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)
In a full, 53-page opinion published Thursday, the Utah Supreme Court explained why it ruled last month to uphold a district court judge’s decision to void Amendment D.
The proposed constitutional amendment — put on the Nov. 5 ballot after the GOP-controlled Utah Legislature called itself into a special session in August — would have effectively invalidated the Utah Supreme Court’s recent interpretation of the constitution when the court sided with anti-gerrymandering advocates in a lawsuit against the Utah Legislature for repealing and replacing a 2018 ballot initiative that would have implemented an independent redistricting commission.
That July 11 ruling made clear that the Legislature’s power to amend certain initiatives has limits, and the Utah Constitution protects “government reform” initiatives from being overridden by lawmakers without a compelling government interest.
Amendment D still void: Utah Supreme Court upholds district court decision
“Amendment D would alter that balance and give the Legislature unfettered constitutional authority to amend or repeal any initiative, including those that reform the government. But the ballot title does not disclose this fundamental change,” Justice Diana Hagen wrote in the unanimous opinion.
The Nov. 5 ballot language posing the question to voters — written by Utah’s top Republican legislative leaders — instead characterized Amendment D as one that would “strengthen” and “clarify” the ballot initiative process. That prompted critics to sue, claiming Amendment D’s language was unconstitutional because it was “false and misleading.”
On Sept. 12, a district court judge agreed and voided Amendment D, not only because its ballot language was inaccurate, but also because state officials failed to meet publication requirements. The Utah Constitution 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.”
The courts voided Amendment D after printing deadlines, so it remains on Utahns’ ballots — but now votes for or against it won’t be counted. For now, at least, the Utah Constitution won’t be changed. It’s possible Utah lawmakers could pursue Amendment D again and place it on a future general election ballot (perhaps as soon as 2026), but that remains to be seen.
If lawmakers do try again, however, the Utah Supreme Court’s opinion makes clear that any future iteration of Amendment D would need to have accurate ballot language that properly characterizes its effect.
Unpacking the Utah Supreme Court’s opinion
“Not only does the ballot title omit a central feature of Amendment D, but the included language would lead a reasonable voter to believe that the amendment does something entirely different,” Hagen wrote.
The ballot language characterizing Amendment D was written by Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, under a new law that assigned them the duty of writing the ballot language constitutional amendments rather than nonpartisan legislative attorneys.
Amendment D ballot 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.
The ballot language “promises that Amendment D will ‘strengthen the initiative process by … clarifying the voters and legislative bodies’ ability to amend laws,’” Hagen wrote, but “that statement inaccurately describes the amendment by claiming that (1) the change is merely ‘clarifying’ the legislature’s ability to amend laws, (2) the change affects ‘the voters’ ability to amend laws, and (3) the change will ‘strengthen’ the ‘initiative process.’”
Hagen wrote using the word “‘clarifying’ understates the constitutional sea change that Amendment D would effect.”
“Amendment D changes rather than clarifies,” she wrote. “Specifically, it changes the existing constitutional protections that limit the Legislature’s ability to amend government-reform initiatives. Yet by telling voters that the amendment clarifies the Legislature’s ability to amend laws, the ballot title suggests there are no existing constitutional limits in place and that the voters are not being asked to approve a change to the existing framework. This compounds the potential confusion caused by omitting a central feature of Amendment D.”
Additionally, the Utah Supreme Court determined the ballot language was not only confusing, but inaccurate because it would not simply “clarify” voters’ ability to amend laws.
“In truth, the amendment does not affect voters’ ability to amend laws,” Hagen wrote. “The relevant language applies only to the power of legislative bodies to amend laws and says nothing about voters’ ability to do so. Telling voters that the amendment will clarify their ability to amend laws when the amendment does no such thing is not only confusing, but counterfactual.”
The Utah Supreme Court’s July 11 ruling (which made clear lawmakers’ power to change government reform initiatives has limits) upset Utah’s Republican legislative leaders, who have long believed the Legislature has ultimate power over ballot initiatives. In the legislative proclamation calling lawmakers into the special session to place Amendment D on the ballot, Adams and Schultz wrote the ruling upended “over 100 years of representative democracy in Utah without the voice of the people.”
However, a footnote in the Utah Supreme Court’s Thursday ruling indicates that characterization is inaccurate, given justices interpreted language that’s been in the Utah Constitution since 1900, granting voters a constitutional right to legislate by initiative. It wasn’t until this year that the Utah Legislature tested its constitutional limits and was challenged in court.
The Utah Supreme Court checked the Utah Legislature again. What now?
“This court decides such constitutional questions only when parties raise them,” Hagen wrote, pointing out that in the 124 years since Utahns have had initiative rights, only seven initiatives have passed at the ballot box. Plus, it wasn’t until 2018 that any Legislature had “ever immediately undone a law that voters had just approved.”
“Given that history, it is not surprising that (League of Women Voters of Utah) plaintiffs were the first party to allege that a successful initiative had enacted a government reform and that the Legislature had disregarded the will of the people by subsequently changing the law in a way that undermined the reform,” Hagen wrote, though she added “that does not mean that the constitutional protections recognized” in the July 11 ruling “did not exist until that opinion was issued.”
“It simply means that no party previously had occasion to invoke those constitutional protections,” Hagen wrote.
‘Troubled and disappointed’
In response to Thursday’s opinion, Senate President Stuart Adams issued a statement echoing “our previous sentiments — we are troubled and disappointed by the Court’s actions.”
“Unfortunately, the Court took an important decision out of the hands of voters and paved the way for governance by initiative,” Adams said.
A spokesperson for Schultz, however, said the House speaker declined to comment until he could read the opinion, noting he was in rural Utah all day and hadn’t yet had a chance to as of Thursday afternoon.
Adams, on the other hand, said, “we are committed to finding a path forward because we firmly believe our Founding Fathers created a republic, and that Utah’s future should remain in Utah’s hands.”
It’s not clear what that “path forward” could be, though it’s possible lawmakers could try to put another form of Amendment D on the ballot in 2024. When pressed for more details about what that “path forward” could entail, a spokesperson for Adams did not immediately respond.
Anti-gerrymandering groups celebrate
Groups including Better Boundaries, which initially sought Proposition 4 in 2018 to adopt an independent redistricting commission in Utah, celebrated the Utah Supreme Court’s full opinion on Thursday.
“Legislative leaders attempted to remove restraints to their power within the initiative process and we are grateful the judicial branch maintained that check,” Katie Wright, executive director of Better Boundaries, said in a prepared statement. “We echo Justice Hagen’s opinion that ‘democratic elections and judicial power are complementary, not contradictory.’”
Mark Gaber, an attorney with the Campaign Legal Center, which represented plaintiffs including the League of Women Voters of Utah in the lawsuit against Amendment D, also applauded the court for affirming a “basic principle of democracy: the government cannot use the ballot to mislead the voters.”
“If the legislature wants voters to relinquish their initiative powers,” Gaber wrote in a post on X, “they need to be told that!”
Read the Utah Supreme Court’s entire opinion here:
League of Women Voters v Utah State Legislature20241024
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