Colorado Supreme Court Nixes Anti-Farm Ballot Initiative

On June 21, 2021, the Supreme Court of Colorado issued a decision reversing the actions of the Colorado Title Board that had approved the wording of a controversial ballot initiative backed by animal rights activists.  In the Matter of the Title, Ballot Title and Submission Clause for 2021-2022 #16, No. 2021 CO 55  (Colo. June 21, 2021).  The Board was ordered to strike the titles and return the initiative to its proponents.

The initiative at issue (“Initiative 16”) proposed amending Colorado statutes prohibiting animal cruelty to (1) end certain exemptions for livestock; (2) create a safe harbor for the slaughter of livestock with various conditions; and (3) expand the definition of “sexual act with an animal,” which is a type of animal cruelty.  The proposal had several features that had generated considerable concern in agricultural quarters:

      • Statutory animal cruelty provisions would apply to livestock regardless of whether an animal’s treatment was in accordance with with accepted agricultural animal husbandry practices.   Thus, farmers would have been put in the position of having to defend standard livestock practices against charges of animal cruelty.
      • An animal could not be slaughtered until it had lived at least one-fourth of its natural lifespan which was defined for cows (20 years), chickens (8 years), turkeys (10 years), ducks (6 years), pigs (15 years), sheep (15 years) and rabbits (6 years).  This would have severely interfered with animal protein production in Colorado.
      • “Sexual act with an animal” was defined to include any penetration of animal’s anus or genitals with an object or person’s body part.  This measure would have effectively abolished artificial animal insemination.

The measure was brought before the Title Board which, according  to its website, is comprised of the secretary of state, attorney general and the director of the office of legislative legal services or their designees.  The Title Board considers whether a given initiative accurately represents the changes to law that have been proposed and whether the language used would be understandable to voters.

At issue here was the Colorado constitutional provision that “[n]o measure shall be proposed by petition containing more than one subject . . . .”  The purpose of this provision is to forbid the practice of putting unconnected subjects together in order to enlist the votes from supporters of each of the unconnected subjects.  The Title Board ruled that Initiative 16 complied with the constitutional single-subject requirement, but the Supreme Court disagreed.

The Court ruled that the proposal to expand the definition of “sexual act with an animal” put Initiative 16 in violation of the single-subject rule:

Even applying the deferential standard of review for the consideration of the Board’s single-subject decisions, we agree with Petitioners that this provision addresses a second subject.  It doesn’t clarify how “sexual act with an animal” would apply to livestock if the livestock exemptions were repealed, something that arguably would further Initiative 16’s central focus.  Instead, it would modify the standard of care for all animals by criminalizing new conduct, regardless of whether that conduct is directed at livestock or other animals. . . .

So, Initiative 16 fails to satisfy the single-subject requirement because expanding the definition of “sexual act with an animal” isn’t necessarily and properly connected to the measure’s central focus of incorporating livestock into the animal cruelty statutes. Indeed, notwithstanding the initiative’s brevity, combining the repeal of the livestock exceptions with the criminalization of new conduct toward all animals “run[s] the risk of surprising voters with a ‘surreptitious’ change’” . . . because voters may focus on one change and overlook the other . . . .

Slip op. at 19.

In applying the one-subject rule, neither the Title Board nor the Supreme Court commented upon the propriety or wisdom of Initiative 16.   The effect of the Supreme Court’s ruling is to send the proponents of Initiative 16 back to the drawing board.