A week after a Utah judge disqualified Amendment D — which would ensure the Legislature the power to repeal ballot initiatives — from the ballot, the Utah Education Association is asking that Amendment A, seeking to erase a constitutional guarantee that income tax revenue would fund public schools, be tossed out as well.
As was the case with Amendment D, the UEA argued in a motion filed Wednesday that the question that voters will be asked to vote on in November doesn’t make clear that the amendment would eliminate the 93-year-old earmark.
“It seeks to mislead Utah voters by implying that education funding will be preserved when in fact the Amendment eliminates the constitutional safeguard for that funding,” the suit states.
Currently, Utah’s income tax revenue is earmarked exclusively for three purposes: public education, higher education and services for children and people with disabilities. That revenue — an estimated $8.4 billion for fiscal year 2025 alone — cannot be used on anything else, according to the state’s constitution.
If passed, Amendment A would allow the Legislature to use income tax revenue for a broader range of unspecified “state needs.”
Amendment A would also enshrine the Legislature’s current practices for education spending — a formula that uses enrollment growth and long-term inflation to determine how many dollars schools receive per student each year — and savings into the state’s constitution.
Additionally, if the amendment passes, two companion bills from the 2023 legislative session would go into effect as new laws. One of those would eliminate the state portion of sales tax on food, which is 1.75%. Local governments levy an additional 1.25% sales tax on groceries, which would remain intact.
The other, HB394, “Hold Harmless for Public Education Enrollment,” would ensure that a school’s funding remains the same if student enrollment drops, which it’s predicted to do in the next decade. That law would remain in place for five years, but lawmakers would have the option to extend it for an additional five years.
Here’s how the question will be presented to voters:
“Shall the Utah Constitution be amended to allow income tax money to be used for all state needs and prioritize public education funding for changes in enrollment and inflation? If this amendment is approved, state statute will eliminate the state sales tax on food.”
Attorneys for the UEA argue that the question on the ballot fails to inform voters of the “reality that Amendment A would, if passed, eliminate one of the key constitutional obstacles to that program by allowing the Legislature to divert the currently dedicated income tax revenue to anything it chooses — including private school vouchers.”
UEA attorneys also argue the language “incentivizes” voters to vote “yes” because “the ballot language selectively identifies only one of the pieces of legislation conditioned on Amendment A’s passage — a tax cut that affects all Utah voters.”
Further, UEA attorneys contend the amendment should be disqualified because the Legislature failed to comply with a requirement in Article XXIII of the Utah Constitution, which requires the text of any constitutional amendment to be published in newspapers around the state 60 days before the election.
“What we saw in constitutional Amendment D, we recognized right away when they filed a lawsuit that we had a similar argument [with Amendment A,]” UEA president Renée Pinkney told The Salt Lake Tribune. “Amendment D was described as ‘deceitful’ and meant to confuse. And we believe that the lack of a complete explanation in constitutional Amendment A is leaving out really important information that voters need to rely on to make a decision.”
The motion was filed as a supplemental complaint to a lawsuit the UEA initiated in May, which argues the state’s $82 million “Utah Fits All” school voucher program is unconstitutional for using income tax dollars to fund vouchers.
UEA attorneys explained that Amendment A relates to the constitutionality of the voucher program, which is why the motion was filed as a supplemental complaint.
Along with the original defendants in the lawsuit — Gov. Spencer Cox, Attorney General Sean Reyes, and the Alliance for Choice in Education, the organization hired by the state to manage the voucher program — the complaint introduces four additional defendants: Lt. Gov. Deidre Henderson, The Utah State Legislature, House Speaker Mike Schultz and Senate President Stuart Adams.
Schultz and Adams were responsible for writing descriptions of all of the amendments on voters’ ballots. Previously, writing those descriptions had been the job of nonpartisan legislative attorneys, but lawmakers changed that earlier this year.
None responded immediately to requests for comment from The Tribune.
UEA attorneys have moved for an expedited hearing on the complaint and hope Judge Laura Scott issues a ruling before Oct. 15, when the majority of ballots will be mailed to voters.
“We are hopeful that constitutional Amendment A will be invalidated,” Pinkney said.
Coalition launches campaign against Amendment A
Just hours after news of UEA’s complaint surfaced, the organization announced that Utahns for Student Success, a bipartisan coalition of educators, parents and child advocates, will be launching a campaign urging voters to oppose Amendment A.
The coalition includes the Utah PTA, Voices for Utah Children, the Utah School Employees Association and the UEA.
“What quality of education will remain if we continually drain public education resources?” said Utah PTA president Corey Fairholm at a news conference Thursday. “Public schools are held accountable for ensuring all children have access to high-quality education. Private and religious schools, by contrast, are not subject to those same standards.”
