Utah’s Constitution prohibits gambling. But Republican legislators are rolling the dice by proposing a constitutional amendment that would overturn a Utah Supreme Court ruling and make it clear that they have the power to repeal or amend any ballot initiative they want, past or future.
The proposal is a gamble because past polling has shown overwhelming public support for voters’ right to change laws through the initiative process. Opponents of the amendment are already framing the Legislature’s action as a power grab, aimed at taking away a constitutional right and mute the voice of the people.
That means the job of the Republican legislators will be two-fold: First, to convince the public it’s in their best interest to vote for the amendment and, second, to stave off any electoral backlash that could cost some of the GOP candidates their election. And some Republicans in the GOP supermajority already appear to be hedging their bets.
Former Utah House Speaker Greg Hughes believes lawmakers had to take the risk in order to clarify the law and avoid having the Supreme Court ruling tie their hands in future initiatives — but that doesn’t make what they’re up against now any easier.
“The potential [for political backlash] is absolutely there,” Hughes said. “This is a stick they’re picking up and beating themselves with, but I don’t think they had a choice.”
(Rick Egan | The Salt Lake Tribune) Members of the House of Representatives discuss a constitutional amendment over citizen initiatives in the House during a special session, on Wednesday, Aug. 21, 2024.
Rep. Marsha Judkins, R-Provo, who voted against the proposed amendment, said she thinks the Legislature might face consequences from voters because Utahns value the initiative process.
“I do think it’s risky because the initiatives are a way that people who feel unheard can be heard by the Legislature,” she said, “and I think the people don’t want that right to be taken away.”
The court, in essence, said that there are three branches of government that are meant to balance each other, Judkins said, “but there’s also this fourth branch. That is the people, and they are a check on the Legislature and this [amendment] kind of wipes out that check. And because the people recognize that, it is risky.”
Popular in the polls
There isn’t polling data yet specifically on the new constitutional amendment, but past polling shows massive support for the initiative process and strong opposition to legislators meddling with it.
Earlier this year, the Ballot Initiative Strategy Center reported that 87% of Utahns said the Legislature should be required to enact approved ballot measures passed by voters. Eighty-eight percent said legislators should not block, limit or reverse initiatives and 93% say legislators have an obligation to carry out the will of the people if a majority approves an initiative.
The poll was conducted across many states, so the Utah sample was small — meaning it had a margin of error of 6% — but the Utah figures tracked closely with the sentiments of voters in 10 other states where the questions were also asked.
Another poll conducted last year for AARP — which surveyed residents over the age of 45 — asked if Utahns would support a ballot initiative to prevent future initiatives from being repealed or undone. It found that 75% supported the idea while 7% opposed it.
‘When you’re explaining, you’re losing.’
The Supreme Court’s ruling centered on a 2018 ballot initiative banning partisan gerrymandering, or drawing boundaries to benefit one political party to the detriment of another. The Legislature repealed the gerrymandering ban in 2020 and adopted boundaries the following year that split Salt Lake County into four congressional districts.
Opponents sued, arguing it effectively disenfranchised voters in one of the more liberal areas of the state.
[READ: How Utah lawmakers voted on a constitutional amendment to gut voter initiative power]
The five justices — all Republican appointees — unanimously ruled that, when voters exercise their constitutional right to pass a government reform initiative, the Legislature must give some deference to the will of the people or else the voters’ right becomes meaningless.
Hughes — who now co-hosts a conservative talk show on KNRS — said the ruling left legislators in an impossible spot, unsure if they could ever amend future initiatives, even if they are badly flawed or hamper state budgets. The amendment, he contends, returns things to the status quo before the court ruled.
That said, Hughes recognizes it’s not an easy case to make to the voters, “and in politics, when you’re explaining you’re losing. So it’s a hard issue.”
“But, because [legislative leaders] are aware of it,” he said, “I think they will work very hard to frame this effectively in a way that will have minimal impact on their colleagues in swing districts in Salt Lake County.”
