Opponents of Utah constitutional amendment on voter initiatives decry ‘deceptive’ ballot language

People watch from a packed gallery as the Senate discusses a proposed constitutional amendment related to citizen initiatives during a special legislative session at the Capitol in Salt Lake City on Wednesday, Aug. 21, 2024. (Photo by Spenser Heaps for Utah News Dispatch)

The language that will appear on the Nov. 5 ballot asking voters whether to change the Utah Constitution to sidestep a recent Utah Supreme Court ruling on ballot initiatives has been finalized. 

Anti-gerrymandering advocates with the group Better Boundaries decried the language as misleading. In response, the Utah Legislature’s top Republican legislative leaders argue it’s “straightforward and concise” to help voters understand the “core” of the proposed constitutional change.

The question — written by Senate President Stuart Adams and House Speaker Mike Schultz — that will appear before Utah voters on the ballot will read as follows, according to the official 2024 general election certification that Lt. Gov. Deidre Henderson signed Tuesday. 

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. 

A screenshot of the proposed amendment to the Utah Constitution in SJR401, containing language that would be added to the Utah Constitution if voters approve Constitutional Amendment D in the general election on Nov. 5, 2024. (Katie McKellar / Utah News Dispatch)

The issue 

Voters will be asked whether to vote for or against changing the constitution. Voting in favor will enshrine in the Utah Constitution the Utah Legislature’s authority to alter or repeal any voter ballot initiative passed by Utah voters — something Legislature’s Republican leaders thought has been their authority, up until a recent Utah Supreme Court ruling in an anti-gerrymandering lawsuit said otherwise.  

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That July 11 ruling remanded the lawsuit over Utah’s redistricting process 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’ voter-approved 2018 initiative that sought an independent redistricting commission. 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 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. As a result, they argued it would invite California-style governance to Utah by allowing more lawmaking at the ballot box — something they argued could create “chaos” and strike “at the very heart of our Republic.” 

That’s not necessarily what the Utah Supreme Court ruling explicitly said, though it does leave a 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.” 

“Rather, legislative changes that facilitate or support the reform, or at least do not impair the reform enacted by the people, would not implicate the people’s rights under the Alter or Reform Clause,” the ruling states. 

The opinion also says “legislative changes that do impair the reforms enacted by the people could also survive a constitutional challenge, if the Legislature shows that they were narrowly tailored to advance a compelling government interest.”

Rather than letting the Utah Supreme Court’s interpretation of the constitution stand, Utah lawmakers opted to instead put the question before voters. If Amendment D passes, it will effectively render the Utah Supreme Court’s latest interpretation moot. SJR401 makes that clear, by stating the constitutional amendment would be retrospective, meaning it would impact any past ballot initiatives, as well as future. 

The debate

Anti-gerrymandering advocates argue legislative leaders’ fear of “super laws” are unfounded — and they said the Legislature is misrepresenting the issue to voters. Though the Senate president and House speaker characterized the constitutional amendment as one that would “strengthen” the ballot initiative process, anti-gerrymandering advocates argued it would actually weaken Utah voters’ power to reform their government through ballot measures. 

“The ballot language issued by legislative leadership is hopelessly slanted,” Ryan Bell, a board member of Better Boundaries, said in a prepared statement Wednesday. “It is not true that this amendment will strengthen the initiative process; it will weaken that process.” 

Bell said it’s also “not true” that the constitutional amendment, if it passes, will “establish requirements for the Legislature to follow the intent of a ballot initiative; it will free them to override initiatives passed by the will of the people.”

“It is saddening to see legislative leadership compound their refusal to engage with the people on this issue with ballot language that is likely to mislead the people,” Bell said. “Better Boundaries and its many allies will ensure that the people of Utah see through these tactics.”

The language of Amendment D refers to SB4003, a companion bill that the Utah Legislature also passed in last month’s special session that’s “contingent” on voters passing the constitutional amendment. 

