UAWCD election ruled valid despite a misleading ballot

Brief by Central Staff

Water – October 2008 – Colorado Central Magazine

Even though the Upper Arkansas Water Conservancy District put misleading information on the ballot, last year’s expansion election was valid, a district judge has ruled.

The ruling came from District Judge David Thorson of Frémont County on Sept. 15, in response to a suit filed by Ivan Widom of Cañon City and Mark Emmer of Salida.

Based in Salida, the UAWCD had comprised Chaffee, Custer, and western Frémont counties, along with a sliver of Saguache County in the Marshall Pass area. On Nov. 6 of last year, residents of eastern Frémont County and a small portion of El Paso County voted to join the district by a 4,680 to 4,274 margin.

In the past, water conservancy districts have formed and expanded after property owners petitioned the district court. However, water districts collect property taxes, so joining a water district means a tax increase. Under Colorado’s TABOR amendment, a tax increase requires an election.

Widom and Emmer were represented by Bill Alderton, who has a private practice in addition to serving as judge of the Chaffee County Court. Alderton argued that the ballot language, as prepared by the UAWCD, was misleading, in that the ballot listed the district’s new revenue as $10,141, when in fact it would be more than $170,000.

Thorson agreed. “The district did disclose a misleading and irrelevant amount … that had nothing to do with the question put to the voter.” The number “is so ridiculously low compared to the actual amount of revenue that no reasonable person would rely on it. Although it may have been calculated to mislead the electorate, it could not have fooled any intellectual voter,” the judge wrote.

The judge observed that the UAWCD “has gone out of its way to make it difficult for the court to find substantial compliance,” but even so, “the district substantially complied with TABOR requirements by disclosing to the voters the [4.78] mill levy to be imposed if the ballot issue were approved.”

So, it’s okay to lie to the public, just as long as you do so in such an outrageous way that no one who thinks about it is likely to believe you.

TABOR also required the ballot to carry an opposition statement of up to 500 words. Widom supplied one that was less than 500 words. Even so, the district abridged it for the ballot, and, Thorson wrote, “did not accurately summarize the con statement.”

The judge continued that “this was self-serving and completely unnecessary,” but “the summary presented the essential arguments” and was thus in substantial compliance with TABOR requirements.

So, it’s okay to edit the opposition’s statement, even when it’s already short enough, and to do so in a way that is inaccurate, just as it’s legal to lie about how much money is involved in a tax increase.

One wonders what a conservancy district would have to do to for a judge to rule against it. But then again, the board members are appointed by judges, and judges are only human and doubtless reluctant to find that they’ve appointed people who act in improper ways.

The ruling to expand the UAWCD takes effect on Nov. 4 unless there’s an appeal of Thorson’s ruling, which Alderton said was likely.