The steed of Susan B. Anthony’s democracy was a steel single-speed. For Chelsea Castellano, it’s an e-bike. One Monday in June, she pedals around South Boulder with a colorful “Vote! Vote! Vote!” mask strapped across her face. She’s making three stops today, her first destination a quiet house on Toedtli Drive. She steps off the bike, throws out her kickstand, and draws supplies from her pannier bag: a clipboard, hand sanitizer and pens.
She rings the doorbell and takes four steps back. A young guy opens the door, curls his mask around his ears and steps outside. Castellano waves, announcing she’s there to deliver the petitions he’d “ordered” online.
She offers him hand sanitizer, then the clipboard and pen. She’s part of the “Bedrooms Are For People” (BAFP) campaign petitioning to amend Boulder’s charter to change the City’s home occupancy limits. Also stacked on the clipboard is information about another charter amendment campaign, “Our Mayor Our Choice” (OMOC), proposing to give constituents the ability to directly elect the mayor. Both are citizen initiatives, where the power of signatures cannot be understated. If the campaigns can gather enough signatures, their initiatives will be guaranteed a spot on the November ballot. If a majority of citizens then vote for the proposed changes, they will alter the City’s charter through direct democracy.
The guy’s roommate pokes her head out the door. She gives her signature to both petitions before handing the clipboard back to Castellano, who offers hand sanitizer, apologizing for not extending the courtesy before. Then Castellano tucks the clipboard with the signatures back in her pannier, rebuckles her helmet and rides off to the next house.
She never saw herself as a democracy messenger, but drastic times call for drastic measures.
• • • •
What began as a normal election season earlier this year quickly disintegrated as the coronavirus pandemic hit; Boulder officials made no provisions to accommodate petitioners’ health concerns, then later acknowledged they’d published incorrect information about the citizen initiative process. This resulted in missed deadlines and lost opportunities for constituents after they’d spent months employing creative ways to navigate COVID-19.
Citizen initiatives, the petitioners knew, were the only way to get a measure put on the ballot without support from City Council. Only 24 states have provisions for citizen initiatives as part of the democratic process. An idea, a demonstration of community support, a majority vote of the people: It’s as direct as it gets.
Months ago — back when multiple citizen initiative campaigns were still finalizing their paperwork for the city clerk’s office — no one could’ve imagined problem-solving for a global pandemic. Although Boulder voters approved an online signature-gathering system back in 2018, the City has yet to implement it. So in order to collect signatures, volunteers would need to enter close proximity with strangers, even as Boulder County’s health department was explicitly advising against it.
Despite health concerns, the petitioners didn’t feel like they could sit out this election season. “People who maybe aren’t as typically engaged in politics tend to be more involved in presidential years,” Castellano explains. “There’s more voter turnout, more awareness of what’s going on.”
In January, the future was just as unknown in the offices of the city attorney and the city clerk. They were preparing to publish a set of new guidelines, based on their reading of the city charter and recommendations from a 2018 elections working group, explaining exactly how someone like Castellano can use a citizen initiative to bypass City Council en route to the ballot. Neither office had any idea they could be facing lawsuits six months down the road.
At the time, the city attorney’s office (staffed by four lawyers tasked with interpreting the laws governing Boulder) relayed information about the citizen initiative process to the clerk’s office, which is in charge of running Boulder’s elections. The clerk’s office published two sets of guidelines: to get a measure on the ballot, citizens proposing a new municipal ordinance had to collect 3,337 by June 5, and citizens wanting to amend the city charter had to collect 4,048 signatures by Aug. 5. These signature thresholds are designed to prove enough community members are interested in voting on a given measure.
This year, two campaigns for municipal ordinances were the first to start collecting signatures. BAFP and OMOC — both seeking charter amendments — were also approved by the clerk’s office. All four campaigns were given the aforementioned signature volume and deadline information after filing paperwork, which included, in small italics, a recommendation that they seek independent legal counsel to review the City’s guidelines.
Both the BAFP and OMOC campaigns knew collecting 4,048 pen-and-paper signatures would require serious organizational human power, but when the statewide Stay At Home order took effect in March, their opportunities to collect signatures vanished. “[We were] approved to collect signatures but also told not to leave our house,” Castellano says. “We realized something that was going to be hard before was going to be almost impossible now.”
