Amendment 81: Voters reject the 72-hour federal notification requirement 

By Shaina Cole | Contributing Writer, Rocky Mountain Voice

Amendment 81 needed 55 percent of the vote to get into the Colorado Constitution. It stands at 44.84 percent with counting still underway.

Voters turned it down outright, 1,427,318 to 1,160,085, a margin of 267,233 in the Secretary of State‘s count, last updated at 10:39 p.m. MST Thursday. The Associated Press called it rejected at 1:20 p.m. MST Wednesday.

The measure would have added a new section to article XVIII of the constitution, under the heading “Notification requirements for felons and violent offenders unlawfully present in the United States.”

Law enforcement would have had 72 hours after charging someone to notify the federal Department of Homeland Security, which houses Immigration and Customs Enforcement.

Two conditions would have had to be met. The person had to be unlawfully present, or their status unknown after what the certified text calls “a reasonable attempt to determine it.” And the charge had to be a crime of violence, or the person had to have been convicted of a prior felony.

The text defines law enforcement as certified peace officers employed by a law enforcement agency, attorneys or investigators employed by a district attorney and correctional officers.

The notification requirement opens with a clause pointed straight at existing state law, “notwithstanding any other provision of Colorado law.”

The trigger that would have reached traffic tickets

One half of the measure would have reached crimes of violence. Those include murder, assault, arson, escape, extortion, kidnapping, aggravated robbery and certain sexual and human trafficking offenses, according to Legislative Council Staff.

The prior felony half would have reached further. Any felony conviction, regardless of when it happened, paired with a charge for any crime at all.

The Blue Book spells out what that includes. Traffic violations, petty offenses, misdemeanors and felonies.

The duty would have attached at charging, not at arrest, and before a court had decided anything. Legislative Council Staff put it plainly. The notification would have come “before any legal process has determined whether they are guilty or innocent.”

Opponents built their case on those two points. The Blue Book’s arguments-against section says that criminal charges are allegations rather than findings of guilt, and that leaving “reasonable effort” and “lawful presence” undefined hands the judgment to individual officers.

What stays in place now

Colorado law permits state and local law enforcement to cooperate in enforcing federal criminal law and limits their participation in civil immigration enforcement, according to Legislative Council Staff.

State and local employees may not share certain nonpublic personal information with federal immigration authorities unless federal law, a court order or a judicial warrant directs it. An intentional violation carries a civil penalty of up to $50,000.

Neither federal nor state law requires an agency to tell immigration authorities when someone who is here unlawfully is charged. That was the gap Amendment 81 was written to close, and it stays open.

So does the patchwork.

Denver bars federal immigration authorities from city-controlled property including courthouses. El Paso County requires officers to notify federal immigration authorities when they suspect someone in custody has no legal status. A yes vote would have replaced both with one statewide rule.

Who was behind it

Advance Colorado, a conservative nonprofit, was the main group behind the initiative, the Colorado Sun reported in September. An issue committee called Brighter Colorado also backed it, with major donors including Advance Colorado and Common Sense America.

“Even states like California and New York allow for cooperation with Homeland Security when law enforcement is dealing with a violent criminal,” Advance Colorado said in a news release.

The opposing issue committee, Colorado Communities First, counted the Colorado Immigrant Rights Coalition and the ACLU of Colorado among its major donors.

Most law enforcement leaders stayed quiet on the measure. A few opposed it, Colorado Public Radio reported, on the grounds that it would damage trust in Latino communities and add work for officers.

Opponents also raised a drafting problem. Prosecutors file charges, not patrol officers, so it was never clear what the measure would have asked a deputy to do.

Legislative Council Staff reached the same place from the other direction. Because the duty would have attached after charges were filed, most of the work would have fallen on district attorneys’ offices.

The same voters went the other way on crime

Colorado did not spend this election rejecting tougher criminal penalties.

Proposition 133, which imposes life imprisonment for trafficking minors, passed with 62.11 percent, the highest yes share of the 14 statewide measures. Proposition 132, which would raise penalties for fentanyl crimes, leads at 52.70 percent and has not been called.

Amendment 81 asked for something different. Not a longer sentence after a conviction, but a notification after a charge.

It is also not the worst-performing measure on the ballot. Amendment 84, which would have required a voter signature and identification number on mail ballots, drew 36.72 percent.

Where the count stands

Amendment 81 trails 1,160,085 to 1,427,318 out of 2,587,403 votes cast on the question.

AP has called seven of the 14 statewide measures.

Amendments 81, 82, 83 and 84 were rejected. Propositions NN, 133 and 134 were approved. Every amendment AP has called has failed.

None of these results are official.