Kerr’s TABOR Lawsuit Could Become Key Issue in Senate District 22 Contest

February 27, 2012


mikemac29 /Free Photos

DENVER, CO – Rep. Andy Kerr is the leading plaintiff in a lawsuit challenging the constitutionality of the Taxpayer’s Bill of Rights, but in an unforeseen twist, the Lakewood Democrat will become the defendant as political debate heats up in his race against Republican Rep. Ken Summers in Senate District 22.

“This lawsuit wants to take away the right of voters to make decisions on taxes,” declared Summers of Lakewood.

Last May, Kerr and 33 plaintiffs filed the lawsuit asserting that TABOR – passed by Colorado voters in 1992 – violates the U.S. Constitution assurance of the states “republican” government and deprives elected officials of their right to govern and raise taxes.

Summers speculated that Kerr will tell voters, “Oh but we don’t want to raise your taxes. He’ll say that TABOR is unconstitutional because it takes away the power of representative government. And this district has a lot of hardworking people who are going to say, ‘Yeah, right.’”

The reapportioned SD 22 includes parts ofLittleton,Lakewoodand Wheatridge with nearly 74,000 voters, 34.45 percent are registered Republican, 33.46 percent are Democrat and 31.46 percent are unaffiliated or members of minor parties. The statistics were compiled by precinct votes in 2010.

“It will be a highly competitive race, but Andy Kerr has boxed himself into a position he can’t win,” saidAlan Philp, a partner inCAPPublic Affairs. “Andy runs the risk of being painted as a tax raiser and he knows better than the taxpayers how to spend the money. That’s elitist mentality.”

Political consultants interviewed agreed that the unaffiliated vote will be crucial in this race. Philp noted that polling data has shown, and even Democrats have conceded, there’s popular support for TABOR.

A plaintiff in the lawsuit to overturn TABOR, former Colorado Insurance Commissioner and state Rep. Marcy Morrison said the issue will be divisive until it’s settled by the court.

“It will continue to be a huge political issue until there’s a decision to the legality of TABOR. Until the public fully understands what TABOR has done to the state in financial damage with its fiscal constraints, there will be a conflict between the pros and cons.”

Morrison said TABOR is far more complex than just giving voters the right to determine tax increases and how that money will be spent. She noted that the amendment imposes a cap on how much tax revenue the governments can retain, and that it must be refunded unless voters approve a measure to allow governments to keep the money. An example is the voter approval of Referendum C in 2005 that designated the funds for transportation, health care and education.

“People have very strong feelings on either side of TABOR,” said Morrison, who declined to speculate on how the lawsuit will impact Kerr’s SD 22 race. “If it were El PasoCounty, I could make an educated guess.”

Kerr did not return calls for comment on opinions about the lawsuit and his campaign.

Republican campaign consultant Ben Engen said in 2010, a whopping 62 percent of voters in Jefferson County rejected Proposition 103, a nearly $3 billion tax hike over five years to fund schools. The measure was defeated in all but two precincts.

A prelude to Proposition 103 was a Great Futures Coalition survey of legislators’ opinions on funding education in March 2011, and insight into Kerr’s thoughts on TABOR.

“I will fight to reduce the damage caused by our current budget crisis, but no matter how we resolve this year’s issues, the structural budget problem will remain,” wrote Kerr. “Ultimately, the people of Colorado must come together and decide who we are as a state, what programs we want and how we will fund them.”

“Part of the conversation needs to include revenues. As a legislator, TABOR only allows me to address half of the problem,” said Kerr.

“Voters believe government spends too much and takes too much our money – and that sentiment is stronger in this economic recession,” said Patrick Davis, a political consultant based in Colorado Springs. “Most of them like TABOR a lot. At the polls in November, I think voters are going slap Andy Kerr.”

In addition to Kerr running against Summers, he’ll be fighting TABOR proponents who are planning issue campaigns to publicize the Democrat’s legal assault by Kerr and 33 plaintiffs who filed the lawsuit in May 2011.

“I think this is going be a huge issue in the Senate District 22 race,” said Tyler Q. Houlton, president of Compass Colorado, a free enterprise advocacy group.

“Kerr’s lawsuit is an attack on voters who approved the Taxpayers Bill of Rights. It shows that Andy Kerr basically wants carte blanche to raise taxes and spend more money,” declared Houlton.

Compass Colorado, a nonprofit committee, is exploring avenues for a public education campaign, he said, to make certain voters are aware of Kerr’s attack on TABOR.

Americans for Prosperity launched a petition drive last summer to show support for Colorado Attorney General John Suthers’ defense of TABOR.  AFP is courting support from city and county governments across the state.

“Taxpayers are under attack again in Colorado,” said Jeff Crank, state director of AFP’s Colorado Chapter, “this time by a group of big-spending politicos and liberal lawyers who are challenging the constitutionality of the voter-approved Taxpayer’s Bill of Rights in federal court. Destroying TABOR is job number one for many politicians, government bureaucrats and special interests because they resent the spending and taxing disciplines it imposes.”

“If Rep. Andy Kerr and the Democrats’ lawsuit against TABOR succeeds, struggling Coloradans and small businesses would be left vulnerable to the onslaught of more damaging taxes,” said Speaker of the House Frank McNulty (R-Highlands Ranch). “House Republicans support the right of Coloradans to approve or reject tax increases and continue to oppose Democrat attempts to raise taxes.”

Deflecting outside critics could be an expensive endeavor for Kerr, who reported in January $19,368 cash on hand, including $16,810 from his HD 26 campaign committee. Summers had $53,718 in his campaign coffer, $49,724 transferred from his HD 22 campaign account.

“People may not delve into the constitutional nuances of this court case challenging TABOR, what they do understand is that the goal of this lawsuit is to get more tax money from them,” said Amy Atwood, a Republican candidate in House District 28 who lives in SD 22.

“I know these families and too many are struggling and facing a decision of whether to spend their money on putting food on the table, buying gas to commute to work or having fences replaced that were blown down this week,” said Atwood. “What they don’t want to do is grapple with is another tax increase.”

Next month, U.S. District Court Judge William Martinez is expected to make a decision on whether to hear the case. If it does proceed, a decision in the case could take months – and even years if appealed.

“If the court ruling does overturn TABOR, it will be a huge boost to Republicans,” said Philp. “If that happened, the only way to stop a tax increase in Colorado will be to elect Republicans.”

As for Kerr’s chances in SD 22, Philp said, “Andy’s got a bull’s-eye target painted on his back.”

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