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. Opinions are also posted on the Colorado Bar Association ’s homepage at http://www.cobar.org

.
ADVANCE SHEET HEADNOTE

June 22 , 2020
2020 CO 61
No. 20 SA1 54 , In re Title, Ballot Title & Submission Clause for 2019
– 2020 #315
— Clear Title Requirement
— Singl e Subject Requirement
— Ballot Titles
. In this opinion, the supreme court review s the actions of the Title Board in setting the title and the ballot title and submission clause for Initiative 2019

– 2020
# 315 (“Initiative #315”) . Initiative # 315 proposes to add section 22 to article X of
the Colorado Constitution and to amend certain statutory provisions in Titles 24 and 39 of the Colorado Revised Statutes in order to create a new preschool program. This program would be created by reallocating revenue generated by existing state taxes on tobacco products and tobacco litigation settlements and by levying a new sales tax on tobacco

- derived nicotine vapor products.
The court conclude s that the title that the Title Board set for Initiative #315 presents a single subject, namely, the creation and administration of a Colorado preschool program funded by state taxes on nicotine and tobacco products. It
further conclude s that the title satisf ies the clear title requirement because it
describe s Initiative #315’s central features succinctly, accurately, and fairly and ina manner that will not mislead voters. Accordingly, the court affirm s the Title

Board’s actions in setting the title for Initiat ive #315.The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colorado 80203

20 20 CO 61 Supreme Court Case No. 20 S A 154 Original Proceeding Pursuant to § 1

- 40

- 107(2), C.R.S. (201 9 ) Appeal from the Ballot Title Setting Board In the Matter of the Title, Ballot Title and Submission Clause for 2019

- 202 0 # 315
Petitioner: Anna Jo Haynes ,

v. Respondents : Monica Vondruska and Jon Caldara,

Title Board: Theresa Conley, David Powell, and Jason Gelender.

Title Board Action Affirmed

en banc June 22 , 20 20
Attorneys for Petitioner : Recht Kornfeld, P.C. Mark G. Grueskin Denver , Colorado2

Attorneys for Respondents: Ireland Stapleton Pryor & Pascoe, PC Benjamin J. Larson William A. Hobbs Denver, Colorado Attorneys for Title Board : Ph ilip J. Weiser, Attorney General Grant T. Sullivan , Assistant Solicitor General Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court. JUSTICE HART dissents , and JUSTICE HOOD joins in the dissent

.3

¶1 In this opinion, we review the actions of the Title Board in setting the title
and the ballot title and submi ssion clause for Initiative 2019

– 2020 # 315 (“Initiative #315”) . Initiative # 315 proposes to add section 22 to article X of the
Colorado Constitution and to amend certain statutory provisions in Titles 24 and
39 of the Colorado Revised Statutes in order to create a new preschool program. This program would be created by reallocating revenue generated by existing state taxes on tobacco products and tobacco litigation settlements and by levying a new
sales tax on tobacco

- derived nicotine vapor produc ts

. 1
¶2 We conclude that the title that the Title Board set for Initiative # 315 presents a single subject, namely, the creation and administration of a Colorado preschool program funded by state taxes on nicotine and tobacco products. We further
conclude tha t the title satisf ies the clear title requirement because it describe s
Initiative #315’s central features succinctly, accurately, and fairly and in a manner
that will not mislead voters. Accordingly, we affirm the Title Board’s actions in setting the titl e for Initiative #315.

1 The text, title, and ballot title and submission clause for Initiative # 315 are attached as an appendix to this opinion

.4 

### I. Facts and Procedural Background
¶3 Pursuant to section 1

- 40

- 106, C.R.S. (201 9 ), proponents

- respondents Monica Vondruska and Jon Caldara submitted proposed Initiative #3 15 to t he Title Board for the setting of a title and submission clause. The Board conducted an initial public hearing and, concluding that Initiative #315 contained a single subject, proceeded to set the following title:
S hall state taxes be increased $6,300,000 annually by a n amendment to the C olorado C onstitution and a change to the C olorado R evised S tatutes concerning a new preschool program that is funded with revenue generated by state taxes on tobacco and nicotine products, and, in connection therewith, requiring the sta te to create and administer the new preschool program, which must supplement existing preschool programs and funding, and paying for the program by: 1) imposing a new tax on tobacco

- derived nicotine vapor products; and 2) reallocating from certain health

- r elated programs and other state purposes portions of the existing revenue from taxes on tobacco and nicotine products and money the state receives from tobacco litigation settlements?
¶4 P etitioner Anna Jo Haynes then filed a motion for rehearing, asserting that the title did not satisfy either the single subject or clear title requirement. The
Board conducted a rehearing and denied petitioner’s motion for rehearing in its entirety.
¶5 Petitioner now petition s for review pursuant to section 1

- 40

- 107(2), C.R.S. (20 19 ).5 

### II. Standard of Review
¶6 “ The Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause,” and we will reverse the Board ’ s decision only when a title is insufficient, unfair, or misleading. In re Title, Ballot
Title & Submission Clause for 2013

– 2014 # 90 , 2014 CO 63, ¶ 8, 328 P.3d 155, 159

. ¶7 In reviewing Title Board title settings, “we employ all legitimate presumptions in favor of the propriety of the Board ’ s actions.” In re Title, Ballot
Title & Submission Clause for 2009

– 2010 #45 , 234 P.3d 642, 645 (Colo. 2010)

. ¶8 In addition, in our limited review of the Title Board ’ s actions, we do not address the merits of the proposed initiative. I n re 2013

– 2014 # 90 , ¶ 9, 328 P.3d at
159

. Nor do we suggest how it might be applied if enacted. Id. Rather, as pertinent here, we must examine the initiative ’ s wording to determine whether it comport s with the constitutional requirement s
. See i d. In conducting this limited inquiry, we employ the general rules of statutory construction , giv ing words and phrases their plain and ordinary meanings. Id. 

