Phil Weiser and statehouse Democrats are already planning tweaks to Colorado ballot measures on fentanyl, transgender youth

Gov.-elect Phil Weiser and leading Democrats in the Colorado legislature are already discussing how to tweak four conservative ballot measures that appear to have been approved by voters this year, including ones banning transgender youth from gendered school and college sports and preventing kids from getting surgery altering their biological sex characteristics. 

The other two measures would increase penalties for the possession and sale of fentanyl and make child sex trafficking punishable by life in prison. 

Propositions 132 (the fentanyl measure), 133 (the sex trafficking initiative), 134 (the sports ballot question) and 135 (the measure dealing with gender-affirming surgery) can be overturned or tweaked with a simple majority vote of the state legislature.

In a political split screen on Election Day, Colorado voters passed those ballot measures but also elected Weiser by a historic margin and handed Democrats supermajorities in both the state House and Senate, giving them more than enough votes to tweak the initiatives or undo them altogether.

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(The Associated Press hasn’t called the races for Proposition 132, 134 and 135 yet, and the Democratic supermajorities have not been finalized, but barring a big change in the final ballot tallies, they will pass and the supermajorities will happen. The AP projected on election night that Proposition 133 would pass.)

Weiser, Colorado’s current attorney general, said on the campaign trail that propositions 134 and 135 in particular would have to be addressed by the legislature if voters approved them. “The legislature is going to have to fix it and provide a much more human and sound approach,” he said in June. 

On Wednesday, speaking to reporters after he won the governor’s race, Weiser doubled down. 

“We’re going to have to take a look at these anti-trans measures and what adjustments are necessary and appropriate,” he said. 

Weiser said, for example, that he doesn’t think it’s acceptable to make every child and young adult playing on gendered sports teams (Proposition 134 applies to athletics for college students as well as youth) get checked for their biological sex. 

The measure doesn’t mention genital checks, but opponents have argued that’s where it could lead. 

Weiser didn’t offer specifics on his plans for the ballot measures, saying it was too soon to comment on how Democrats may respond. But their options range from full repeal to minor alterations. 

The initiative, which defines girls and boys based on reproductive organs and requires that student athletes play on teams corresponding to those definitions, leaves enforcement up to the state’s education commissioner. It does not say how students would get checked or what would happen if a parent or fellow student questioned whether an athlete was playing on the correct team.

Similar laws have already passed in 27 states. 

“No one is advocating for invasive examinations of children, nor have they occurred anywhere in the majority of states that already have this law,” said Erin Lee, who leads Protect Kids Colorado, the group behind propositions 133, 134 and 135. 

Lee accused Weiser of trying to “circumvent democracy” by disguising an effort to rewrite the measure as a “necessary administrative fix.” Before the election, she referred to Weiser as “chief kiddie cutter” for fighting the Trump administration’s ban on federal dollars going to gender transition care for children. 

On the fentanyl measure, Proposition 132, Weiser said proponents’ pitch that it would increase treatment options isn’t born out in how the initiative was written.

“That’s not what the measure does,” he said. “I want more treatment for people’s drug addiction. I don’t want them put in jail, in prison. We’re going to figure out what we do about that.”

Right now, possessing between 1 and 4 grams of a substance containing certain synthetic opiates like fentanyl is a Level 4 drug felony, while possession of a substance up to one gram is a Level 1 drug misdemeanor punishable by up to 18 months in jail. 

Someone who possesses between 1 and 4 grams of a substance containing certain synthetic opiates can also currently knock their conviction down to a Level 1 drug misdemeanor if they can prove they didn’t know an opioid was in the substance. That clause would be removed by Proposition 132.

Proposition 132 would make it a Level 3 drug felony, punishable by up to four years in prison, to possess between 1 and 4 grams of a substance containing certain synthetic opiates, like fentanyl. For possession of a substance up to 1 gram, the offense would be a new Level 4 treatment-mandated drug felony, punishable by up to one year in prison — though someone could have their charge reduced to a misdemeanor by completing a court-ordered drug treatment program. 

But opponents point out that Proposition 132 doesn’t come with any new money to expand the limited treatment options that exist in Colorado or help people pay for that treatment if a court orders them to go through it.

