Denver's 2024 Ballot Issues

This year there are 14 state ballot issues and 11 Denver ballot issues. This post addresses the Denver ballot issues with brief summaries and my recommendations. A previous separate post will addressed the 14 Colorado ballot issues.

While I am a Democratic Party precinct organizer, these opinions are purely my own and do not necessarily reflect the opinions of the Democratic Party of Colorado or of Denver.

* Referred Denver ballot issue 2Q - increases sales taxes by 0.34 percentage points to raise $70 million a year for Denver Health.

Yes. Denver health is a critical cornerstone of our health care system and a Level One trauma center that needs more funding to function.

* Referred Denver ballot issue 2R - increases sales taxes by 0.5 percentage points to raise $100 million a year for affordable housing for low and middle class families with rental assistance and first time home buyer assistance.

Weak yes. Unaffordable housing is a huge problem in Denver. Subsidies are probably not the optimal solution (relaxing land use regulation is the most important step that can be taken), but it would still make a big difference to many people who are struggling right now.

* Referred Denver Ballot Issue 2S - creates a Mayoral cabinet agency of Human Rights and Community Partnerships.

Yes. This shouldn't require a vote of the people, and the Mayor and City Council want it. This housekeeping measure should be approved.

* Referred Denver Ballot Issue 2T - allows lawful permanent residents who aren't U.S. citizens to be police officers and firefighters.

Yes. There is no legitimate reason to exclude people from these positions simply because they are immigrants. The U.S. has a long and storied history of immigrant law enforcement officers and firefighters.

* Referred Denver Ballot Issue 2U - Allows most non-managerial Denver employees to unionize, bargain collectively, and strike (but prohibits strikes by police officers, sheriffs, and firefighters who already have collective bargaining rights and are prohibited from striking, and prohibits strikes by certain county court and Denver Water employees).

Yes. These employees should not be prohibited from having unions because they work for a local government instead of a private sector firm.

* Referred Denver Ballot Issue 2V - Allows for binding arbitration in lieu of an advisory fact-finding process when an impasse occurs between the City and Firefighters during collective bargaining.

No. Arbitration is a horribly bad way to resolve disputes, and is even worse in a situation like this one where it is entirely unprincipled.

* Referred Denver Ballot Issue 2W - Replaces salary setting for elected officials in the City and County by the city council for the post-election set of elected officials with a one time set of salaries adjusted for inflation over time.

No. Salaries for elected officials should not run on autopilot. The existing system works fine.

* Initiated Denver Ordinance 308 -  prohibiting the manufacture, distribution, display, sale, or trade of certain animal fur products in the City beginning July 1, 2025.

No. Animal fur products are no worse than eating meat. They should not be banned.

* Initiated Denver Ordinance 309 - Prohibiting slaughter houses in the City.

No. There is nothing wrong with eating meat and slaughter houses are a necessary part of a society that eats meat.

* Referred Denver School Board Issue 4A - Allows the school board to borrow up to $975 million financed with existing property taxes for capital improvements to school buildings.

Yes. Denver's K-12 students deserve to go to buildings that are modern and don't need major deferred maintenance, particularly to the extent that this can be achieved without raising taxes.

* Referred Regional Transportation District Ballot Issue 7A - Debruces RTD sales tax reveues.

Yes. This measure simply allows RTD to keep all of its existing sales tax revenues, even if they increase.

Improving Government

Government has a mix of problems. Sometimes it regulates too much, sometimes too little, sometimes it owns too much, sometimes too little, sometimes it is just operated in the wrong way. This post is a grab bag of ideas about improving it.

* Sidewalks should be publicly owned and maintained. Individual responsibility of property owners for this doesn't work because low rates of non-maintenance (including lack of prompt snow removal) makes the network of sidewalks much less valuable.

* Bicycles should usually not share roads with cars and trucks. They should use sidewalks or dedicated, protected bike paths and lanes.

* Amtrak has failed and should be shut down outside the Northeast Corridor.

* The U.S. Postal System worked well for a long time, but in the era of widespread parcel delivery services and e-mails and texts, it no longer does. Strong Veteran's preferences and higher pay than private sector equivalents don't justify it. Free mail for incumbents in Congress don't justify it. Delivering junk mail is not a good enough reason for a massive public enterprise. Fewer and fewer letters of significance are delivered that way. Money orders are no longer economically important and can be provided by private commercial banks and money services. Subsidizing rural living isn't a good reason for it.

* Occupational licensing is required when it shouldn't be. When it is required, requirements like a lack of a criminal record are often inappropriate for people who have been non-recidivist for a long enough time (about five to seven years) when the risk of future crime fades to the background level. Worse yet is construction trade licensing at the local level when it should be at the state level, fostering a high level of non-compliance. Independent legal para-professions should be allowed much more liberally, although licensing that might be appropriate. There should be a common database of licensing discipline since many disqualifying acts for one profession should also apply to others.

* Zoning and land use regulation should be dramatically paired back and places like Colorado finally realize that this is true and driving high housing prices. Deregulating is better than mandating affordable housing or rent control. Development fees to mitigate externalities of government costs caused by development, however, make sense. 

* Involuntary landmark designation is almost always a bad idea and an unfunded mandate. If it is important enough historically to preserve the government should buy it and rent it.

* Building codes are critical and non-compliance with permit requirements is far too high. But building codes are also too restrictive and the processing of building permits is much too slow. A system of private building code compliance auditors similar to the CPA system might be better.

* We should do a better job of discouraging people from building disaster prone housing in flood zones, fire zones and other "stupid zones".

* We should do a better job of encouraging off site manufacturing of buildings and large building modules.

* Property taxes are a decent way to finance local government (and shouldn't exempt non-profits and governments other than the one imposing them) but are a bad way to finance public K-12 education which is the main way that they are used now.

* Electing coroners, treasurers, clerks, surveyors, secretaries of state, engineers, and judges (even in routine judicial retention elections) is a horrible idea.

* Electing sheriffs and district attorneys and attorneys-general isn't as horrible an idea, but is still a worse idea than having elected officials appoint them, directly or indirectly.

* State and local school and college boards would be better not elected by the general public. Local school boards should be elected by student's parents. College boards could be elected by alumni or appointed by the elected official who make their funding decisions. State school boards should be appointed by the state officials who fund state K-12 education.

* Shorter ballots are better. In the England, there is one nation election in which you vote for a single legislator on a partisan ballot in a single district, irregularly, but not less than every five years absent a world war, for a government that does everything that the state and federal governments do in the U.S., with no primary elections since parties nominate their own candidates internally, and there is one set of partisan local council elections for one or two posts, and there are few referenda a lifetime, and they are democratic enough, despite having a monarchy and a house of lords. Very modest public electoral input is enough.

* I don't favor a system quite as simple as England's. But we should still have much shorter ballots.

* Rare recall elections make sense for officials who serve longer terms and perhaps for judges and other public officials who are now elected but shouldn't be.

* State constitutions and local charters should have less detail and so that changes to them should be things that require voter approval and not housekeeping measures.