### III. Analysis
¶9 Petitioner contend s that Initiative #315 violates both the Colorado Constitution’s single subject and clear title requirements for ballot titles . We address these arguments in turn.6 

### A. Single Subject Requirement

¶10 Article V, section 1(5.5) of the Colorado Constitution provides, in pertinent part : No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the me asure shall not be submitted to the people for adoption or rejection at the polls

. See also § 1

- 40

- 106.5(1)(a), C.R.S. (201 9 ) ( “Section 1(5.5) of article V

. . . require[s] that every constitutional amendment or law proposed by initiative

. . . be limited to a single subject, which shall be clearly expressed in its title [

. ] ”).
¶11 The single subject requirement serves two functions

. ¶12 First, it is intended [t]o forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits [.] § 1

- 40

- 106.5(1)(e) (I).
¶13 Accordingly, “ an initiative’s subject matter must be necessarily and properly connected rather than disconnected or incongruous , and the initiative will be held to violate the single subject requirement when it relates to more t han7

one subject and has at least two distinct and separate purposes. ” In re Title, Ballot
Title & Submission Clause for 201 5

– 2016 # 73 , 201 6 CO 24 , ¶ 14 , 3 69 P.3d 565, 568

. Such a requirement “prevents the proponents from combining multiple subjects to attract a ‘yes’ vote from voters who might vote ‘no’ on one or more of the subjects if they were proposed separately.” In re Title, Ballot Title & Submission Clause for 2013

– 2014 # 76 , 2014 CO 52, ¶ 8, 333 P.3d 76, 79.
¶14 Second, the single subject requirement seeks “ [t]o prevent surreptitious measures and apprise the people of the subject of each measure by the title , that is, to prevent surprise and fraud from being practiced upon voter s. ” § 1

- 40

- 106.5(1)(e) (II)

. ¶15 When an initiative tends to effectuate one general objective or purpose, then the initiative presents only one subject. In re 201 5

– 2016 # 73 , ¶ 1 7 , 3 69 P.3d at 568

. Accordingly, an initiative will not be deemed to violate the single subject requirement merely because it spells out details relating to its implementation. In re Title, Ballot Title & Submission Clause & Summary for 1997

– 1998 No. 74 , 962 P.2d 927, 929 (C olo. 1998). Nor will an initiative be deemed to violate the single subject requirement because it may have different effects on other provisions of Colorado
law. In re 2013

– 2014 #90 , ¶ 17, 328 P.3d at 160. Such effects are not relevant to
whether the proposed initiative contains a single subject. Id.8

¶16 The breadth of th e initiative’s objective, however, is not without limits. For example , “[a] proponent’s attempt to characterize an initiative under som e general
theme will not save the initiative from violating the single

- subject rule if the initiative contains multiple subjects.” In re Title, Ballot Title & Submission Clause for
2009

– 2010 # 91 , 235 P.3d 1071, 1076 (Colo. 2010).
¶17 We liberally construe the single subject requirement both because of the
Title Board ’s considerable discretion in setting the title and the ballot title and
submission clause and in order to avoid unduly restricting the initiative process.
In re 201 3

– 201 4 # 90 , ¶ 12 , 3 28 P.3d at 159

– 60

. We will therefore overturn the Board’s finding that an initiative contains a single subject only in a “clear case.” In
re 2013

– 2014 #76 , ¶ 8, 333 P.3d at 79.
¶18 Here, petitioner contends that the title set by the Board for Initiative #315 violates the Colorado Constitution’s single subject requirement because it both expands preschool programs and penalizes local policy makers who ban any form of tobacco or nicotine products. Specifically, petitioner argues that the title improperly forces voters to choose between enhanced preschool programming,
which the voters may be inclined to support, and forsaking legislative prerogatives that could be used in pursuit of other policy goals

. Petitioner further
asserts that the “financ ial penalties” that would result were a local legislature to ban tobacco and nicotine products would not be apparent to voters who thought9

that they were voting to fund a preschool program. We are not persuaded by any of these arguments

. ¶19 Initiative #315 r aises $6.3 million through a new sales tax on vaping products. The measure further reallocates certain existing state cigarette and
tobacco tax revenue from local governments that ban sales of tobacco and nicotine products to the preschool program that In itiative #315 creates . And the measure reallocates a portion of the cigarette and tax revenue generated by article X,
section 21 of the Colorado Constitution that currently funds tobacco education, health, and cessation programs, redirecting a portion of these tax funds to the new preschool program.
¶20 In our view, the foregoing provisions are all implementing provision s that are necessarily and properly related to Initiative #315’s single subject of creating and administering a Colorado preschool program fun ded by state taxes on nicotine and tobacco products. Moreover, notwithstanding petitioner’s assertion to the contrary, the title sufficiently alerts voters that existing state cigarette and tobacco tax revenue will be reallocated from current programs to the new preschool program. And we do not agree with petitioner’s contention that voters will be surprised to learn that localities that choose to ban the sales of tobacco and nicotine products will lose tax revenue derived from the sales of such products. To the contrary, we expect , as one of the Title Board members observed, that a10

knowledgeable voter would understand th at prohibiting the sale of tobacco and nicotine products in his or her locality would result in a loss of tax revenue derived
from the s ale s of such products.
¶21 We are not persuaded otherwise by petitioner’s characterization of the reallocation of tax revenues away from localities that ban the sale of tobacco and nicotine products as a “financial penalty.” Labeling the reallocation as such does
not alter the fact that th is reallocation is one means of implement ing
Initiative #315’s single subject of creating a preschool program by redirecting tax revenues to that program. Nor has petitioner argued (and the record before us does not reflect) that this reallocation provision was a surreptitious effort to protect the vaping industry.
¶22 We likewise are un persuaded by petitioner’s reliance on In re 2009

– 2010 #91 , 235 P.3d at 1073

– 79. In that case, the measure at issue sought t o levy a beverage
container tax “ to protect and preserve the waters of the state.” Id. at 1073. In accordance with that purpose, the tax revenues to be collected were to be distributed to Colorado’s nine basin roundtables and the interbasin compact
commi ttee for, among other things, protecting, administering, and developing renewable surface waters and groundwater supplies for maximum utilization. Id.
at 107 3

– 7 4. In addition to the foregoing, however, the measure would have placed
a four

- year moratorium on legislative action by t he General Assembly , precluding11

it from amending, repealing, or modifying the initiative’s provisions governing
the basin roundtables and interbasin compact committee

. Id. at 1075. We
concluded that this four

- year moratorium wa s a separate subject that was not necessarily and properly connected to the initiative’s subject of establishing and administering a beverage container tax. Id. at 1078

– 80

. Moreover, we opined that voters would have been surprised to learn that the initiative , if adopted, would have prohibited the voters’ elected representatives “ from exercising any authority over the basin roundtables and the interbasin compact committee for a substantial period of time , at least equal to the four

- year term of senators they elect .” Id. at
1079.
¶23 Here, in contrast, Initiative #315 imposes no moratorium on local legislative
action. If Initiative #315 passes, local legislatures will remain free to choose to ban
tobacco and nicotine products or not. If they choose to do so, however, then a consequence of that action would be a redirection of the locality’s state cigarette and tax revenue to the new preschool program. Such a consequence, however,
does not render this re allocation provision a separate subject. See In re 2013

– 2014
#90 , ¶ 17, 328 P.3d at 160. Moreover, for the reasons set forth above, the reallocation would be necessarily and properly connected to Initiative #315’s single subject of establishing and admin istering a new preschool program.12

¶24 For these reasons, we conclude that Initiative #3 15 comprises a single subject , and we proceed to address petitioner’s assertion that the title set by the
Board violates our constitution’s clear title requirement.


