Votes for a constitutional amendment hastily crafted by Republican leaders in the Legislature will not be counted this fall after the Utah Supreme Court ruled Wednesday night that lawmakers did not meet the constitutional threshold to send the proposal to voters during the general election.
If passed by voters, the amendment would have empowered lawmakers to repeal or amend any voter-approved ballot initiative.
In their decision, the justices upheld a lower court ruling that the language that Republican legislative leaders lawmakers put on the ballot was likely to deceive voters and that the Legislature failed to comply with a constitutional requirement that the amendment be published in newspapers across the state.
In a short, four-paragraph, unsigned order following more than three hours of oral arguments earlier in the day, justices said the lower court was correct in its decision earlier this month.
“The district court correctly ruled that neither constitutional prerequisite was met with respect to Amendment D,” the justices wrote Wednesday night. “The Legislature did not cause the amendment to be published in newspapers throughout the state for two months, and the description that will appear on the ballot does not submit the amendment to voters ‘with such clarity as to enable voters to express their will.’”
“Although the voters should have the opportunity to decide whether Amendment D strikes the correct balance between the people’s direct legislative power and that of their elected representatives,” they wrote, “the public interest requires that constitutional amendments be submitted to voters in the way mandated by the supreme law of the state embodied in the Utah Constitution.”
Earlier this month, a district court ruled that the proposed ballot question for Amendment D was “counterfactual” and would make it impossible to have a fair election on the matter. Judge Dianna Gibson 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.
During arguments before the state’s high court Wednesday, justices appeared skeptical of lawmakers’ argument that the ballot language written by House Speak Mike Schultz and Senate President Stuart Adams was appropriate for voters’ ballots.
“The Court’s action is unprecedented and troubling,” Shultz and Adams said in a statement Wednesday night. “The Legislature offered the Court a way to preserve the voting rights of all Utahns, but instead, the Court took the chance to vote on Amendment D out of the voters’ hands. It’s a sad day for Utah and voters, whether for or against the constitutional amendments.”
[READ: Utah’s Amendment D was voided. Will Amendment A meet the same fate?]
Amendment D’s opponents, who were confident of the outcome following Wednesday’s arguments, praised the court’s decision.
“The Utah Supreme Court upheld a fundamental principle that never should have been in doubt — the government must honestly present the questions voters are asked to decide,” Mark Gaber, the attorney representing the plaintiffs said in a statement. “The Utah legislature failed at every step in this process and voters will now see their constitutional rights affirmed.”
“The court has now issued two unanimous decisions upholding the right of the people to pass initiatives without intrusion or correction by the legislature,” Better Boundaries board member Ryan Bell said in a statement. “Today’s decision goes further, holding that the ballot language authored by legislative leadership seeking to push through its hasty amendment was too confusing to even place before Utah’s voters.”
The justices’ decision is likely to have impacts beyond the proposed change to the constitution’s ballot initiative language since it was rooted, in part, in the Legislature’s failure to comply with Article XXIII of the Utah Constitution, which requires the publication of the full text in newspapers across the state at least two months before the measure goes on the ballot.
None of the four amendments that have been put on the 2024 ballot complied with that requirement and one — Amendment A, which would remove a constitutional earmark that income tax dollars be spent on education and social services — is being challenged on similar grounds by the Utah Education Association, the state’s largest teachers organization.
“That’s appropriate under the Constitution?”
Justices were skeptical throughout the hearing Wednesday, peppering the Legislature’s lawyer, Taylor Meehan, with a barrage of questions.
“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.
Meehan countered that 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” ballot language is contrary to what the amendment actually does.
Chief Justice Matthew Durrant seemed to be looking for options other than invalidating the proposed amendment, asking Gaber — who represented 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.
And the harm the Legislature could have suffered, Gaber said, was the Legislature’s fault.
“The harm was caused by the Legislature for having rushed … the legislative process,” he said. “It was caused by the Legislature changing who writes the ballot language, it was caused by the Legislature waiting until the last day” to release the ballot language.
SCOUT Amendment D Opinion by Robert Gehrke on Scribd
