Tomorrow is election day in some parts of the country. Most political analysts are keeping a close eye on Virginia’s gubernatorial race, seeing it as a mini-referendum on the presidency of Donald Trump.
But there are other interesting races as well. One of them is taking place in Douglas County, Colo., where a school board election has attracted national interest.
If the name of that county sounds familiar, it’s for a good reason. Americans United and its allies have been litigating against vouchers there over the past few years. About seven years ago, Douglas County’s school board fell under the sway of a right-wing faction that began promoting a school voucher plan.
Under federal law, tax-exempt nonprofits are not permitted to endorse or oppose candidates for public office.
The original plan, passed in 2011, euphemistically dubbed the “Choice Scholarship Program,” made up to 500 students eligible to receive $4,575 each in taxpayer funds to attend private schools, most of which are religious, during the 2011-12 school year.
Americans United, the Colorado branch of the American Civil Liberties Union and the law firm Arnold & Porter filed suit against the plan on behalf of local parents and taxpayers. Colorado’s supreme court struck it down in June 2015.
But the board won’t give up and has asked the U.S. Supreme Court to review the matter. The issue remains unresolved. In June, the U.S. Supreme Court issued a ruling in a case called Trinity Lutheran Church v. Comer that dealt with government’s ability to fund ostensibly secular programs at religious organizations. It asked the Colorado Supreme Court to review its ruling in the Douglas County case in light of the Trinity Lutheran decision.
The Douglas County board is currently divided 4-3 on the voucher issue, and four seats are up for grabs tomorrow. Given this close split and the possibility that if the board shifts to an anti-voucher majority it will end the program, pro-voucher groups are pouring money into the race.
The state’s Roman Catholic hierarchy has also weighed in. Bishop Michael Sheridan of Colorado Springs issued a letter on Sept. 26 (just before early voting began) that was designed to boost the pro-voucher slate.
“Next month the citizens of Douglas County will cast their ballots in a very important school board election,” read the letter. “This election will impact the future of parental choice in education, not only for those living in Douglas County, but for those across the State of Colorado.”
The letter continued, “As you start receiving your ballots in the mail this month, I ask that you implore the Holy Spirit to help guide you as you decide who will best protect and expand parental choice in Douglas County. Studies have shown that educational choice programs lead to better schools and improve the educational outcomes of children who are part of those programs.”
(Actually, studies don’t show that at all.)
Sheridan’s letter was inserted into church bulletins, and the Colorado Catholic Conference produced a “voter guide” focusing exclusively on the voucher issue in Douglas County and urging people to vote in favor of the plan. Given that the voucher scheme itself is not on the ballot – this is not a referendum question – that can only be interpreted as a command to vote for the candidates who support it.
That’s a problem because a federal law known as Johnson Amendment forbids tax-exempt nonprofits from intervening in elections by endorsing or opposing candidates. While churches and nonprofits can engage in issue advocacy, the Internal Revenue Service has made it clear that tying such advocacy to candidates is a violation of the law. (In other words, saying “vote for candidates who are for vouchers” is the same as saying, “vote for Sen. Jones because he’s for vouchers” – both are an illegal form of campaign endorsement.)
The activities by church officials in Colorado are questionable, to say the least, as they appear to be an effort by a tax-exempt nonprofit entity to affect the outcome of an election by encouraging church members to support a certain slate of candidates.
If you’re a regular reader of this blog, you know that the Johnson Amendment is under attack by Trump and in the House of Representatives. Americans United is working to protect it. If House Republicans ram through a change anyway, the situation in Douglas County could be just a taste of things to come.