* Some referenda on tax and debt issues is appropriate, but Colorado, with TABOR overdoes it. New taxes, and not new revenues from existing taxes, should get public votes. Maybe bond issues that commit a government to substantial tax obligations from general revenues but not renewals of them.

* Citizen initiatives have their place in overcoming systemic flaws in the legislative system and making elections interesting to voters. But it should be a bit harder and more structured and generally should avoid spending and taxing decisions that need to be made globally.

* Colorado mostly does the probate process right, although probate procedure could use more structure. Most states make the process too intrusive.

* When there is a single post in a candidate election, dispensing with primaries, having a majority to win requirement, and having runoff elections would be preferable to first past the post elections and to instant runoff elections.

* There would be merit to electing state legislatures and state congressional delegations by proportional representation.

* There would be merit to making state legislatures unicameral.

* The electoral college should be abolished in favor of a direct popular vote.

* The franchise should be expanded. The voting age should be reduced to sixteen. Non-citizens should be allowed to vote. Felons, even felons in prison, should be allowed to vote (in their pre-incarceration place of incarceration).

* HOAs are horrible but sometimes necessary institutions. They should be abolished or replaced where possible, and be restructured with fewer powers and less discretion where not possible. HOA covenants are routinely unreasonably restrictive.

* Municipal ordinances related to zoning and land use should have fines or other civil penalties, not criminal penalties.

* Arbitration on the U.S. model is usually a bad idea and should be banned in many circumstances.

* We should have a more pro-active way of intervening in cases where people are mentally ill or cognitively impaired, and the system for adjudicating these cases is too cumbersome.

* Single judges should not handle parenting time and parental responsibilities cases, and the best interests of the child standard should have more detailed substances to guide it. Alimony should also be less discretionary.

* There should be a right to counsel in all cases involving "persons" such as child custody cases, protective proceedings, and immigration cases.

* Forum shopping in the federal courts needs to be better restrained, and allowing a single forum shopped judge to issue national injunctions is problematic.

* After some rocky starts, regulation and technical private management of junk faxes, junk telephone calls, and even junk email has made some real progress. Social media junk is less well regulated.

* Privacy regulation often does more harm than good. Juvenile justice privacy does more harm than good in most cases, educational privacy goes too far, and Europe's GDPR goes too far. Secrecy around ownership of closely held companies is too great and the exception under the Corporate Transparency Act is far too complicated. There are places for privacy regulation but it needs to be cut way back. Secrets are often harmful in hard to quantify ways.

* Cryptocurrency serves few, if any, legitimate purposes, is an environmental disaster, and should be discouraged.

* Programs to help the poor need to have much less paperwork and red tape; means testing is rarely a good choice unless it is integrated into the tax system.

* Some tax credits for poor and middle income people, like the Earned Income Tax Credit and the Obamacare insurance premium subsidies, are far too complicated.

* State and local government funded free wi-fi for all would make lots of sense.

* There is a logic to allowing vouchers for religious private K-12 schools, but on balance it does too much to support religious institutions at public expense. Charter schools, i.e. public schools with autonomy from school boards, are a better approach. School choice of some kind does make sense among public ordinary and charter schools, ideally, statewide, rather than only within a school district.

* Boarding schools attached to high schools in more urban areas would be a better alternative to highly subsidized tiny rural high schools.

* We do a horrible job of managing the business of health care. The requirement that doctors be the sole owners of medical practices also forces them into being small business owners when they are ill suited to that part of their jobs and leads to bad systems and poor health care administration and bad financing arrangements. Almost every other country, in many varied models, does a better job. The current system results in overpaid health care providers (doctors, nurses, drug companies, medical equipment companies, private hospital system owners, etc.), for inferior results. Our drug prices and medical equipment prices and ambulance prices and ER prices are all vastly higher than in other countries and this isn't mostly driven by private pay medical education or medical malpractice lawsuits.

* We need to create more medical school slots. We have too few doctors and are compensating for that with too many senior paraprofessionals like nurse practitioners, physician's assistants, and midwives. We should also allow more non-M.D.'s to provide the care that psychiatrists do since the knowledge base for psychiatrists doesn't overlap heavily with that of M.D.'s and where it does overlap can be taught separately.

* The substance of pass-through taxation in taxing closely held business income once at roughly individual tax rates while allowing limited liability, is good, but the actual pass-through tax mechanism is not. Subchapter K of the Internal Revenue Code is not a good approach for taxing closely held limited liability entities, it complexity, it phantom income, and more don't work well. A double taxation reducing or limiting variation on the C-corporation model would be much better.

* We do a poor job of taxing hot assets in international taxation.

* We lack adequate guidance for remote worker labor and tax regulation, and haven't updated our laws adequately to reflect the era of independent contractors.

* We over regulate many prescription drugs and under regulate supplements and herbal remedies and the like. Homeopathic remedies and other supplements need to be regulated more like drugs. Prescription drug approval when approved elsewhere should be easier. Prescription approval for experimental drugs for the terminally ill, or in a pandemic, should be easier. More non-abuse prone prescription drugs should be available over the counter or with pharmacist approval.

* Prostitution should be decriminalized or legalized to a greater extent.

* We vastly under-regulate firearms and explosives and military equipment.

* We do a poor job of commercial air travel security, imposing too much of a burden and delay for too little benefit in a security theater way, at an excessive cost and a greatly excessive externality cost. We also do a crap job of managing luggage charges and checked luggage, and we are more inefficient than we need to be in how quickly commercial aircraft are loaded and unloaded.

* Uber, etc. revealed that we over-regulate taxis, but that we do need some regulation to assure riders are safe from dangerous or dangerous to them drivers.

* Buses and intracity rail won't thrive until we make them feel safer and comfortable.

* Public energy utilities do mostly a good job, except in Texas which opted out of the national energy grid.

* Clean water and good sewage treatment should be expanded urgently to places like Indian Reservations and Flint, Michigan.

* To better disentangle church and state, the charitable income tax deduction (but not the gift and estate tax deduction) for contributions to religious organizations (but not the tax exemption for churches) should end, the parsonage exemption should end, the property tax and sale tax exemptions for churches should end, the investment income of churches should be taxed as a corporation, and the ban on politics by churches should end.

* There should be more power to compel road maintenance below some standard.

* There should be a power to compel HOAs to do their jobs for all members, similar to landlord-tenant maintenance claims.

Manhood, Self-Governance, And More

Recent op-eds in the New York Times and the Washington Post both bemoan the perception that men don't have a model for manhood on the left. The Scholar's Stage blog, well off the beaten path, quotes a historian and reaches back to the 19th century U.S. to aptly address the dilemma:

In the face of suffocating managerialism or institutional decay, it is easy to lionize the outputs of previous eras like the nineteenth century. Many imagine the great American man of the past as a prototypical rugged individual, neither tamed nor tameable, bestriding the wilderness and dealing out justice in lonesome silence. But this is a false myth. It bears little resemblance to the actual behavior of the American pioneer, nor to the kinds of behaviors and norms that an agentic culture would need to cultivate today. Instead, the primary ideal enshrined and ritualized as the mark of manhood was “publick usefuleness,” similar, if not quite identical, to the classical concept of virtus. American civilization was built not by rugged individuals but by rugged communities. Manhood was understood as the leadership of and service to these communities.

