Amendment D is void – for good.
The five justices of the Utah Supreme Court, again at the center of a dispute over ballot initiatives, unanimously upheld the Third District Court’s injunction. Amendment D would have given lawmakers the power to significantly alter or repeal voter-approved ballot initiatives.
The amendment will remain on the ballot but no votes cast will be counted.
In their appeal, the state wanted the justices to allow voters to choose the fate of Amendment D by reversing or narrowing the scope of the lower court’s injunction.
“Whether Amendment D ultimately succeeds or fails, should be left in the hands of Utah voters who can read for themselves, think for themselves and ultimately cast a considered vote,” Taylor Meehan, the state’s representing attorney told the court during oral arguments.
What ultimately tipped the balance against the appeal was the state’s failure to publish the amendment within the constitutionally mandated time frame. And, the justices wrote in their decision, the description that appears on the ballot does not submit the amendment to voters “with such clarity as to enable the voters to express their will.”
The justices did agree, however, that 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.” Although, they added the state must go about it in a way that aligns with the Utah Constitution.
The justices went on to say they will explain their reasoning in a full opinion to be published later.
The amendment came to be in response to the high court’s decision earlier this year on redistricting. The court reaffirmed the power of citizen-led ballot initiatives and sent the question of redistricting back to a lower court. In response, lawmakers called a special legislative session and voted for more power over ballot initiatives and to place the question on the ballot.
Critics claimed the language of Amendment D was misleading and asked a judge to block it. Third District Court Judge Dianna Gibson agreed, voiding the amendment but leaving it on the ballot — setting up the state’s appeal and the Sept. 25 hearing in front of the state supreme court.
The argument from Mark Gaber, the plaintiffs' attorney from the Campaign Legal Center, was that the state failed to meet publication deadlines and that the ballot language doesn’t reflect what the amendment does.
“What constitutional Amendment D would do is extinguish the constitutional protection that the same government that the voters sought to reform could not veto the reform passed by the voters,” he said.
Those arguments proved to be compelling with the lower court and the Utah Supreme Court concurred.
Better Boundaries, a party to the original redistricting case, applauded the ruling for “upholding the right of the people to pass initiatives without intrusion or correction by the Legislature.”
“With this decision, the Legislature must accept a clear reality – that its attempts to subvert the right of the people to reform their government must stop,” said board member Ryan Bell. “We are grateful that our balanced system of government has worked and look forward to the implementation of the reforms the people voted for in 2018."
It was yet another blow to Republican legislative leadership. In a statement, Senate President Stuart Adams and House Speaker Mike Schultz described the court’s decision as “unprecedented and troubling.”
“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,” the statement read. “It’s a sad day for Utah and voters, whether for or against the constitutional amendments.”
Amendment D’s language:
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.
Utah’s arguments to restore Amendment D
For nearly two hours, justices asked Meehan a litany of questions from the definition of words, to publication requirements to if the ballot summary, or language, is misleading.
The two big questions in front of the court are, first, did the state follow the constitutional requirements to publish the amendment and alert the public? And second, does the language of the amendment properly inform voters of its intent?
Justice Paige Petersen asked Meehan to point to where a voter would be informed that a yes vote would eliminate protections for Utahns to alter and reform their government through the ballot initiative process.
“That constitutional protection will be taken away by this amendment, so citizen ballot initiatives that reform the government will now be subject to a legislative veto,” Petersen said. “Where does the ballot summary tell people that?”
Meehan said she “assumes” a pamphlet mailed to voters with their ballots will provide enough information for and against the amendment. She added there has been ample news coverage explaining the amendment and the sweeping changes it would trigger.
“It has been pretty hard to tell the other side of the story,” she said about Amendment D advocates.
There would also still be protections in place via state statute that would require the Legislature to follow the intent of a voter-approved ballot initiative if it were to make changes, she said.