### B. Clear Title Requirement

¶25 An initiative’s single subject must be clearly expressed in its title. Colo.
Const. art. V, § 1(5.5); In re 2015

– 2016 #73 , ¶ 22 , 369 P.3d at 568

. “The title and
submission clause should e nable the electorate, whether familiar or unfamiliar with the subject matter of a particular proposal, to determine intelligently whether to support or oppose such a proposal.” In re 2013

– 2014 # 90 , ¶ 23 , 328 P.3d at 1 62. When setting a title, the Title B oard “shall consider the public confusion that might be caused by misleading titles and shall, whenever practicable, avoid titles for which the general understanding of the effect of a ‘yes/for’ or ‘no/against’ vote
will be unclear.” § 1

- 40

- 106(3)(b). In addition, t he title “shall correctly and fairly express the true intent and meaning” of the initiative. Id. And the title “shall be
brief.” Id.
¶26 The Title Board is given discretion in resolving interrelated problems of length, complexity, and clarity in designating a title and ballot title and submission
clause. In re 2015

– 2016 #73 , ¶ 23 , 369 P.3d at 569

. The Board is required to summarize the central features of a proposed initiative fairly , but it “need not explain the meaning or potent ial effects of the proposed initiative on the current13

statutory scheme. ” Id. ; see also In re Title, Ballot Title & Submission Clause & Summary for Petition on Campaign & Political Fin. , 877 P.2d 311, 315 (Colo. 1994) (noting that the Board need only “fairly summarize the central points of a proposed measure ” ). Nor must a title recite every detail of the proposed measure. In re Title, Ballot Title & Submission Clause for Proposed Initiatives 2001

– 20 02 #21 &
#22 , 44 P.3d 213, 222 ( Colo. 2002). Instead, the Board must “navigate the straits
between brevity and unambiguously stating the central features of the provision sought to be added, amended, or repealed.” In re Title, Ballot Title & Submission
Clause & Summary for Proposed Ini tiative Concerning Auto. Ins. Coverage , 877 P.2d 853, 857 (Colo. 1994).
¶27 In deciding whether a title complies with the constitution’s clear title requirement, “we do not consider whether the Title Board set the best possible
title. ” In re 2015

– 2016 #73 , ¶ 24 , 369 P.3d at 569

. Instead, we need only “ ensure that the title fairly reflect s the proposed initiative such that voters will not be misled into supporting or opposing the initiative because of the words employed by the Title Board. ” Id. We will generally defer to the Board’s choice of language
unless the titles set “contain a mate rial and significant omission, misstatement, or misrepresentation.” In re Title, Ballot Title & Submission Clause & Summary for
1997

– 98 #62 , 961 P.2d 1077, 1082 (Colo. 1998). And again, we will only overturn14

the Board’s action in a clear case. In re Ti tle, Ballot Title & Submission Clause & Summary Pertaining to Casino Gaming Initiative , 649 P.2d 303, 306 (Colo. 1982).
¶28 Here, petitioner contends that the title set by the Title Board for
Initiative #315 violates the Colorado Constitution’s clear title req uirement because the title (1) erroneously informs voters that the new nicotine vapor tax is set, in whole or in part, “by an amendment to the Colorado Constitution”; (2) does not inform voters about the purported penalty created for local jurisdictions th at ban the sale of any tobacco or nicotine product; and (3) does not advise voters regarding major cuts to programs from existing funds. We address and reject each
of these contentions in turn.
¶29 With respect to p etitioner ’s contention that the title erroneously informs voters that the new nicotine vapor tax is set, in whole or part, in the constitution, petitioner asserts that the wording of the title communicates one of two possible constructions: (1) the new tax created by Initiative #315 is created in the
constitution , and the preschool program is created in the Colorado Revised
Statutes ; or (2) the new tax is created in both the constitution and Colorado statutory law. Petitioner contends that both of these constructions are incorrect
because the tax, in fact, is created by statute alone. She further notes that the Board could have adopted alternative wording that would have clarified th is issue (e.g.,15

wording that would have mentioned the statutory amendments before the constitutional ones), but the Board did not do so

. ¶30 As an initial matter, we note that petitioner has set up a false choice because she has omitted a third, and we believe, more logical construction, namely, that the title makes clear that the tax increase is part of the overall mea sure. In our view, such a drafting decision properly reflects the fact that the constitutional and statutory amendments proposed by Initiative #315 work in tandem to create and administer the new preschool program , and this drafting determination by the
B oard in no way renders the title inaccurate or misleading. Moreover, we agree with the proponents and the Board that where the tax is created is not a central
feature of this initiative. As they observe, voters are interested in the fact that the

measure would impose a new tax, and petitioner has offered no evidence to suggest that voters will be influenced by where the tax is created. Last, we perceive no basis for overriding the Board’s discretionary decision to mention first
in the title the fact that the initiative proposes an amendment to the constitution. To the contrary, the Board’s determination that voters might view as especially significant the fact that this initiative would amend our constitution is well within the Board’s drafting discretio n.
¶31 With respect to petitioner’s assertion that the title does not inform voters about the purported penalty created for local jurisdictions that ban the sale of16

tobacco or nicotine product s , as noted above, we do not agree with petitioner’s premise that th e provision redirecting state tax revenues from jurisdictions that ban the sale of tobacco and nicotine products to the new preschool program is a “penalty.” To the contrary, that provision is simply one of several means set forth
in the measure for reall ocating and redirecting existing and future state cigarette
and tobacco tax revenue s to the new preschool program that Initiative #315

creates. In any event, as set forth above, the Board is not required to set forth in
the title all of the details of eac h funding mechanism set forth in the measure. See
In re 2001

– 20 02 #21 & #22 , 44 P.3d at 222. To the contrary, the Board must balance the requirement of brevity against the requirement that the title unambiguously
set forth the measure’s central features

. S ee In re Proposed Initiative Concerning Auto. Ins. Coverage , 877 P.2d at 857

. Indeed, r equiring the Board to include all of the details that petitioner claims should have been included would result in a lengthy and complex title, and this woul d be contrary to the Board’s statutory charge. S ee § 1

- 40

- 106(3)(b).
¶32 Finally, as to petitioner’s contention that the title at issue does not advise voters regarding major cuts to programs from existing funds , we disagree that the Board was required to ite mize in the title some or all of the program s that would face funding cuts. Again, requiring that level of detail in the title would render the title unnecessarily long and potentially confusing, contrary to the17

above

- described statutory mandate . And to the extent that petitioner asserts that the Board should at least have identified in the title the “key programs” that would be subject to such reallocations, petitioner does not define the word “key,” nor
does she indicate how th e Board was to determine w hich programs would fit such

a definition. Accordingly, w e conclude that it was sufficient for the Board to summarize generally the category of programs from which funds would be
reallocated (i.e., “certain health

- related programs”), as it did

. ¶33 For all of these reasons , we conclude that the title set for Initiative #315
satisfies our constitution’s clear title requirement.