(Francisco Kjolseth | The Salt Lake Tribune) Rep. Trevor Lee, R-Layton, sets up a table as he speaks with delegates before the Davis County GOP Lincoln Day Dinner in Layton, on Saturday, February. 24, 2024.
State Rep. Trevor Lee, R-Layton, who voted for the amendment, said there will be a well-funded pro-amendment campaign, but there still could be political consequences for Republicans in November. He predicts that Democratic gubernatorial candidate Brian King will get a five-point bump in the polls because the constitutional amendment will be on the ballot.
“We’re a little nervous about what it’s going to do in some of our swing districts,” said Lee.
The problem with that assessment, said Adam Brown, a political science professor at Brigham Young University, is that there are so few competitive legislative races, thanks to the way the Legislature drew the districts.
“If an organized, well-funded group takes to the airwaves to fight this amendment as aggressively as they fought for the 2018 initiatives,” he said, I expect the amendment will die a hard death in November.”
“But I’m not sure that means there will be backlash in this November’s elections against legislators who voted for it,” he said. “There are only a handful of legislative districts that are competitive enough that an incumbent’s vote in favor of [the amendment] could tip the vote in the challenger’s favor.”
‘The public perception is not good.’
In most of the Republican-held districts that have been hotly contested in the last decade, GOP lawmakers voted against putting the amendment on the November ballot.
Take state Rep. Steve Eliason, R-Sandy, one of seven House Republicans who voted no. Eliason won his last election by a sizable margin but two years earlier barely pulled out a 77-vote win.
“It was not an easy vote,” he said of his opposition to the amendment.
He said voters should take some comfort in the passage of SB4003, a companion bill to the amendment that says that legislators “shall give deference” to voter initiatives and only amend them in ways that “leaves intact the general purpose of the initiative.”
He recognizes that may not matter.
“I don’t know how many voters will dig into the details of what got us to where we’re at, go back and read the Supreme Court decision like I did, and then read the bills we passed in conjunction with this and try to make an educated decision,” he said.
Of the nine Republicans who voted “No” on the amendment, seven of them were in Salt Lake County, and most were in districts that have been competitive in recent years.
It includes legislators like Rep. Anthony Loubet, who won his Kearns district by 67 votes two years ago, and Rep. Matt MacPherson, who will be running for his first time in a district he was appointed to after Rep. Quinn Kotter resigned eight months into his term. Kotter won the district by 127 votes in 2022.
MacPherson said in a message to constituents explaining his vote that he personally felt like the amendment is right from a policy standpoint. But he voted against it because there was such overwhelming opposition from his constituents.
“I received dozens of calls, emails and texts from Democrats, Independents and Republicans in the district … some cordial, some fiery,” he wrote. “My opinion was that many who contacted me were misinformed about the purpose and effect of [of the amendment], but in the end, I only had one person request a vote in favor of this resolution and its companion bill.”
Asked if he thought there could be blowback for the Republicans in November, he replied, “If the messaging continues to be garbled, of course. I don’t see either side clearly explaining the problem and the potential solution quite right.”
The other Republicans who voted against the amendment were Sen. Wayne Harper, R-Taylorsville; Rep. Jay Cobb, R-South Jordan; Rep. Jim Dunnigan, R-Taylorsville; and Rep. Ray Ward, R-Bountiful.
Harper is up against an independent challenger. Judkins and Cobb are not seeking reelection. Dunnigan doesn’t have a challenger.
Sen. Daniel Thatcher, R-West Valley City, has been the most vocal Republican critic of the amendment, and predicted during the debate on the Senate floor that voters will defeat the amendment in November and it “will give us the biggest black eye we could have as a Legislature.”
Republican lawmakers risk losing credibility, he said, because of “how many times we’ve used special sessions and the supermajority to ram through big ideas and big changes with very little input.”
“Whether you agree or disagree with the action, I hope you can agree the public perception is not good,” he said. “The fallout and impact is a loss of credibility. How many times have we done this and how many times can we do it? How far can we push before voters’ patience breaks?
