After a proposed constitutional amendment that would have given the Utah Legislature free rein to repeal or amend voter-approved ballot initiatives went up in flames earlier this year, Republican lawmakers are weighing how to, in their eyes, keep measures in check.
Nothing is settled upon yet, but options range from raising the signature threshold for ballot measures to requiring 60% approval for some measures.
After the Utah Supreme Court unanimously ruled in July that legislators could not repeal or rewrite voter-passed initiatives, Republican legislative leaders issued dire warnings that Utah would see a tsunami of ballot initiatives fueled by out-of-state money.
Others warned of attempts to legalize recreational marijuana, gambling and expanding abortion.
Lawmakers thought they had solved the issue during a special session in August, where they pushed through Amendment D, essentially reversing the court’s ruling and asserting their power to revise initiatives. But the plan was derailed when the justices struck Amendment D from the ballot, ruling the wording on the ballot was deceptive and lawmakers failed to publish the amendment in newspapers, as the Utah Constitution requires.
Since constitutional amendments have to be ratified by voters in a general election, legislators cannot take another run at Amendment D until 2026, forcing Republican leaders to look for other options to keep control over lawmaking in the state.
Groups considering launching an initiative, meantime, are keeping a close eye on the proposals, knowing that changes in the upcoming legislative session could dramatically impact the outlook for any 2026 initiative effort.
Barbara Stallone, executive director of People4Utah, a group considering an initiative to create open, multi-party primaries with the top two vote-getters advancing to the general election, regardless of party, said her group is “committed to ensuring that Utahns retain their constitutional right to reform their government.”
“Some of the proposals that we have heard about for the 2025 session appear to encroach on those rights,” she said. “We are following all of these proposals closely and will ensure that Utahns’ voices are heard throughout the legislative process.”
(Rick Egan | The Salt Lake Tribune) Sen. Kirk Cullimore, R-Sandy, discusses the constitutional amendment over citizen initiatives after it passed the house and the Senate, on Wednesday, Aug. 21, 2024.
Sen. Kirk Cullimore, R-Cottonwood Heights, the incoming Senate majority leader, told The Salt Lake Tribune that discussions are in the early stages and no plan has been settled upon, several options have been floated.
The simplest tactic would be to increase the number of signatures initiative supporters have to gather to get a question on the ballot. Currently, that number is 8% of the number of registered voters at the time of the most recent election, meaning the number initiative backers will be shooting for will increase to about 148,000, up from the current requirement of 134,298, with specific targets in at least 26 of the state’s 29 Senate districts.
That is assuming legislators don’t push the bar higher.
“Some of those options have been discussed,” Cullimore said. “My concern, without looking into this legally, is if that gets challenged, would the court see that as an undue burden on this [initiative] right?”
If the courts think the Legislature has made it too hard to get an initiative approved, judges could see that as infringing on the public’s right to make law via the initiative process and strike it down. Of the 24 states that allow ballot initiatives, Utah has one of — if not the — most challenging signature requirements according to data from the National Conference of State Legislatures.
Cullimore thinks there might be a better argument for requiring initiatives to win approval in a majority of legislative districts, rather than just a simple majority of voters. The logic, he said, is that for the Legislature to pass a law it needs support from a majority of the members representing their legislative districts.
“That might carry more legal weight,” he said, “and might make the initiative more representative of Utah if there’s a requirement like that.”.
In 2018, when voters approved three ballot initiatives — legalizing medical marijuana, expanding Medicaid for low-income Utahns and creating the non-partisan redistricting commission — all by relatively narrow margins. The Medicaid expansion initiative, which passed 53% to 47%, won support in a majority of legislative districts. The Better Boundaries initiative passed by just a few thousand votes and won a majority in just Salt Lake, Summit, Grand and Carbon counties.
Another option is increasing the percentage of voters that would need to support an initiative from 50% to 60%. Rep. Jason Kyle, R-Huntsville, has previously sponsored legislation to require the 60% threshold on initiatives that require a tax increase. That bill passed the Utah House last year and stalled in the Senate. Cullimore said it’s possible it could be expanded beyond just tax issues.
Eleven states require a supermajority for constitutional amendments or certain ballot measures. In the last election, for example, 57% of Florida voters supported an amendment dealing with abortion rights, but it fell short of the 60% mark needed for approval.
In Utah, a constitutional amendment approved in 1998 requires a two-thirds majority to pass any ballot initiative limiting hunting.
Part of the language that was a major selling point for the Legislature’s Amendment D was a ban on foreign interests spending money on Utah ballot initiatives. Rep. Candace Pierucci, R-Herriman, appears aiming to accomplish that goal with a bill file she has opened.
Neither Kyle nor Pierucci responded to messages about their plans for the upcoming session.
Other states that have ventured down that road have faced court challenges. In September, a federal judge in Ohio blocked that state’s prohibition on foreign influence of ballot initiatives, but in October the appeals court overturned that decision in a 2-1 ruling, meaning, at least for now, the ban is in place.
Rep. Andrew Stoddard, D-Murray, has also opened a bill file to address initiatives. He said his bill, while still being drafted, would lower the signature requirement and ban “dark money” — funds spent on campaigns whose donors are not reported — from the process.
(Jeffrey D. Allred | Pool) Attorney Tyler Green speaks to the court as Mormon Women for Ethical Government and the League of Women Voters oppose the Utah State Legislature during oral arguments at the Utah Supreme Court in Salt Lake City on Wednesday, Sept. 25, 2024.
Status of the gerrymandering lawsuit
As lawmakers try to sort out how they plan to respond to the Utah Supreme Court’s ballot initiative ruling, the case that precipitated it — over 2018′s Proposition 4 which sought to prohibit partisan gerrymandering — is now in the hands of a lower court judge.
After Better Boundaries’ initiative was approved by voters in 2018, the Legislature passed SB200, which made the independent redistricting commission created under the bill simply advisory and removed a restriction on drawing legislative and congressional boundaries to favor one party and disadvantage another.
The League of Women Voters, Mormon Women for Ethical Government and several voters sued, arguing that the congressional boundaries the Legislature adopted intentionally disadvantaged voters in Salt Lake County, one of the few somewhat liberal bastions in the state.
In July, the Utah Supreme Court ruled that by undoing the core of the Better Boundaries Initiative, lawmakers essentially deprived voters of their constitutional right to enact ballot initiatives that reform government — prompting the Legislature’s attempt to amend the constitution to make ballot initiatives subject to repeal or amendment by lawmakers.
The court said that, if the Legislature wants to substantially impair a voter-passed initiative, lawmakers need a compelling interest and the change must be narrowly tailored and sent the case back to a lower court judge to decide if the state met its burden.
In a court filing last month attorneys for the Legislature argued that portions of the Better Boundaries initiative are unconstitutional, alleging they infringe on the Legislature’s right to create political boundaries, among other reasons.
“The State has compelling interests in ensuring that its laws are constitutional, that all Utahns are represented in the redistricting process, that redistricting plans are enacted in a timely fashion, and that the State’s fiscal health isn’t jeopardized by prolonged litigation cost and mountainous attorney’s fees,” attorneys for the Legislature wrote.
The plaintiffs’ lawyers responded in a brief filed just before the Thanksgiving holiday arguing that voters have been deprived of the nonpartisan gerrymandering that they voted for in 2018 and urged the court to move quickly and order the maps to be redrawn.
“Utahns deserve to vote under lawful maps drawn according to the standards they adopted in enacting Prop 4 six years ago, and the Court should expeditiously conduct remedial proceedings to ensure that a lawful map is in effect for the 2026 election,” they wrote.
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