Utah’s new state flag draws lawsuit threat

The group wanting to remove Utah’s new state flag from poles across the Beehive State is now demanding that Lt. Gov. Deidre Henderson, the state’s top elections official, ignore Utah laws and give them more time to put the issue on November’s ballot. In a letter obtained by The Salt Lake Tribune, opponents of the new flag have threatened a lawsuit if their request isn’t met.

Last year, Utah lawmakers approved legislation to adopt a new state flag, the final step in a process that began in 2019. A small but vocal group of opponents were horrified by the change, claiming it was tantamount to destroying Utah’s heritage. As a compromise, lawmakers approved two official flags for the state - the new flag and the previous banner.

That concession wasn’t enough for opponents, who launched a referendum effort to allow voters to veto the flag change. That signature-gathering effort fell far short of what was needed to qualify for the ballot. Undeterred, organizers launched the “Restoring the Utah Flag” ballot initiative and started collecting signatures to put the issue on the November ballot. The proposed initiative repeals the flag change and requires that voters approve any future alterations to the flag.

When they launched the initiative effort, organizers estimated that as many as one million Utahns opposed the new flag — a bold claim has not been reflected in their signature-gathering efforts, which have been comparatively anemic.

The Are You Listening Yet political action committee (AYLY), the group behind the new ballot initiative, has until Feb. 15 to submit at least 134,298 signatures from Utah voters to put the issue on November’s ballot. That number represents 8% of the current active voters in the state. As of Monday morning, organizers had submitted 76,384 signatures — or 57% of the required amount.

In addition to the statewide total, the effort must meet that 8% signature requirement in 26 of Utah’s 29 state Senate districts. An analysis of the verified signatures by The Salt Lake Tribune shows they’ve crossed that threshold in just one district and are at 80% or more of the total required in three others.

‘Unduly burden Utahns’ right to initiative’

Organizers say they sent a letter to Henderson demanding she agree not to enforce several state laws governing signatures for ballot initiatives they argue are unconstitutional. They also want her to extend the deadline for submitting those signatures by more than five months to Aug. 1.

“These provisions unduly burden Utahns’ right to initiative, and some of them also unconstitutionally abridge freedom of speech and the right to petition the government,” the letter sent to Henderson’s office reads. “Because our clients seek to affect political change by petition and to discuss these changes, those rights are guarded by the First Amendment.”

“A lawsuit would not be limited to the matters discussed here, and AYLY and Mrs. Halvorsen reserve all rights to pursue their case in court if you do not rectify its rights to initiative and free speech,” the conclusion of the letter reads.

Tracie Halvorsen of AYLY says if Henderson does not agree to make the changes they want by the end of this week, they plan to take their quest to court.

“While we remain hopeful for a constructive resolution, it’s crucial to emphasize that our aim is to address pressing issues during the ongoing legislative session,” Halvorsen said in a text message to the Tribune. “The necessary adjustments, including rectifying any unconstitutional delays and extending the deadline, can be easily accommodated.”

A spokesperson for the lieutenant governor’s office said, as of Wednesday morning, they had not yet received AYLY’s letter.

It’s unlikely that Henderson has the authority to go rogue and ignore state law. In December, Henderson agreed to push back the signature deadline for independent candidates from January to March, but that was after Robert F. Kennedy’s presidential campaign sued the state. Utah lawmakers must still approve SB107 to make the date change official. Halvorsen would not say if there was similar legislation in the works to enact the changes they are seeking.

Sen. Dan McCay, R-Riverton, the sponsor of the legislation authorizing the flag change, said he’s ready for the focus to shift away from the flag to more important issues.

“This year, I’m working with my colleagues on energy independence, water development, education, tax reduction, and affordable housing to keep Utah #1,” McCay told The Tribune in a text. “Last year, a thorough public process resulted in Utah having a new flag and keeping the 2011 flag as the historic flag. I understand some people are still disappointed, but the historic flag will continue to fly and always be part of our state.”

‘All avenues within the bounds of the law’

AYLY wants Henderson to ignore several laws that deal with using paid signature gatherers for ballot initiatives. State law says signature gatherers for ballot initiatives can only be paid hourly instead of per signature. They also must wear a name tag indicating they’re being paid to circulate petitions and they must be state residents. Those restrictions do not apply to paid signature gathering on behalf of political candidates.

Those provisions were spearheaded by Rep. Jordan Teuscher, R-South Jordan, in 2021. He says the legislature has a rigorous process to pass legislation, with several checks and balances before a bill lands on the governor’s desk. He says citizen-led efforts to pass legislation should have a similarly high bar to reach the ballot.

“We respect that the public has a path to be able to create laws that don’t have to go through legislative checks and balances. But the restrictions we’ve set up ensure that there is actual support from the public to be able to put something on the ballot. I feel like we have very reasonable and constitutional measures in place around the initiative process,” Teuscher said.

Until now, AYLY’s signature-gathering effort has relied solely on volunteers. Asking Henderson to override the regulations on paid signature gathering suggests the group is prepared to abandon that strategy and pivot to paid signature gatherers.

“While we have received offers from some supporters willing to contribute substantial amounts to cover the costs of signature gathering, we are mindful of legal requirements,” Halvorsen said. “Our adherence to legal guidelines underscores our commitment to a transparent and lawful process. We remain grateful for the tremendous support from our volunteers and the broader community, and we are exploring all avenues within the bounds of the law to advance our initiative.”

The letter to Henderson also complains that by following state laws, election officials have discarded thousands of signatures the group has already submitted. Packets must be turned in within 30 days from the date of the first signature, or the entire signature packet will be invalid. AYLY is demanding that Henderson direct county clerks to review the packets that have been rejected for missing the 30-day deadline and accept any signatures that would have been valid had they been turned in on time.

Even if Henderson were to accept groups of signatures that were turned in after the 30-day time limit, it still wouldn’t be enough to get the initiative effort over the finish line by the Feb. 15 deadline. According to an analysis from Henderson’s office obtained by The Tribune, 65 signature packets have been rejected for being submitted after the 30-day time frame. Those packets contained just 1,980 signatures. Another 12,092 signatures were not verified. If the rejected signatures and those submitted past the deadline were to be added to the total, the initiative would still be nearly 44,000 signatures short of the minimum required.

Utah law gives organizers of ballot initiatives the option of using virtual signature gathering, but they must make that determination at the beginning of the process and AYLY opted against virtual signature gathering.

It isn’t easy to qualify a citizen initiative for the ballot in Utah. It’s only happened 26 times since 1952, and only seven have been approved by voters.

Utah lawmakers may not be done with the flag issue. On Tuesday, Rep. Phil Lyman, R-Blanding, introduced HB436, which duplicates many of the provisions contained in the citizen initiative. Lyman’s bill is still waiting to be assigned to a committee.