For nearly 125 years, Utah citizens have had the right to enact or change laws through the ballot initiative process.
What the future of that constitutional right looks like could be decided in the next few days.
On Wednesday, attorneys for the Legislature will try to convince the Utah Supreme Court to overturn a lower court ruling voiding a ballot measure that would ensure the Legislature’s power to repeal, amend or ignore voter-approved ballot initiatives.
“Plaintiffs’ repeated refrain is that allowing a vote on Amendment D will cause Utahns to ‘unwittingly ... eliminate a fundamental constitutional right that has existed since 1895.’” the Legislature’s attorneys argued in a court filing late Monday. “That presumes something fundamentally untrue about Utah voters, who can read, think, and vote for themselves.”
Meantime, 57 conservative organizations — including the Utah Eagle Forum, Utah Parents United, Pro-Life Utah and the Utah Republican Party and several county parties — issued a statement supporting keeping Amendment D on the ballot, arguing that “raw democracy, simply put, is the tyranny of the majority over the minority that is enabled by the use of ballot initiatives without legislative oversight.”
In July, the Republican-appointed justices of the Utah Supreme Court unanimously ruled that, if legislators can change any law enacted by a citizen initiative, then the entire constitutional right to the initiative process is meaningless. They held that, when it comes specifically to government reform initiatives, the Legislature must have a “compelling” reason to undo the will of the people.
The Republican supermajority convened an emergency special legislative session in August to rush constitutional Amendment D to the 2024 general election ballot, which, if it is approved, would give lawmakers absolute authority to repeal or amend any initiative they see fit, for any reason.
(Chris Samuels | The Salt Lake Tribune) Judge Dianna M. Gibson makes remarks during an injunction hearing in 3rd District Court in Salt Lake City, Wednesday, Sept. 11, 2024, challenging the inclusion of Constitutional Amendment D on the general election ballot.
Despite the actual impact of the amendment, the language that will appear on voters’ ballots asks Utahns to decide if they support amending the constitution to “strengthen the initiative process” and clarify the roles of legislators and the public.
Opponents of Amendment D argued the ballot question is “Orwellian” in that it voting to “strengthen” the process — according to the ballots — would annihilate the public’s ability to change laws and hand over all power to the Legislature.
Third District Judge Dianna Gibson agreed, ruling on Sept. 12 that in order to have a free and fair election, voters can’t be presented with a ballot question that says it does one thing, but would do the exact opposite.
She ordered Amendment D be “void” from the ballot and that none of the votes for or against it be counted.
“Without transparent, accurate and complete disclosure about the amendments, there can be no meaningful right to vote,” Gibson wrote in an opinion then.
Now Republican legislative leaders are asking the Utah Supreme Court to overturn Gibson’s ruling, put Amendment D back before the public, and ultimately, they say, give voters the option — whether they know it or not — to overturn the Supreme Court’s ruling earlier ruling and forfeit protections for the initiative process.
The 57 conservative organizations contend in their statement that, unless Amendment D is passed, the Legislature will be unable to alter ballot initiatives and offered examples of the types of laws that could be enacted — abortion on demand, higher taxes, gun control, recreational marijuana and loosened alcohol restrictions.
Republican legislative leaders have made similar arguments, alleging the Supreme Court created “super laws” with its July ruling that could not be altered by lawmakers.
The Legislature’s own attorneys, however, advised lawmakers in a memo earlier this month that the court’s ruling is much more narrow.
The court’s decision only applies to initiatives that exercise, as the justices wrote, “the people’s reserved right to make corrections to the government they created.” If an initiative does not “alter or reform” government, lawmakers can change it, the legislative attorneys wrote.
Lawmakers can also make changes to “support or facilitate” the reforms and can make other narrow changes if there is a “compelling” government interest, the Legislature’s lawyers wrote.
Summary of Legal Standard After LMV by Robert Gehrke on Scribd
As complicated as the amendment may be, another issue that could determine the outcome of the legal dispute seems more cut-and-dry.
Article XXIII of the Utah Constitution requires the Legislature to have the text of any proposed constitutional amendment to be published in newspapers statewide for at least 60 days prior to the election.
It was not.
After the plaintiffs’ attorneys raised the issue in briefs, the Legislature bought ad space for one day in 35 newspapers — even though the ads ran 10 days after the constitutional requirement.
This piece of the legal arguments could actually hold additional significance.
The Utah Education Association, the state’s largest teachers group, has lodged a similar challenge against Amendment A — which seeks to change the constitution to remove a provision that earmarks income tax revenue to education and social services, letting lawmakers spend the money on whatever they see fit.
Like Amendment D, Amendment A was also not published as required — and nor were Amendment B or C.
(Chris Samuels | The Salt Lake Tribune) Attorney Tyler Green, left, representing the Utah State Legislature, speaks during an injunction hearing in 3rd District Court in Salt Lake City, Wednesday, Sept. 11, 2024, defending a challenge to the inclusion of Constitutional Amendment D on the general election ballot.
Attorneys for the Legislature contend that the text was posted on online government websites — after the 60-day deadline — and by doing so, the state has more or less complied with the publication requirement, rather than publishing it in newspapers that, the Legislature’s attorneys argue, no longer exist.
Because the Utah Supreme Court agreed to hear the case on an emergency basis, the court has scheduled a tight timeframe for the arguments and a ruling could come in a matter of days.
The genesis of the matter before the court is a 2018 ballot initiative that sought to ban partisan gerrymandering — the practice of drawing political boundaries go benefit one party while disenfranchising the minority.
After the measure passed, the Legislature left parts of the law in place while repealing the ban on gerrymandering and then split Salt Lake County — a heavily Democratic area — into four districts.
Several groups and voters in the new districts sued, arguing that the maps deprived them of a vote but also that the Legislature should not have been able to repeal a citizen initiative.
The court agreed and said that if the constitutional right to change the government through the initiative is to mean anything, the Legislature can’t simply repeal it.
Republican leaders were irate and convened the emergency session in August to put the constitutional amendment reversing the court’s decision on the ballot.
They also relied on a law passed earlier this year which lets House Speaker Mike Schultz and Senate President Stuart Adams write the verbiage that will go before voters when they decide whether to approve or reject the constitutional amendment.
It is that language — asking if voters would like to “strengthen the initiative process” — that Gibson ruled was misleading and could deceive voters into surrendering a long-held constitutional right and voided the measure.
