dissenting.
The Title Board has a hard job. In order to facilitate the initiative process, the General Assembly assigned duties to the Title Board that include: (1) "designat[ing] and fix[ing] a proper fair title for each proposed law or constitutional amendment, together with a submission clause," § 1-40-106(1), CRS. (2007); (2) "consider[ing] the public confusion that might be caused by misleading titles and ... whenever practicable, avoid[ing] titles for which the general understanding of the effect of a 'yes' or 'no' vote will be unclear," § 1-40-106(8)(b); (8) not permitting "the treatment of incongruous subjects in the same measure," § 1-40-106.5(1)(e)(D), C.R.S. (2007); and (4) acting to "prevent surreptitious measures and appris[ing] the people of the subject of each measure by the title" in order to "prevent surprise and fraud from being practiced upon voters," § 1-40-106.5(1)(e)(I1). See In re Proposed Initiative 1999-2000 # 29, 972 P.2d 257, 260 (Colo.1999) {enumerating the duties of the Title Board).
To comply with this statutory mandate, the Board must balance competing interests. For example, the Board roust assist potential proponents in implementing their right to initiate laws, see In re Proposed Initiative Concerning Drinking Age in Colo., 691 P.2d 1127, 1180 (Colo.1984), while concurrently protecting the voters against confusion and fraud. Likewise, the Board must give deference to the intent of the proposal as expressed by its proponent, without neglecting its duty to consider the public confusion that might result from misleading titles. See In re Proposed Initiative on Unsafe Workplace Env't, 830 P.2d 1031, 1034 (Colo.1992).
However, if the Board cannot comprehend a proposed initiative sufficiently to state its single subject clearly in the title, it necessarily follows that the initiative cannot be forwarded to the voters. Here, the Board determined that it could not set a title for this initiative because it could not comprehend the Initiative. I disagree with the Board in this respect. In my opinion, this Initiative presents only one subject and the single subject is capable of expression in a clear, non-misleading title. However, in my view, the title proposed by the Majority is unclear and misleading. I would therefore remand to the Title Board for the setting of a new title consistent with this opinion.
A. Single Subject
Subsection (1) of Initiative 61 is composed of two sentences. Sentence 1 prohibits the state from discriminating or granting preferential treatment in the operation of public employment, public education, or public contracting to individuals or groups based on their race, sex, color, ethnicity, or national origin. Standing alone, this sentence is readily understandable.
Sentence 2, and in particular its relationship to Sentence 1, is the source of the uncertainty expressed by the Title Board during its hearing, and of its subsequent decision that the Initiative contains more than one subject. I find the confusion expressed by the Title Board over the meaning of Sentence 2 to be overstated. Sentence 2 simply provides that the state may exercise its authority to act (with respect to discrimination and preferential treatment) to the extent that the state's actions are consistent with the United States Constitution, as interpreted by the United States Supreme Court. Sentence 2, read in conjunction with Sentence 1, thus concerns the same subject as Sentence 1-namely Colorado's authority to prohibit or allow discrimination or preferential treatment in the operation of public employment, public education, or public contracting. Thus, I would agree with the Majority in holding that the Initiative presents only one subject.
B. Clear Title
My disagreement with the Majority arises from its reinstatement of the title originally set by the Title Board. In my view, the title suggested by the Majority fails for two reasons. First, the title lacks internal clarity with regard to the relationship between Sentence 1 and Sentence 2. Second, the title *754impermissibly conflicts with the title of Initiative 81, a competing initiative set for the same election cycle. Therefore, I would remand to the Title Board for the resetting of a new title consistent with this opinion.
The standard for evaluating the clarity of titles was first set forth by this court in In re Breene:
It will not do to say that the general subject of [a proposal] may be gathered from the body of the [proposall, for, to sustain the [proposal] at all, it must be expressed in the title.... The matter covered by legislation is to be "clearly," not "dubiously" or "obscurely," indicated by the title. Its relation to the subject must not rest upon a merely possible or doubtful inference. The connection must be so obvious as that ingenious reasoning, aided by superior rhetoric, will not be necessary to reveal it. Such connection should be within the comprehension of the ordinary intellect, as well as the trained legal mind.
14 Colo. 401, 406, 24 P. 3, 4 (1890). In my view, the title originally set by the Title Board does not sufficiently depict the relationship between Sentence 1 and Sentence 2 in Initiative 61. Sentence 2 clearly intends to cireumseribe the broad prohibition on discrimination and preferential treatment contained in Sentence 1. The title does not adequately capture this fact.
Implementation of the clear title standard is made even more difficult in this case because of a competing initiative set for this same election cycle, namely Initiative 31. Section 1-40-106(8)(b), mandates that "[blal-lot titles ... shall not conflict with those selected for any petition previously filed for the same election." We have held that such a conflict exists where the titles fail to accurately reflect the distinctions between the measures, and "voters comparing the titles . would [not] be able to distinguish between the two proposed measures." In re the Proposed Initiated Constitutional Amendment Concerning the "Fair Treatment II", 877 P.2d 329, 333 (Colo.1994).
As noted by the Majority, the first sentences of Initiative 31 and Initiative 61 are identical. Therefore, in order to ensure that voters are able to distinguish between the two measures, it is necessary for the title of Initiative 61 to affirmatively differentiate its purpose from that of Initiative 31. The Title Board should have used language emphasizing that the prohibition found in the first sentence of Initiative 61 is significantly limited by the second sentence of that initiative. Because Initiative 31 contains no such restriction, the limitation goes to the heart of the difference between the two initiatives. Absent such contrasting language, any title set for Initiative 61 would be substantially misleading.
C. Conclusion
Because I find the title proposed by the Majority to be unclear and misleading, I would remand to the Title Board for the setting of a new title consistent with this opinion.
Appendix A
Be It Enacted by the People of the State of Colorado:
Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read:
Section 32. Equal Opportunity
(1) THE STATE SHALL NOT DIS CRIMINATE AGAINST, OR GRANT PREFERENTIAL TREATMENT TO, ANY INDIVIDUAL OR GROUP ON THE BASIS OF RACE, SEX, COLOR, ETHNICITY, OR NATIONAL ORIGIN IN THE OPERATION OF PUBLIC EMPLOYMENT, PUBLIC EDUCATION, OR PUBLIC CONTRACTING NOTHING IN THIS SECTION SHALL BE INTERPRETED AS LIMITING THE STATE'S AUTHORITY TO ACT CcONSISTENTLY WITH STANDARDS SET UNDER THE UNITED STATES CONSTITUTION, AS INTERPRETED BY THE UNITED STATES SUPREME COURT, IN PUBLIC EMPLOYMENT, PUBLIC EDUCATION, OR PUBLIC CONTRACTING.
*755Appendix A-Continued
(2) AS USED IN THIS SECTION, "STATE" MEANS, BUT IS NOT LIMITED TO, THE STATE OF COLORADO, ANY AGENCY OR DEPARTMENT OF THE STATE, ANY PUBLIC INSTITUTION OF HIGHER EDUCATION, ANY POLITICAL SUBDIVISION, OR ANY GOVERNMENTAL INSTRUMENTALITY OF OR WITHIN THE STATE,
Appendix B
An amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting; preserving the state's authority to take actions regarding public employment, public education, and public contract ing that are consistent with the United States constitution as interpreted by the United States supreme court; and defining "state" to include, without limitation, the state of Colorado, any agency or department of the state, any public institution of higher education, any political subdivision, or any governmental instrumentality of or within the state.