Supreme Court justices seem skeptical of lawmakers’ case to restore Amendment D on November ballot

For more than 90 minutes Wednesday, Utah’s Supreme Court justices peppered an attorney for the Legislature with skeptical questions about why they should revive Amendment D — a proposal to change the Constitution to ensure legislators can repeal ballot initiatives that lower court declared “void” earlier this month.

The arguments hinge on two issues: Did the Legislature comply with a requirement that it publish the text of the amendment in newspapers across the state two months before the election? And does the ballot language written by Republican leaders give voters an understanding of what the amendment would do?

The lower court determined the answer to both questions was “No,” and ordered that the votes for or against the measure not be counted.

Little from the five Republican-appointed justices’ questions Wednesday gave any reason to believe that they were inclined to move in a different direction.

“Why is it that one group’s views are expressed in this summary and why is that ok to have that put in front of voters as they are sitting at the ballot box?” Justice Jill Pohlman asked Meehan.

Taylor Meehan, arguing for the Legislature, said the Legislature, under current law, gets the ability to phrase the ballot language as they want.

”So the Legislature, in its ballot summary, can put a thumb on the scale?” Pohlman asked. “That’s appropriate under the Constitution?”

”I would frame it a little differently …” Meehan responded before Pohlman interjected.

“Do you think it’s not OK for them to put the thumb on the scale?” the justice asked.”

The court cannot invalidate a ballot summary because the Legislature put a thumb on its scale,” Meehan responded, “unless the Legislature did so to such a degree that the” question is contrary to what the amendment does.

She argued that the framers wrote that the amendment needed to be published in newspapers because that was what they had at the time. Today, publishing it online, as the Legislature and lieutenant governor have done, is better than putting it in newspapers, Meehan argued.

“Imagine if the Legislature today did exactly what the plaintiffs say the Publication Clause requires and no more, where the only notice of Amendment D was in hard-copy county newspapers that still exist and nothing online,” she said. “I think plaintiffs would be making exactly the same argument that such conduct in 2024 does not give the notice that the Publication Clause requires.”

And, she argued, claims that voters are being deceived by the ballot language — which asks if they want to “strengthen the initiative process” and clarify the power of the Legislature and the people to make laws — is subjective.

The process is strengthened, Meehan said, by banning foreign influence on future initiatives and the amendment would clarify that the Legislature and the public can make laws. The amendment, she added, would also clear up any uncertainty created by a Supreme Court ruling in July that said the Legislature cannot simply repeal initiatives that reform the structure of government.

Meehan encouraged the justices to find a narrower solution to the problems raised than simply striking Amendment D and taking away the ability for voters to decide the issue.

Chief Justice Matthew Durrant asked Mark Gaber, the attorney representing the League of Women Voters and Mormon Women For Ethical Government, whether it would be enough for the court to “flood the airwaves” between now and the election to help voters understand what they are being asked to vote on.

Gaber said that would not adequately address the problem because not only does the question on the ballot not say what the amendment would actually do — it says the exact opposite. It is impossible to have fair elections, he argued, if the Legislature’s thumb is so heavily on the scales.

Justice John Pearce asked Gaber if he would agree that “it’s not constitutionally healthy for courts to invalidate elections” if there is substantial compliance with the procedural requirements.

Gaber said that may be true if there were technical violations “but we’re so far afield from that here.” The harm to voters if they have to take part in a deceptive election is profound, whereas the harm to the Legislature is that they have to try again in two years, he said.

Earlier in the day, Pearce asked Meehan why coming back again in 2026 isn’t an option.

“I don’t think you can say its no big deal to just have the amendment proposed anew,” Meehan said.

Pearce shot back: “Nobody is saying it’s no big deal. ... I take umbrage at the suggestion the court says its no big deal to punt it for two years.”

The justices did not rule on the arguments Wednesday. They appeared to be more skeptical of Meehan’s arguments, questioning her for three times as long as Gaber, with their inquiries much more pointed.

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.