### I V
. Conclusion
¶34 Because (1) Initiative #3 15 effectuates one general objective or purpose, does not treat incongruous subjects in the same measure , comprises subject matter that is necessarily and properly connected, contains nothing surreptitious or
hidden , and presents no risk of surprise or fraud on voters and (2) the title set by
the Title Board clearly, succinctly, and accurately de scribes Initiative #315’s central features in a manner easily understandable to voters, we conclude that the Board
has satisfie d both the single subject and clear title requirements of the Colorado
Constitution.
¶35 Accordingly, we affirm the Board’s actions i n setting the title for
Initiative #3 15

.18

JUSTICE HART dissents , and JUSTICE HOOD joins in the dissent

.19 

### APPENDIX
– Initiative # 315 and Titles Be it enacted by the People of the State of Colorado :
SECTION 1 . In the Constitution of the State of Colorado add section 22 to article X as follows: SECTION 22. REVENUES FROM EXISTI NG TOBACCO TAXES TO FUND A C OLORADO PRESCHOOL PR OGRAM . (1) T HE PEOPLE OF THE STA TE OF C OLORADO FIND AND DECLARE THA T SINCE 2005 THERE HAVE BEEN SIGN IFICANT IMPROVEMENTS IN THE REGULATION OF THE SALE AND USE OF CIGARETTES AND TOBA CCO PRODUCTS WITH THE ADOPTION OF COMPREHENSIVE SMOKE
- FREE POLICIES BY STA TE AND LOCAL GOVERNMENTS , THE PASSAGE OF THE FEDERAL “ F AMILY S M OKING P REVENTION AND T OBACCO C ONTROL A CT ” IN 2009 AND ADOPTION OF 2019 AMENDMENTS TO THE FEDERAL “ F OOD , D RUG AND C OSMETIC A CT ” TO RAISE THE MINIMUM AGE OF THE SALE OF TOBACCO AND NICOT INE PRODUCTS FROM 18 YEARS OF AGE TO 21 YEARS OF AGE

. (2) T HE PEOPLE FIND AND D ECLARE THAT THE U NITED S TATES SURGEON GENERA L HAS STATED THAT TOBACCO SMOKING IN THE U NITED S TATES IS NOW AT AN A LL
- TIME LOW

. THE C OLORADO TOBACCO EDUC ATION , PREVENTION , AND CESSATION GRANT PROGRAM REVIEW COMMI TTEE HAS MADE SIMILA R FINDINGS OF REDUCE D TOBACCO USAGE BY C OLORADANS

. (3) F INALLY , THE PEOPLE OF THE ST ATE OF C OLORADO FIND AND DEC LARE THAT EXISTING REVENUES FR OM THE CIGARETTE AND TOBACCO TAXES IMPOS ED BY SECTION 2 1 OF THIS ARTICLE X IN 2005 SHOULD BE REDISTRIBU TED TO CONTINUE TO F UND TOBACCO EDUCATION , CESSATION AND PREVEN TION PROGRAMS WHERE NEEDED AND TO CONTINUE TO FUND HEALTH EDUCATION , RESEARCH AND TREATME NT PROGRAMS , BUT TO ALSO FUND A N EW PRESCHOOL PROGRAM FO R THE CHILDREN OF C OLORADO AS SET FORTH HEREIN WIT H NO NEW TAXES

. (4) N OTWITHSTANDING ANY O THER PROVISION OF LA W , THE GENERAL ASSEMBLY SHALL ENACT AUTHORIZ ING LEGISLATION NO L ATER THAN D ECEMBER 31, 2021, TO ENABLE THE DEPARTMEN T OF EDUCATION , OR SUCH OTHER DEPARTMENT OR DELEGATED ENTITY THA T IS DETERMINED BY T HE GENERAL ASSEMBLY TO BE BEST QUALIFIED , TO CREATE AND ADMINI STER , USING EXISTING REVEN UES , A NEW C OLORADO PRESCHOOL PR OGRAM IN A MANNER TH AT FOSTERS THE PROGR AM ’ S ADMINISTRATION , CONSISTENT WITH VOTER INTENT

. T HE LEGISLATION SHALL CREATE THE PRESCHOOL CASH F UND IN THE STATE TRE ASURY

. E VERY YEAR , BEGINNING WITH THE 2021

- 2022 FISCAL YEAR , THE SUM OF ONE HUNDR ED MILLION DOLLARS F ROM20

EXISTING TAX REVENUE S COLLECTED PURSUANT TO SECTION 21, ARTICLE X MUST BE CREDITED TO THE PRES CHOOL CASH FUND , EXCEPT THAT THE PERC ENTAGE OF SIXTEEN PERCENT OF REVENUES SHALL REMAIN APPROPR IATED FOR SCHOOL AND COMMUNITY BASED AND STATEWIDE TOBACCO PROGRAMS DES IGNED TO REDUCE INIT IATION OF TOBACCO USE BY CHILD REN , PROMOT E CESSATION OF TOBAC CO USE AMONG YOUTH AND ADULTS AND REDUC E EXPOSURE TO SECOND HAND SMOKE

. S UCH REVENUES SHALL CONTINUE TO BE APPROPRIATED THROUG H THE “ T OBACCO E DUCATION , P REVENTION AND C ESSATION A CT ” P ART 8 OF ARTICLE 3.5 OF TITLE 25, C OLORADO R EVISED S TATUTES , AND ANY SUCCESSOR AC T

. N O LATER THAN D ECEMBER 31, 2021, THE GENERAL ASSEMBLY SHALL ENACT LEGISLA TION TO REALLOCATE T HE PERCENTAGES SET FORT H IN SECTION 21 OF THIS ARTICLE X FOR THE PURPOSES SET FORTH THEREIN AND IN THIS SECTION 22. T HE P RESCHOOL CASH FUND S HALL BE SUBJECT TO ANNUAL APPROPRIAT ION BY THE GENERAL A SSEMBLY SOLELY FOR T HE DIRECT AND INDIRECT COSTS OF TH E NEW C OLORADO PRESCHOOL PR OGRAM

. T HE NEW C OLORADO PRESCHOOL PROGRAM AN D ITS FUNDING AS PRO VIDED BY THIS SUBSEC TION (4) MUST SUPPLEMENT AND NOT S UPPLANT ANY EXISTING PROGRAMS AND FUNDIN G RELATING TO PRESCHOOL EDUCATION