The same analysis also highlights "the benefits of enshrining public brotherhood as an aspirational ideal", a "commitment to formality", and "the usefulness of scale and hierarchy". Noting that:

The fraternities, federations, and even political parties that these men belonged to embraced extravagant rituals, parades, and performances designed to build fraternal feeling among their members while reminding them of their public responsibilities. . . .

Through practical experience, nineteenth-century Americans realized that formality was an important tool of self-rule. Formally drafting charters and bylaws, electing officers, and holding meetings by strict procedures seems like busy work to those accustomed to weak associational ties. But the formality of such associations expressed commitment to the cause and clarified the relationships and responsibilities needed for effective action. . . .

an embrace of functional hierarchy that allowed local initiatives to scale up to a very high level…. neither hierarchy nor scale is inherently opposed to agency. Many of the postbellum institutions that dominated American life operated on a national scale, occasionally mobilizing millions of people for their causes. However, the lodge and chapter-based structure of these institutions ensured those local leaders had wide latitude of action inside their own locality. Local leaders relied on local resources and thus rarely had to petition higher-ups to solve their area’s problems.

These chapters thus not only served as vehicles of self-rule at the lower level but also prepared leaders for successful decision-making at higher levels of a hierarchy. Wielding authority at the lower levels of a nineteenth-century organization closely mirrored the experience of wielding authority in its highest echelons. Absent such training, leadership does in fact become the impenetrable closed circle that disturbed the advocates of “human scale.” Centralization, not hierarchy, caused the demise of local dynamism.

The blog's analysis is embedded in the theme that:

America was once a place where institutional capacity was very high. Americans were a people with an extraordinary sense of agency. This is one of the central reasons they transformed the material, cultural, institutional, and political framework of not only the North American continent, but the entire world. That people is gone. The social conditions that gave the Americans their competence and confidence have passed away. Where Americans once asked “how do we solve this?” they now query “how do we get management on my side?” . . .

Self-government is communal. It comes with the confidence that you and the citizens around you are capable of crafting solutions to your shared problems. Self-government is less a particular set of institutions than a particular set of attitudes. If the institutions needed to solve a problem locally do not exist, the citizens of a self-governing community will create them.

The author makes some important points, but I don't wholeheartedly agree with this analysis either. 

The focus on brotherhood didn't have to be male exclusive and their rituals now strike the average educated person as stupid and childish. Formality taken too far leads to wasted time, stilted and empty discourse, and undue emphasis on lawyer-like parliamentary procedure skills over more useful knowledge. Hierarchy is prone to harmful centralization and bureaucracy if the organizational garden is not subject to perpetual and ruthless pruning.

I've spent plenty of time in far-left political circles and can attest that extreme aversion to hierarchy is as problematic and self-defeating as excessive centralization. It leaves you disorganized and forces you to walk through the social mud of endless meetings and consensus building to get anything done even when the right course of action should be obvious. 

Certainly, "agency", which is to say a belief that it is your place to make things happen in your own life, is the lifeblood of change in business, civic society, and politics. But taken too far, an excessive sense of "agency" can lead to unjustified dismissal of developments that are sweeping the larger society, and of the importance of being part of the larger society and the broad social movements within it, which can leave people too trapped in their own bubble to be aware of their larger context prone to making decisions that are ill-informed. Self-determination often entails copying the ideas of others and implementing those ideas in your own community, in order to allow your own community to participate in progress.

The author isn't wrong that a capacity for self-organization is a remarkable national virtue when it is present, and is deeply rooted in a nation's culture. The British and the Japanese, for example, are both much better as self-organizing than Americans, something that is apparent during natural disasters and when citizens of the respective nations were interned in prisoner of war camps, for example. 

More generally, the author's focus on the importance of a healthy civic society isn't wrong. But, later research, by scholars such as Richard Florida, has also shown that Robert Putnam's civic capital, which can be so strong in small towns, can also stifle innovation despite the sense of agency that these communities possess. Innovators do better in societies where they have large fragile networks of shallow acquaintances and society's power to sanction people who break the mold is weak. Communities with unshakeable networks of smaller numbers of people with whom leaders have deep bonds that have the institutional capacity to regulate behavior tightly in their communities, look agreeable. But they are also stagnant and are prone to being backward.

I have a more jaded opinion of local self-government than the author. When I worked as a lawyer defending county governments in Western Colorado from lawsuits, our informal wisdom was the the smaller the government, the less competent its leaders were, and the harder to defend its grossly misguided, petty, and personal their wrongdoings became. Small local governments lack the professionalism, competence, and even handedness of larger local governments. I've seen the same trends in the rural small towns where my parents grew up where I still have many relatives.

As I was taught in introductory political science classes in college, politics is about both power and choice. You need power to implement your choices, and you need to make good choices for your exercise of power to produce good results.

But back to the beginning, and building new scripts for "manhood", I prefer to favor as a starting point, the image of manhood associated with the notion of a gentleman to the image of manhood associated with chivalry. A gentleman understands that powerful, effective people eschew violence when not absolutely necessary, embrace acting honestly but act with sophistication and civility, and are at home in the urban environments that are the center of modern civilization. In contrast, chivalry is the modern embodiment of the values of a warrior class of the thinly populated rural estates of the anarchic dark ages, for whom episodes of violence are their raison d'etre. Chivalry also often crosses the line into being patronizing.

The modern scripts of manhood should also embrace at least two key virtues: effectiveness (a term I prefer to competence, as effectiveness implies better than competence the importance of working well with others and seeking guidance from others when appropriate to achieve one's ends) and unselfishness (which captures a mix of generosity, charity, heroism, and loyalty to others).

Good Government Colorado's State and Local Government Reforms

Alcohol Regulation

* It is absurd to regulate beer, wine, and liquor differently.

Construction Regulation

* The construction trades should be regulated at the state level rather than at the local level as they are now. This may have made sense when construction markets were local. Colorado currently has 273 active municipalities (comprising 198 towns, 73 cities, two consolidated city and county governments), and 62 unconsolidated counties, for a total of 335 different bodies licensing the construction trades. Most of these professionals should not exclude people with felony records unrelated to the construction trades.

* Each of these jurisdictions also has its own building code, based upon privately promulgated building codes that aren't even available for free which is unconscionable for binding laws. There should be a single state building code, that is a matter of public record. If localities want to deviate from it, they should have to seek permission from a state body to do so, and the local modifications ought to be a matter of public record on a state website. Aesthetic building code requirements should be tightly limited.

TABOR Elections And Taxes

* Elections over retaining growth in revenue not derived from new taxes should be abolished.

* Excess TABOR revenue should, by default, placed in a rainy day fund, rather than refunded. A supermajority would be required to touch a rainy day fund in excess of declines in revenue from the previous peak revenue year.

