Will Amendment D stay on the ballot? Judge set to decide today.

A judge was set to decide by Wednesday night whether to disqualify Amendment D — a proposed constitutional amendment guaranteeing that lawmakers can repeal citizen ballot initiatives — from the ballot. But Wednesday night came and went with no ruling.

Attorneys for the lieutenant governor’s office stressed that time is of the essence, since ballots have to be sent to be printed by Thursday morning in order to meet federal deadlines for getting them to overseas voters — military personnel, LDS Church missionaries, diplomats and others.

3rd District Judge Dianna Gibson should share her ruling today.

During arguments that lasted more than 90 minutes Wednesday, Dianna Gibson pressed lawyers for the state over whether it is inaccurate for ballots to say the amendment would “strengthen the initiative process.” If passed, the amendment would essentially reverse a ruling by the Utah Supreme Court that prevents the Legislature from repealing a government reform initiative without a “compelling reason.”

“Does it give the Legislature more authority with regard to laws that are successfully passed by citizen initiative?” Gibson asked Tyler Green, the lawyer representing the Legislature.

“No, I don’t think it does, Your Honor,” Green replied. “What it does, I think, is what the ballot summary description says, which is strengthens and clarifies the way that the state’s historical representative democracy path and direct democracy path have always been understood to operate.”

But Mark Gaber, arguing for groups trying to have Amendment D disqualified, said a reasonably intelligent voter who reads the ballot question would think that the way the amendment strengthens the process is by putting limits on the Legislature’s ability to undo initiatives.

“It is counterfactual,” he said. “It is 100% false to say that if the voters vote yes on the amendment, state law will be changed to require the Legislature to respect the intent of voters when they pass an initiative. It does the precise opposite of that.”

Gaber also argued that the Legislature failed to meet a constitutional mandate that it publish the text of the amendment in newspapers around the state before the amendment is put on the ballot.

Green countered that the text was available on the Legislature’s website and was added to the lieutenant governor’s website on Monday. He likened the constitutional requirementthat it be published in newspapers to the Second Amendment right to bear arms, which does not apply only to arms that existed when the Bill of Rights was adopted.

Publishing it online, he said, provides substantially the same notice, and he pointed to declarations from voters who said they had read the amendment text online.

The judge asked whether the court can decide that the constitutional mandate for “publication in a newspaper is something other than publication in a newspaper?”

Green maintained that distributing information online “is now firmly and definitively established as part of what it means to be a newspaper.”

But Gaber argued that some Utahns, particularly the elderly, may not be able to easily find the amendment. And since voter guides are no longer printed and mailed to homes, voters may never read the actual amendment before voting — which is even more crucial, Gaber said, because the question presented on the ballot is “entirely false.”

The ballot language in question was written by Utah House Speaker Mike Schultz and Senate President Stuart Adams under a law changed by the Republican legislators earlier this year, which took the job away from the Legislature’s nonpartisan attorneys.

As it is written, the ballots would ask voters if they want to “strengthen the initiative process” by banning “foreign influence” in initiatives and “clarifying the voters and legislative bodies’ ability to amend laws.”

Lance Sorensen, an assistant attorney general representing the lieutenant governor’s office, urged Gibson to let the ballots be printed with the Amendment D language, even if she was inclined to rule that the language is misleading or that the state failed to publish the text of the amendment as required.

That way, he said, if her ruling is appealed and overturned by the Utah Supreme Court, the ballots would not need to be reprinted, which may not be possible given the time crunch. If the ruling is upheld, he said, clerks could simply be instructed to ignore the votes for or against Amendment D.

Republican lawmakers hastily passed the proposed amendment during an “emergency” special legislative session last month to overturn a unanimous July ruling by the Utah Supreme Court. The justices — all Republican appointees — ruled the Legislature must give a degree of deference to a 2018 initiative that prohibited partisan gerrymandering, the practice of drawing political boundaries to benefit one political party at the expense of the other.

Legislators repealed the provision banning gerrymandering in 2020 and adopted the boundaries they saw fit, splitting Salt Lake County, one of the most liberal parts of the state, into four congressional districts.

Supporters of the anti-gerrymandering initiative — the League of Women Voters, Mormon Women for Ethical Government and a number of residents impacted by the split — sued, saying the boundaries were unfair and the Legislature defied the constitutional right of voters to reform their government through the initiative process.

The justices agreed. Their ruling said the Legislature can change initiatives to facilitate the will of the people, but lawmakers need a “compelling” reason to undo a voter-approved initiative. The lower court will determine if the Republican legislators had compelling reasons.

Green argued there were numerous groups — the Utah Republican Party, The Sutherland Institute, Pro-Life Utah and others — who argued the court’s ruling hamstrung the Legislature if it needed to adjust voter-approved initiatives and wanted voters to decide if the Utah Constitution should be amended to ensure the Legislature can repeal or amend any initiative.

In a brief filed with the court Wednesday, Green and the lieutenant governor’s lawyer argued the courts should give Schultz and Adams deference to write the language, that removing the issue from the ballot would be unprecedented, and that the plaintiffs’ objections to the words “strengthen” and “clarifying” are subjective.