On March 9, 2026, the Colorado Supreme Court reversed the Title Board’s approval of Proposed Initiative 2025–2026 #158, a ballot initiative that sought to amend the Colorado Taxpayer’s Bill of Rights (“TABOR”) to require voter approval for any “fee” expected to create more than $100 million in revenue in its first five fiscal years and defined “fee” as “a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer.” In the Matter of the Title, Ballot Title, and Submission Clause for Proposed Initiative 2025–2026 #158, 2026 CO 13 (Colo. Mar. 9, 2026) (hereinafter, “In re Title”). The Court held Initiative #158 violated the Colorado Constitution’s single subject requirement by combining two distinct objectives: (1) requiring statewide voter approval of certain fees and (2) substantively redefining the term “fee” throughout Colorado law. This ruling effectively removes Initiative #158 from consideration for the 2026 general election ballot.
TABOR and the Tax/Fee Distinction
TABOR limits the spending and taxing powers of state and local government, requiring voter approval of any new tax, tax rate increase, extension of an expiring tax, or tax policy change causing a net tax revenue gain. Importantly, TABOR does not define the term “tax,” and Colorado courts have developed the distinction between taxes and fees through case law.
The Court explained, under existing precedent, “a charge is a ‘tax’ if its primary purpose is to defray general governmental expenses,” but “a charge is a ‘fee’ if its primary purpose is to defray the cost of services provided to those charged.” The Court recognized this distinction is consequential because fees are not currently subject to TABOR’s voter approval requirements.
Initiative #158
Initiative #158 sought to amend TABOR by adding a new subsection (4.5) titled “Voter approval of fees.” The proposal contained two central components:
- The Initiative would require statewide voter approval for any fee established or increased with projected or actual revenue totaling over $100 million in the first five fiscal years, except for fees charged by institutions of higher education (“Voter Approval Requirement”); and
- The Initiative would define “fee” “as used in Colorado law” to mean “a voluntarily incurred governmental charge in exchange for a specific benefit conferred on the payer, which fee should reasonably approximate the payer’s fair share of the costs incurred by the government in providing said specific benefit.”
The Court’s Single Subject Analysis
The Court explained, in Colorado, “every constitutional amendment or law proposed by initiative” must be “limited to a single subject, which shall be clearly expressed in its title.” § 1-40-106.5(1)(a); see also Colo. Const. art. V, § 1(5.5). This requirement serves two purposes: (1) it “ensures that each proposal depends on its own merits for passage,” thereby preventing “log rolling” tactics, the combining of multiple subjects to attract support from various factions; and (2) it prevents surprise and fraud upon voters by stopping the inadvertent passage of a surreptitious provision “coiled up in the folds” of a complex initiative.
“An initiative satisfies the single subject requirement when it tends to effect or carry out one general objective or purpose,” and its subject matter is “necessarily and properly connected rather than disconnected or incongruous.”
Proponents of Initiative #158 argued it contains only one subject: its central purpose is to require voter approval of certain fees and a definition of “fee” is necessary to effectuate that purpose. Without that definition, Proponents contended, the Initiative “would be unenforceable and meaningless.”
The Petitioner challenging Initiative #158 argued its definition of “fee” is a surreptitious second subject “coiled in the folds” of Initiative #158. Petitioner contended the definition of “fee” is significantly narrower than that established by existing case law and it would be used not only in TABOR but throughout Colorado law.
The Court agreed with the Petitioner that the redefinition of “fee” in Initiative #158 was neither necessarily nor properly connected to its stated purpose of requiring voter approval of certain fees. The Court found that the Initiative proposed a significant—and retroactive—change to the definition of all fees under Colorado law, separate and apart from any voter approval requirement.
The Court rejected the Proponents’ argument that changing the definition of “fee” was necessary for the voter approval requirement to be enforceable, reasoning that, if the definition were removed, the current judicially developed understanding of “fee” would still give full effect to the voter approval provision.
Critically, the Court noted that, in 2014, it held an identical definition of “fee” proposed in Initiative #129 was a single subject for purposes of the single-subject requirement. Initiative #129 proposed the same definition of “fee” that appears in Initiative #158 as a standalone provision, and it was challenged as containing more than one subject. Milo v. Coulter (In re Title, Ballot Title & Submission Clause for 2013-2014 #129), 2014 CO 53, ¶ 2, 333 P.3d 101, 103. Milo held Initiative #129 “contain[ed] a single subject: the definition of a ‘fee.’” Id.
In light of Milo, the Court reasoned, because “Initiative #158 is Initiative #129 plus a new voter approval requirement,” it necessarily contains two subjects.
Additionally, the Court noted the log rolling danger: Initiative #158 could attract a “yes” vote from voters who support statewide voter approval of fees but would not support narrowing the definition of existing and new fees under Colorado law. Conversely, it could attract support from voters who favor changing the existing definition of “fee” but would not support the voter approval requirement. The Court also expressed concern that the proposed new constitutional definition significantly narrows the types of charges that currently qualify as a “fee,” potentially triggering the reclassification of countless existing fees under Colorado law and rendering some no longer exempt from TABOR. These significant changes were not necessarily connected to the stated central purpose of prospectively requiring voter approval of fees exceeding a certain revenue threshold.
The Court’s reversal of the Title Board’s action on Initiative #158 removes this measure from the 2026 ballot cycle. The initiative has been remanded to the Title Board with instructions to strike the title, ballot title, and submission clause, and to return the Initiative to its Proponents. This decision underscores the Court’s continued vigilance in enforcing the single subject requirement for ballot initiatives. Proponents seeking similar reforms will need to pursue separate initiatives addressing voter approval requirements for fees and the redefinition of “fee” under Colorado law.
For questions about this legal alert, please contact a member of the Davis Graham Appellate Group.