* The state 2.9% sales tax would be repealed and replaced with a revenue neutral income tax increase. Only local sales taxes would remain. But, all local sales taxes would be collected by the state and would be required to use the uniform state definition of taxable sales.

* School districts should be funded by state taxes and not by property taxes. As a result, there would no longer be elections for local property tax levies and bond issues for school districts.

* Higher educational institutions would have tax funding solely by state taxes, not local taxes.

Election Administration

* Elections should be administered by non-partisan civil servants, under the supervision of a partisan balanced board or boards. This task should be severed from the partisan elected offices of state secretary of state and county clerk, and from the non-partisan elected office of city clerk.

Elected Offices

* City clerks should not be elected.

* Statutory cities and towns have a city manager with the mayor elected by the city or town council as its chair, and do not have a have separately elected mayor or auditor.  Charter cities can do what they want.

* County coroners should not be elected and the institution should be replaced with a state medical examiner's office.

* County surveyors should not be elected.

* County treasurers should not be elected.

* County assessors should not be elected.

* County clerks should not be elected.

* County sheriff should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members. Counties are often often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome.

* County commissioner should be a non-partisan office. It handles local government issues like municipalities do. Counties are often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome. In large counties there would be five seats elected from single member districts, all at once, for four year terms. In small counties, county commissioners would serve for six year terms with one elected every two years.

* District attorney should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members.

* The state treasurer should not be elected.

* The state secretary of state should not be elected.

* The state attorney-general should not be elected.

* Uncontested elected offices should not appear on the ballot unless there is a declared write-in candidate before ballots are printed.

* School boards should be elected by the parents, except possibly by the students instead, in the case of high school students.

* The state school board should be appointed.

* The University of Colorado Board of Regent should not be elected by the general public. It would be better for these positions to be elected by alumni. The state still controls the purse strings, but this would strengthen academic freedom and ease the burden on the voters.

* Any other currently elected higher education district boards should be elected by alumni or appointed.

State And Local Judges And Courts

* Judges should be required to be lawyers with at least five years of experience. The four non-lawyer rural county court judges currently in office in Colorado should be grandfathered for their current terms, but not retained.

* The county courts should be consolidated to have a single limited jurisdiction division of the district court in each judicial district called the county court division of the district court, with a court house in each county and should be staffed with full time judges only.

* Judicial retention for judges not on the state supreme court should be decided by a vote of the judges at the next higher level, not the voters. So, county court division judicial retention should be decided by district court judges, district court judicial retention should be decided by court of appeals judges, and court of appeals judicial retention should be decided by state supreme court justices. These are the people best qualified to evaluate the performance of lower court judges.

* State supreme court justices should be limited to a single fourteen-year term of office, with one new justice appointed in the current process every two years in the absence of vacancies. 

* Vacancies in the state supreme court should be filled for the remainder of the term of the vacating justice (without prejudice to a further appointed term) by a court of appeals judge elected from the sitting judges of the court of appeals.

* The judicial discipline process should be more transparent.

* Court facilities and budgets, district attorneys offices, and public defender's offices should be financed at the state level, not the county level, to keep the judicial branch and district attorney's office independent from municipal and county government.

* Municipal courts should be abolished, with the ordinance violations previously in their jurisdiction prosecuted by city attorneys in the county court division of the district court before state appointed judges.

* County court appeals should be to a single judge of the court of appeals, not to a single district court judge otherwise on the same basis as under current law. There would be no municipal court appeals because there would no longer be any municipal courts.

* Colorado Appellate Rule 21 petitions (i.e. discretionary requests for extraordinary relief granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, including petitions in the nature of mandamus, certiorari, habeas corpus, quo warranto, injunction, prohibition and other forms of writs cognizable under the common law) should be made to a designated panel of seven judges of the court of appeals (rotated annually) rather than to the state supreme court.

* The number of judges on the court of appeals should be doubled to allow it to process appeals more swiftly.

* Review of attorney regulation disciplinary hearings should be made to the court of appeals rather than to the state supreme court.

Remaining Elections

Candidate Elections

* There would be one election every November on election day, and a primary election (in parties and districts with contested races) in every even numbered year for state and federal offices. A partisan caucus would precede each primary election every even numbered year. Ballot issues would be restricted to November elections except for local recall elections and emergency local tax and bond measures.

* There would be one non-partisan local election in November in each odd numbered year. 

* In the year following the Governor's election there would be statutory municipal elections (with all municipal offices elected at once), and district attorney elections (and county commissioner elections in small counties) for a total of one or two offices plus city council races for each voter in statutory cities and towns. 

* In the odd numbered year two years after that there would be elections for county commissioner, sheriff and special district elections in the other (usually two or three races per voter). 

* Charter cities do what they want, but limited to odd numbered year elections except for recalls and for emergency ballot issues for referred tax matters or legally required referred charter amendments held when needed.

* There would be partisan caucuses and primaries (with unaffiliated voters allowed to participate in a primary of their choice, but not caucuses) in each even numbered year followed by a partisan general elections in November for state house, state senate, U.S. House, U.S. Senate, the Governor-Lieutenant Governor, and the President. The Governor-Lieutenant Governor election would be two years after the Presidential election. No election would have less than three or more than five offices to vote upon at a time, unless there was a U.S. Senate vacancy to be filled at the time, in which case there would be four to six offices. 

* Write-in candidates would not be allowed in primary elections and uncontested primary elections would not appear on the ballot. 

* All elected offices except the U.S. House and state house with two year terms, and the U.S. Senate with six year terms, would be for four year terms.

* All single member elected office races would require a majority to be elected, with a runoff of the top two candidates otherwise.

* City councils would fill municipal office vacancies. County commissions would fill county commissioner and sheriff vacancies. Special district boards would fill vacancies on their boards. State legislature vacancies would be filled by partisan vacancy committees. Governor vacancies would be filled by the Lieutenant Governor. Lieutenant Governor vacancies would be filled by the Governor (unilaterally). The law would provide for Governor's succession in other cases. The Governor would fill U.S. Senate vacancies until the next even numbered general election at which time a vacancy election for any remaining part of the vacant seat's term would be held.  U.S. House vacancies would be filled in special elections as under current law.

* Recall elections of particular local elected officials (city elected officials, county commissioners, sheriff, special district, district attorney), held promptly in the time frames allowed by law.  Vacancies created by recall elections would be filled like any other vacancy. Do not allow the recall of state legislators or the Governor, although the state legislature could impeach the Governor in a mirror of the federal process.

Ballot Issues

* Referred municipal or special district tax increase or bond issue ballot issues (during municipal or special district elections as the case may be, unless an emergency is declared by a supermajority of the city council or board, two-thirds unless there are just three members in which case it must be unanimous).

* Referred county tax increase or bond issue ballot issues (during county elections only, unless an emergency is declared by a supermajority of the county commission - unanimous if there are three members, four out of five if there are five members).

* Referred local charter amendment ballot issues (during municipal or special district elections). Legally required charter amendments would be adopted by the city council or special district board by majority vote.

