Ballots whiz through a processing machine at the Salt Lake County Government Center in Salt Lake City on Election Day, Tuesday, Nov. 5, 2024. (Photo by Spenser Heaps for Utah News Dispatch)
The following story was reported by The Utah Investigative Journalism Project in partnership with Utah News Dispatch.
Utah’s 2024 ballot initiative debacle started benignly enough at the beginning of last year’s legislative session with the introduction of a bill on municipal and special district elections. There was no mention in it of constitutional amendments or statewide citizens initiatives.
But 10 days before the 45-day session adjourned, Sen. Lincoln Fillmore, R-South Jordan, gutted his original SB37 and replaced it with all new language.
Deep in the 55-page bill was a one-line tweak that transferred responsibility for writing ballot descriptions of proposed constitutional amendments to the Senate president and House speaker. This task previously had always been performed by the nonpartisan, impartial attorneys in the office of Legislative Research and General Counsel.
Fillmore briefly described this provision to colleagues as the only substantive policy change in the bill and said the rest was simple cleanup language. Overall, he predicted, its passage “ought to help elections go more smoothly in the state.”
It’s hard to imagine a prognosis falling further from the target.
In the final days of the election, the Utah Supreme Court stepped in to invalidate not one, but two proposed constitutional amendments.
In the case of Amendment D, proposing to weaken citizens’ right to enact law through initiative petition, the justices unanimously said that the ballot language written by Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, “mislead(s),” “misstates,” “omits a key part of the question,” and was “not only confusing, but counterfactual” in saying the proposal would “strengthen” citizen initiatives.
Amendment D ballot language was misleading to voters, Utah Supreme Court affirms
The court also voided Amendment D because the state failed to publish it in newspapers around the state as required by the constitution.
The court didn’t get to the claim of biased and specious language on Amendment A – aimed at removing the state constitution’s earmark reserving income tax revenue for education and social services. That is because legislators preemptively agreed that, as with Amendment D, the state didn’t publish Amendment A in newspapers.
Since both amendments already had been certified for the ballot and sent to the printer, the court ordered them voided — so none of the hundreds of thousands of votes on them were counted.
It was the first time in state history that such an election fiasco had happened and the extent of the reverberations is still unclear.
In the early days of the 2025 session, legislators appear to be out for retribution. They are pushing a bill — sponsored by Fillmore — to make it more difficult and expensive to get a citizens initiative on the ballot. Another bill would ban collective bargaining with public employees – a move seen by some as primarily aimed at the teachers’ union, which successfully sued to throw out Amendment A in the last election. The bill has passed the House and awaits final Senate approval with a promise that it will be amended to allow collective bargaining if at least 50% of employees in an organization voted to have a union represent them.
House Minority Leader Angela Romero has introduced legislation to return the job of writing ballot language for constitutional amendments to impartial legislative attorneys. But the bill, still stuck in the Rules Committee, is unlikely to receive support from the Republican supermajority.
Fillmore, the author of SB37, expressed some concern about how Adams and Schultz overreached in exercising their new ballot-writing powers, but defended the switch of responsibility in his bill.
“It’s still the right thing to let the legislature write the language of the proposal, since the legislature is the one proposing it,” the senator said in an email interview.
“The ‘switch’ is fine. If anything was unwise it was the language drafted for Amendment D. I imagine the presiding officers learned better where the limits of their power are when it comes to drafting.”
The Senate president and House speaker, who had criticized the court ruling voiding Amendment D as “unprecedented and troubling,” defended the SB37 change, saying in response to a question that it addressed yearslong concerns about the old system where legislative attorneys limited communication with lawmakers about ballot language to preserve their impartiality. The new system, they argued, is aimed at improving “communication through appropriate channels while maintaining transparency and efficiency, hallmarks of Utah’s governance.”
Utah legislative leaders express regret over Amendment D’s ‘misleading’ ballot language
They did not respond to a question inviting them to expand on their comments to Utah News Dispatch last November that they regretted some of the ballot language they wrote for Amendment D.
Rank-and-file Republican legislators for the most part have kept any criticism about the fiasco to themselves. But a just-retired GOP lawmaker who supported Amendment D was furious at the way Adams’ and Schultz’ bid to tip the electoral scales backfired.
“I was embarrassed how they abused their discretion,” said the former lawmaker, who spoke on condition of anonymity.
