35 1. Original Art. V Limits 36 2. Other Original Limits 37 3. Amendments 38 4. Applications 38 5. Redistricting 47 D. Courts; Term Limits 61 E. General Purpose Local Governments 66 1. Counties 66 2. Cities and Towns 71 3. Constitutional Home Rule 78 4. Current Home Rule Doctrine 84 5. Home Rule Theory 99 6. Home Rule and Dogs 101 i A. History of the Colorado Constitution1 1. Geography Parts of Colorado have been within the actual or claimed domains of several American Indian nations (notably Ute, Cheyenne and Arapahoe), Spain, France, Mexico, and the Texas Republic. Under U. S. sovereignty, parts of the future state were within Kansas, Nebraska, New Mexico, and Utah Territories. A north-south mountain boundary was common to all territorial boundaries before 1859.2 After the first major gold discovery in 1858, the Kansas Territory sector was swarmed with for- tune hunters. In 1859, many of them organized mass meetings followed by a vote to hold a con- vention to establish a new territorial government. The convention adopted an extra-legal consti- tution and government for Jefferson Territory, with boundaries taking in all of present-day Colo- rado and parts of Utah, Wyoming, Nebraska and Kansas. It was the first boundary to bridge the mountains.3 Colorado’s present boundaries were drawn by Congress for the Organic Act establishing Colo- rado Territory in 1861. The Organic Act’s boundaries are two lines of north latitude (37º and 41º) crossed by two meridians measured from Washington (approximately 102º and 109º west of Greenwich) to form the State’s nearly rectangular shape.4 The boundaries have not changed since 1861. A 1903 resurvey of the Colorado-New Mexico boundary on the 37th parallel placed the line north of the original survey by a considerable distance. In 1919, New Mexico sued Colorado to claim the territory between the two lines. This would have shifted most of a town, two villages, and five post offices to New Mexico and disrupted many other settled expectations. The U. S. Su- preme Court rejected the claim, applying the standard rule that a resurvey cannot alter a bound- ary that has been substantially relied upon.5 2. Colorado Territory, 1861-76 In the summer of 1858 William Green Russell and his companions discovered gold at the con- fluence of Cherry Creek and the South Platte, and word spread rapidly and widely. People flooded into the area, soon known as the Pikes Peak gold region. By winter, two clusters of cab- ins and tents faced each other across Cherry Creek. Auraria, named for a place in Georgia, had residents mostly from Georgia and Nebraska and was “a moral place.” Across the creek was the hamlet later named Denver, in honor of General James W. Denver, Governor of Kansas Terri- tory. Denver’s residents haled primarily from Kansas and Missouri and indulged in more “drink- ing and humbugging.” During the winter of 1859, the newly arrived miners were cabin-bound and consumed with poli- tics. The miners, in an election hotly contested between the “drinking element” and those who abstained, and with a cigar box for a polling booth, elected a representative to Congress, Hiram Graham. He had a mandate to lobby Congress for separate territorial status for the Pikes Peak 1 See generally Dale A. Oesterle & Richard B. Collins, The Colorado State Constitution 1-25 (2002). 2 See Thomas J. Noel, Paul F. Mahoney & Richard E. Stevens, Historical Atlas of Colorado (1994), at parts II, VI. 3 See 2 Sources and Documents of U.S. Constitutions (William F. Swindler, ed. 1973), at 16-22. 4 See Frederic L. Paxson, “The Boundaries of Colorado,” 2 U. Colo. Studies 87 (1904); Historical Atlas of Colo- rado, supra, part II. 5 New Mexico v. Colorado, 267 U.S. 30 (1925). 1 area, but Congress did not respond. Impatient mining communities sent representatives in the spring of 1859 to convene at Uncle Dick Wootton’s Tavern on Cherry Creek for the purpose of founding a new state. The group set grand boundaries, named the new State of Jefferson, and made preparations for a constitutional convention. There was no lengthy discussion because the delegates were all in haste to get through. Voters of the embryonic State of Jefferson rejected the constitution on September 5th, however, expressing a marked preference for territorial status. The trappings of statehood looked to be far too expensive and the stability of the mining camp economy far too unsteady. Undeterred, the mining communities elected a delegate to Congress from the self-proclaimed Territory of Jefferson and chose delegates to found a provisional territorial government. The delegates met in a Denver saloon, the Apollo Hall, wrote a territorial