* Local charter or legislation citizen initiatives (during municipal elections only for municipal measures, and during county elections only for county measures).

* State ballot tax increase ballot issues (referred only, during even numbered year elections in November only).

* State ballot issues on the state constitution or state legislation referred by the state legislature (during even numbered year elections in November only).

* Citizen initiated state constitution and legislative ballot issues (not impacting taxes, during even numbered year elections in November only).

* Newly passed state legislation would not be subject to referendums.

A Couple of Solid Posts At Colorado Pols

Colorado Pols has a couple of solid posts up, both related to Colorado Springs.

One post examines the decisive win of a mayoral race by a non-Republican Nigerian immigrant in the conservative stronghold of Colorado Springs which is increasingly not decisively Republican. It also quotes GOP Attorney General candidate George Brauchler concluding that just possibly, lots of people in Colorado no longer agree with the Colorado Republican Party's agenda.

The other post examines President Biden's indication that the headquarters of the Space Force will not be moved from Colorado Springs to Huntsville, Alabama. There are multiple reasons for that. The decision to move it to Alabama was a spur of the moment nakedly political decision by Trump in the first place. Biden's administration denies it, but some commentators have pointed to Alabama's anti-abortion laws. And, then there's the junior U.S. Republican Senators from Alabama, Tommy Tuberville. "Tuberville has been blocking military promotions for months[.]"

Why?

Tuberville is facing backlash for remarks he made about white nationalists in the armed forces in an interview about his blocking of military nominees…

…The first-term senator from Alabama made his initial remarks in an interview last week with WBHM, an NPR affiliate. He suggested that the Biden administration’s efforts to expand diversity in the military were weakening the force and hampering recruitment, though the Army has said that the real problem is that many young people do not see enlistment as safe or a good career path.

“We are losing in the military so fast. Our readiness in terms of recruitment,” Tuberville said, according to the station’s transcript of the May 4 interview. “And why? I’ll tell you why. Because the Democrats are attacking our military, saying we need to get out the white extremists, the white nationalists, people that don’t believe in our agenda.”

When asked if he believed white nationalists should be allowed in the U.S. military, Tuberville responded, “Well, they call them that. I call them Americans.”

About Mayor Hancock

Denver's outgoing Mayor Hancock started out on a promising note, but Denver needs to new blood, including a new Mayor who will be selected in this June's municipal runoff election. For whatever the reason was Hancock's has really stumbled on multiple fronts, especially in the second half or so of his service. 

There are the corruption issues. But also there has just been a decline in bread and butter management of things from trash collection to contract management in connection with DIA to continued weak building code/zoning administration (especially in terms of just having the staff and processes that are capable of getting it done in a timely and careful fashion), to stumbling in terms of getting the police to behave, to failing to build a cohesive relationship with city council. 

His handling of the pandemic wasn't horrible but wasn't exemplary (like the liquor store closing fiasco, that at least he didn't dig in his heels about, and poor communications about what the city would do next or was doing in the present), and he's been a follower tugged in one direction and then the next without the leadership we need on homelessness. His handling of just defeated Denver ballot issue 2O, and the Park Hill golf course issue more generally, has not been politically astute. 

Yes, we're spoiled by having had a string of very good mayors from Pena to Webb to Hickenlooper who were supported by other good city level elected officials. Yes, the latest rounds of land use reforms have been a net improvements and some issues like drainage in North Denver have finally gotten addressed. Yes, we haven't had to deal with the clusterf**k that GOP controlled places have seen. Yes, he's done a decent job responding to the migrant influx of the last six months or so. 

No, his service as a whole has not been a total failure. But, he's run out of steam overall and the quality of his service has discernibly slipped. Four more years of Hancock would have been worse than his last four years. Term limits have been a good thing in this case.

Judicial Retention Elections In Colorado In 2022

Judicial retention elections apply to state court judges in Colorado and are up down, retain or do not retain elections with a majority need to remove a judge from office. If a judge is not retained, the vacancy is filled by a merit based system with the Governor having a say over which of the three finalists to appoint.

There are eight Colorado Court of Appeals judges facing judicial retention elections in 2022.

In Denver, there are twelve district court judges (the trial court of general jurisdiction) and nine county court judges (the trial court of limited jurisdiction) facing judicial retention elections in 2022.

If you must leave anything on your ballot blank, this is the place to limit the use of your voter research resources because the odds that all 29 judges on the Denver ballot will be retained is in the vicinity of 99.5% this year no matter what you make think about them personally.

I may or may not update this post to discuss the merits of retaining these judges.

The Colorado Gazette reports:

A total of 164 judges were eligible for retention in 2022, but only 140 received evaluations and 135 chose to remain on the ballot. Judges may opt to resign or retire prior to their retention for multiple reasons, including the expectation of a negative performance evaluation.

The system was adopted in a 1966 amendment to the Colorado State Constitution and remains a great improvement over the system in place before then. 

An Ordinary Appellate Court Ruling In Colorado

This post is not about an epic rule of law. It concerns the pedestrian and hardly "sexy" question of whether a county government can have liability when someone is injured by falling in a county parking structure allegedly caused by its failure to warn pedestrians of a hard to see step. This was decided by the Colorado Court of Appeals today.

Law professors love using these kinds of humble cases for teaching purposes to teach law to students (both in law school and in undergraduate legal courses like business law). This is the kind of case that would be perfect as a very first case in an undergraduate course about law like one that I took, called "practical law" when I was an undergraduate student.

I mention it for several reasons.

First, the decision is a rare, but increasingly common one, in which the opinion is illustrated with photographs embedded in the opinion itself. This makes this opinion less stale than dusty old English or early American cases that are common place in law school textbooks, making it feel more relevant and real and modern.

Second, the opinion also has the modern system of case numbers and paragraph numbers instituted to free litigants of the copyright protections that might apply (although case law later held that it did not) to commercial pagination of court opinions. Familiarity with this system is important in legal writing and research. 

Third, the decision is notable because the trial court judge ruled against the government (in a decision affirmed on appeal) on the legal status of the government that built, operates and maintain the courthouse from which the trial judge was ruling works, in regard to a parking lot that is literally right outside the front door of the courthouse. This illustrates Colorado's wisdom in having state court trial judges who preside in county courthouses appointed by the governor with secure tenure, allowing them to be independent in the lawsuits against local governments that frequently arise in these courts, rather than being appointed by local officials or as an ordinary partisan or non-partisan elected office, as many other states do. It provides a starting point to talk about state constitutional law, and the practical aspects of the separation of powers and judicial independence with a concrete example.

Fourth, it illustrates the basic rule of law regarding when premises liability exists, as well as a notable partial exception to that rule in some cases where the government owns real property. So, one can teach the private property and public property rules for liability in slip and fall cases in a single case.

Fifth, the decision, like most appeals regarding a claim of governmental immunity of some kind, is an interlocutory appeal, resolving the issue of governmental immunity before the case is litigated or tried. This is permitted in order to preserve the benefits of being immune and thus able to avoid litigation entirely, and not just not a rule that leads to a lack of liability on the merits. The general rule is that civil cases can only be appealed once a final judgment is entered in the case. So, it is a nice way to teach this fine point of civil procedure.

