Has a clumsy sentence kept “slavery” in the Colorado constitution?

An election recount could be underway soon in Colorado about a ballot initiative seeking to redefine the presence and meaning of the word “slavery” in that state’s constitution.

As of Thursday, the Yes-No vote on a referendum seemed too close to call. And some critics were blaming confusion over a one-sentence referendum question as prolonging the vote.

Back in 1876, Colorado voters approved the only constitution in that state’s history, just months before President Ulysses S. Grant declared the territory as the 38th state. The state’s constitution’s drafters, aware of the pre-Civil War debate in the territory, included a direct reference to the 13th Amendment of the United States’ Constitution, which banned slavery in the United States.

The first part of the 13th Amendment, as ratified in 1865, reads as follows: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Colorado incorporated similar language in its original constitution, even though slavery was outlawed nationally by the 13th Amendment. Section 26 of the Colorado constitution reads as follows: “Slavery prohibited. There shall never be in this state either slavery or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted.”

And so that language has remained in the Colorado constitution since. This year, the troublesome section met its match on several fronts. Organized groups wanted the word “slavery” in the state constitution redefined so that it wasn’t acceptable under any circumstance. Another group wanted the redefinition to clarify that inmates held in privately operated prisons couldn’t be forced to work without pay.

The proposed amendment would eliminate the last clause of the current Section 26, to read, “There shall never be in this state either slavery or involuntary servitude.”

The change met with unanimous approval in Colorado’s state Senate and House, and in the local media. The Denver Post editorial board agreed with state Rep. Jovan Melton, one of the three sponsors of the amendment. “We agree with Melton that that kind of exception to slavery sends the wrong message, including how we treat and value the lives of those being held in custody,” the Post said. “Words matter especially to African-Americans, Melton said, and those words are dehumanizing.”

The measure was placed on the November 8 general election ballot in the state, but with the following language: “Shall there be an amendment to the Colorado constitution concerning the removal of the exception to the prohibition of slavery and involuntary servitude when used as punishment for persons duly convicted of a crime?”

As of November 16, the No votes led the Yes votes, by about 26,000 votes out of 2.5 million votes cast, and a No vote would defeat the proposed amendment.

Richard B. Collins, a University of Colorado law professor, told the Post that is was possible that people were confused about the wording and cast a No vote to indicate their opposition to any pro-slavery language.

“The 13th Amendment is still there, and there’s no move to change it,” Collins said. “But whenever people don’t understand something, they vote ‘no.’ That’s a given.”

Rep. Joe Salazar, another legislation sponsor, told the Durango Herald that the language was a problem, based on conversations he had with voters.

“They said that it was very confusing,” he said. “When they said they voted ‘no’ on Amendment T, I explained to them what Amendment T was about ... They were like, ‘That’s not how it read.’”

Colorado’s secretary of state will need to determine by December 8 if a recount is in order for the ballot measure. If not, the amendment could reappear in a future election, in a plain-English form, observers said.