. (5) A NY AUTHORIZING LEGIS LATION FOR THE PRESC HOOL PROGRAM SHALL I NCLUDE A MANDATE THAT , TO THE EXTENT PRACTI CABLE , THE FUNDS BE USED TO FOSTER : (I) P ROGRAMMATIC ADMINIST RATION THAT ALLOWS F OR PARENT CHOICE , ENSURES SCHOOL
- BASED AND COMMUNITY
- BASED PROGRAMS THAT MEET QUALITY AND PROGRAM STANDARD S , PRIORITIZES COMMUNIT Y NEEDS IN A MANNER THAT WILL SUPPORT AND STRENGTH EN THE DIVERSITY OF BIRTH TO KINDERGA RTEN SERVICE PROVIDERS , AND HELPS TO ACHIEVE STATE AND LOCAL MIX ED DELIVERY GOALS ; (II) H IGH
- QUALITY PROGRAMMING THAT HELPS PREPARE C HILDREN FOR KINDERGARTEN ; (III) C OORDINATION WITH EXI STING EARLY CHILDHOO D SYSTEMS AND INITIATIVES AND ADVA NCING ALIGNMENT WITH KINDE RGARTEN THROUGH TWEL FTH GRADE SYSTEMS TO SUP PORT CHILDREN ’ S TRANSITIONS TO SCH OOL ; (IV) O PPORTUNITIES FOR EVI DENCE
- BASED PARENT , FAMILY , AND COMMUNITY ENGAGEMENT ; AND21

(V) A N EVALUATION OF EARL Y CHILDHOOD EDUCATIO N PROGRAM EFFECTIVENESS , INCL UDING THE IMPACT OF PRESCHOOL ON CHILD A ND FAMILY OUTCOMES

. S ECTION 2. In Colorado Revised Statutes, amend subsection (1.7) of section 24

- 75

- 1104.5 as follows: (1.7) N OTWITHSTANDING ANY O THER PROVISION OF LA W , THE PEOPLE OF THE ST ATE OF C OLORADO FIND AND DEC LARE THAT , FOR FISCAL YEARS BEG INNING ON OR AFTER J ULY 1, 2022, THE SETTLEMENT MONEY S RECEIVED BY THE ST ATE IN THE PRECEDING FISCAL YEAR SHALL BE ALLOCATED A S FOLLOWS

. Except as otherwise provided in subsecti ons (1.3) and (5) of this section, and except that disputed payments received by the state in the 2015

- 16 fiscal year or in any year thereafter are excluded from the calculation of allocations under this subsection (1.7), for the 2016

- 17 fiscal year and fo r each fiscal year thereafter, the following programs, services, and funds shall receive the following specified percentages of the total amount of settlement moneys received by the state in the preceding fiscal year: (a) The Colorado nurse home visitor program created in article 6.4 of title 26, C.R.S., shall receive twenty

- six and seven

- tenths percent of the settlement moneys; (b) (a) The children ’ s basic health plan trust created in section 25.5

- 8

- 105, C.R.S., shall receive eighteen percent of the settlement moneys; (c) (b) The U niversity of Colorado H ealth S ciences C enter shall receive a base amount of fifteen and one

- half percent of the settlement moneys and an additional amount of two percent of the settlement moneys, and the state treasurer shall credit both THE amount s to the tobacco litigation settlement moneys health education fund , which is hereby created in the state treasury. The state treasurer shall credit all interest and income derived from the deposit and investment of money in the fund to the fund. Any unexpended and unencumbered money in the fund at the end of any fiscal y ear remains in the fund and shall not be credited or transferred to the general fund or any other fund. All money in the fund is subject to annual appropriation by the general assembly to the health sciences center, but the health sciences center shall use the additional amount of settlement moneys credited to the fund only for tobacco

- related in

- state cancer research as authorized in section 24

- 75

- 1103 (7).22

(d) The Fitzsimons trust fund created in section 23

- 20

- 136 (3), C.R.S., shall receive eight percent of the settlement moneys. Subject to annual appropriation by the general assembly, the settlement moneys shall be used as specified in section 23

- 20

- 136 (5), C.R.S. (e) The Tony Grampsas youth services program created in article 6.8 of title 26, C.R.S., shall receive seven and one

- half percent of the total amount of settlement moneys, which the state treasurer shall transfer to the youth services program fund created in section 26

- 6.8

- 102 (2) (d), C.R.S.; (f) The drug assistance program created in section 25

- 4

- 1401, C.R.S., shall receive five percent of the settlement moneys; (g) The AIDS and HIV prevention fund created in section 25

- 4

- 1405, C.R.S., shall receive three and one

- half percent of the settlement moneys; (h) The supplemental tobacco litigation settle ment moneys account of the Colorado immunization fund created in section 25

- 4

- 2301, C.R.S., shall receive two and one

- half percent of the settlement moneys; (i) (c) The tobacco settlement defense account of the tobacco litigation settlement cash fund crea ted in section 24

- 22

- 115 (2) (a) shall receive two and one - half percent of the settlement moneys; (j) The supplemental state contribution fund created in section 24

- 50

- 609 (5) shall receive two and three

- tenths percent of the settlement moneys, which, subjec t to annual appropriation by the general assembly, shall be used to pay the costs of increased nonsupplemental state contributions and to provide supplements to the state contribution for state employee group benefit plans for each eligible state employee as required by section 24

- 50

- 609.5; (k) The Colorado autism treatment fund created pursuant to section 25.5

- 6

- 805, C.R.S., shall receive two percent of the settlement moneys to pay a portion of the state ’ s share of the annual funding required by the “ Home

- and Community

- based Services for Children with Autism Act ” , part 8 of article 6 of title 25.5, C.R.S.;23

(l) (d) The Colorado state veterans trust fund created in section 28

- 5

- 709, C.R.S., shall receive on e percent of the settlement moneys; AND (m) The state dental loan repayment program created in article 23 of title 25, C.R.S., shall receive one percent of the settlement moneys; and (n) The Colorado health service corps fund created in section 25

- 1.5

- 506, C.R. S., shall receive one percent of the settlement moneys. (e) T HE PRESCHOOL CASH FU ND REFERENCED IN SEC TION 22, ARTICLE X , OF THE C OLORADO C ONSTITUTION , AND CREATED BY IMPLE MENTING LEGISLATION , SHALL RECEIVE THE RE MAINING PERCENTAGE O F THE SETTLEMENT MONEYS

. SECTION 3. In Colorado Revised Statutes, 39

- 22

- 623, amend (1)(a)(II)(A) as follows : (1) The proceeds of all money collected under this article 22, less the reserve retained for refunds, shall be credited as follows: ( a)(II)( A) Effective July 1, 1987, an amount equal to twenty

- seven percent of the gross state cigarette tax shall be apportioned to incorporated cities and incorporated towns that levy taxes and adopt formal budgets and to counties. For the purposes of this secti on, a city and county is considered a city. The city or town share shall be apportioned according to the percentage of state sales tax revenues collected by the department of revenue in an incorporated city or town as compared to the total state sales tax collections that may be allocated to all political subdivisions in the state; the county share shall be the same as that which the percentage of state sales tax revenues collected in the unincorporated area of the county bears to total state sales tax reve nues that may be allocated to all political subdivisions in the state. The department of revenue shall certify to the state treasurer, at least annually, the percentage for allocation to each city, town, and county, and the department shall apply the perce ntage for allocation certified in all distributions to cities, towns, and counties until changed by certification to the state treasurer. In order to qualify for distributions of state income tax money, units of local government are prohibited from imposin g taxes on any person as a condition for engaging in the business of selling cigarettes, OR ENACTING BANS OF TOBACCO AND NICOTINE PRODUCTS IN ANY FOR M . For purposes of this subsection (1)(a)(II), the “ gross state cigarette tax ” means the total tax before the discount provided for in section 39