Mike Evans, president of the Utah School Employees Association, argued that passing Amendment A could result in pay cuts for education support professionals — non-faculty staff essential to the daily operations of schools — who are already underpaid.
“Constitutional Amendment A threatens to [exacerbate] this issue by limiting resources to our public schools and, in turn, for education support professionals,” Evans said. “This amendment sends a message that our work is not valued. … It undermines the stability of our education system at a time when we should be doing everything possible to invest in our schools.”
Proponents of the amendment argue that it would actually ”protect” public education spending by embedding a “funding guarantee” in Utah’s constitution. Currently, that guarantee exists in statute, which lawmakers can change at any time.
However, Moe Hickey, executive director of Voices for Utah Children, argued Thursday that Utah has continually ranked among the lowest in the nation for its per-student spending. Combine that with three consecutive years of income tax cuts and “the math doesn’t add up,” he said.
“We should actually be looking at raising the income tax in Utah to meet the needs of our communities,” Hickey said. “Because what’s happened is, right now, we’ve cut the income tax, we’re shifting this money around, trying to make it work, but I would almost bet that most of the people in this room have seen an increase in their local property tax this year. It has to give somewhere.”
Hickey added that it is “disingenuous” for lawmakers to make Utahns feel like they must choose between passing Amendment A and reducing grocery costs.
“Why can’t that be a standalone action?” Hickey said. “I would suggest people not fall for the trap of feeling like they have no choice. … The sales tax can be addressed, and has been addressed, as a legislative issue for years.”
The Utahns for Student Success campaign will involve political ads and other measures to educate the public about Amendment A, Pinkney said.
Gov. Cox addressed the announcement of the coalition’s campaign early Thursday during his monthly news conference.
Amendment A, Cox said, is “a good idea because it gives us the flexibility that we need then to fund government as a whole. … The idea of the earmark and all of that money going directly to education funding has never worked the way it was intended to work. And so instead of, I think, keeping up that charade, what we should do is actually put some protections in place, which we’ve done via legislation to make sure that we’re getting more funding to our schools.”
Income tax revenue is the state’s largest revenue source, accounting for 35% of all state and local taxes. Utah is also one of just eight states that has a portion of its income tax revenue earmarked for education, according to the Kem C. Gardner Policy Institute.
Utah lawmakers currently rely on sales tax revenue, allocated to the state’s general fund, to finance most state priorities, including Medicaid, transportation and public safety. By broadening the use of income tax revenue to include “other state needs,” they hope for more budget flexibility.
(Chris Samuels | The Salt Lake Tribune) Plaintiff counsel during an injunction hearing in 3rd District Court in Salt Lake City, Wednesday, Sept. 11, 2024, challenging the inclusion of Constitutional Amendment D on the general election ballot.
Jude ruled Amendment D void
Based on similar arguments brought by opponents of the ballot initiative amendment, 3rd District Judge Dianna Gibson ruled last week that votes for or against Amendment D should not be counted, because the ballot language would deceive voters into believing the proposal would “strengthen the initiative process” rather than weakening it and because the Legislature failed to comply with the constitution’s Publication Clause.
The Legislature has filed an emergency appeal of that ruling with the Utah Supreme Court. A hearing on that appeal is scheduled before the justices next week.
On Thursday, the attorneys for the plaintiffs in the ballot initiative case — the League of Women Voters and Mormon Women For Ethical Government — filed their response to that appeal, arguing that Gibson got the ruling right and that the information on Utahns’ ballots is so misleading it deprives voters of “the most fundamental thing needed to meaningfully vote — what it is the people are actually voting on.”
“A voter would think Amendment D strengthens the people’s initiative rights by requiring the legislature to respect the purpose of initiatives,” they wrote. “In fact, Amendment D weakens the people’s initiative rights by eliminating the legislature’s obligation to respect the purpose of government reform initiatives.”
Because the language is so deceptive and the Legislature failed to publish the full text in newspapers, as the constitution requires, the attorneys argue, “no constitutional vote on the amendment is possible this election cycle, and the public interest favors voiding proposed Amendment D.”
In a declaration filed last week, the chief of staff for the House informed Gibson that the Legislature had purchased space in 35 newspapers around the state in order to publish the text of four proposed constitutional amendments on the November ballot. The ads began running this week but, as Gibson noted in her ruling, that still did not meet the constitutionally required deadline.
Amendment D was proposed in response to a unanimous ruling in July by the Republican-appointed Utah Supreme Court that held Utahns have a constitutional right to reform government through the ballot initiative process. By repealing part of an initiative that sought to ban partisan gerrymandering — drawing political boundaries to benefit one party while disenfranchising another — the Legislature had violated that right, the court ruled.
The Legislature called an emergency special session in August to put the amendment on the ballot to overturn that ruling and make clear the Legislature can repeal or amend any initiative it sees fit.