Sixth, it holds as a matter of first impression not decided by any previous Colorado appellate court, that the waiver of governmental immunity for dangerous conditions in public buildings extends to parking garages, and can apply to design and warning issues as well as failures to maintain the garage property (e.g. failure to remove snow and ice, or to repair cracked concrete). In a classroom setting, the "black letter law rule" that the case announces is often the least important point, because the law changes over time and can differ from one state to another, but it illustrates how new black letter law rules are created by the caselaw system of precedents in the U.S. legal system. The twenty-four pages the opinion takes to reach its really quite narrow and straight forward conclusion also illustrates the kind of reasoning and that depth of analysis that is typical in civil litigation.

For what it is worth, I believe that the case was rightly decided and the result is what I would have expected in this situation before seeing the opinion, as a lawyer whose first job in Colorado was with a firm that had a contract with CIRSA (the county insurance pool) to defend county governments from tort lawsuits.

Selected Good Government Reforms For Colorado

I Voted.

Today, I cast my Denver primary ballot (by mail). 

There are only two contested races. There was a very marginal challenge to our incumbent Democratic Congresswoman of many years, in which I supported incumbent Diana DeGette, and there was a race between two candidates for CU-Regent for our Congressional Democrat, in which I voted for Johnnie Nguyen, a former employee of mine (he worked for me only briefly, but he's a good guy, even though is opponent is also a good person).

Selected State and Local Good Government Reforms

This makes it as good as time as any for my periodic call for select good government reforms to Colorado's electoral system.

One reform that I strongly favor is reducing the number of elected offices and shortening the ballot, in order to reduce the informational burden on voters and the risk of bad decision making in low profile elections about which there is little information and about which partisan politics should play a smaller role.

Fewer Ordinary Elected Officials

State Offices

If I had my way, all of the following state offices, which are now elected offices, would be appointed offices:

1. Colorado Secretary of State (this would be a civil service appointment)

2. Colorado State Treasurer (this would be a civil service appointment)

3. Colorado Attorney General (this would be a political appointment of the Governor not subject to legislative approval) (if any of these offices were to remain elected, this would probably be the best one to retain as an elected post as it creates a de facto independent prosecutor, but an attorney general who structurally owes full loyalty to the Governor as an employee at will, when the Governor is already the AG's chief client representative in an attorney-client relationship with the state anyway, and AG is still a hard post for voters to evaluate well).

4. Colorado State School Board (a state board appointed by the state officials with a say in funding the system would be better)

5. University of Colorado Regents (a state board appointed by the state officials with a say in funding the system would be better)

This would leave a Governor-Lieutenant Governor ticket, the State Senate, and the State House as the only statewide elected offices. Vacancies in these offices would be filled in the same manner that they are now.

As is the case now, state house elections would be held every two years, state senators would be elected to four year terms half every two years, and the Governor-Lieutenant Governor ticket election would be held in midterm years.

Local Offices

If I had my way, all of the following local offices, which are now elected offices, would be appointed offices:

1. County Coroner (this office, in addition to being a civil service appointment, rather than elected, should be transferred from county government to state government since small counties don't have the resources to have an adequate coroner's office).

2. County Clerk and Recorder (it would be a civil service position)

3. County Treasurer (it would be a civil service position)

4. County Assessor (it would be a civil service position)

5. County Surveyor (it would be a civil service position)

6. County Sheriff (it would be a political appointment of the county elected officials) (if any of these offices were to remain elected, this would probably be the best one to retain as an elected post since it is not merely ministerial and citizens are fairly well informed about it, but the virtues of having elected officials who can fire a bad sheriff quickly outweigh the benefits of giving citizens an independent say in an election to this post).

I would also make the board of county commissioner have five members elected on a non-partisan basis from single member equal population districts elected to four year terms in midterm elections, rather than three elected at large (typically to four year terms with two in off years and one in on years), since three member parties elected at large aren't that democratic, in all counties that are not city and county governments and don't have such small populations that districts don't make sense. A five member board limits the harm that can be done by any one bad board member.

This would leave county commissioners and district attorneys as the only local county or judicial district elected offices, and district attorneys as the only partisan local government officials.

I would retain non-partisan Regional Transportation District elections, city council elections, mayoral elections, and city auditor elections.

Elected special district offices other than local school boards (discussed below) would be reviewed on a case by case basis. There aren't many such offices now, but I think that I have omitted a few, and I'm not familiar with all of them. Special district elections would be held in midterm general elections (without primaries) and would be non-partisan. 

Municipal elections would be held at a time separate from the general and midterm elections (as they are in Denver) and would be non-partisan, so that public attention would not be distracted from them.

Vacancies in these offices would be filled in the same manner that they are now.

Local School Boards

I would replace public school boards elected by the general public with school boards elected by the parents or guardians of students on a one student, one vote basis. The have better access to information, more reason to pay attention, and ultimately the schools impact their children more than anyone else. Local school board elections have historically been low information races which makes for bad decision making by voters.

All property tax funding of local school boards would end, and public Pre-K through 12 education would be entirely state funded. As a result of funding being handled by the state, voter participation in tax levies and debt offerings by school boards would end as well

Direct Democracy

I would end the requirement for public votes to retain revenues earned under existing tax laws under TABOR. TABOR refunds of excess revenues would be replaced with rainy day fund contributions for the taxing entity.

In general, I would retain citizen legislative initiatives on the basis that they are allowed now. But, I would end the ability of initiatives (as opposed to referendums referred by elected officials) to impose new taxes, limit taxing authority, authorize new spending, or limit the authority of elected officials to spend, although initiatives could de facto cause governments to incur de minimus new spending to administer a basically non-fiscal measure.

I would end ability to petition to put newly passed legislation up for vote as a ballot issue if the body passing it did not refer it to the voters in the first place.

I would retain the ability to have citizen proposed constitutional amendments or local charter amendments, although they would be harder to pass than legislative initiatives as they are under the status quo. 

But, I would transfer a significant share of matters set forth in the state constitution to statutes, and a significant share of matters set forth in most municipal charters to municipal ordinances, to reduce the scope of matters that amend the state constitution and municipal charts requiring voter approval, so that voters don't have to vote on administrative and "house keeping" charter amendments and constitutional amendments any more than absolutely necessary.

Citizen approved initiatives would require supermajority legislation to modify for the first four years (reducing the incentive to propose constitutional or charter amendments merely to protect them from immediately legislative modification). 

End Recall Elections

I would end recall elections in all non-municipal posts. 

This is something that is made more desirable and workable by the fact that the only non-legislative, multimember board elected officials above the municipal level would be the Governor, Lieutenant Governor, and District Attorneys. All twenty-five of these officials could be impeached by the state legislature. 

