Boulder petition organizers are right to sue
By Claudia Hanson Thiem. Also published in the Daily Camera on July 25, 2020.
"Given an opportunity last Tuesday to resolve the drama surrounding resident-proposed ballot initiatives, Boulder’s City Council placed base political interests above democracy. A bare majority refused to remedy mistakes made by the city attorney and effectively ended two petition efforts.
Bedrooms are for People (BAFP), a campaign to reform Boulder’s strict housing occupancy limits, now intends to pursue ballot access through the courts. It’s the correct response to a brazen attempt to stifle dissent, and friends of both democracy and fair housing should be grateful for their effort.
The council’s July 21 discussion of ballot measures was its fifth since April, when petitioners first requested – and were denied – flexibility while gathering signatures in a pandemic. Organizers scrambled to adapt their canvassing strategies, but were then informed of a conflict between state and municipal law. The Colorado Revised Statute and Boulder City Charter set different deadlines and signature minimums.
Boulder’s own guidelines – provided to all campaigns – seemingly tried to blend the two. And when discrepancies first came to light, City Attorney Tom Carr suggested he would defend these published requirements: 4048 signatures due on August 5. But on July 10, his interpretation changed. BAFP was told its petition had been due on June 5. Or possibly June 21. But certainly, several weeks in the past.
BAFP followed the city’s guidance, a decision some opponents now portray as willfully irresponsible. Prudent organizers, they argue, should have sought independent legal advice. But if direct democracy is intended for political outsiders seeking redress, hiring attorneys should not be a prerequisite for participation.
There is also a reasonable expectation of accuracy when the city shares instructions for navigating its own policies. And providing ambiguous or unsound advice – no matter what disclaimers are attached – is a serious breach of public trust.
Anyone who thinks an independent counsel would have clarified the rules should also review the City Council’s own labored effort to understand them. Two staff attorneys plus four council members with legal backgrounds could not agree on a 'correct' reading of the law. 'I just don’t seem to be getting any clearer on any of this,' said council member Mary Young an hour into the discussion. 'If I wanted real clarity, just beyond the shadow of a doubt, where would I go?' As an elected official, Young was apparently allowed to be confused. She later voted against the petitioners.
With the legal questions unresolvable, the situation ultimately required a political decision: Would council members use their power of referral to place ensnared measures on the 2020 ballot?
If upholding democracy was the primary consideration, they would have voted yes. Petitioners followed the rules they received, and demonstrated strong community interest in their measure. BAFP plans to submit more than 6,500 signatures for validation next week.
But loyalties to Boulder’s vocal anti-housing minority – with its concerns with population growth and neighborhood character – proved more powerful. And it’s hardly the first time.
BAFP’s organizers sought to bypass the City Council precisely because that body had deflected reform for 20 years. A recommendation to relax occupancy limits appears in Boulder’s 2000 Comprehensive Housing Strategy, and again in the 2010 Affordable Housing Task Force report. Empty bedrooms were a major theme in the 2015 Housing Boulder community dialogues, but did not find their way into policy proposals.
And in 2019, the Housing Advisory Board drew a sharp rebuke for requesting action, with council member Sam Weaver sharing some pointed advice: 'Occupancy limits is a political question … and I personally feel like the place to settle political questions really is at the ballot box.' Weaver – now mayor – opposed sending BAFP to the voters.
Boulder voters should know this history. Because as five council members – Bob Yates, Mark Wallach, and Mirabai Nagle joining Weaver and Young – used their unearned discretion to block their challengers, they suggested yet another round of legislative process. They would seek public input on occupancy limits in the coming year.
As though BAFP’s mountain of signatures didn’t grow from conversations and experiences in the community. As though a hand-picked working group might be more representative than the record number of voters expected to cast ballots in November. As though the next retelling of housing hardships might be the one that changes hearts and minds.
The threat of legal action is a necessary step to confront protectionist and obstructionist politics run amok. But while the action is righteous, it’s also a heavy lift for a group of renters and young adults, many of whose tenure in Boulder is not secure. Bedrooms are for People both needs and deserves our community’s support."
Claudia Hanson Thiem lives and parents in Boulder, and is a member of the Steering Committee of Boulder Progressives.