During their August special session on the amendment, lawmakers passed a companion trigger law that, if voters approved the amendment, would bind the Legislature to “follow the intent” of an initiative.
Meehan further argued that the ballot summary doesn’t need to disclose the ”effects of the amendment,” such as the amendment would give lawmakers the authority to repeal voter-approved initiatives. Rather, the language must “tell people of the actual change to the constitution.”
“The ballot summary isn't intended to educate the voters,” she said. “That's what the voter information pamphlets are about.”
If the vote on Amendment D were to be postponed, Associate Chief Justice John Pearce asked what the harm would be to the state’s political system. Meehan responded the harm is frustration among the constituents. A vote now would provide “clarity and certainty” so proponents and opponents know what the ground rules are about the initiative process.
Petersen pushed back.
“The uncertainty is just what the Legislature can do to initiatives if they are successful and passed, it doesn't have anything to do with the process of getting an initiative on the ballot,” Petersen said from the bench. “It just means afterward the Legislature can repeal it.”
Justice Diana Hagen questioned if the amendment “might chill the initiative process.” Would citizens want to advance initiatives when “they know that the Legislature can amend at will?” Meehan asserted the intent is not to “chill” the process but rather encourage someone “who wants to propose an initiative to alter or reform their government” to do so through the Legislature.
Much of the debate centered around the publication argument.
Meehan argued that the Legislature bought ad space in newspapers throughout the state to publish the amendment text. While the text only ran once in physical newspapers, Meehan said it has run consistently in online newspapers. She also said the text has been hyperlinked in various news articles related to Amendment D and posted online through the Lt. Governor’s Office and vote.utah.gov.
Even though they did not publish the text in physical newspapers within the constitutionally mandated time frame, Meehan argued the state did provide sufficient notice of the amendment text and it’s easily accessible to find for a voter.
So, instead of throwing out Amendment D, she asked the court to tailor the injunction.
“The appropriate injunction here, given the serious public interest in allowing the vote to continue, is to require continuous publication or more publication between now and the election.”
Why plaintiffs wanted Amendment D to remain void
The central component of Amendment D, Gaber told the court, gives the Legislature “unfettered power” to dismiss voter-approved ballot initiatives.
“You do not see the word repeal anywhere on the ballot summary, but that is the key power that the Legislature is transferring to itself to simply throw out whatever the voters pass,” he said. “No one looking at this ballot language would understand that to be the operative effect of the amendment. They would think that … the initiative process would be changed so that it would be stronger for the voters.”
To him, lawmakers put their thumb on the scale when they wrote the ballot language to include subjective terms like “strengthen” and “clarify” which he doesn’t find appropriate.
Chief Justice Matthew Durrant asked Gaber to respond to the Legislature's argument that the amendment does strengthen the ballot initiative process but not the initiative itself.
Garber said the initiative process starts with signature gathering and ends at the ballot box. Whatever the Legislature does once voters pass an initiative becomes the legislative process. He also took issue with the trigger law in place if the amendment were to pass. It would increase the amount of time allotted to gather signatures for ballot initiatives and require the Legislature to “follow the intent” of the initiative when they decide to make changes.
“If the Legislature can repeal the initiative, certainly it is not under any requirement to defer to the intent of the initiative,” he said. “If the Legislature were ever brought to court about whether or not it had deferred to the intent [of a ballot initiative], it would say, ‘Well, we don't have to. The constitution trumps this statute.’”
Justice Pearce asked Gaber if he agreed that there was “some harm” being done to the political system because voters have to wait to vote on Amendment D. Gaber stood firm that the justices should uphold the lower court’s ruling against the amendment.
“The harm was caused by the Legislature itself. It was caused by the Legislature for having a rushed process in the legislative process. It was caused by the Legislature changing who writes the ballot language. It was caused by the legislature waiting until the last day to provide that ballot language to anyone,” he said.
“And so as the District Court, I think properly noted, it matters when the party alleging harm is the party that caused the harm.”