The election is 46 days away, and the talk in Utah has been on the fight over constitutional amendments — not as much on the presidential contest. Asked about it at his monthly news conference, Gov. Spencer Cox weighed in on the legal challenges facing Amendment D and the new challenge to Amendment A.
“I do hope that eventually, the people of Utah will get a chance to weigh in and decide, one way or another, how this is going to go,” he said about Amendment D. “I think that's very important, but it is important that we get it right, and I think that's all we want to do.”
Amendment A seeks to remove the earmark on public education funding so lawmakers could have more flexibility on how they spend state income tax dollars. Right now, it can only be used on public and higher education and services for children and adults with disabilities. The Legislature has sweetened the deal if voters decide to get rid of the earmark, with the promise to do away with the 1.75% state share of the 3% statewide sales tax on groceries.
The Utah Education Association and the teachers union filed a motion for a preliminary injunction over the amendment on Sept. 19. They argue “the ballot language is misleading” because it “misrepresents the substances and effect” of the amendment and that it “fails to summarize legislation that would take effect upon its adoption.”
They also claim lawmakers failed to follow the state constitution by not publishing the text of the amendment in newspapers 60 days before the election.
It’s a similar argument made on Amendment D, which has a judge ruled void. With that amendment, lawmakers sought the authority to repeal or alter voter-approved ballot initiatives. The judge ruled the language in front of voters was inaccurate and that the Legislature violated the state constitution by not publishing the amendment text in newspapers.
Cox said he found the judge’s opinion on D “compelling,” although he believes there is a “disagreement” that he did not extrapolate on.
“The role of the court is not to supplant the law,” he said. “But it is important that the language is clear and conveys what the actual changes will do.”
Cox said he learned about the injunction request for Amendment A during the news conference and therefore was “at a disadvantage of being caught a little off guard” by questions on it.
He did say he doesn’t know if a precedent has been set by the lower court ruling on Amendment D.
“Amendment A has been out there for so long, so those circumstances are very different than Amendment D,” he said. “I would be surprised, but again, I haven't seen the pleadings.”
The Legislature did not publish the text of the amendments in newspapers. The ballot language for the four constitutional amendments on the November ballot was published on the Lt. Governor’s Office website on Sept. 3.
Cox went on to defend the need to remove the education earmark through Amendment A because it “gives us the flexibility that we need then to fund [the] government as a whole.”
The earmark, he said, “has never worked the way it was intended to” because the Legislature has shifted around money to cover the cost of other things.
“Instead of, I think, kind of keeping up that charade, what we should do is actually put some protections in place, which we've done via legislation to make sure that we're getting more funding to our schools.”
The governor also supports the removal of the state portion of the sales tax on food that would go into effect if the amendment passes. To him, it’s something “everyone should support” because the reduction is “going to be meaningful for everyone,” but especially for “families at the margins, who are struggling.”
When asked if Utah voters should trust the Legislature with such spending flexibility, Cox said, “the earmark has never stopped the Legislature from doing what they wanted to do or needed to do in the past.”
On Amendment D, Cox wants voters to eventually have the chance to decide the issue. While a lower court ruled it to be void, lawyers with the state appealed to the Utah Supreme Court. The justices will hear arguments on Sept. 25.
“I'll let the court decide whether that language is misleading,” Cox told reporters.
But recent decisions from the Utah Supreme Court, including those on redistricting and an injunction on Utah’s abortion trigger law, have frustrated members of the Legislature to the point where they’re considering judicial reform. Some are flirting with the idea of electing judges instead of appointing them.
That’s not something Cox supports because Utah has “an incredible system” in place that has been “recognized across the country as one of, if not the best systems in the country.”
“I think the last thing we need are more divisive elections, especially over a branch of government that is supposed to be independent,” he said.
Cox said he is open to discussing judicial reforms, like potential term limits or increased transparency around retention elections. He does “worry about judicial activism” but doesn’t think there have been many instances of that in Utah but more so from the United States Supreme Court before the conservative majority.
Overall, Cox believes Utah’s court system is working the way it’s supposed to.
“I'm grateful for the judiciary even when I disagree with them. I respect the judiciary even when I disagree with them.”