District attorneys could also be removed from office by attorney regulation officials of the Colorado Supreme Court if a DA's license to practice law was suspended or a DA was disbarred for ethics violations. But giving elected DAs who have acted ethically slightly more insulation from public opinion when enforcing the laws is a good thing.

Elections happen often enough for legislative body officials, usually every two year or four years, to make them unnecessary in such bodies (as opposed to situations when there is an elected executive branch official accountable to no one). 

The Colorado House and Colorado Senate, respectively, can also expel members by supermajority vote for misconduct.  

Recalls for municipal and special district offices would be governed by municipal charters or state law, but not by the state constitution. I would be inclined to allow recalls of these officials under the relevant default state laws, as these recalls are much more manageable and less burdensome on the overall electorate, and the risk of a bad slate of officials in a very small municipality or special district is much greater in practice.

Judicial Retention And Removal.

I would end judicial retention elections, which voters routinely complain that they are not qualified to vote in for lack of adequate information, which remove very few judges (on the order of 1% or less). Usually judges can be removed in cases that lead to non-retention by other means anyway.

Retention elections could be triggered for any judge, by the state legislature, with a simple majority of both houses in the Colorado General Assembly required by not approval by the Governor, and in the case of a trial court judge, a majority vote of county legislative bodies with a majority by population in the district served would also be required. These triggers, if met, would simply put a retain or not retain issue on the ballot for a judge which voters would weigh in upon, and could only be done at the time when retention elections are held now. 

Recall petitions would not be allowed for judges, although state level impeachment would still be an option. I would also strengthen judicial ethics oversight body powers, and would allow this body (subject to appeal to the Colorado Supreme Court), or a 5 out of 7 judge supermajority of Colorado Supreme Court of its own initiative, to remove any lower court judges. Judges could also be removed by impeachment.

I would require all judges to be attorneys, but would grant the four remaining sitting county court judges who are not lawyers admission to the bar by special legislation. It could be that some of them have already retired.

Municipal Courts And Local Ordinance Authority

I would abolish municipal courts, vesting all jurisdiction that they had in county courts. Municipalities hire and fire their own judges to not give rise to sufficient judicial independence. Municipal parking violation bureaus which are not currently handled by municipal courts anyway, could continue, subject to county court review.

I would also end the authority of municipalities and local governments to create ordinances punishable by incarceration, something that would then only be possible for violations of state laws, although a few state laws might need to be added to the state criminal code to address offenses now covered primarily by municipal ordinances where incarceration is really appropriate.

Fines for violations of traffic laws would be payable primarily to the state government, with only a small amount of such fines remitted to local government in amount only sufficient to cover all or most of the actual costs of traffic law enforcement.

Election Administration Details

Overall, the way Colorado elections are run is a national model, but I would make some modest changes.

I would have postage prepaid for all mail in ballots.

I would discontinue the process of putting uncontested races on ballots, allowing voters to focus more easily on what they really had to decide.

I would create a create a government office in every county charged with maximizing voter registration. 

Prison inmates should be counted for redistricting purposes as residents of the place they were before being incarcerated, not where the prison is located.

Redistricting would be limited to Congress, State Senate (but see my proposal below), State House, and County Commissioner posts (excluding municipal and special district offices), which isn't that much different from the status quo.

In all single member district elections (federal, state and local), I would require a majority of the votes validly cast for a candidate to win, with a runoff of the top two candidates if no candidate received a majority.

Ballots would be much shorter, and would be limited to higher information races (in most cases, with partisan label cues that are sufficient for most voters to make a choice by themselves). This would probably increase voter turnout, would increase voter participation in races on the ballot as opposed to leaving them blank, and would reduce vote counting disputes and voter error.

In Presidential election year general elections, in addition to the Presidential race there would be one to two federal offices, and one or two state legislative offices for a total of three to five candidate races (only some of which would be close) following up to five partisan primary election races. 

In midterm election year general elections, there would be one to two federal offices, the Governor's race, the DAs race, one non-partisan county commissioner's district race (outside consolidated cities and counties),  and possibly one non-partisan special district race, for a total of three to five candidate races (only some of which would be close) following up to four partisan primary races. 

There would also be in even year general elections citizen initiatives (state legislative and constitutional amendments and county legislative initiatives) and referred measures (constitutional or tax or debt related), all of which tend to increase public interests. 

Municipal ballot issues (legislative initiatives, and tax and debt referred measures, and initiated and referred charter amendments) would be on the ballot at the time of municipal elections (perhaps in odd year general election times). Other ballot issues would appear on the ballot only at general elections every two years.

Party List State Senate Representation Considered

Personally, I'd like to replace single member district state senate elections with a proportional representation, party-list based election for the entire state senate at once every four years in an off year  election (ending that opportunity for gerrymandering and making third-parties much more viable since they'd need only about 3% of the vote to get at least one seat). It would also shorten the Presidential election year ballot and create more interest in otherwise duller midterm elections.

But that might be too bold relative to the other innocuous good government reforms already suggested.

Republicans Still Mendacious, Delusional, and Weird

One of the most appalling aspects of the current Republican Party is its utter lack of respect for reality, using illegitimate and improper means to achieve it ends. 

Absurd and malicious cases like this one that call into question the sanity of the local elected sheriff pressing it, alas, are increasingly not uncommon in a party that has still pledges its soul to serial fraudster Donald Trump.

Utah Republicans, as a whole, were among the least support of Trump in his two Presidential races, but ultimately, they too seem to have fallen for his spell. The county in question is home to Utah's second biggest city, Provo.

Earlier this week, the Utah County Sheriff's office announced their reinvestigation into a supposed child sex trafficking ring they claim was involved in "ritualistic child sex abuse" between the years of 1990-2010, asking victims and those with knowledge of the crimes to come forward "so that they can be offered all the assistance possible."

If this sounds a tad suspect to you, it is probably because you have lived through some part of the last several decades or are perhaps familiar with the Satanic Panic, the 87,000 documentaries on people falsely accused and wrongfully imprisoned over this nonsense (highly recommend Southwest of Salem, Witch Hunt and Fall River), or even the FBI Behavioral Science Unit's 1992 report on "ritual abuse." Or perhaps what really tipped you off is the fact that no actual instances of it have ever actually been proven to have happened outside the imaginations of people like Utah County Sheriff Mike Smith and the man who reportedly sparked the current investigation, a convicted sex offender/incel rights activist who faked his own death and moved to Scotland, where he was identified after turning up in a hospital sick with COVID.

Following the Utah County Sheriff's press release, Utah County Attorney David Leavitt called for Sheriff Smith to resign and for the Sheriff's Department itself to be investigated, due to the outlandish nature of the so-called investigation. Leavitt also noted that he and his wife were cited in the official "report" on the investigation, which accused them of not only ritualistically abusing children, but of eating them.

“I am calling upon Sheriff Mike Smith to open his office to an outside investigation,” Leavitt said in a statement, “where outside, independent investigators are able to investigate and confirm or deny that documents from a debunked investigation from more than a decade ago were or were not used for political purposes in a Utah County Attorney’s race.”

From here (corroboration here).

