A coalition of anti-gerrymandering groups urge Utah voters to reject a constitutional amendment on ballot initiatives during a rally at the Utah Capitol in Salt Lake City on Aug. 26, 2024. (Katie McKellar / Utah News Dispatch)
The fight over the Utah Legislature’s attempt to rewrite the state Constitution to override a recent Utah Supreme Court ruling in a legal battle over the state’s redistricting process has spurred a new lawsuit.
Plaintiffs in the court case at the heart of the issue — currently suing over the Utah Legislature’s 2021 move to repeal and replace a 2018 ballot initiative sought by the anti-gerrymandering group Better Boundaries — filed a new suit against state leaders on Friday, attempting to stop a proposed constitutional amendment from being printed on the Nov. 5 ballot.
Opponents of Utah constitutional amendment on voter initiatives decry ‘deceptive’ ballot language
Amendment D’s language written by Utah’s top Republican legislative leaders “fails to accurately submit the Amendment to the voters,” the motion filed in 3rd District Judicial Court says. “Instead, it seeks through deception to mislead Utah voters into surrendering their constitutional rights.”
Amendment D violates constitutional requirements and should be declared void, argue the plaintiffs (League of Women Voters of Utah, Mormon Women for Ethical Government, and individual Salt Lake County residents who alleged they were disenfranchised by unlawful gerrymandering). The Campaign Legal Center, a nonpartisan group devoted to “advancing democracy through law” also joined the suit.
Utah’s Constitution requires ballot language to “fairly and accurately describe the constitutional amendment,” but Amendment D’s language “does the opposite and is not only misleading and deceptive, but also illegal and unconstitutional,” the Campaign Legal Center wrote in a news release Friday.
“Utah politicians refuse to accept any check on their power. First, they overruled the will of the people by repealing Prop 4, and now they are trying to overrule the Utah Supreme Court,” said Mark Gaber, senior director of redistricting at Campaign Legal Center. “This eleventh hour push for an unnecessary constitutional amendment, along with the misleading language to deceive Utahns into voting for it, is yet another example of Utah politicians doing everything they can to take power away from the people and give it to themselves.”
Better Boundaries’ “fight for fair maps should continue in court,” Gaber said, “so Utahns can pick their politicians instead of the other way around.”
Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, did not immediately respond to a request for comment about the filing Friday. But earlier this week, the legislative leaders issued a joint statement defending how they wrote Amendment D’s ballot language.
“Using clear and straightforward language is common practice and crucial for ensuring voters fully understand the measures they are deciding on,” the Senate president and House speaker said. “We recognize there will always be criticism, but our objective remains consistent – to provide a straightforward and concise description to allow voters to easily understand the core of the proposed changes.”
Adams and Schultz also noted voters will have access to an analysis and arguments both for and against the constitutional amendment that will be included in their voter pamphlet. Under SB4002, another bill lawmakers passed during last month’s special session that established an expedited timeline and process to place the question on the ballot, the House speaker and Senate president appointed lawmakers who voted in favor, as well as lawmakers who voted against, to craft those arguments.
Utah Legislature asks voters to change constitution, skirt Supreme Court ballot initiatives ruling
“Modeling previous ballot titles was our guide as we drafted this constitutional amendment,” Adams and Schultz continued. “Those who label these efforts as deceptive are often the ones attempting to mislead voters.”
Utah election officials are scheduled to begin mailing ballots to overseas and military voters on Sept. 10, while most Utahns will begin receiving their ballots the week of Oct. 15, so plaintiffs requested the judge to allow an expedited briefing and hearing in the case.
The suit comes after Amendment D’s ballot language was made public this week when Lt. Gov. Deidre Henderson signed the official 2024 general election certification. Its language — asking voters whether the Utah Constitution should “be changed to strengthen the initiative process” — prompted heated backlash, with anti-gerrymandering advocates, Democrats and some Republicans decrying it as “misleading” and “deceptive.”
Constitutional Amendment D
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.
Voting in favor of the amendment will enshrine in the Utah Constitution the Utah Legislature’s authority to alter or repeal any voter ballot initiative passed by Utah voters — something the Legislature’s Republican leaders thought has been their authority, up until the July 11 Utah Supreme Court ruling in the lawsuit against Utah’s redistricting process said otherwise, placing limits on the legislature’s powers to amend, repeal or replace government-reform initiatives.