constitution in a single day, modeled on the rejected State of Jefferson constitution, and submitted the new constitution and a full slate of territorial officers to local citizens on October 24. Many did not vote, but those who cast ballots overwhelmingly favored the territorial constitution. The general assembly of Jeffer- son Territory met in November and began passing laws, anticipating federal recognition. In 1860 Denver citizens, dissatisfied with the illegitimate, provisional Jefferson Territory legisla- ture, organized and created a constitution for an illegitimate, provisional “People’s Government of Denver.” The preamble professed loyalty to the federal Constitution and the laws of Kansas Territory but noted that, because no immediate protection was available from either, the law of self-preservation necessitated the creation of a temporary government “to protect our lives and . property from the lawless.” Voters ratified the Denver constitution and elected officers on Oc- tober 1. The last municipal election under it was held in April of 1861. In 1860 the Denver area, then, had three governments competing for jurisdiction, a county of Kansas Territory, a county of Jefferson Territory, and the People’s Government of Denver. Congress preempted the provisional governments by establishing Colorado Territory on Febru- ary 28, 1861. The month before, Congress had admitted Kansas as a state with its present boundaries, and, compelled to cope with the Pikes Peak part of Kansas Territory and its maver- ick governments, passed the Organic Act creating Colorado Territory with the state’s present boundaries.6 At the time the Act passed, seven southern states had seceded, and most of their senators had left Washington. Their absence removed the major opposition to the creation of new western territories. The ink had barely dried on the territorial act when proponents of statehood renewed their peti- tions to Congress. The struggle involved sharp conflicts both locally and nationally. The local conflict revolved around the costs and benefits to residents of statehood. The national conflict was one of partisan politics—the new state’s single representative and two senators were likely to be Republicans. Statehood required that those who favored it have a majority in both local and national counsels at the same time. The first formal step toward statehood at the national level occurred early in 1864, when Con- gress passed and President Lincoln signed an Enabling Act for the State of Colorado. It was a presidential election year, and Lincoln was looking for more Republican electoral votes to aid his re-election. Coloradans, if they could move quickly to form a state, were likely to send three 6 Act of Feb. 28, 1861, c.59, 12 Stat. 172. 2 Republicans to the Electoral College. The Enabling Act required, therefore, that Colorado have a constitution in place by September of that year. Coloradans elected delegates to a constitutional convention, which produced a proposed state constitution. In the September 1864 election, the constitution failed by a wide margin, 1,520 for to 4,672 against. Those opposing statehood were concerned about tax increases (due to with- drawal of federal subsidies for officials’ salaries), adding to the Republican majority in Con- gress, and the extension of federal conscription laws to Colorado’s large community of draft- evaders.7 With conscription no longer at issue, sentiment in Colorado shifted towards statehood in 1865, and citizens elected delegates to yet another convention, which produced another proposed state constitution on August 12. Voters approved it in September 1865 by a thin margin of two hun- dred votes and in November elected state officers, all Republicans. In December the new state legislature met in Golden, elected Republican Senators, and adjourned to await a presidential declaration of statehood. It never came. President Johnson was sympathetic to the Democrats and not eager to add more Republican representatives to an already hostile Congress. He refused to proclaim Colorado a state, asserting that the conditions of the Enabling Act of 1864 had not been met. According to Johnson, the 1865 Constitution lacked “legal authority” and had been “irregularly obtained.” The Republican-controlled Congress rushed to recognize the new state regardless and twice, in 1865 and again in 1866, passed bills to admit Colorado to the Union. President Johnson vetoed both. The Senate failed to override the second veto by only three votes.8 Agitation for statehood continued until the spring of 1868, when the last attempt was made to have Congress legitimize the 1865 Constitution.