Traditionally, citizen initiative campaigns spend the spring before an election walking door-to-door, hosting parties and soliciting signatures at community events, explains Jan Burton, treasurer of the OMOC campaign and a former Boulder City Council member. “We didn’t feel like people would be comfortable with any of that,” she says, herself an asthmatic. “I’m over 60 and when they first were talking about [COVID-19, I was] thinking, oh my God, there’s no way I’m going outside my doors.” Since then, she’s spent nearly 30 days outside collecting signatures.
It wasn’t long before members of all four initiative campaigns began speaking up at City Council meetings, held over Zoom to avoid in-person contact. Numerous weeks in a row, people asked if any provisions could be made — any deadline extensions or alternative signature collection methods — especially considering they knew City Council wouldn’t take the measures up themselves. In 2019 Mayor Sam Weaver explicitly told some BAFP volunteers that the sort of change they sought would best be delivered via a citizen initiative, according to Castellano.
City Council ultimately determined the rules for citizen initiatives couldn’t be changed. “You know, pandemics happen and it doesn’t change the law,” Weaver says. Council member Bob Yates put it another way, at the April 21 council meeting: “We’re not inhibiting democracy; COVID has inhibited democracy.”
Organizers from the four campaigns weren’t the only ones pressing City Council with questions and raising red flags about the 2020 citizen initiative process. As early as March, Steve Pomerance, a former City Council member who has stayed involved in local politics, started sounding the alarm about the legal frenzy that would follow.
While researching the initiative campaigns, Pomerance noticed a dissonance between the guidelines published by the city clerk and what he understood the city charter and state constitution said about the process. On March 14, Pomerance sent his first email to City Attorney Tom Carr, expressing concerns that Carr had mixed up when to apply rules from the state constitution, and when to apply rules from the city charter. Pomerance thought municipal ordinances should be governed by the city charter and charter amendments should be governed by the state constitution. If Pomerance was right, that meant the deadlines and number of signatures published in the clerk’s guidelines were wrong for the charter amendment campaigns. They would only have 90 days to collect signatures under the state constitution’s rules, which brought BAFP’s deadline up to June 21, and OMOC’s to July 30. Also, both would need to gather twice as many signatures — 8,096 each, not 4,048 — in order to get their measures placed on the ballot.
Carr didn’t respond to Pomerance’s first email. He was busy taking care of all the other issues the pandemic was causing: drafting new ordinances about public gatherings, masks, building closures, and more, Carr says. “That alone could be a full-time job, and that has to do with public safety.”
Around this time in March, he was also preparing a presentation for City Council with an update on the City’s online signature gathering system — which initially gave the initiative campaigns a glimmer of hope. Carr explained the system was not yet ready, and wouldn’t be until the 2021 election cycle. Council still asked him to draft an ordinance that could accommodate some type of online signature-gathering during the pandemic to help the petitioners. Then Carr came back with a draft ordinance in mid-April for a temporary online signature-gathering method. Council voted against adopting his idea.
By May, City Council asked Carr to draft an ordinance clarifying the deadlines for petition signatures, but ultimately postponed the conversation until after the November election, according to Carr. While acknowledging Pomerance’s deadline concerns, Carr defended the original Aug. 5 deadline for charter amendments.
Meanwhile, the initiative campaigns scrambled to react as the County extended the Stay At Home Order, and City Council continued to reject ideas that could help keep petitioners safe. Castellano says it was disappointing “hearing from City Council members in the heart of the pandemic: ‘Hey, just go out to parks,’ when they’re also telling everyone to stay home. ‘You can risk your lives and ask anyone else who wants to participate in direct democracy to risk their lives,’ like, ‘You go for it, there’s nothing stopping you,’ when it seems like there was a lot stopping us.”
After months of fundraising and community meetings, Burton says on behalf of OMOC, “We were so far down the path. We didn’t want to give it up.”
• • • •
As the weeks went by, Pomerance grew more and more convinced that Carr’s interpretation of the charter initiative was wrong. Pomerance himself had been a member of the Campaign Finance/Elections Working Group that was enacted at the beginning of 2018, tasked with cleaning up a series of mistakes Carr and his office had made.
