Amendment D is void, according to a ruling by Utah 3rd District Court Judge Dianna Gibson. It will remain on the ballot so the state can stay on track with ballot printing deadlines, but any votes cast will not count.
The state could still appeal the decision to the Utah Supreme Court.
Gibson granted the injunction under the merits that “Utahns are entitled to an accurate summary of any proposed constitutional amendment that impacts their fundamental rights.” Her opinion also mentioned that voters are “entitled to constitutionally required notice, by publication in a newspaper, two months before the election,” which the state did not do.
“They [the State of Utah] truncated the deadlines, sidestepped normal processes, and proposed in short order a constitutional amendment, with inaccurate descriptions, to shift power from the people to the Legislature,” Gibson said.
In a last-minute effort following oral arguments, the state filed a declaration that they would publish the amendment text in 35 newspapers across the state. State code requires the notice to be published 60 days before the election. There are 53 days before the Nov. 5 election.
In a statement soon after the decision, the Lt. Governor's Office, which oversees elections, said they “appreciate the court’s prompt attention and serious consideration of this matter.”
“State and county election officials will move forward as ordered,” Lt. Gov. Deidre Henderson added.
Lawyers representing the Lt. Governor’s Office had asked if the amendment were to be pulled from the ballot that they would prefer for it to be nullified instead of removing it from the ballot entirely.
Better Boundaries applauded Gibson’s decision. The advocacy group called Amendment D a “ deceptive power grab” in a statement.
“Amending our founding document should never be shrouded with misleading language and rushed in this fashion. Utahns overwhelmingly want and deserve a proper balance of power in our state government and the Court agreed,” said Better Boundaries Board member Ryan Bell.
Senate President Stuart Adams and House Speaker Mike Schultz responded to the ruling that they are “extremely disappointed by the lower court’s policymaking action from the bench.”
“It’s disheartening that the courts – not the 1.9 million Utah voters – will determine the future policies of our state,” their joint statement continued. Such actions during an election cycle “undermines public confidence” and integrity in the election process they contend.
“The court is denying the right of the people to vote and should not be exerting undue influence on this election.”
Gibson fast-tracked the case to stay on track with federal election guidelines. Absentee ballots to military and overseas voters must be shipped by Sept. 20. According to the state’s election calendar, those ballots were supposed to be sent on Sept. 10.
She heard oral arguments on Sept. 11 and ruled the next morning.
“The Utah Constitution protects the people's right to alter or reform their government,” Mark Gaber, the plaintiffs’ attorney, told the court during the hearing. “Amendment D proposes to eliminate that right and allow the government to unilaterally reject Utahns reforms for any or no reason at all.”
Gaber argued both stripping voters of their alter and reform rights and using ballot language that misleads voters violate the constitution. The state has also violated the free elections clause in the constitution, he said, by “exercising undue influence” through the language on the ballot that places “positive judgment” in favor of lawmakers.
Tyler Green, the state’s attorney argued, an injunction would harm 1.73 million Utahns right to vote while placing burdensome and costly responsibilities — roughly $3 million — on the state to reprint or alter ballots. “A reasonably intelligent voter,” they argued, would be able to decipher what the amendment does based on the ballot language and their personal research.
The argument over the amendment has been ongoing since the Legislature called a special session in August following the Utah Supreme Court’s affirmation of ballot initiatives that reform government. Lawmakers, in response, passed a resolution to put it to voters to give them the power to significantly change or repeal citizen-approved ballot initiatives and referendums.
The ballot language was later released on Sept. 5. Watchdogs – and even some Republican lawmakers – disapproved of the language, calling it “deceptive” and “misleading.” Utahns KUER spoke with misinterpreted what a vote in favor of the amendment meant.
It reads:
Should the Utah Constitution be changed to strengthen the initiative process by:
- Prohibiting foreign influence on ballot initiatives and referendums.
- Clarifying the voters and legislative bodies’ ability to amend laws.
If approved, state law would also be changed to:
- Allow Utah citizens 50% more time to gather signatures for a statewide referendum.
- Establish requirements for the legislature to follow the intent of a ballot initiative.
A day later, The League of Women Voters of Utah and Mormon Women for Ethical Government filed to block the amendment from the ballot calling it a “deception to mislead Utah voters into surrendering their constitutional rights.”
They also claim the state violated the Utah Constitution by not publishing the amendment text in the newspaper 60 days before the election. Gaber claimed doing this is “mandatory” and is one of the only “passive” ways voters can read the amendment without outside influence or editorializing from media outlets.
During oral arguments in front of the judge, Gaber emphasized that the words “strength” and “clarifying” on the ballot put a positive spin on the amendment.
“A reasonably intelligent voter who read the amendment would think that they were strengthening the initiative process to put limits on the legislature's ability to repeal an initiative and disregard the intent of the voters,” he said. “That is just indisputably not what the text of the amendment does.”
State lawyers want the motion denied. Green argued it could jeopardize the state’s ability to meet federal election deadlines and to “run an orderly election that protects Utahns right to vote.”
Beyond the expense to reprint ballots, he added “it might not even be possible” to reprint them because of all “the other jurisdictions in the country who are also printing ballots at the same time.” There are additional “costs associated with recertifying, reprogramming ballots and reproofing” ballots if the court orders Amendment D removed.
“Sometimes plaintiffs just lose in election cases when the election is right around the corner,” he said. “The equities weigh so heavily in favor of making sure that the election itself can happen and can happen in a way that doesn't undermine voter confidence and voter integrity.”
Judge Gibson pressed Green on whether he believed the wording of the amendment was accurate. He defended the language at every turn. He said the biggest question the court needs to look at is does the text, “as it exists, violate any of the state constitutional provisions?”
The state’s brief argues the plaintiffs are trying to strip voters of their right to interpret the state constitution’s intent by removing the question from the ballot. They refuted the claim that Amendment D is a “suppression tactic” meant to minimize the voice of voters.
“The only suppression tactic is Plaintiffs’ demand to deny 1.73 million Utahns the right to vote. Litigation by a few cannot preclude voting by all in Utah,” the brief reads. “Plaintiffs’ eleventh-hour motion is a dangerous invitation to sow confusion and destroy confidence in the election.”
Lance Sorenson, assistant attorney general representing the Lt. Governor’s Office, which oversees elections throughout the state, said if the judge were to issue an injunction, they’d prefer to keep Amendment D on the ballot and not count the votes instead of removing it entirely. Although, Sorenson said the office has no formal position on the matter and will abide by the court’s decision.
