“Amendment D is void’: GOP lawmakers’ constitutional amendment won’t be counted in 2024 election

Judge Dianna Gibson on Thursday declared constitutional Amendment D — which guarantees the Legislature can repeal citizen-passed ballot initiatives — invalid, citing its deceptive and misleading presentation on the ballot and the Legislature’s failure to publish the text of the amendment, as required by the Utah Constitution.

“Without transparent, accurate and complete disclosure about the amendments, there can be no meaningful right to vote,” Gibson wrote in a 16-page opinion issued Thursday morning, following 90 minutes of oral arguments Wednesday afternoon.

“Amendment D is void and shall be given no effect,” the judge wrote in her conclusion.

Gibson will, however, let ballots be printed with Amendment D included, but votes will not be counted. That gives the state an opportunity to appeal Gibson’s ruling and, if it is overturned, voters could still end up deciding the matter in November.

An attorney representing the Utah lieutenant governor’s office, which oversees state elections, said that Thursday was the “drop dead” day for ballots to be sent to the printer or risk failing to comply with federal deadlines for sending them to overseas voters, like military personnel, diplomats and missionaries.

“We appreciate the court’s prompt attention and serious consideration of this matter. State and county election officials will move forward as ordered.” Lt. Gov. Deidre Henderson said in a statement Thursday morning.

House Speaker Mike Schultz and Senate President Stuart Adams — the authors of ballot language that Gibson deemed misleading — responded with dismay, saying voters, and not the courts, should decide state policy, and blamed “an out-of-state interest group from Washington, DC, with seemingly unlimited funds” with preventing “Utah voters from voicing their opinions at the ballot box.”

“We will not stop fighting for Utahns. It’s critical we find a path forward that safeguards our state from external influence and keeps Utah’s future in Utah’s hands,” the Republican leaders said, adding they would appeal the ruling to the Utah Supreme Court. “We urge them to undo this wrong and preserve the voices of Utahns.”

[READ: Is foreign influence swaying Utahns’ ballot initiatives?]

Once the state appeals, it will ultimately be up to the Utah Supreme Court justices to decide if the proposed amendment — which was created specifically to overturn their July ruling that insulated government reform initiatives from being repealed by the Legislature — ends up being decided by voters.

If it does not go to voters, it becomes much more likely that the intent of the original anti-gerrymandering initiative targeted in the court’s decision will be restored, and Utah’s political maps will have to be redrawn without consideration of benefitting one party over another.

Mark Gaber, the attorney for the plaintiffs challenging the ballot language, called the decision “a win for Utah’s citizens.”

“Proposed Amendment D was yet another unconstitutional move by the legislature designed to overrule the will of the voters and consolidate power,” Gaber said in a statement. “This decision will help preserve the balance of power in Utah and reaffirms the primacy of the constitution in all matters of governance. ... This outcome is a direct result of the Legislature’s rush to take power for itself while ignoring the constitution and the voters.”

The issue stems from a 2018 ballot initiative approved by voters that sought to create an independent redistricting commission and to prohibit drawing political maps based on partisan gerrymandering — the practice of creating boundaries that benefit one party to the detriment of the other.

In 2020, Republicans in the Legislature passed SB200, rewriting the voter-approved initiative and removing the ban on gerrymandering. The following year, lawmakers adopted congressional districts that split Salt Lake County, one of the most Democratic areas of the state, into quarters.

The League of Women Voters, Mormon Women for Ethical Government and several voters impacted by the split sued, saying that diluting the Democratic voting bloc meant they had no meaningful representation in Congress and that the court violated citizens’ constitutional right to the initiative process when they repealed the will of the voters.

In July, a unanimous Utah Supreme Court agreed, with the five justices, all Republican appointees, ruling that the initiative access becomes meaningless if lawmakers can simply undo anything they want. The justices said legislators can tweak initiatives to facilitate the will of the people, but legislative changes to government reform initiatives must be narrowly tailored and serve a “compelling” state interest.

[Read: Why a Utah judge ‘declared void’ a proposed amendment to let lawmakers repeal ballot initiatives]

Gibson has been asked by the plaintiffs to force the Legislature to adopt new maps that adhere to the ban on gerrymandering.

Republican legislative leaders were outraged by the Supreme Court’s July ruling, and last month GOP members called themselves into an “emergency” special session to hastily adopt a constitutional amendment to go to voters for approval or rejection in November that overturns the court’s ruling and gives legislators the power to undo any citizen ballot initiative, past or future.