- 28

- 104 (1). For any city, town, or county that was previously disqualified from the apportionment set forth in this subsection24

(1)(a)(II)(A) by reason of imposing a fee or license related to the sale of cigarettes, the city, town, or county is eligible for any allocation of money that is based on an apportionment made on or after July 1, 2019, but not for an allocation of money that is based on an apportionment made before July 1, 2019. T H E TOTAL AMOUNT THAT WOULD HAVE BEEN ALLOCATED TO CITIES , TOWNS AND COUNTIES I N EACH FISCAL YEAR BUT FOR THE ADOPTION OF A BAN ON OR AFTER D ECEMBER 31, 2021, SHALL BE CERTIFIED T O THE STATE TREASURE R BY THE DEPARTMENT OF REVENUE AND SHALL BE CREDITED TO THE PRESCHOOL CASH FUND REFERENCED IN S ECTION 22, A RTICLE X , OF THE C OLORADO C ONSTITUTION

. SECTION 4. In Colorado Revised Statutes, 39

- 26

- 123, add (1)(c) and (3)(c) as follows: (1) As used in this section, unless the context otherwise requires: (c) “ T OBACCO AND NICOTINE PRODUC TS ” DOES NOT INCLUDE ACC ESSORIES SUCH AS ROLLING PAPERS , PIPES , AND VAPE PENS

. (3) For any state fiscal year commencing on or after July 1, 2013, the state treasurer shall credit eighty

- five percent of all net revenue collected under t his article 26 to the old age pension fund created in section 1 of article XXIV of the state constitution. The state treasurer shall credit to the general fund the remaining fifteen percent of the net revenue, less: (c) O NE HUNDRED PERCENT O F ALL AVAILABLE NET REVENUE ATTRIBUT ABLE TO RETAIL SALES OR USE OF TOBA CCO AND NICOTINE PRO DUCTS ON OR AFTER J ANUARY 1, 2022, WHICH THE STATE TREA SURER SHALL CREDIT T O THE PRESCHOOL CASH FUND CREATED PURSUANT TO SECTION 22, A RTICLE X OF THE C OLORADO C ONSTITUTION

. SECTION 5. In Colorado Revised Statutes, amend section 39

- 28

- 110(1) as follows: (1) Distribution of Tax Collected. All sums of money received and collected in payment of the tax imposed by the provisions of this article, except license fees received under section 39

- 28

- 102 and the moneys collected pursuant to section 39

- 28

- 103.5, shall be transmitted to the state treas urer who shall distribute money as follows: Fifteen percent to the general fund, and eighty

- five percent to the old age pension fund, EXCEPT THAT , ON AND AFTER J ULY 1, 2021, THE STATE TREASURER25

SHALL CREDIT FIFTEEN PERCENT TO THE PRES CHOOL CASH FUND REFE RE NCED IN S ECTION 22, A RTICLE X , OF THE STATE CONSTIT UTION INSTEAD OF THE GENERAL FUND

. SECTION 6. In Colorado Revised Statutes, amend section 39

- 28.5

- 108 (1) as follows: (1) Distribution of Tax Collected . All sums of money received and collected in payment of the tax imposed by the provisions of this article, except license fees under section 39

- 28.5

- 104 and the moneys collected pursuant to 39

- 28.5

- 102.5, shall be transmitted to the state treasurer, who s hall distribute such money as follows: Fifteen percent to the general fund and eight

- five [sic.] percent to the old age pension fund , EXCEPT THAT , O N OR AFTER J ULY 1, 2021, THE STATE TREASURER SHALL CRED IT FIFTEEN PERCENT TO T HE PRESCHOOL CASH FU ND REFEREN CED IN SECTION 22, A RTICLE X , OF THE STATE CONSTIT UTION INSTEAD OF THE GENERAL FUND

. SECTION 7. In Colorado Revised statutes, add article 28.6 to title 39 as follows: Article 28.6

Tobacco
- derived Nicotine Vapor Product Tax 39
- 28.6
- 101. Declaration. (1) T HE VOTERS OF THE STA TE OF C OLORADO HEREBY FIND AND DECLARE THAT : (a) T HERE HAS BEEN A SIGN IFICANT INCREASE IN THE USE OF ELECTRONI C CIGARETTES AND SIMILAR TOBACCO
- DERIVED NICOTINE VAP OR PRODUCTS AMONG C OLORADANS ; AND (b) S UCH PR ODUCTS HAVE NOT YET BEEN SUBJECT TO A TA X AS WITH OTHER TOBA CCO PRODUCTS PURCHASED A ND SOLD IN THE STATE OF C OLORADO

. (2) T HE VOTERS OF THE STA TE OF C OLORADO AUTHORIZE A NEW TOBACCO
- DERIVED NICOTINE VAPOR PRODU CT TAX IN ADDITION T O THE CURRENT STATE SALES TAX IMPOSED ON RETAIL SALES AND REQUIRE THAT THE GEN ERAL ASSEMBLY ADOPT A REGULATORY PROGRAM , INCLUDING LICENSING REQUIREMENTS , THAT FACILITATE THE IMPOSITION AND COLLECTION OF THE TA X
.26

39
- 28.6
- 102. Definitions. U NLESS THE CONTEXT OT HERWISE REQUIRES , ANY TERMS NOT DEFINED IN THIS ARTICLE 28.6 HAVE THE MEANINGS SE T FORTH IN ARTICLE 26 OF THIS TITLE

. A S USED IN THIS ARTIC LE 28.6, UNLESS THE CONTEXT O THERWISE REQUIRES : (1) “ T OBACCO
- DERIVED NICOTINE VAP OR PRODUCT ” MEANS A NONCOMBUSTIB LE PRODUCT T HAT PRODUCES A VAPOR OR AEROSOL FOR INHA LATION FROM THE APPLICATION OF A HEA TING ELEMENT TO A LI QUID SUBSTANCE CONTA INING TOBACCO DERIVED NICOTINE (2) “ D EPARTMENT ” MEANS THE DEPARTMENT OF REVENUE

. 39
- 28.6
- 103. Tax levied. O N OR AFTER J ULY 1, 2021, THERE IS HEREBY IMPOSED UPON ALL SALES OF A TOBAC CO
- DERIVED NICOTINE VAP OR PRODUCT A TAX AT THE RATE OF TEN PERCENT OF THE A MOUNT OF THE SALE IN ADDITION TO EXISTIN G STATE AND LOCAL SALES TAXES

