Part 3: Legal Challenges
Distract and delay. Two tactics the tobacco industry used for decades to slow the progress of public health are now being used by the soda industry, which in 2016 filed legal challenges against Oakland and Boulder’s soda tax campaigns and against the City of Philadelphia after its tax passed. Legal challenges are a predictable opposition strategy, intended to distract voters and the media from the genuine need and local support for these policies, undermine organizing efforts, and delay progress. But advocates can turn legal challenges into opportunities to shine a light on industry tactics in the media and gain new supporters.
In this final installment in “Lessons from the Boulder Soda Tax Victory,” Grassroots Change talks with Hillary Jorgensen, Director of Policy Change at Healthier Colorado, about the soda industry’s legal challenges during the Boulder soda tax campaign.
This interview has been edited for length.
Grassroots Change: What was the process the Healthy Boulder Kids coalition went through to get the soda tax on the ballot?
Hillary Jorgensen: Once drafting was done, we submitted the language of the initiative and a fully formatted sample petition to the Boulder City Clerk. The Clerk reviewed both the measure language and the petition form and content in conjunction with the City Attorney’s office. After some back and forth with the City Attorney’s office over the ballot language and question form, the Clerk approved our petition and we were able to start collecting signatures.
We had four weeks to collect 4,100 signatures [from Boulder voters to include the soda tax on the November ballot]. We had originally planned eight weeks for signature collection, but the back and forth with the City Attorney’s office significantly delayed [that]. Luckily, we were able to collect over 9,000 signatures in four short weeks. Once signatures were collected, they were turned into the City Clerk for verification. Then the measure went before City Council, which has the responsibility to officially move initiative language to the ballot. This was the first citizen initiated tax in the history of the City of Boulder, and Colorado has some very unique and complicated tax laws, so it took a few City Council meetings and discussions with the campaign’s attorney for Council to approve the measure and move it to the ballot. The measure went before the voters on November 8th and passed.
GC: What legal challenges did the industry pose?
HJ: As mentioned previously, Colorado has some very unique and complicated tax laws, including a Tax Payers Bill of Rights (TABOR), which very strictly controls how tax measures appear on the ballot, and limits tax ballot questions to a single subject. The industry’s legal challenge was twofold. In court, they alleged that the petition that voters had signed to qualify the issue for the ballot was misleading and people didn’t know that they were signing a petition in favor of putting a tax question on the ballot. The industry lost this challenge at the city level, and again, later, in district court. The industry also used TABOR to argue that the ballot question was not formatted correctly and that a more confusing version of the question should appear on ballots. Our attorney defeated this argument, and while we had to compromise with the City Attorney’s office on the form of the ballot language, we were able to maintain the question and wording that we wanted.
Then, shortly before the election, the industry filed a baseless campaign finance complaint against the campaign. We were able to easily counter the complaint with factual information from our well-kept records, but it was just one more way that the industry attempted to… divert resources from our get-out-the-vote effort. It was an important reminder that organization and keeping on top of things like campaign filings is important, so you don’t inadvertently create an opportunity for the industry to challenge your measure. We were able to quickly dismiss the allegations because we had all of the information we needed to [counter] the charges when we needed it.
GC: What was the impact of these legal challenges on campaign momentum?
HJ: Due to the City Council’s delay in moving the question to the ballot because of the campaign’s disagreement with the City Attorney’s office about how TABOR required the question to be formatted, the industry’s challenge came late. While there was no legal basis for the challenge – and a city hearing officer and a district judge both ruled in our favor – it did slow down the momentum of the campaign a bit. We were also up against the ballot printing deadline, so both hearings happened very quickly, which didn’t give us much time to use the legal challenge as an organizing opportunity. The campaign finance complaint also came too late to be used as a good organizing opportunity, but had it come earlier, we could have used it to our advantage.
GC: Do the results of the legal challenges have any potential impact on the longevity of the tax and its revenue earmark in Boulder?
HJ: I don’t think there is any threat to the longevity of the tax. Because this was an initiative that was passed by voters, the City Council can’t repeal it outright, although they can make changes to the implementing ordinance and code that was passed as part of the initiative. There is always a risk of industry meddling, but the measure passed decisively, so I do think that the City Council will have a hard time making changes that significantly depart from the will of the voters. That said, we will have to remain vigilant that the tax is being implemented in the way in which the community and campaign intended.
GC: What would be an ideal communication channel between advocates (and advocates’ legal counsel) and city officials?
HJ: The ideal way for this kind of communication to happen is collaboratively. That doesn’t always happen, though, I think my best advice is to be prepared to be responsive to the city in whatever ways are helpful to them. Not working with or engaging them is not an option, so it’s important to make the relationship work as best you can.
GC: What advice would you give other municipalities interested in soda taxes so they could avoid or be prepared for legal challenges?
HJ: I would go into the campaign expecting that the industry will mount a legal challenge. While the flavor of the legal challenge may change from jurisdiction to jurisdiction, we are beginning to see a pattern emerging in the industry’s response to these kinds of campaigns. Virtually every jurisdiction that has passed or attempted to pass a sugary drinks tax has seen some sort of legal challenge from industry. Expect that you will be challenged and make sure that you have a good legal team who knows not only tax law, but also election law. Involve that legal team early and make sure that they are a part of the drafting, and that they also understand filing deadlines and local campaign finance and election law.
Having expertise in all of those areas may mean that you need more than one attorney, but it’s important to make sure you’ve crossed all of your t’s and dotted all of your i’s so there are no weaknesses for the industry to exploit. Stay on top of all of your local election and campaign finance laws and make sure you’re following them. The industry will likely challenge you no matter what, but it will be much easier to respond to whatever they do if you are well organized and have done all you can to make sure that there is no opportunity for a legitimate challenge.
Hillary Jorgensen, J.D., is the Director of Policy Change at Healthier Colorado, a state-level health advocacy organization that partnered with Healthy Boulder Kids on the ballot measure campaign to tax sugary drinks in Boulder.
This series, “Lessons from the Boulder Soda Tax,” delves into three related aspects of grassroots movement building. For more “Lessons from the Boulder Soda Tax Victory,” read how social and health equity motivated Boulder’s soda tax supporters in part 1, and get lessons in navigating local politics during a grassroots campaign in part 2.
Special thanks to Sara Soka for covering the Boulder soda tax movement for Grassroots Change.