Judge rejects request to toss out ballot question | AspenTimes.com

Judge rejects request to toss out ballot question

John Colson

A federal judge Monday rejected an attempt by local anti-rail activist Michael O’Sullivan to invalidate a ballot question facing Aspen voters on Nov. 2.

The ballot item, Question 2-C, will remain a valid part of the overall ballot, and the votes will be counted. Although U.S. District Court Judge Zita Weinshienk’s decision was made on Monday, according to officials of the court, the formal order is not expected to be issued until today.

“It was a long shot,” said O’Sullivan Monday afternoon. “All judges don’t want to get involved in anything that may be viewed as political.”

“The judge wasn’t buying any of it,” countered Mayor Rachel Richards Tuesday evening, referring to O’Sullivan’s motion for a court order or an injunction blocking Question 2-C.

“She said the motion failed to meet any of the tests required for a temporary restraining order to

an injunction,” Richards continued. “She said an injunction would be adverse to the public interest because it would deny the public’s right to vote on the busway.”

Although O’Sullivan, Richards and anti-rail City Council member Tony Hershey all went to Denver Monday hoping to testify, no testimony was allowed.

“I don’t really look at it as a defeat,” said O’Sullivan. “It brings the issue into the foreground, anyway.”

O’Sullivan, through Aspen attorney Dennis Green, filed the suit earlier this month in U.S. District Court in Denver because he believes Question 2-C was placed on the ballot in an effort to confuse the voters and bring about the defeat of another transit-related ballot issue, Initiative 200.

Initiative 200 asks voters to authorize up to $20 million in municipal debt to build a light-rail system between the Pitkin County Airport and the center of Aspen. If the light-rail system is rejected by voters, the question provides for construction of a two-lane highway with two lanes of “phased exclusive bus lanes” as required under a state-sponsored plan for realigning and expanding Highway 82 into Aspen.

Initiative 200 got on the ballot as the result of a petition drive by anti-rail activists, who are now working to defeat the initiative. Question 2-C was placed on the ballot after Initiative 200, when the City Council decided it was needed to give voters an idea of what the bus system will cost, and what it will entail, according to Richards.

Question 2-C asks voters to approve $16 million in city debt to build the busway, complete with new, alternative-fuel buses, improved bus maintenance facilities and an alternative-fueling system, and “bus loading platforms and transit stops along Highway 82.”

“I think it’s an obvious attempt to thwart a simple, up or down vote on the rail,” O’Sullivan said of Question 2-C, which was placed on the ballot with a 3-2 vote by the council.

The two dissenting votes were cast by O’Sullivan’s allies in opposing a light-rail system for Aspen – council members Hershey and Tom McCabe. Voting in favor of Question 2-C were Richards and council members Jim Markalunas and Terry Paulson, all advocates of a rail system.

O’Sullivan, however, maintained the bus system can be improved using $15 million that he said is “already in the bank,” referring to the proceeds of Pitkin County’s dedicated half-penny sales tax.

“That’s not really true,” responded Richards, noting that there presently is only about $6 million in the half-penny coffers and that some of it must be used for other purposes than building a new bus system into Aspen.

Besides, she maintained, studies have pegged the cost of an improved upvalley bus system at $32 million in total, and Question 2-C would provide half of that.

O’Sullivan said he may still pursue legal action against pro-rail forces in the city, backed by “different people that share the same view about rail as I do.” He declined to name his backers.

Richards, however, declared that “the same cast of characters didn’t support the bus proposal in 1994, and they have no commitment to, or vision of, improved, dedicated mass transit now.”

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