. 39
- 28.6
- 104. Exempt sales. T HE TOBACCO
- DERIVED NICOTINE VAP OR PRODUCT TAX IMPOSED BY SECTION 39

- 28.6

- 103 DOES NOT APPLY WITH RESPECT TO ANY TOBACCO
DERIVED NICOTINE VAPOR PRODUCTS THAT , UNDER THE CONSTITUTI ON AND LAWS OF THE U NITED S TATES , MAY NOT BE MADE SUBJ ECT TO TAXATION BY T HIS STATE

. 39
- 28.6
- 105. Creation of tobacco
- derived nicotine vapor product tax program

. N OTWITHSTANDING ANY O THER PROVISION OF LA W , THE GENERAL ASSEMBLY SHALL ENACT A REGULATORY S TRUCTURE , INCLUDING LICENSING , TO FACILITATE THE COLLECTION OF THE TA X IMPOSED BY THIS AR TICLE 28.6 AND SHALL ADOPT CONFO RMING AMENDMENTS TO THIS ARTICLE AS NECE SSARY

. T HE GENERAL ASSEMBLY SHALL ACT NO LATER T HAN D ECEMBER 31, 2020. T HE EXECUTIVE DIRECTO R OF THE DEPARTMENT MAY ADOPT RULES TO IMPLEMENT THE TAX IMPOSED BY T HIS ARTICLE 28.6.
39
- 28.6
- 106. Distribution of tax collected

. (1) T HE STATE TREASURER S HALL CREDIT THE REVENUE COLLECTE D PURSUANT TO THE TA X IMPOSED BY THIS AR TICLE 2 8.6 TO THE PRESCHOOL CASH FUND CREATED PURSUANT TO SECTION 22 OF ARTICLE X OF THE STATE CONSTITUTION

. (2) T HE VOTERS HEREBY FIN D AND DECLARE THAT B ECAUSE THE SALES AND USE TAX REVENUE GENERATED BY THE SALES AND USE T AX LEVIES PURSUANT T O SECTION 39

- 26

-27

106 AND 39

- 26

- 202 IS SUFFICIENT TO FUN D THE OLD AGE PENSIO N FUND AS REQUIRED BY ARTICLE XXIV OF THE STATE CONSTIT UTION , THE STATE MAY CONSTI TUTIONALLY CREDIT ALL REVENUE G ENERATED BY THE ADDI TIONAL TAX LEVIED PU RSUANT TO THIS ARTICLE TO THE PRESC HOOL CASH FUN D AS SPECIFIED IN SU BSECTION ONE OF THE SECTION

.
SECTION 8. T HIS INITIATIVE SHALL BE EFFECTIVE UPON P ROCLAMATION BY THE GOVERNOR

.28 Ballot Title Setting Board Proposed Initiative 2019
- 2020 #315 The title as designated and fixed by the [Title] Board is as follows: State taxes shall be increased $6,300,000 annually by an amendment to the Colorado Constitution and a change to the Colorado Revised Statutes concerning a new preschool program that is funded with revenue generated by state taxes on t obacco and nicotine products, and, in connection therewith, requiring the state to create and administer the new preschool program, which must supplement existing preschool programs and funding, and paying for the program by: 1) imposing a new tax on tobac co - derived nicotine vapor products; and 2) reallocating from certain health

- related programs and other state purposes portions of the existing revenue from taxes on tobacco and nicotine products and money the state receives from tobacco litigation settleme nts. The ballot title and submission clause as designated and fixed by the [Title] Board is as follows:
S hall state taxes be increased $6,300,000 annually by an amendment to the C olorado C onstitution and a change to the C olorado R evised S tatutes concerning a new preschool program that is funded with revenue generated by state taxes on tobacco and nicotine products, and, in connection therewith, requiring the state to create and administer t he new preschool program, which must supplement existing preschool programs and funding, and paying for the program by: 1) imposing a new tax on tobacco

- derived nicotine vapor products; and 2) reallocating from certain health

- related programs and other sta te purposes portions of the existing revenue from taxes on tobacco and nicotine products and money the state receives from tobacco litigation settlements?1

JUSTICE HART , dissenting.
¶36 I agree with the majority that “ ‘ [t]he Title Board is vested with considerable discretion in setting the title and the ballot title and submission clause,’ and we will reverse the Board’s decision only when a title is insufficient, unfair, or misleading. ” Maj. op. ¶ 6 (quoting In re Title, Ballot Title & Submission Clau se for
2013

– 2014 #90 , 2014 CO 63, ¶ 8, 328 P.3d 155, 159 ) . But because this title is insufficient, unfair , and misleading, I would reverse the decision of the Title Board. Accordingly, I respectfully dissent.
¶37 Because my disagreement with the majority con cerns the inclusion in
Initiative 2019

– 2020 #315 (“Initiative #315”) of a penalty imposed on local jurisdictions that ban any form of tobacco or nicotine, I will describe the initiative and the penalty provision’s placement within it here. The text of Ini tiative #315 fills nearly seven pages . Section 3 of the initiative begins near the bottom of the fourth page and provides: SECTION 3. In Colorado Revised Statutes, 39

- 22

- 623, amend (1)(a)(II)(A) as follows: (1) The proceeds of all money collected under this article 22, less the reserve retained for refunds, shall be credited as follows: (a)(II) (A) Effective July 1, 1987, an amount equal to twenty

- seven percent of the gross state cigarette tax shall be appor tioned to incorporated cities and incorporated towns that levy taxes and adopt formal budgets and to counties. For the purposes of this section, a city and county is considered a city. The city or town share shall be apportioned according to the percenta ge of state sales tax revenues2

collected by the department of revenue in an incorporated city or town as compared to the total state sales tax collections that may be allocated to all political subdivisions in the state; the county share shall be the same as that which the percentage of state sales tax revenues collected in the unincorporated area of the county bears to total state sales tax revenues that may be allocated to all political subdivisions in the state. The department of revenue shall certify t o the state treasurer, at least annually, the percentage for allocation to each city, town, and county, and the department shall apply the percentage for allocation certified in all distributions to cities, towns, and counties until changed by certificatio n to the state treasurer. In order to qualify for distributions of state income tax money, units of local government are prohibited from imposing taxes on any person as a condition for engaging in the business of selling cigarettes, OR ENACTING BANS OF TO BACCO AND NICOTINE P RODUCTS IN ANY FORM. For purposes of this subsection (1)(a)(II), the “ gross state cigarette tax ” means the total tax before the discount provided for in section 39

- 28

- 104 (1). For any city, town, or county that was previously disquali fied from the apportionment set forth in this subsection (1)(a)(II)(A) by reason of imposing a fee or license related to the sale of cigarettes, the city, town, or county is eligible for any allocation of money that is based on an apportionment made on or after July 1, 2019, but not for an allocation of money that is based on an apportionment made before July 1, 2019

