Attorney Taylor Meehan speaks to the court as Mormon Women for Ethical Government and The League of Womens voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
With less than six weeks to go until Election Day, the legal battle over whether the controversial constitutional Amendment D should stay void — or be restored — isn’t over.
The Utah Supreme Court on Wednesday spent more than three hours listening to oral arguments in the case, roughly two of which was spent by justices grilling state attorneys over their argument that Utah’s highest court should vacate a district court’s decision earlier this month to void the question from being counted on Nov. 5.
Amendment D would effectively sidestep the Utah Supreme Court’s recent interpretation of the Utah Constitution that limited the Legislature’s powers to repeal and replace government-reform ballot initiatives and instead rewrite the constitution to cement lawmakers’ power to override any voter-approved ballot initiative.
However, the Nov. 5 ballot language posing the question to voters — written by Utah’s top Republican legislative leaders — did not explain that in plain language, prompting critics to sue, claiming Amendment D’s language was “false and misleading.”
Amendment D’s opponents also claimed state officials failed to meet publication requirements laid out in the Utah Constitution, which explicitly states the Legislature “shall cause” the text of constitutional amendments to be “published in at least one newspaper in every county of the state, where a newspaper is published, for two months immediately preceding the next general election.”
On Sept. 12, a district court judge agreed on both counts, and she voided the question while allowing it to stay on the ballot since the decision came so close to ballot printing deadlines.
State attorneys then appealed the decision to the Utah Supreme Court, which agreed to hear the case.
After Thursday’s hearing, the court took the case under advisement. Justices did not give a timeline for when they would issue their opinion, but state officials have said time is of the essence, urging the court to make a decision to dispel a “cloud” of uncertainty over the fate of the ballot question and the election before ballots begin hitting most Utahns’ mailboxes in mid-October.
Justices grill state attorneys on accuracy of Amendment D’s ballot language
Two main questions drove the Utah Supreme Court’s line of questioning during Wednesday’s hearing:
Did the Utah Legislature meet its constitutional requirements to publish the full text of the amendment in newspapers across the state two months leading up to the election?
Is Amendment D’s ballot language so “inaccurate” or “counterfactual” in its representation of the proposed constitutional change to voters that it should remain void?
Representing the Utah Legislature, attorney Taylor Meehan fielded rapid-fire questions from the Utah Supreme Court’s five justices. While she agreed “you cannot rewind the clock” for the Utah Legislature, she argued lawmakers can still “substantially comply” with constitutional publishing requirements if the court were to order “continuous” publication of the amendment’s text in newspapers across the state for the next six weeks.
Attorney Taylor Meehan speaks as Mormon Women for Ethical Government and The League of Womens voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
Meehan argued the meaning of today’s “newspaper” should encompass online publications, and not just hard-copy newspapers that “no one reads anymore.” However, she also argued the Legislature met the publishing requirement by directing the lieutenant governor to publish the text of the amendment on the state’s website and by later purchasing ad space in 35 newspapers across the state.
Justice Jill Pohlman wrestled with that argument, questioning “how we take the word ‘newspaper’” spelled out in the Utah Constitution and “turn it into a principle?” She said the constitution seems to give “precise” instructions on what the Legislature must do before putting a proposed constitutional amendment on the ballot.
Justice John Pearce had a similar concern, questioning how the court would draw a line for “substantial compliance” but not open the door to other questions on other constitutional requirements — like perhaps whether an elected official lives slightly outside his or her district.
“We’re in uncharted territory here,” Meehan said, adding “this is the first time” that a constitutional amendment has been “taken away from the voters,” and she urged the court to let voters decide the matter.
If the Utah Supreme Court restores Amendment D, voters would be asked the following question:
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.
However, 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 lawmaking 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.
On the matter of whether Amendment D’s ballot language was “misleading” enough to disqualify it, Justice Paige Petersen, as well as Pearce and Pohlman, asked several questions about how the proposed change was characterized in its ballot language.
Peteresen said the effect of Amendment D seems clear, that it would give the Utah Legislature constitutional authority to alter or repeal any ballot initiative on an “unfettered basis,” and the Utah Constitution will no longer protect certain government-reform initiatives from being overridden by the Legislature without a compelling government interest.
“Where does the ballot summary tell people that?” Petersen questioned.
Meehan argued the ballot summary “does not have to talk about the effects of the amendment because the effects are uncertain.” She also argued it “does alert people to a change” that “clarifies” the Legislature’s ability to amend ballot initiatives.
Petersen countered, saying she’s not “speculating” about its effects.
“That’s what the amendment does,” she said. “How will citizens be told that?”
Justice Paige Petersen speaks as Mormon Women for Ethical Government and The League of Women Voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
Petersen’s question stabbed at the heart of the Utah Supreme Court’s interpretation of the Utah Constitution outlined in a unanimous July 11 opinion, when all five justices made clear that the Legislature’s power to amend government reform initiatives has limits. That ruling, siding with anti-gerrymandering groups, dismayed the Utah Legislature’s Republican supermajority, and prompted them to call an “emergency” special session to place Amendment D on the ballot in the first place.
Pearce specifically questioned whether the definition of “clarify” was accurate. He said he read many different dictionary definitions for the word in the days leading up to Wednesday’s hearing, and he said it’s clear that “clarify” doesn’t mean “substantive” changes, but rather making an existing provision easier to understand.
