The Utah Legislature on Friday asked the Utah Supreme Court for an emergency order putting constitutional Amendment D — which would guarantee the Legislature the right to repeal citizen ballot initiatives — reviving the proposal that a judge ruled Thursday was “void” due to deceptive ballot language.
“People decide elections; courts don’t,” legislative attorneys assert in their petition to the justices.
“A handful of plaintiffs and special interest groups want to squelch that precious right,” they contend. “Without this Court’s intervention, a single district court gets to decide for all Utahns whether their votes for or against Amendment D will count.”
The emergency petition comes in response to a ruling Thursday by 3rd District Judge Dianna Gibson that ruled the ballot language — asking voters if they want to “strengthen the initiative process” and support “clarifying” the powers of the Legislature and the public — was deceptive and would mislead voters into giving up the constitutional right to reform government through the initiative process without the Legislature simply repealing it.
Lawmakers also failed to abide by a constitutional requirement that they publish the text of the proposed amendment in newspapers around the state two months before the election.
“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.”
Gibson allowed the ballots to be printed with the Amendment D language on them, but ordered that votes for or against the measure should not be counted — a move that allowed the state to appeal her ruling without potentially having to reprint the ballots.
Legislative attorneys argue that the ballot language is not misleading because it does “strengthen” the process by prohibiting foreign involvement in initiative campaigns and it is “clarifying” the role of the public in the lawmaking process.
They also contend that the Legislature did instruct the lieutenant governor to publish the amendment as required by law, which, they argue, fulfills the Legislature’s constitutional obligation — even if the amendment was not printed in the papers.
Since the plaintiffs raised the publication issue, the Legislature has purchased space in 35 newspapers across the state where it will print the amendment language, according to a declaration submitted to Gibson Wednesday night. The ads will start running Sept. 16, after the deadline to publish the text.
The Legislature is asking the justices to move expeditiously. “Time is of the essence,” they say, to remove a cloud over the upcoming election.
They want the justices to require the plaintiffs in the lawsuit — the League of Women Voters and Mormon Women for Ethical Government — to respond by Sept. 17 and the court to vacate Gibson’s injunction by Sept. 24, so Amendment D can be included in the voter information guide produced by the lieutenant governor’s office.
Mark Gaber, who is representing the League and MWEG, said, “the district court’s decision was correct.”
“In their rush to transfer power from the people to themselves, the Legislative leadership wrote deceptive ballot language and simply ignored the Constitution’s publication requirement,” he said. “If the Supreme Court decides to hear the appeal, I am confident they, too, will enforce the Constitution.”
The Legislature’s petition sets the stage for an unusual showdown.
The entire reason the Legislature proposed adding Amendment D to the Utah Constitution was to overturn a unanimous decision by the five Republican-appointed justices who ruled this summer that the Legislature could not simply repeal government-reform ballot initiatives without rendering the public’s constitutional right to the initiative process meaningless.
Now the justices will be asked whether to let the Legislature move forward with that effort, despite Gibson’s finding that doing so could trick voters into surrendering any protections for any kind of ballot initiative.
The case stems from a 2018 initiative in which voters, by a narrow margin, said that they wanted to prohibit partisan gerrymandering — the drawing of political boundaries to benefit one party to the detriment of another.
The Legislature repealed the ban in 2020 and the following year adopted congressional maps that split Salt Lake County, among the most liberal parts of the state, into four districts and ensured four safe Republican districts.
The League and MWEG sued, along with several Salt Lake residents impacted by the maps, and the Supreme Court agreed in its July decision, sending the case back to Gibson to decide if the maps should be redrawn.
The outraged Republican-dominated Legislature convened an “emergency” special session and quickly approved putting Amendment D on the general election ballot for voters’ approval, changing the process for such amendments to beat statutory deadlines.
Instead of nonpartisan legislative attorneys writing how the question would appear on the ballot, Republican lawmakers changed the law earlier this year to allow House Speaker Mike Schultz and Senate President Stuart Adams to craft the language — resulting in the wording that Gibson said was so deceptive she enjoined it from moving forward.
“Without transparent, accurate and complete disclosure about the amendments, there can be no meaningful right to vote,” the judge wrote.