As we prepare to celebrate Colorado the “Centennial State’s” 150th birthday next year, let us remember that a big reason Colorado did not become a state prior to 1876 is that many white people here sought to deny the right of black people to vote.
In 1867, following previous failed attempts at statehood, President Andrew Johnson vetoed a bill to admit Colorado to the union. The black businessman and civil-rights activist “Barney [Ford] was overjoyed,” write biographers Marian Talmadge and Iris Gilmore. They continue, “Certainly, he told his friends, he wanted Colorado to become a state, but not until it granted Negro suffrage and—as long as he was able—he’d work against statehood if it meant voting only for whites.”
We’ve long moved past overt voter suppression. But voting disparities remain. In 2022, the left-leaning Colorado Newsline, drawing on Census Bureau surveys, reported, “In 2020, turnout among eligible Colorado voters who aren’t white or who reported Hispanic origin was nearly 20 percentage points lower than the rate for white non-Hispanic voters—a gap significantly worse than the national average, and one that has remained stubbornly prevalent over the years.”
For the most part, though, the reason people don’t vote is not that they can’t vote, but that they don’t want to. The same Newsline article points out that the biggest reason Coloradans said they didn’t vote was they didn’t like the candidates (43.6%), they weren’t interested (14.6%), or they were too busy (13.7%).
Although the Census Bureau did not ask, undoubtedly a lot of people don’t vote because they realize their vote almost certainly will not make the difference in any election. Or they know races in their area tend to be lopsided, with one party or the other consistently running away with the election.
Only 8.4% said they didn’t vote because of registration problems. Still, that’s a substantial slice of the electorate, so it’s worth asking if we can tweak policies to make voting even easier.
Although voter-suppression efforts are not much of a problem in Colorado due to Democratic dominance here, we should resist the efforts popular in some circles to restrict voter turnout on the pretext of boosting election security. As I’ve argued, election security is a valid aim, but not one that should be used as an excuse to suppress turnout.
A quota system for voting
Now that we’ve covered some background, let’s turn to Senate Bill 25-001, the Colorado Voting Rights Act.
The first thing to be said about the proposal is that it tries to do way too much in a single bill. (Here I’m reviewing the bill as introduced on January 8.) The first part of the bill deals with “registration on Indian reservations,” “multilingual ballot access,” and other matters. The language creating Article 47 in statute, called the Colorado Voting Rights Act, doesn’t even begin until page 11 of this 34-page bill. Here I’ll restrict my remarks to that act.
The main problem with the bill is that, read literally (however the courts interpret it), it mandates voting quotas. This is a terrible idea that undermines the American focus on the rights of the individual.
The bill says: “A political subdivision shall not act in a manner that results in, will result in, or is intended to result in . . . a material disparity between a protected class and other eligible electors in regard to voter participation, access to voting opportunities, or the opportunity or ability to participate in the political process.” A “protected class” is defined as “a class of electors who are members of one or more racial, color, or language minority groups.” A “material disparity” is defined as “a non-trivial difference.”
The bill further states: “A political subdivision shall not, by failing to act, cause or intend to cause . . . a material disparity between a protected class member and other eligible electors in regard to voter participation. . . .”
In other words, taken straight, this language means that elections must be run such that there is no “non-trivial” difference in voter participation between members of minority groups and other voters. This is a straight-up quota system for voting. One might reply that that’s not the intent of the bill and not how the courts probably would interpret it, but that is what the bill, in fact, says.
That this bill is both unjust in its aims and completely impossible to enforce does not seem to matter to the Democrats sponsoring the bill and who have deemed it a top legislative priority.
Some details of the bill probably are worth preserving, such as its mention of the importance of accessible ballot drop boxes.
Getting ‘polarized’ voting wrong
What is polarized voting, you ask? The bill defines it as “voting in which there is a divergence in the candidate or political preferences, or electoral choices, of members in a protected class from the candidate or political preferences, or electoral choices, other electors in the political subdivision.”
But why should we care about polarized voting only when it involves racial minorities and the like? What if it reflects differences in ideology, neighborhood, or financial interests that have nothing to do with race?
Anyway, the bill says: “A political subdivision shall not enact or employ any method of election that has the effect of, or is motivated in part by the intention of, disparately impairing the opportunity or ability of members of a protected class to participate in the political process, elect the candidates of their choice, or otherwise influence the outcome of elections.”
The bill further states, “A violation of this section occurs when . . . if the political subdivision employs an at-large method of election . . . elections in the political subdivision exhibit polarized voting that disparately impairs the equal opportunity or ability of members of a protected class to nominate or elect the candidates of their choice.” Later language adds that the same applies with any “district-based or alternative method of election.”
We can observe a few points here. First, even if most members of a “protected class” are not “polarized,” because the bill considers people not as individuals but as members of a group, if even a small subset of the group is polarized, the entire group by definition also is polarized. Second, if subsets of a protected class are polarized in opposite directions, it’s possible that the polarizations could cancel out for the group as a whole. Third, if members of some non-protected class are polarized, the bill ignores them, which rubs against the equal protection clause.
There is a set of legitimate concerns here. Political entities should not run at-large elections as a way to muffle the voices of minority groups within the relevant region. Nor should they run district-based elections in a way that arbitrarily split neighborhoods to reduce the influence of the people who live there. But the bill’s focus on group polarization is not the right way to handle the underlying problems.
Focus on individuals and their rights
I’ll leave it to interested readers to review the lengthy enforcement section of the bill, which is a gift to the trial lawyers who undoubtedly would use the bill to continuously sue over elections. This bill would generate a legal nightmare and continuously throw our election procedures in doubt.
The basic problem with SB-001 is that it views people through the lens of group identity rather than as individuals. In a constitutional republican democracy, every individual who meets the basic requirements of residency and age and the like deserves the equal opportunity to participate in elections. Our election laws should be blind to a person’s race except to ensure it is not a barrier to participation, not obsessed with it. Senate Bill 001 is the wrong approach to an important issue.
Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism. He can be reached at ari at ariarmstrong dot com.