During the 2016 election cycle, a citizen initiative’s charter amendment — that codified City Council term limits which voters passed — had been wrongly placed on the ballot. This was after an “error was made by staff but … not noticed at the time,” Valerie Yates, a former regulatory lawyer and another working group member, explains via email. She, like Pomerance, only discovered this discrepancy this year. The signature threshold that Carr’s office publicized back then, according to Yates, was far lower than what it should’ve been. Weaver confirms this.
The following year, in 2017, the city attorney’s office tried to streamline deadline information and give more discretionary power to the city manager during the petitioning process. They drafted a ballot measure of their own, 2Q, which passed in the 2017 elections, but it was “so terrible that the [working group] was convened in 2018 to fix the problems they created,” Yates writes. The working group helped draft another measure, 2E, that tried to clarify ambiguous language, lower some signature thresholds, and establish a timeline for the petitioning process. The working group determined the charter outlined rules for municipal ordinances, and the state constitution determined the rules for charter amendments.
This year is the first time citizen initiative groups have solicited petitions since 2E’s passage in 2018, says Carr, and thus the first time the new guidelines have applied to the initiative process. Carr explains his staff member tasked with reviewing the new guidelines “tried to balance the views of the working group with state law, and has a theory that cities can alter state law, as long as it doesn’t conflict with state law, and if they do it in a way that benefits the petitioners. So the guidelines were written with that philosophy.”
In essence, Carr’s office tried to blend different provisions of state law with City codes, attempting to give petitioners a longer time period to collect signatures with a smaller number of signatures required. Carr says he wasn’t aware of his staff’s approach “until much later.” Not until Pomerance started emailing him about it.
Carr communicated with campaigns, and concerned citizens like Pomerance, on an irregular and inconsistent basis, according to emails provided by the campaigns. He told them they “might” be held to state law (i.e. the earlier deadlines), but continued to reiterate he was advocating for the Aug. 5 deadline. Often he wouldn’t respond to emails, his days long and busy, still dealing with the fallout of the coronavirus. “I hate to keep saying this, but I have a full-time job in a pandemic. There’s a lot of other stuff going on,” he says.
Several times Pomerance raised issues with Carr, warning him of potential lawsuits to come, but the city attorney’s office didn’t do a sweeping review of the guideline information until June.
Carr gathered a group of lawyers with “something like 120 years of legal experience,” and “as a group we decided that the clearest interpretation is that the charter intends to exempt the City from state law.” In other words, the charter amendments should’ve been treated the same as the municipal ordinances, with only 3,337 signatures required and a June 5 deadline.
Still, Carr continued to defend the original guidelines as “a matter of fairness” and that information remained on the City’s website until July 6. On June 19, he emailed the OMOC campaign after they requested further clarification: “I am sorry for the confusion. I thought that it was clear that the city was going to honor the advice that was given to the committees.” A month later, on July 17, he affirmed, “My view is we should honor what we told the committees and council should put the matter on the ballot.”
As such, campaigns stayed focused on gathering thousands of signatures — each a potentially infected vector for a terribly contagious and deadly virus. But citizens were not pleased; between March and July, more than 40 people spoke up at City Council meetings. Even more sent emails and made phone calls, all criticizing the City’s unwillingness to adapt the initiative process in light of the pandemic.
Council maintained their stance: No online signatures allowed, no mail-in or email-in options even after Governor Jared Polis recommended the tactic in a statewide executive order on May 15, and a majority was not interested in discussing direct referrals. Although Council has the power to place any measure they want on the ballot for the people to vote on, anytime that option came up as a way to honor the work of the campaigns, and relieve them of their in-person signature-gathering tasks, Council voted it down.
Each of the campaigns realized they had to get creative. “While a lot of our volunteers are willing to go out and risk their lives and collect signatures, we couldn’t expect that from the community,” Castellano says.
The idea for the “Democracy on Demand” service — biking to people’s homes with the petitions — hatched in the BAFP group. “We were seeing people getting their groceries delivered, their food delivered, as much as they could get anything delivered they were getting it delivered, so we figured, well, there’s no reason we can’t deliver a petition. It’s the same thing,” Castellano says.
BAFP reached out to the other campaigns, asking if they wanted to be included. This inter-campaign collaboration is unprecedented, Castellano says. Burton, who has worked with citizen initiative campaigns in the past, also said this was the first time she’s witnessed such collaboration.