Social, Political and Legal Barriers To Progress

Frequently, our society fails to achieve the progress it is technologically capable of providing for social, political and legal reasons. Often social issues drive political action or inaction, which in turn, creates legal barriers. Most often, the social issues are driven by fear.

The Case Of Affordable Housing

For example, the reason that affordable housing is scarce is not because we don't know how to build adequate housing for modest prices. In fact, a wide array of ways to do so are widely known. Instead, affordable housing is scarce is due to NIMBY (not in my back yard) political pressure at the local government level that officials at higher levels of government have chosen not to address. This is usually effectuated through land use regulations such as zoning and building codes, subdivision limitations, and similar municipal ordinances.

Affordable housing triggers a NIMBY response primarily because existing residents of neighborhoods don't want people who can only afford "affordable housing" living near them. In other words, people oppose affordable housing because they fear poor people. It is the poor people, and especially, concentrations of poor people, that they feel will make their neighborhoods less desirable places to live. 

Also, property owners believe that if their neighborhood is less desirable, because it has more poor people in it, that the value of their property will decline, causing them economic harm. And, property owners who reside in a neighborhood at risk of become less desirable are disproportionately wealthy and disproportionately capable of mobilizing local government political action in local governments, compared to the hypothetical people who would move to the neighborhood if affordable housing were built there, for whom real estate developers are the main political proxy. But, real estate developers can often be encouraged to focus on new luxury housing that does not prompt a NIMBY reaction, in lieu of affordable housing with fairly modest tweaks to land use regulations and the hassles that can arise in both the short and long terms when there is community opposition to development.

The fears are often greatly exaggerated and are frequently fueled by socially shunned rationales, like racism and xenophobia. But they aren't entirely baseless either.

People who seek to live in affordable housing, almost by definition, have average or below average incomes. 

When a neighborhood has more lower income people, especially when concentrated in an income segregated community, rather than blended in with more affluent neighbors, the neighborhood tends to have homes that are less well maintained, more unruly behavior, less respect for minor social norms like picking up dog poop and not littering, more rudeness in the community, more crime, more gang activity, more domestic violence, and more child abuse and neglect.

Most of these impacts of lower income residents also drive up the cost of taxpayer provided services in the neighborhood that must be paid for, in part, with local tax dollars that disproportionately paid by higher income residents (even when local taxes are regressive) who don't directly utilize the services that those tax dollars finance.

Lower income people are disproportionately black, Hispanic, low skilled immigrants, or "white trash" (i.e. culturally Appalachian and/or poor Southern and/or poor rural in their origins). They are disproportionately less educated. They are disproportionately single parents and unstable cohabiting couple who have some children who aren't shared by both parents. 

Higher income people are disproportionately, Anglo whites with urban and "Yankee" origins, or are East Asian or South Asian, and/or are highly skilled immigrants. They are disproportionately more educated. They are disproportionately stable married couples who if they have children have only children shared by both members of the couple.

When a neighborhood has a mix of lower income people and higher income people, especially when there are stark demographic differences between them, members of these two communities often don't share the same social norms and priorities in ways that manifest in the community from parenting practices displayed in public to ideas about how it is appropriate to behave at home when one is home and how to maintain one's home and how to interact with neighbors.

Another factor that adds potency to opposition to affordable housing, where this factor is present, is that most U.S. jurisdictions determine which public schools that a school aged child may attend from of charge at taxpayer expense based upon where a child lives. Rightly or wrongly, parents and community members routinely evaluate school quality by the absolute academic performance level of the children at a school (rather than "value added"). The best and predominant predictor of the absolute academic performance level of children at a school is the socioeconomic status of the parents of the children at the school. So, when affordable housing allows less affluent people to move into a neighborhood, this is perceived as reducing the quality of the local schools, which also makes the neighborhood less desirable. Further, rightly or wrongly, many parents fear that exposure to children who are culturally different from their own children will be a "bad influence" on their children.

When these socio-economic and cultural divisions are absent, neighbors are often unconcerned about housing that they would normally oppose.

Colleges routinely house students in dorms that have very high residential density and don't provide residents with even their own bathrooms or kitchens. Military bases routinely house soldiers in barracks that have the same character. But neither kind of housing generates the same kind of opposition in neighboring communities.

Neighbors rarely mind "granny flats" (a.k.a. "accessory dwelling units) that are actually used to house the parents of the residents of a primary home, or are used to house older children of the residents of a primary home, or are used to house household servants of the residents of a primary home, likewise, rarely generate community opposition.

The main reason that there exists a class of "senior housing" restricted to older residents, which is almost always relatively high in residential density and is often relatively affordable, is the neighbors don't fear elderly neighbors who need someplace affordable to live as much as they fear younger people and families who need an affordable place to live. Elderly people are perceived (mostly accurately) to be unlikely to be significant sources of crime, unruly behavior, gang activity, troubling parenting practices in public display, incivility, and neglectfulness in maintaining their homes.

The Case of Transit

These issues discourage the level of residential density that create an environment that is favorable for transit, and for communities that are geographically compact enough to make getting around by walking and bicycling very viable for a large share of daily trips.

In addition to the indirect effects that socially driven barriers to high residential density and affordable housing create, similar factors also directly discourage well functioning transit systems.

In the United States, with just a handful of exceptions, such as resort communities, some college towns, and extremely dense large central cities (mostly in the Northeast and Pacific Northwest), municipal bus systems are predominantly used by people too poor to be able to afford to have a car of their own, by people whose illegal conduct has caused their driver's licenses to be revoked, and by low to middle income disabled people who can't drive.

One of the main barriers to increasing municipal bus ridership by people who have other options is the fear of incivility, unruliness, and crime from fellow riders. Prospective riders also disinclined to mingle with riders who they observe are often so ill kept that they are smelly because they haven't had the ability to shower or wash their clothes, beg of money, or otherwise simply make them uncomfortable to be around.

But unless one can overcome a tipping point caused by these barriers, the fact that only those people who absolutely must take the bus do so, means that the frequency of service is lower, especially in communities where fewer people have no choice but to take the bus, and that the ridership per bus that does arrive, especially in these more affluent communities, is often much lower. But the resulting low frequency of service makes taking the bus a slower and less viable alternative to driving, and the low utilization level makes the subsidy per passenger mile higher, increasing the tax burden created by the bus service and generating political opposition from the more affluent people who provide the taxes that pay for these subsidies.

This happens, to a lesser degree, in intercity buses, which people avoid in favor of trains and planes and driving when they can.

The very same people who are loathe to take city buses, have no problem at all traveling by a chartered tour bus, or a school bus to a sports event or field trip, or to sending their children on a school bus to school. The issues are not technological, they are social.

Similarly, Israelis continued to make heavy use of buses even when suicide bombing tactics were common. Europeans, Latin Americans and the Japanese, all of whom mostly have systems that have surpassed a tipping point that prevents their systems from falling into a vicious cycle, make much heavier use of municipal buses and fixed route transit systems.

Solutions

I'll address solutions and ways to address social, political and legal barriers to progress in a follow up post to this one.