Colorado Supreme Court Dismisses Appeal From Housing Activists Who Claimed Inaccurate Election Guidance Doomed Their Ballot Initiative

City officials repeatedly gave activists false information about the requirements for getting their initiative on the ballot.

Activists in Boulder, Colorado, wanted to eliminate their city's restrictions on unrelated people living together. Unfortunately, city officials and the state Supreme Court have prevented their initiative from being on the ballot come November.

In late August, the Supreme Court had initially agreed to hear an appeal from Boulder activists arguing that inaccurate election guidance from city officials prevented their measure from receiving a public vote. On Friday, the court dismissed the appeal, saying in a three-sentence order that "unresolved factual disputes" precluded it from properly ruling on the case.

"It's pretty stunning. Clearly the court took up the case because there was an injustice here," Eric Budd, one of the activists suing Boulder officials on behalf of the Bedrooms Are For People campaign, tells Reason. "The facts were laid out; the facts were agreed to by both parties…our appeal to the Supreme Court was the argument that it should correct this injustice here."

Friday's decision means that Boulder's existing occupancy regulation—which caps the number of unrelated people who can live together at three or four in most areas of the city—will be safe from a popular test at the ballot box.

These occupancy limits are commonly used in college towns like Boulder to prevent single-family homes from being used as student housing. They also limit the supply of housing available to renters and leave tenants and landlords who do violate these occupancy limits vulnerable to evictions or fines.

In March, the Bedrooms Are For People campaign received permission to start collecting signatures for an initiative that would amend the city's charter. Their measure would establish a new occupancy limit of one person per bedroom plus one additional occupant. Homes with fewer than four bedrooms could have up to four occupants under their initiative, which would not impose any limits on related people living together.

Complicating things is whether state election law or Boulder's own city charter should control how many signatures must be collected to be placed on the ballot, how long those signatures must be collected, and when they must be turned in.

Exclusive reliance on state law would have required the Bedrooms Are For People campaign to collect either 4,048 or 8,096 signatures (depending on whether this year's election counted as a special election) by June 22, and then turn those signatures in to the city clerk by August 5. The city's charter and local regulations would have required 3,337 signatures to be collected and turned in by June 5.

Initial election guidance issued by City Attorney Tom Carr relied on a blend of state and local election law to give petitioners as much time as possible to qualify for the ballot. In official city guidance and communications from city staff, the Bedrooms Are For People campaign was told they had until August 5 to turn in 4,048 signatures.

On July 29, the campaign submitted 7,764 signatures to the City Clerk.

However, beginning in April, opponents of the initiative complained that the city's decision to pick and choose a mix of state and local standards was improper and that the Bedrooms Are For People campaign should be forced to meet more stringent state requirements.

Throughout May and June, city officials insisted that, regardless of the legal confusion, their initial guidance of turning in 4,048 signatures by August 5 was all that was required of the Bedrooms Are For People campaign.

But in an early July email, Carr reversed himself, saying that Boulder's local regulations controlled the conditions for qualifying initiatives for the local ballot. That meant that the Bedrooms Are For People overshot its June 5 deadline to turn in signatures by over a month.

Later in July, seemingly to add to the confusion, five members of Boulder City Council indicated they believed that state law controlled the qualifications for charter amendments being placed on the local ballot.

In response, Bedrooms Are For People activists sued in early August, arguing that because they had reasonably relied on the initial election guidance, the city was bound to honor that guidance, regardless of the differing standards in state or local law.

In an August 14 opinion, Boulder District Court Judge Andrew Macdonald disagreed, saying that while "there is no doubt that the city repeatedly provided incorrect information to plaintiffs," this incorrect information was a misinterpretation of the law, not a misstatement of facts. And because the city didn't provide activists with any materially untrue information (only legally incorrect guidance), MacDonald reasoned that the campaign wasn't entitled to any relief. He also noted that had the city relied on either state or local election law, the Bedrooms Are For People campaign would have failed to qualify for the ballot.

The Bedrooms Are For People campaign filed an appeal less than a week later to have the Supreme Court review the case, which the court initially accepted. Their Friday decision to dismiss the appeal means that the lower court's decision stands, and the Bedrooms Are For People initiative will remain off the ballot.

"Our appeal was really about how we trusted city election officials and city council members to give us accurate guidance and uphold direct democracy by standing by the guidance that was provided," says Chelsea Castellano, a plaintiff in the Bedrooms Are For People lawsuit. "The system didn't work for us at all at any point during this process of trying to exercise our right to direct democracy."

Budd and Castellano say that with their legal challenge now at a dead end, they will devote their energies to electing city council members who are more amenable to reforming the city's occupancy limits. Doing so is imperative to keeping people housed in a city that's long suffered from a lack of affordable units, they say.