Timing Issues

Making Recalls Much Less Likely, and in Some Instances, Impossible

Increased processing time for recall petitions

While nothing was included in the ballot language to reflect several aspects of the increased time that would be required to process a recall petition AFTER it is submitted by voters, the ordinance language for ballot question 2C states that it: “Updated the timeframe allowed for the City Clerk to examine petitions because volumes (such as numbers of petition signatures to review) have increased since these current provisions were adopted. The new timeframes are more in line with the examination periods in state statutes.”

This examination period is moved from 5 working days to 15 working days. This timing is not more in line with the examination period in state statute for recalls - it is actually 3 times as long as what is provided under statute (5 days) for this time critical process. 

Any increases in time to the recall process further narrows an already limited window for seeking recall of a Fort Collins elected official, especially the mayor. This is because of the restrictions on the timing for circulation and submission of a recall petition during the first year or last six months of a term in Fort Collins. These restrictions are already in the Charter, and are unique to Fort Collins. Under the State Constitution and state law, the only similar restriction applies only during the first six months of a term, and no restriction at the end of a term.

Because the Mayor serves a two year term, there is already just a six month period during which a recall process can be initiated. Lengthening the recall process in any way essentially ensures the office of mayor can never be subject to recall. It is especially problematic to include process changes that lengthen the time for a recall that benefit the City but not voters.

Increased - and undefined - timing for a recall election

Balllot language: Requires Council to set recall measure for vote for the next Tuesday for which  all election deadlines can be met and if that earliest meetable date is within 77  days of a November election, it must go on that ballot.  

This language leaves it solely to the discretion of the city clerk to determine when that earliest 'meetable' date is - in responding to a question from the council when this language was adopted, the current clerk indicated it would be 'months' before she could be ready for a recall  election - while under current language it must be done within 60-90 days of when a recall petition is declared sufficient. This shift is likely in many scenarios to take away the opportunity for pursuing a recall from voters entirely, almost certainly for the office of mayor in every instance.

All of the changes to petition processes affecting voters share a focus on trying to push any related election to coincide with a November election, to the detriment of voters, so City staff doesn't have to administer an election. During the Council discussion when these ordinances were considered on July 2, it was stated it would be difficult to procure equipment to conduct a special election. Numerous other obstacles were mentioned as well, and while there is a degree of validity to some timing concerns relating to black out dates under state law, the other concerns raised were spurious. 

Regarding equipment in particular, it would be a tremendous waste of City resources to procure equipment for a limited - most likely single issue - special election. Even with a ranked voting contest for an office, using equipment is unnecessary and not a standard of best practice. Hand counting a Fort Collins special election for a recall, including likely a single contest with RCV votes, would not be technically complicated and would be far more cost and time efficient than trying to obtain and program equipment and specialized ballots.

Waiting undefined 'months' is not in the interest of voters trying to exercise their right of recall of their elected officials, and this ballot language obscures the impact of this change to voters, particularly in making the recall of the office of mayor virtually if not assuredly impossible.

Why an ordinance taking effect despite a referendum matters

This timing issue  is significant in two regards. First, and most importantly, is the challenge it presents to voters being able to exercise the constitutionally guaranteed right to a referendum. Neither the State Constitution nor state statute appear to contemplate a referendum process that allows the legislation being protested under referendum to go into effect, yet that is the only way the process can work as Fort Collins has designed.

The second issue relates to the liability and technical challenges associated with allowing an ordinance to take effect that is later stayed and potentially fully rescinded. There have been two referendum processes in the last two years in Fort Collins, both involving attempts to adopt a revised Land Use Code. In both instances, those ordinances each year were one of just a small handful - as in numbering in the single digits – of ordinances adopted in a year with a delayed effective date. 

Almost every ordinance follows the Charter provision making ordinances take effect 10 days after adoption. Any of these ordinances would have been in effect for 47 days under the current referendum process as it occurred in 2023. 

The Land Use Code, with nearly 3 months from passage to its effective date, was still just 16 days from going into effect in 2023. If the proposed provisions in the 2024 ballot question had been in effect at the time and everything else occurred the same, the Land Use Code would have taken effect and been in place for 12 days before being stayed and ultimately repealed. Think how challenging it would have been to apply the new land use code to applications that came in during those 12 days, as well as the legal challenges that would have ensued in the aftermath. 

Resolving this issue

This issue was presented at a work session in May of 2023 as one of several considerations regarding potential Charter change for 2023. When the proposed Charter language was finalized, a decision was made not to address this timing concern. These additional changes proposed now continue to ignore this issue while exacerbating the infringement on voter’s rights instead of addressing it.

This is an issue that requires careful consideration that centers on the voters of Fort Collins. The discrepancies between Fort Collins’ process of ordinances taking effect and what state law provides for present a challenge that needs more evaluation and in depth examination of reasonable alternatives. 

State law models what is required to center considerations on the voter, by making presumptions that favor the voter rather than the municipality. Under state law, a protested ordinance is stayed as soon as a valid petition is submitted. This occurs BEFORE the petition has been certified as sufficient, but after signatures have been collected and the petition submitted. This ensures a certain bar is reached in submitting a valid petition before the ordinance is stayed, but does allow that to happen and be reversed if the petition is later deemed insufficient. The presumption here is in favor of the voters, as it should be.

The full process of adopting ordinances and providing for a referendum process in Fort Collins needs to be looked at carefully and fully to determine some better options for voters that will work in execution. The changes proposed in 2024 will move Fort Collins further backwards - potentially substantially increasing the time a protested ordinance is in effect before it can be stayed - instead of helping this critical issue.

This spreadsheet looks at Fort Collins timing provisions, both current and proposed, and also compares them to the timing found in state law for both initiatives and referendums.