The Utah Supreme Court is hearing arguments today on whether votes for or against Amendment D — a proposed constitutional amendment that would enshrine the Legislature’s ability to repeal or amend voter-approved ballot initiatives — should be counted in November’s general election.
Utah District Judge Dianna Gibson has already ruled that the ballot question’s language — written by Republican legislative leaders — was “counterfactual” and had lawmakers failed to meet a mandate in the Utah Constitution requiring all amendments to be published in newspapers well ahead of the election.
Republican lawmakers have appealed that decision to the Utah Supreme Court, which is hearing arguments today.
This story is breaking. Robert Gehrke is reporting live updates from the Utah Supreme Court hearing.
11:50 p.m.
The Supreme Court justices asked questions of arguments made by Legisalture’s attorney for around 100 minutes Wednesday morning. After concluding the back-and-forth, the hearing took a short break.
Most of the discussion between the justices and attorney Taylor Meehan has not been about whether the language on the ballot is misleading or not, but focused on whether it is misleading enough that Amendment D should be invalidated.
11:25 a.m.
Moving on, Justice Diana Hagen asks Taylor Meehan, “Is there some requirement that [the ballot language] be accurate, adding she assumes the attorney wouldn’t say it can be counterfactual.
“We are all here for accuracy ...,” the legislature’s attorney responded. “I’m going to have a different view than my friend on the other side.”
She said a reasonably intelligent voter could understand that, as legislative leaders wrote, the amendment would strengthen the initiative process by banning foreign influence and clarifying the roles of lawmakers.
This leads Justice Pearson to ask about the specific consequences of this amendment.
“Now, there’s constitutional protection,” Pearson says of Utah’s current ballot initiatives process. He tells Meehan that Amendment D would remove that protection and asks where in the ballot summary are voters told they’re giving up that protection.
The effects of the amendment are speculative, Meehan responds.
10:45 a.m.
Meehan argues that instead of meeting the constitutional deadline to publish the amendment in newspapers, the Legislature can “substantially comply” with the requirement to publish in newspapers two months ahead of the election.
“I find the term substantial compliance a little confusing,” Justice John Pearce says. “To me, it is binary — either you complied or you did not.”
Justices and the lawmaker’s attorney continued to debate the premise of substantial compliance, with Meehan adding they’re in uncharted territory because this issue has not come up in the past.
10:20 a.m.
Early Wednesday morning, the Utah Supreme Court justices seemed skeptical of the argument by legislative attorneys.
Taylor Meehan, arguing for the Legislature, said the publication requirement in Article XXIII is about notifying the public, which she said the Legislature did when it published the text of the amendment on the legislature and lieutenant governer’s websites, and then later when it purchased — after the constitutional deadline — ad space in 35 Utah newspapers.
That goes beyond the constitutional requirement, she argued, and suggested that if the Legislature only published it in newspapers and not online, plaintiffs could be making the same argument that the public hadn’t been given adequate notice.
She told the justices the district court decision went overboard and voters should decide on Amendment D this fall.
Justice Jill Pohlman said the Utah Constitution gives specific instructions. Had the Constitution said “provide notice,” Pohlman said, it’d be more of a principle, but the language is precise.
How we got here
The showdown stems from a 2018 ballot initiative, Proposition 4, which sought to ban partisan gerrymandering, or the practice of drawing political maps to favor one party while disenfranchising the minority party, which voters narrowly passed
The Republican-led Legislature repealed the provision banning gerrymandering and adopted maps that split Salt Lake County, and its majority Democratic voters, into four congressional districts.
The League of Women Voters, Mormon Women for Ethical Government and several voters impacted by the split sued, arguing that by overturning the ballot initiative Republican lawmakers effectively deprived Utahns of the right to change laws through the initiative process.
The Utah Supreme Court agreed, unanimously ruling in July that the constitutional guarantee that citizens can “alter or reform” government becomes meaningless if any initiative can be repealed by lawmakers. They also said the Legislature can change government reform initiatives — it can help to implement the voters’ will or, if there is a “compelling” state interest, it can repeal or impair the effort — but generally must give deference to the intent of voters.
Republican legislators were outraged, arguing the Supreme Court had created “super laws” that could never be changed. In August they called themselves into an emergency special session to put Amendment D on the November ballot, making explicit in the Constitution that the Legislature can repeal or amend any initiative it wants with no limitation.
Republican leaders — House Speaker Mike Schultz and Senate President Stuart Adams — also crafted the language voters would see on their ballots, drawing on a state law changed earlier this year taking the task away from nonpartisan legislative attorneys. It asked voters if they supported an amendment to “strengthen the initiative process” and clarify the respective powers of the Legislature and the public.
Plaintiffs said that language is deceptive and “Orwellian,” and that the amendment would do the exact opposite — tricking voters into giving up the constitutional right to the initiative that has been in place in Utah for nearly 125 years.
Third District Judge Dianna Gibson agreed, ruling that the ballot question was “counterfactual” and would make it impossible to have a fair election on the matter. She also held that the Legislature had failed to meet a mandate in Article XXIII of the Utah Constitution that requires all constitutional amendments to be published in newspapers across the state.
As a result, she ruled that while Amendment D would be printed on the ballots, the votes for or against it should not be counted.
The Legislature appealed to the Utah Supreme Court, reiterating that the language is not misleading and that the amendment would “strengthen” the process because it would attempt to ban foreign interests from being involved in initiative campaigns — although there is no evidence that any foreign entities ever had.
They also said the Legislature had effectively met its obligation to have the amendment language published by directing the lieutenant governor to do so. The text was put on a state website after the constitutional deadline and ran in newspapers later.
If the justices decide to revive Amendment D, voters could essentially overturn the court’s July ruling.
However, if justices rule the amendment should remain “void” because of the failure to publish the language, it may also impact Amendment A, which the Utah Education Association, the state’s largest teachers group, has already asked to be disqualified from the November ballot. They argue, the ballot language is also misleading and the text of the amendment was not published until after the constitutional deadline.
And, if the high court refuses to bring back Amendment D, the original language in the anti-gerrymandering ballot initiative could be restored, requiring new maps to be drawn, not just for the congressional district, but for legislative and school board districts, as well.