After a back-and-forth with Meehan, Pearce concluded the state “does agree there is some limitation” to ballot language. “It can’t be counterfactual,” he said, and has to “adequately inform” voters on what they’re voting on.
Pohlman questioned whether the Legislature can “put its thumb on the scale” by crafting ballot language that sides with one argument over another. She pointed to the characterization that it would “strengthen” the ballot initiative process, noting that’s a viewpoint held by supporters but not opponents.
Meehan argued the ballot language isn’t “contrary to the amendment itself,” and that’s the question the court should be weighing.
Pohlman also questioned how Amendment D would “clarify” voters’ ability to seek ballot initiatives when it’s clearly focused on legislative power. Meehand initially fumbled over an answer. That prompted Pohlman to say, “If you can’t give me your side … if you can’t even identify for me where it possibly does that, then I’m not sure there is even a debate.”
Meehan said she’d address the issue later in her rebuttal. Near the end of the hearing, she argued voters are inherently part of the ballot initiative process because voters elect — or vote out — the legislators that ultimately have the power to alter or repeal ballot initiatives.
Attorney Mark Gaber listens as Mormon Women for Ethical Government and The League of Women Voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
Opponents’ arguments
Justices spent about an hour grilling Mark Gaber, an attorney with the Campaign Legal Center representing plaintiffs including the League of Women Voters of Utah and others.
Gaber reiterated the plaintiffs’ arguments — that Amendment D’s ballot language is “misleading and just counterfactual.” He said there is nothing in the amendment’s ballot language that informs voters of its actual effect.
“The central feature of Amendment D is the Legislature (would have) unfettered power … to repeal any initiative voters pass — any initiative at all,” Gaber said. “You do not see the word repeal anywhere on the ballot summary. But that is the key power the Legislature is transferring to itself, to essentially throw out whatever voters pass.”
Gaber argued by reading the ballot language, any “reasonably intelligent” voter would think Amendment D would “establish requirements the Legislature respect the intent” of ballot initiatives, but he argued the effect is the opposite.
He also asserted the Legislature has failed to meet its constitutional publishing requirements, arguing hard-copy newspapers “still exist,” and the Legislature can’t pick and choose which parts of the constitution it adheres to, especially when the requirements are written as clear instructions.
Pearce and Chief Justice Matthew Durrant also indicated in their lines of questioning that there is still the possibility that the Utah Legislature could try again by putting the question on the 2026 general election ballot rather than this year’s.
“Certainly, the Legislature can come back and try this again,” Gaber said. “But they just need to follow the constitution when they do it.”
Chief Justice Matthew Durrant listens as Mormon Women for Ethical Government and The League of Women Voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)
Utah Supreme Court considers a more ‘tailored’ preliminary injunction
Durrant asked Gaber whether it would be possible to issue a more “narrowly tailored” preliminary injunction — or “craft some remedy” to satisfy the Legislature’s constitutional publishing requirements, perhaps by requiring the Legislature to “flood the airwaves and newspapers,” both online and in print.
Gaber argued, bluntly, “no.”
“I certainly don’t understand how (it could) for two months” leading up to the election, Gaber said. He added that would do nothing to solve the “fundamental problem” that the ballot language is “misleading and inaccurate.”
“No amount of publication of the text is going to do that,” Gaber said.
Meehan, however, argued the court could in some way preserve Utahns’ ability to weigh in on the question.
“We would comply with any order” to meet constitutional publishing requirements, she said, while also arguing Amendment D’s ballot language is sufficiently accurate.
She urged the court to swiftly remove “any cloud over the election.”
“I do think there’s a way to allow the election on Amendment D to continue,” Meehan said, asking the court to vacate the preliminary injunction voiding the question, or “at least narrow it” to allow Utahns to cast their votes on Amendment D.
Another constitutional amendment question hangs in the balance
A separate legal battle over another proposed constitutional amendment on Utah’s ballot — Amendment A — is brewing. Ultimately, where that case ends up will likely hinge on whatever the Utah Supreme Court decides with Amendment D.
As part of their lawsuit challenging the constitutionality of the state’s new “school choice” voucher program, the Utah Education Association and other plaintiffs last week asked a judge to void Amendment A.
Utah teacher union asks judge to void Amendment A, launches campaign to vote ‘no’
If approved, the constitutional amendment would nix the state’s nearly 100-year-old constitutional earmark governing the use of income tax revenue (which currently reserves that money for public and higher education and some services for children or people with disabilities) and allow income tax dollars to fund other state needs.
The change would also specify in the Utah Constitution that the state can only use those dollars for other priorities after it uses a portion of revenue growth for “changes in student enrollment and long-term inflation” — something that’s already in state statute but would be codified in the constitution.
Third District Court Judge Laura Scott on Wednesday held a scheduling conference to set a date to hear arguments for that motion. She scheduled it for Oct. 15, but noted that the Utah Supreme Court’s ruling on Amendment D would likely impact the outcome of Amendment A.
The question remains, however, when the Utah Supreme Court will hand down its ruling.
“Hopefully we’ll know where we’re going,” Scott said, “sooner rather than later.”
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