“Not every volunteer supports every measure, but we are out there in support of democracy, not necessarily in support of every other measure we carry,” Castellano says. “Whatever decision the community makes is up to the community, but the ability to have that decision is what’s important.”
By late June, BAFP had amassed more than 60 volunteers and crested 4,000 signatures, 422 of which had been collected at 246 households via bike. They orchestrated social media campaigns, conducted waves of community outreach, advertised on every platform they could think of.
OMOC was also working with 12 volunteers, setting up tables outside of grocery and hardware stores, at trailheads and public parks — anywhere they could stand outside and try to interact, safely, with other constituents. At grocery stores they competed with paid state petitioners, and the large population of commuters who aren’t registered to vote in Boulder. That, plus masks, which only made it easier for people to avoid interaction.
Neesha Schnepf, a BAFP volunteer, says, “If I think about the number of people who got near me when signing it, then, yeah, I start feeling uncomfortable about things, because all those people were definitely within six feet of me when they were signing.” Still, she says, “I’d rather this get on that ballot and eventually pass, even if it means I get sick.
“Obviously, like everyone in the campaign, I wish City Council would have spent a bit more effort trying to think of more pandemic-safe alternatives, you know? I do think we could have thought of something better than having to do signatures in person.”
• • • •
On June 18, another citizen initiative group led by Save South Boulder filed for permission to petition for a charter amendment, motivated by a recent City Council vote on a CU South annexation strategy that they wanted to amend, believing they had until Aug. 5 to collect signatures. However, the clerk’s office denied their petition, citing grounds that the deadline had already passed.
According to the Save South Boulder campaign, it was Carr, not the clerk, that responded to follow-up questions about why their petition was denied. Carr explained to them on June 30 that the guidelines, which were still live on the clerk’s website at the time, were “incorrect.” They finally came down six days later.
A week after that, the Save South Boulder campaign wrote in email to Council, “The City Attorney has cast great confusion over our election process” and “has acted in an arbitrary and capricious manner granting some citizens rights to collect signatures under special rules while denying the same privilege to others following the same published rules.”
BAFP and OMOC reached out to Carr for clarification shortly after learning about the issue with Save South Boulder’s petition, but Castellano says Carr didn’t email them back.
A few days later, Carr did publish a public message on the City’s hotline: “I wanted to take this opportunity to clarify the city attorney’s office position on pending charter amendment initiative petitions,” he wrote, explaining “charter amendments are governed by the charter and not by state law.” This meant BAFP and OMOC deadlines had officially passed on June 5.
In the hotline, Carr acknowledged “two petition committees relied on the city’s inaccurate guidance and have worked to gather signatures.” He then promised to ask the city clerk to verify signatures submitted by Aug. 5, “to be fair.” If either petition supplies 4,048 verified signatures, he continued, “I will ask the clerk to forward the petition to the city council without a certificate of sufficiency” but “with my recommendation that the council place the measure on the ballot for the November 2020 election.”
The campaigns were furious. It went directly against what they understood as Carr’s earlier position.
Without a certificate of sufficiency, Castellano says she knew “our only chance to be on the ballot [is] through a referral of the City Council, which is the exact legislative body that this process of direct democracy is supposed to circumvent.”
Nick Grossman, another BAFP organizer, adds, “In effect what the City has done is bend its own rules — whether intentionally or not they have bent their own rules. And if they then delay this to another year, or try to change the language, or make it not a charter amendment, then they’re subverting the will of the people and actually circumventing direct democracy.”
“We’ve risked our lives to do this. The community has risked their lives to do this, to sign in-person,” Castellano says. “And it’s the City’s mistake — it may not have been intentional at first, but if they don’t correct it, then it is intentional.”
The change in messaging and obstruction of opportunity did not go unnoticed.
Soon other members of the 2018 Campaign Finance/Election Working Group, in addition to Pomerance and Valerie Yates, started to weigh in, asserting Carr was still wrong in his interpretation. The state constitution governs charter amendments, they argued, not the city charter.
