A year to the day since the Utah Supreme Court heard oral arguments in a case testing the extent of the Legislature’s ability to gerrymander political boundaries and rewrite voter-approved initiatives, the justices have made their decision and will issue their opinion in the case Thursday.
At the heart of the issue is the lawsuit filed by a the League of Women Voters, Mormon Women for Ethical Government and a group of Salt Lake County voters who contend the Legislature gerrymandered the state’s congressional districts, carving the most populous and liberal county into four safe Republican districts and depriving them of congressional representation.
The redistricting, they contend, flew in the face of the Better Boundaries ballot initiative, approved by voters in 2018, creating a politically independent redistricting commission and attempting to impose guidelines that would prevent the Republican-dominated Legislature from slicing and dicing areas for political advantage.
The Legislature rewrote that law, watering it down to the point where the maps provided unanimously by the independent commission were merely recommendations that the Legislature could ignore the commission and draw the lines as they saw fit.
Attorneys for the Legislature argued in the lower court and before the justices last year that the Constitution vests lawmakers with the power to redistrict and the courts don’t have the power to question or alter the outcome. If voters don’t like the maps, they should vote out the legislators who drew them, the lawyers argued.
If the Supreme Court rules the maps were invalid, they could send the issue back to a lower court or tell the Legislature to redraw the congressional boundaries (the plaintiffs in the suit did not challenge any of the legislative districts). New boundaries could not take effect until the 2026 election.
Utah’s four members of the U.S. House of Representatives quietly submitted a brief to the court last spring asking the court to throw out the lawsuit, adding, they said, “There’s no constitutional right to be free from partisan gerrymandering.”
“From our perspective, we’ve been consistent for over seven years in saying voters should pick politicians, not the other way around,” Katie Wright, executive director of Better Boundaries, said on Wednesday. “We’re hopeful the court comes to the same conclusion.”
But the larger issue that arose during those Supreme Court arguments: Do legislators have the power to fundamentally undo ballot-passed voter initiatives? Or does a provision of the Utah Constitution stating that “All political power is inherent in the people … and they have the right to alter or reform their government” give the courts the power to step in when legislators reverse the will of voters?
Justice Paige Petersen pointed out during arguments last year that, if lawmakers can undo every initiative passed by voters, the constitutional provision giving power to the people becomes meaningless.
“When do the people have the last word?” Petersen asked. “You’re saying they can’t have the last word through the initiative process. People structurally don’t ever have the last word.”
Justice John Pearce suggested that courts could exercise a higher level of scrutiny in instances when legislators fundamentally change a ballot measure that would “alter or reform their government,” as they did in this case.
Should the justices wade into that issue, it could have impacts beyond the gerrymandering lawsuit. In addition to the Better Boundaries initiative in 2018, voters passed two other ballot measures — one legalizing medical cannabis in the state and one expanding Medicaid coverage to more low-income Utahns.
The Legislature significantly altered all three.
If Pearce’s theory prevails, the Legislature may be constrained from taking similar measures in the future.
“It goes back to the accountability issue,” said Jeff Merchant, executive director of the progressive group Alliance For A Better Utah. “When the people have made a decision, does the Legislature have carte blanche authority to go in and undo what was done? I think that is what most people have been concerned about from the beginning with the way the Legislature did this, particularly in the context of something that … is the basis of the people’s ability to select the people they want to represent them.”