If voters approve the 51st state initiative on the ballot this November, it will still be a long way from coming to fruition, experts say.
It's difficult to say what exactly must be done before North Colorado becomes a real state, because no state has successfully seceded from another since West Virginia split from Virginia during the Civil War.
But most constitutional experts agree the U.S. Constitution does clearly outline two provisions before a state can secede: one is to get approval from that state's legislature, and the other is to get approval from the U.S. Congress.
Those are spelled out in Article IV of the U.S. Constitution, said Rob Natelson, a senior fellow in constitutional jurisprudence at the Colorado Independence Institute, a right-leaning state think tank that Weld County commissioners say they have consulted to determine how to go about their secession movement.
Natelson said it is very likely the creation of North Colorado would have to be approved by a majority of all Colorado voters because the state constitution includes state boundaries.
Any amendment to Colorado's constitution must be ratified by the state's voters. An amendment can be placed on the ballot either through a citizen initiative or by a two-thirds vote by the Colorado General Assembly.
"It's possible a court could say the procedures outlined (in the U.S. Constitution) are exclusive and nothing else is required," Natelson said. But he said if he were a betting man, he'd bet on the voter-ratified amendment process.
After that, the state Legislature would still have to approve of the initiative, said Jason Gelender, a senior attorney for the Colorado General Assembly's Office of Legislative Legal Services.
It could be done by joint resolution, meaning a state legislator would introduce the resolution and the General Assembly would vote on it. A joint resolution doesn't require the governor's signature because it's not a bill, Gelender said.
Whether voters or state legislators are the ones to get the constitutional amendment on the ballot, the language would probably show that the amendment is contingent on approval from the U.S. Congress and, if the ballot measure is placed there by citizen initiative, that it is also contingent on approval from the state Legislature, Gelender said. Otherwise, the state could get caught in an awkward position in which it has an amended constitution but no new state.
Weld County Commissioner Sean Conway said timing for the secessionist proposal is good because Colorado will have statewide elections anyway, thanks to the marijuana and school tax issues to be placed on the ballot. He said commissioners have primarily been focused on the ballot question they just approved to see if this is even something that residents want.
It's important to remember the ballot question this November isn't required, Natelson said. Commissioners in Weld, Kit Carson, Yuma, Logan, Phillips, Cheyenne and Sedgwick counties have voted to put that language on the ballot as a way to gauge how their residents feel about creating a new state.
One interesting point in all of this, Gelender said, is that Article IV doesn't actually outline the order that things must happen, meaning the U.S. Congress might legally be able to take up the 51st state initiative before the Colorado Legislature.
Approval at the federal level would likely go through a similar process of being introduced by a Colorado representative. Many say those involved in the new state would have to hold a constitutional convention so that Congress could approve of the new state constitution.
Some experts, such as Scott Moss, an associate law professor at the University of Colorado, said the initiative hasn't been looked into because it won't ever get far enough to be worth the effort.
"I haven't looked into it, but I also haven't looked into how to live in a candy cane house. That would be nice, but that won't happen, either," Moss said. "It's really not worth anyone's 10 minutes to bother looking into this."
With Moffat County commissioners, who live on the opposite side of the state as the rest of those who have been involved in the secession movement, opting to vote on a 51st ballot question on Tuesday, some have joked that it might be easier to vote the most populous Front Range counties "off the island."
In fact, it could legally happen, Natelson said. If all of Colorado's rural counties sent Republican representatives to the state Legislature and if the suburbs of Denver were also dominated by Republicans, then the Colorado General Assembly could get a majority vote to remove Denver and Boulder from the state of Colorado, he said.
Conway said he believes most county commissioners around the state do feel the same as those in Weld.
"I would say 70 percent of commissioners around the state were absolutely frustrated over what transpired" in this past legislative session, he said.
I haven't looked into it, but I also haven't looked into how to live in a candy cane house. That would be nice, but that wn't happen, either. It's really not worth anyone's 10 minutes to bother looking into this.
-- Scott Moss, Associated law professor at the University of Colorado ___