When asked — despite denying Save South Boulder’s petition — Carr says that it’s entirely “possible” the state constitution would supersede. Save South Boulder asked for a legal hearing, “and I was pretty excited about that,” Carr says. “I would love for a judge to tell me what the law is. I don’t really have strong feelings about which — I’m just trying to get it right, and if a judge tells me that state law applies or that our regional advice has to be followed, I’m fine with that.”
Ultimately the campaign dropped their hearing request, realizing they wouldn’t have enough time to gather signatures if the hearing was in mid-July.
As Pomerance and others continued to alert Council about this confusing stream of information, Council planned a formal discussion: If the deadlines had truly passed, as Carr now claimed, should they directly refer the citizen measures to the ballot for the public to vote on, or not?
Carr and his senior assistant city attorney, Luis Toro, put together a presentation for Council explaining the three possible legal interpretations at hand: either the city charter, the state constitution, or the blended guidelines Carr’s office had drafted should control the rules for charter amendment initiatives. Ultimately, Carr explained, it’s up to Council to determine which interpretation is correct; they are Boulder’s legislative body. It’s Carr’s job to simply advise them.
After the 30-minute presentation and a public open-comment period (20 citizens were granted permission to speak due to time constraints, despite 80 requests), a majority of Council first voted to have the state constitution govern all future charter amendment initiatives.
By the end of the night, the Council majority decided not to refer any measures directly to the ballot. They will hold OMOC and Save South Boulder to the state guidelines, requiring 8,096 signatures by July 30 and Aug. 5, respectively. However, this means that BAFP’s deadline passed on June 21 and now have no way to get their measure on the ballot — unless, Weaver explains, someone on Council changes their mind and another vote to refer the initiative is requested.
• • • •
City Council has until Sept. 1 to decide on referring any measures to the ballot. While some argue that this is more a question of the democratic process than the content of the measures, others disagree.
Weaver, for one, believes it’s his duty as mayor to consider a measure’s content. “I am not compelled, personally, that it’s anti-democratic to not bend the rules and put something blindly on, which I don’t think will serve the community,” he says. “That’s not saying I’m not going to listen to what the intent of the initiatives are. It’s just that [amending] the charter with flawed measures is not something, or even opening the possibility of doing so, is just not serving the community in the long run. So I understand the short-term unhappiness. I sympathize with it. You know, if I were in their shoes, I would be disappointed as well.”
Council member Yates agrees. At the July 21 meeting, he said it’s “not only our prerogative but our obligation” to consider a measure’s content before placing it on the ballot. Corroborated by an email Carr sent on July 14, Yates’ opinion of at least the BAFP measure is clear: when Emergency Family Assistance Association (EFAA) announced it was supporting BAFP, Yates leveraged his personal donations against the organization.
Council members Rachel Friend and Aaron Brockett, on the other hand, think the measures’ content should not be considered. “Rather than trying to figure out exactly how we feel about the measures — are they measures that we fully support or love or hate? — let’s honor the process of direct democracy and put them directly on the ballot, like we would be required to do if the City had stood behind the guidance that had been given,” says Brockett, who was under the impression Carr would be defending the original Aug. 5 guidance until he read Carr’s hotline message.
Several of the campaigns have since called for Carr’s removal. As Save South Boulder wrote in an email to Council, “To rectify this situation, we respectfully request that Mr. Carr be removed from all duties pertaining to city election matters, effective immediately. He has shown that he cannot be trusted to do his job (or guide others) promptly and fairly. This is a failure of great significance for the citizens of Boulder that impacts our constitutionally guaranteed right to petition the government. We firmly believe that Boulder should no longer accept Mr. Carr’s authority in these matters.”
To date, Council has not publicly discussed any sort of reprimand for the confusion and mistakes stemming from Carr’s office. On July 21, BAFP publicly announced its intent to sue the City for the debacle. On July 29, the campaign delivered 7,500 handwritten signatures collected on paper petitions to the city clerk’s office. As of press time OMOC is planning on submitting 5,900 signatures before their deadline on July 30.
Regardless of what happens, thousands of citizens have signed the petitions, and a hundred more have deployed themselves collecting signatures around town. That’s a lot of footsteps around this city; it’s a long walk to direct democracy.
This article starts a four-part series analyzing online signature-gathering’s role in the future of direct democracy in 2020. Reporting for this series was made possible, in part, thanks to the Solutions Journalism Network. Para leerlo en español, por favor visita aquí.