And under another law passed earlier in the year, Republican House Speaker Mike Schultz and Senate President Stuart Adams were able to craft the ballot language, rather than nonpartisan legislative attorneys.

“Amendment D was a deceptive power grab written by two leaders of the Legislature,” Ryan Bell, a board member with Better Boundaries, which backed the anti-gerrymandering initiative, said in a statement Thursday. “Amending our founding document should never be shrouded with misleading language and rushed in this fashion.”

‘Put their thumb on the scale’

The verbiage they adopted asks voters if they want to “strengthen the initiative process” by banning foreign involvement in initiatives and “clarifying” the roles of voters and the Legislature in making laws.

Along with the proposal, Republican lawmakers also passed a pair of companion bills — one giving citizens 60 days rather than 40 to gather signatures for a referendum (when the public tries to undo a law passed by the Legislature), the other saying lawmakers must give “deference” to the intent of a ballot initiative.

Gaber, the attorney for the League and MWEG, told Gibson Wednesday that the language of the amendment has one purpose — to undermine the initiative process — and that intelligent Utahns who only read the ballot language would be tricked into voting to give up their initiative rights.

The companion bill, particularly the one about giving deference to initiatives, is equally misleading, Gaber said. As it is written, the Legislature gets to decide for itself what the intent of the initiative is, it only must give deference during the general session immediately following the passage of an initiative, it does not apply to special sessions, it does not apply to budgetary issues and, at the end of the day, it cannot override the constitutional amendment that would give legislators unconstrained power to repeal or alter initiatives.

Gaber argued it is included as yet another way that legislators “put their thumb on the scale” to coerce voters into voting against their own interests.

The deceptive language, they argue, is even more egregious since the Legislature failed to publicize the ballot as required in Article XXIII of the Utah Constitution, which requires the full text of the amendment to be published in newspapers across the state.

Tyler Green, former state solicitor hired to represent the Legislature, argued Wednesday that the text was posted online on the lieutenant governor’s site this week and that, even though it is not a newspaper, the digital posting checks the box.

Also, in a filing late Wednesday night, attorneys said the Legislature submitted a declaration by Abby Osborne, chief of staff for the House of Representatives, who said the Legislature had bought space in 35 Utah newspapers to publish the text of Amendment D next week — which will at that point be at least 11 days after the constitutionally mandated deadline.

Gibson was not swayed by that gesture. She said the publication requirement is mandatory and there was no case made by the Legislature that the after-the-fact publication substantially satisfies the constitutional directive.

“Given Utah’s rules of constitutional construction,” she wrote, “it is unclear how the court could interpret ‘newspaper’ to mean an ‘on-line website.’”

In her declaration, Osborne noted that, to her knowledge, it was the first time the Legislature had published the text in newspapers, meaning three other constitutional amendments on the November ballot have also not complied with the constitutional mandate to print the text of any amendment before it is submitted to voters.

“The people of Utah are entitled to an accurate summary of any proposed constitutional amendment that impacts their fundamental rights and they are entitled to the constitutionally required notice by publication in a newspaper two months before the election,” Gibson wrote in her ruling. “These requirements are fundamental to the integrity of our democracy.”

Democratic leaders in the Legislature issued a statement thanking the plaintiffs, saying that “by defending voters’ rights in court, they have played a vital role in protecting our democracy.

“While the Republican supermajority claims this decision undermines the people’s ability to decide on the amendment, they ignore their own role in distorting the process,” said Senate Minority Leader Luz Escamilla and House Minority Leader Angela Romero, both of Salt Lake City. “Their manipulation of the wording, failure to publish the amendment as required, and withholding critical information, have deliberately obstructed a fair and transparent vote.”

‘I would have done some things differently’

Incumbent Republican Gov. Spencer Cox has refused to answer directly if he’ll vote for the proposed amendment.

At the first and only debate between gubernatorial candidates on Wednesday night, Cox, when asked his position on Amendment D, said, “If I could have written it, I would have done some things differently. I think on balance, it’s worth supporting, but it’s close.”

Democratic Rep. Brian King, the former Utah House minority leader, and Libertarian J. Robert Latham said directly that they’d vote against the proposal. During the debate, King called Cox a “lapdog for the most extreme and the most divisive voices in the Legislature.”

Some lawmakers in the GOP supermajority worry Amendment D will rally voters against Republicans because polling suggests there is large public support for voters’ right to change laws through ballot initiatives.