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Water District election decision appealed

Brief by Central Staff

Water – January 2009 – Colorado Central Magazine

A district judge’s decision to uphold the expansion election for the Upper Arkansas Water Conservancy District has been appealed.

At issue is a mail-in election held in 2006 wherein voters in eastern Frémont County, and a small portion of El Paso County voted to join the conservancy district. The election was required because the district collects a property tax. An area joining the district would thus see a tax increase, and a provision in Colorado’s constitution — the TABOR Amendment — requires voter approval of tax increases.

Under TABOR, the ballot can contain statements of up to 500 words for and against the proposition.

Two residents of the district — Mark Emmer of Salida and Ivan Widom of Cañon City — sued to have the election thrown out on the grounds that Widom’s opposition statement, submitted at less than 500 words, had been eviscerated as it was needlessly condensed by the election official, UAWCD general manager Terry Scanga.

They also charged that in the supporting statement, UAWCD misrepresented how much money was involved — $10,000 instead of the actual $170,000 — and that in violation of TABOR, the supporting statement listed endorsers of the expansion.

The pro statement, Thorson found, “violated TABOR and the election code by including endorsements in favor of the ballot issue.” As for the money, “the district did disclose a misleading and irrelevant amount of gain in tax revenue, an amount that had nothing to do with the question put to the voters.” He added that “The only saving grace for the district is that the disclosed number is so ridiculously low compared to the actually anticipated 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 intelligent voter.”

Further, Thorson said that “The district has gone out of its way to make it difficult for the court to find substantial compliance,” Thorson concluded, since it acted “in a self-serving manner.”

But despite all this, he refused to set aside the 2006 election and order a new one that followed the rules. Thus the appeal, which is under consideration by the Colorado Court of Appeals.