“Legislative research (attorneys) would never have done that…. (Adams and Schultz) energized the opposition because it appeared as though they were cheating.”
Sen. Nate Blouin, a Salt Lake City Democrat, was the only lawmaker to publicly raise questions about SB37 when it was up for a vote last February. He expressed concern on the Senate floor that ballot language could be “swayed too much in one direction.”
Every Democrat in the House and Senate voted against the bill but didn’t publicly air their reasons for opposing it.
Blouin, in a recent interview, told of his frustration over the Legislature’s reckless abandonment of a practice that had worked well for decades.
“Legislative Research and General Counsel has done a great job, has been very careful in how they describe things. … This pretty clearly inserts a lot more politics into the ballot itself and that’s something I think we’ve always tried to avoid.”
Blouin pointed to all the Republican-led hand-wringing over election tampering in the years since Donald Trump made it a centerpiece of his 2020 presidential campaign.
“If you want to have any conversation about election integrity, you have to start with good, factual … information on the ballot. There’s absolutely no excuse for having biased, potentially misleading, even deceptive (language).”
In fact, Utah outlaws any type of politicking within 150 feet of polling places. The banned acts of “electioneering” include “any oral, printed, or written attempt to persuade persons to … vote for or vote against any candidate or issue.” It’s a separate crime to knowingly make or publish false statements about proposed constitutional amendments that are meant or tend to sway voting. Both violations are misdemeanors carrying possible jail time as well as fines.
Under SB37, the job of writing the ballot summaries for proposed amendments was not only reassigned to the Senate president and House speaker, but the expectation for impartiality and accuracy for those summaries was erased from the state code.
This creates a two-tiered system — literally a double standard. For constitutional amendments, legislative leaders now are free to write whatever ballot language suits their purposes with no oversight (except that of the court). SB37 also eliminated the impartiality and fairness standards for the analysis lawmakers write for the Utah Voter Information Pamphlet.
Meanwhile, for citizen initiatives, the ballot language and analysis in the Voter Information Pamphlet continues to be the job of impartial legislative attorneys. State law requires that this analysis be written in “clear and concise language” that “fairly describes” what the initiative does.
Polling by BYU’s Center for the Study of Democracy and Elections found that 79% of Utahns would oppose allowing the Legislature to amend or repeal any citizen initiative, according to The Salt Lake Tribune. But the way Amendment D was described on the ballot, a majority would have supported it.
BYU political scientist Quin Monson told the Tribune that in his opinion lawmakers “purposefully obfuscated” the amendment’s true purpose – a political “power grab.”
SB37 passed the Legislature months before Amendment D was thrown together in an “emergency” special session to overturn the state Supreme Court’s ruling upholding citizens’ right to reform government through initiative without threat of repeal by lawmakers. So was it just by coincidence that SB37 was enacted when it was?
Some of the lawmakers voting against the measure said it actually was meant to boost the chance of passage of a different proposed constitutional amendment — the one eliminating the income tax revenue earmark for education and social services. That proposal, which appeared on last year’s ballot as Amendment A, had cleared the Legislature in 2023 as SJR10.
“They’ve been trying to (erase the education earmark) for years,” said newly retired Rep. James Cobb, a Republican who represented southwest Salt Lake County. “This (SB37) was just a follow-on so they could write and pitch it on the ballot, I think, the way they wanted to.”
“The ballot language will always influence voters,” said Cobb, one of just three Republicans who voted against both SJR10 and SB37. “I just question how much of it is advocacy for your position versus an attempt to be neutral and descriptive.”
Two of the three GOP members voting against their party on those two measures are now out of the Legislature. Cobb wouldn’t say why he didn’t run for reelection.
Former Rep. Judy Rohner, R-West Valley City, who left her House seat to run unsuccessfully for the Senate, also was among the tiny contingent of Republicans voting against SB37.
She had voted for the proposed constitutional amendment that became Amendment D because she wanted voters to have their voices heard on the issue.
“We assumed that it would (conform) to the writing of what the bill said. Normally, that’s what would happen so that’s what you assume, so let the people vote on that,” Rohner said.
“Well, guess what happened? Leadership wrote something completely different.”
“The people should have been able to have the truth told but a lot of my counterparts, they thought (Amendment D) was the truth,” she said. “You know, they’ve drunk the Kool-Aid. I just haven’t swallowed enough yet.”
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