K.K. DuVivier: Referring a measure to the ballot

August 18, 2020

Dear members of Boulder City Council,

I am a relative new-comer to the Boulder power issue (I moved to Boulder from Denver in 2018) and do not have some of the baggage others may have with Boulder/Xcel relations.  However, I have been following the current discussions and attending listening sessions and Council meetings about Boulder’s going back into a 20-year franchise with Xcel, and as a law professor, I am appalled by the lack of transparency in the recent negotiation process and in the quality of the rushed final agreements.  Especially troubling is the lack of clarity about the opt-out provisions and what measures would be part of the ballot issue and what others have binding effects outside of the voted-on measure.

I was a geologist before law school, and Energy Law is my specialty.  However, I also have researched and written extensively about ballot initiatives (coming from citizens) and referendums (or “referenda” for those of us who took Latin classes), which are measures put to a citizen vote by a legislative body, such as City Council in this situation.

Generally, in a representative government, citizens expect their elected officials to be watching out for citizen interests. Few citizens (even those of us who study them) fully understand the details of complex ballot issues. But because citizens rely on their elected officials, referendums tend to pass more frequently than citizen initiated measures. See reference links below. Consequently, by referring this measure to the ballot, each of you is not just “allowing the citizens to decide,” you are signaling to Boulderites that you are endorsing the measure and virtually assuring its passage.  Considering that this measure essentially commits Boulder to pay Xcel over $2 billion (approximate $100K per year x 20 years), sending such a flawed proposal to citizens would be a dereliction of your duty as our elected officials and undermine the role of representative government.  There is no need to rush.  Please finish the local-power cost-assessment before suggesting to citizens that a 20-year franchise with Xcel is the better deal. So much is changing in the electricity world, and the price of cleaner alternatives and microgrids is dropping fast. I strongly urge you to retain Boulder’s agility to benefit from the best options instead of having its hands tied.

Covid, race issues, and so much else is dividing our community and our world right now.  Putting this Xcel/Boulder fight on the ballot this fall will further divide our community.  Please don’t do this without good cause as the long-term collateral damage will be great, especially to Boulder’s reputation as a climate leader and fly in the face of the deep-felt convictions of so many of our community members that we want to do everything we can to improve the climate crisis we have created for our children and grandchildren.

Warm regards,
K.K. DuVivier
Professor of Law

K.K. DuVivier, Out of the Bottle: The Genie of Direct Democracy, 70 Albany L. Rev. 1045 (April 2007), reprinted in LARRY CATÁ BACKER, INTRODUCTION TO THE LAW AND LEGAL SYSTEMS OF THE UNITED STATES (Carolina Academic Press 2016).

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2602920

K.K. DuVivier, The United States as a Democratic Ideal? International Lessons in Referendum Democracy, 79 Temple L. Rev. 821 (Fall 2006).

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=960319&download=yes

General info on initiatives & referendums: http://www.iandrinstitute.org/docs/BW-2019-1-Results-2019-12-01.pdf  &  http://www.iandrinstitute.org/docs/IRI-Initiative-Use-(2019-2).pdf

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