. THE TOTAL AMOUNT THAT WOULD HAVE BEEN ALLOCATED TO CITIES , TOWNS AND COUNTIES IN EACH FISCAL YEAR BUT FOR THE ADOPTION OF A BAN ON OR AFTER D ECEMBER 31, 2021, SH ALL BE CERTIFIED TO THE STATE TREASURER BY T HE DEPARTMENT OF REVENU E AND SHALL BE CREDI TED TO THE PRESCHOOL CASH FUND REFERENCED IN SECTIO N 22, ARTICLE X, OF THE CO LORADO CONSTITUTION.
Ballot Title #315.
¶38 Thus, if Initiative #315 were passed by the voters in this November’s election, any local jurisdiction that enacted a ban “ of tobacco and nicotine products in any form” would lose its right to any share of the “gross state cigarette tax .”3

And yet nothing in the title set by the Title Board alerts voters to that very significant impact.
¶39 The only words in the title set by the Board that could be said to remotely relate to this provision is the statement that the preschool program created by the initiative would be funded by “reallocating from

. . . other state purposes portions of the existing revenue from taxes on tobacco and nicotine products.” Id . While a
title need not include an exhaustive list of specific impacts an initiative will ha ve, this reference to reallocation from “other state purposes” is not, to my mind , enough to meet even the low bar we apply in reviewing titles set by the Board. For this reason, I conclude that the title set for Initiative #315 is insufficient. It is
al so unfair and misleading and does not satisfy the requirements of our single subject rule.
¶40 The General Assembly has specified that the single subject rule serves two
purposes. First, the rule is meant to prohibit including multiple unrelated subjects
i n a single initiative, and “especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits.” § 1

- 40

- 106.5(1)(e)(I) , C.R.S. (2019); see In re Title, Ballot, Title & Submission Clause,
& Summary Pertaining to Proposed Initiative on Parental Choice in Educ ., 917 P.2d 292,4

294 (Colo. 1996) (su bstantially tracking the language of section 1

- 40

- 106.5(1)(e)(I)); In re Proposed Initiative “Public Rights in Waters II” , 898 P.2d 1076, 1079 (Colo. 1995) (noting that “the single subject requirement precludes the joining together of multiple subjects int o a single initiative in the hope of attracting support from various factions”); see also In re Title, Ballot Title & Submission Clause for 2013

– 2014
#76 , 2014 CO 52, ¶ 8, 333 P.3d 76, 79 ( noting that the single subject rule “prevents
the proponents from combining multiple subjects to attract a ‘yes’ vote from voters who might vote ‘no’ on one or more of the subjects if they were proposed separately”) , disapproved of on other grounds by In re Title, Ballot Title & Submission Clause for 2019

– 2020 # 3 , 2019 CO 57, ¶ 38, 442 P.3d 867, 873

. ¶41 Initiative #315 is a perfect example of just such an effort. People who work in the vaping industry would likely be very supportive of an initiative that simply penalized local jurisdictions that placed any b an on tobacco or nicotine products.
But it is not hard to discern that the imposition of a cigarette tax penalty on any local jurisdiction that bans nicotine or tobacco “in any form” would be hard er to
enact on its own than when linked to funding for new preschool programs. By combining these two different subjects into a single initiative, the proponents will garner support that they could not muster for the cigarette tax penalty alone. This is precisely what the single subject rule is designed to preve nt.5

¶42 Moreover, the proponents combine these subjects in a way that runs afoul of the second purpose of the single subject requirement, which is “[t]o prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is , to prevent surprise and fraud from being practiced upon voters.” § 1

- 40

- 106.5(1)(e)(II) ; see also In re Title, Ballot Title & Submission Clause for 2011

– 2012
# 3 , 2012 CO 25, ¶ 11, 274 P.3d 562, 566 (explaining that “ the single subject rule helps avoid ‘ voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision “ coiled up in the folds ” of a complex initiative ’ ” ( quoting
In re Title, Ballot Title & Submission Clause for Proposed Initiati ve 2001

– 02 # 43 , 46 P.3d 438, 442 (Colo. 2002)) ) ; In re Title, Ballot Title & Submission Clause for 2007

– 2008, #17 (New State Dep ’ t & Elected Bd. for Envtl. Conservation) , 172 P.3d 871, 873 (Colo. 2007) (explaining that a title must give sufficient informat ion about the contents of an initiative “so that surreptitious measures that could result in voter surprise or fraud are not placed on the ballot”) ; In re Title, Ballot Title & Submission Clause, & Summary for 1997

– 98 # 30 , 959 P.2d 822, 825 (Colo. 1998) (noting that “[ t ] he risk of

‘ uninformed voting caused by items concealed within a lengthy or complex proposal ’ is what the single subject requirement seeks to avoid ” (quoting “Public Rights in Waters II” , 898 P.2d at 1079) ).
¶43 The cig arette tax penalty that Initiative #315 imposes on jurisdictions that seek to ban any form of nicotine is buried on page four of the initiative in a complex6

statutory paragraph. It is not hard to imagine a voter who would be surprised to learn that, in si gning a petition or voting for a preschool program

— even one funded by tobacco and nicotine taxes

— she had made it more costly for her town to ban the types of flavored vape products that have led to epidemic levels of teenage vaping. See , e.g. , Nandeeni Pa tel & Diana Quintero, The Youth Vaping Epidemic : Addressing the R ise of e

- Cigarettes in Schools , Brookings Inst. (Nov. 22, 2019), https://www.brookings.edu/blog/brown

- center

- chalkboard/2019/11/22 / the

- youth

- vaping

- epidemic

- addressing

- the

- rise

- of

- e - cigarettes

- in

- schools/ [ https://perma.cc/J26A

- 9Y2U ] (discussing the public health crisis of youth vaping and noting that flavored vaping products were the number one reason that young people used the prod ucts).
¶44 The majority asserts “ that a knowledgeable voter would understand that prohibiting the sale of tobacco and nicotine products in his or her locality would
result in a loss of tax revenue derived from the sales of such products.” Maj op. ¶ 20. But t he initiative does much more than direct tax revenue derived from the
sale of a banned product away from the locality that enacts that ban. Instead, if a local jurisdiction sought to ban , for example, only the sale of particular flavors of nicotine vaping products that have been shown to be especially attractive to children, that jurisdiction would lose its entitlement to any portion of the state tax on cigarettes

— products that the jurisdiction did not ban.7

¶45 As the majority says today, and as we have said many times before, “[ w ] e will reverse the Title Board ’ s decision only if a title is insufficient, unfair, or misleading. ” 2013

– 2014 #90 , ¶ 8, 328 P.3d at 159

. Implicit in that statement is that

we will reverse the Title Board when a title is insufficien t, unfair , or misleading. I fear that this case demonstrates that our deference has become too expansive. I am confident that many citizens will sign petitions to put this initiative on the ballot, and will vote for it in November if it makes the ballot , who would oppose it if they knew that one of its consequences would be to make a ban on nicotine or tobacco “in any form” a very costly choice for their local communit ies

. ¶46 Accordingly, I respectfully dissent. I am authorized to state that JUSTICE HOOD joins in this dissent.