That unanimous opinion remanded the redistricting lawsuit back to district court, with all five of Utah’s justices ruling that the district court “erred” when it dismissed the League of Women Voters’ claim that the Utah Legislature violated the Utah Constitution in 2021 when it repealed and replaced Better Boundaries’ 2018 ballot initiative. That litigation over the constitutionality of the Legislature’s decision to adopt a watered-down version of the redistricting process — allowing lawmakers to ultimately ignore the independent commission’s recommended political boundaries — now continues.
However, Utah’s Republican lawmakers fear the Supreme Court ruling dramatically weakened their constitutional authority to repeal and replace ballot initiatives as they’ve done in the past, claiming it effectively allowed ballot initiatives to become “super laws” immune to legislative changes.
Utah Supreme Court hands big win to plaintiffs in anti-gerrymandering lawsuit
That’s not necessarily what the Utah Supreme Court ruling said, though it does leave an open question over how other ballot initiatives could be litigated. While the ruling makes clear the Legislature’s power to amend government-reform initiatives has limits, the ruling also explicitly states “this does not mean that the Legislature cannot amend a government-reform initiative at all.”
The ruling said legislative changes that “facilitate or support the reform, or at least do not impair the reform enacted by the people,” could legally stand — and more substantial could “also survive a constitutional challenge, if the Legislature shows that they were narrowly tailored to advance a compelling government interest.”
Still, fearing sweeping consequences and years of more litigation, the GOP-controlled Utah Legislature called itself into an “emergency” special session to place the proposed constitutional amendment on the ballot. Rather than let the Utah Supreme Court’s interpretation of the Constitution stand, lawmakers opted instead to refer the question to voters. If Amendment D passes, it will effectively render the Utah Supreme Court’s latest interpretation moot.
The language that would be added to the Utah Constitution, according to the special session resolution that placed the question on the ballot, SJR401, would:
Make clear that “notwithstanding any other provision of this Constitution, the people’s exercise” of their ballot initiative or referendum power “does not limit or preclude the exercise of Legislative power, including through amending, enacting or repealing a law, by the Legislature, or by a law making body of a county, city, or town, on behalf of the people whom they are elected to represent.”
Ban “foreign individuals, entities or governments” from “directly or indirectly” influencing, supporting or opposing an initiative or referendum, and allow the Legislature to enforce that ban.
Rather than “strengthen” Utah’s ballot initiative process, Amendment D would “eliminate Utahns’ constitutional right to reform their government without legislative interference,” plaintiffs contended in Friday’s filing. They argued its text asks voters to change the Utah Constitution to “exempt the Legislature from complying with any provision of the Constitution when it acts to repeal or amend citizen initiatives.”
“Undoubtedly aware of the optics,” the motion continues, Adams and Schultz “then devised” ballot language that “not only will fail to inform voters that the proposed Amendment eliminates their fundamental constitutional right, but brazenly asserts that the amendment would ‘strengthen’ the initiative process” and “require the legislature to follow the intent of a ballot initiative.”
“This is the definition of Orwellian doublespeak; the Amendment does the opposite on both counts,” plaintiffs argued. “By seeking to mislead Utah voters into surrendering their fundamental constitutional rights by deception, Defendants have violated multiple provisions of the Utah Constitution.”
Katharine Biele, President of the League of Women Voters of Utah, issued a prepared statement Friday saying her organization has “long advocated for a fair and transparent” redistricting process.
“While the Utah Supreme Court affirmed that the process was flawed, the legislature continues to fight against the will of the people,” Biele said, “and insults the voter with ballot language that is both biased and self-serving.”
Emma Petty Addams, co-executive director of Mormon Women for Ethical Government, also issued a statement, accusing Utah lawmakers of “once again” prioritizing “their own wishes above both their constitutional duties and their obligation to serve the people of Utah.”
“The people of Utah deserve better, and we will continue to advocate for long standing constitutional rights and freedoms,” she said.
Read the full filing here:
Motion (Hearing Requested) for Preliminary Injunction