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State Rep. Jennifer Bacon, a Denver Democrat vying to be the next speaker of the Colorado House of Representatives, said she’s working with opponents of the ballot measures to think through legislative next steps. 

Senate President James Coleman, another Denver Democrat, said while he hasn’t had conversations with the Senate Democratic caucus on the measures yet, he suspects they are coming. 

“I don’t think it’s going to be a light decision,” Coleman said, explaining that the legislature will have to balance the will of the people who voted for the initiatives with the rights of the people who would be affected by them.

Weiser said he, too, is trying to find that balance. 

“It’s important that we recognize sometimes something is passed and it is incomplete,” he said. “It is not administrable.”

He pointed to the passage of Proposition 122 in 2022 as a ballot initiative that the legislature later amended. The proposition allows people 21 and older to grow and share psychedelic mushrooms. It also allowed for state-regulated centers where people could make appointments to consume psilocybin, the hallucination-inducing compound derived from psychedelic mushrooms. 

Finally, Proposition 122 allowed the psychedelic mushroom centers to expand their offering to three other plant-based psychedelics: ibogaine, from the root bark of an iboga tree; mescaline, which is from cacti; and dimethyltryptamine, or DMT, a natural compound found in plants and animals. 

After the measure passed, the legislature passed a bill in 2023 working out the fine print of the measure. 

Lee cautioned the governor-elect to tread lightly. 

“Weiser doesn’t get to celebrate the will of the voters when it puts him in office and disregard that same will when it produces a result he doesn’t like,” she said via text message. “That’s not respecting democracy. That’s attempting to circumvent it.” 

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She added: “The people of Colorado have spoken, and they’ve sent a clear message to our elected leaders: when our legislature fails to represent us on these issues, We the People will come together and take action ourselves.” 

Both propositions 134 and 135, which were only passing with about 52% of the vote on Thursday midday, require additional policymaking in order to function. 

School districts have to create policies for sports teams to follow to comply with the new law on transgender athletes, and the state Department of Education would have to come up with a plan to enforce it.

As for Proposition 135, the measure banning surgeries that change sex characteristics for minors, state officials, doctors and hospitals will have to determine exactly which types of surgeries are now illegal. While proponents focused their messaging on surgeries for transgender youth, the wording of the measure could also apply more broadly to some surgeries for non-transgender minors. Prior to the election, hospitals said they were waiting to see whether the measure passed before analyzing how it would impact them. 

The Colorado Coalition Against Sexual Assault, which fought against Proposition 133, the ballot measure requiring life imprisonment for child sex traffickers, is already asking for legislative intervention. The measure passed easily, with 62% of the vote as of Thursday morning. 

The coalition has argued that victims of trafficking, often coerced by their abusers to recruit others, could end up in prison for life because of the new law. Those issues are typically sorted out in courtrooms, depending on the severity and circumstances of the case. The group said it’s ready to get to work with elected leaders to “shield victims from Prop 133’s harm.”

“We call on the Colorado legislature to protect trafficking victims by passing comprehensive, survivor-centered policies, increasing investments in supportive services and care for victims, and interrupting the economic and social conditions that make children vulnerable to exploitation,” the coalition said in a news release this week.

Advance Colorado, the conservative political nonprofit behind Proposition 132, is more optimistic about how the legislature may respond to the passage of their message.

“If there’s something around treatment, hopefully that means they’re dedicating increased money towards it — and we support that idea, “ said Kristi Burton Brown, vice president of the nonprofit, which doesn’t disclose its donors.

Ultimately, the only way for supporters of a ballot measure to ensure the legislature doesn’t unilaterally undo or change their ideas is to pursue an amendment to the state constitution as opposed to tweaking state law. 

Conservatives took that approach at the ballot this year with a list of initiatives, including ones that would have added a right to natural gas to the state constitution; required  local law enforcement and prosecutors to work more closely with federal immigration agents; and forced voters to add partial Social Security, driver’s license or ID numbers to their mail ballots. 

But getting a measure on the statewide ballot that would amend the constitution is more difficult — there are more stringent voter signature requirements — and passing initiatives adding language to the constitution requires the support of 55% of voters instead of just a simple majority of support.

As of Thursday, Colorado voters were poised to reject every single conservative amendment on the ballot this year. 

Colorado Sun staff writer John Ingold contributed to this report.