That bill would make it slightly easier to successfully place a voter referendum (a petition to refer an existing law to voters for approval or rejection) on the ballot by increasing the window of time referendum sponsors have to gather signatures, extending it from 40 days to 60 days. It would also require the Legislature, if it’s amending a ballot initiative, to “give deference” to the initiative’s “general purpose” — but it also gives lawmakers flexibility to amend the law in any manner if lawmakers determine it necessary to “mitigate an adverse fiscal impact.” 

Utah Legislature asks voters to change constitution, skirt Supreme Court ballot initiatives ruling

In response to a request for comment on complaints that the ballot language is misleading and why they chose to characterize the amendment as one that would “strengthen” Utah’s ballot initiative process, Adams and Schultz on Wednesday issued a joint prepared statement.

“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 the special session that established an expedited timeline and process to place the question on the ballot, the House speaker and Senate president will appoint lawmakers who voted in favor, as well as lawmakers who voted against, to craft those arguments. 

“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.” 

Democrats call ballot language ‘misleading’ 

House Minority Leader Angela Romero, D-Salt Lake City, and Senate Minority Leader Luz Escamilla, D-Salt Lake City, told Utah News Dispatch on Wednesday they had been appointed to write the arguments against the constitutional amendment that will appear in the voter pamphlet. Both Democrats were frustrated with the ballot language, and agreed it was “misleading.”

“I think it makes the average citizen distrust the Legislature even more,” Romero said. 

Escamilla noted that this year marks the first time the Senate president and the House speaker have written constitutional amendment language after the Utah Legislature earlier this year passed a bill, SB37, that took that responsibility away from the legislative general counsel and assigned it to the House and Senate’s presiding officers. Democrats and some Republicans voted against that bill, but it passed handily in both bodies. 

Previously, Utah law required an “impartial analysis” of the measure to be prepared by the Office of Legislative Research and General Counsel to be included in the voter pamphlet, but SB37 added an exception for constitutional amendments, allowing an “analysis” of the measure to be prepared by the House speaker and Senate president. In that provision, it doesn’t require neutrality or unbias, Escamilla said. 

“It’s very concerning,” she said, “when there’s inaccuracies like that (in the ballot language).” 

Better Boundaries executive director Katie Wright has also said the provision in the proposed constitutional amendment to ban “foreign influence” is a “red herring” designed to entice Utahns to vote in favor. There is no evidence that “foreign entities” have contributed to any ballot initiatives or referendums in Utah, but legislative leaders have argued it’s meant to prevent it from ever happening in the future. 

Romero also noted Utah already makes it “very difficult” for a citizen initiative to qualify for the ballot. Since 1952, Utahns have successfully placed 23 initiatives on the ballot, and only seven have passed. In the last 20 years, only three have succeeded, all in 2018 (medical cannabis, Medicaid expansion, and independent redistricting), and all of which were repealed and replaced by Utah lawmakers. 

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“So I don’t think this cry that we’re becoming like California is accurate, and I feel like we’re basically lying and we’re trying to distract the people of Utah while we’re taking away their voice,” Romero said. 

As Amendment D’s official language began circulating on social media, it prompted backlash from Democrats, anti-gerrymandering advocates and some Republicans opposed to the constitutional amendment decrying it as deceptive. 

Sen. Dan McCay, R-Riverton, clapped back, writing in a post on X that the outcry underscored problems with ballot initiatives.

“I wonder if those that complain about the language on the ballot know they are making the legislature’s case?” McCay posted. “Initiatives mostly pass/fail because very busy voters only read what is on the ballot and DO NOT READ the actual language.”

To McCay’s post, Ecamilla said “there’s an issue of trust with the Legislature,” and regardless of “smart comments” on social media, she said there’s a difference between the difficult task of voters gathering enough signatures and successfully placing a ballot initiative on the ballot and a constitutional amendment approved by the Utah Legislature’s supermajority. 

“I find it a little bit offensive that we want to patronize voters. They are busy and it is convoluted,” Escamilla said, but she added what’s different and “concerning” with this ballot question thanks to SB37 is there is now “bias” in the language, which she said voters wouldn’t expect. 

“So now not only do we need to educate the public about the impact of the constitutional question, (but also) now the way we ask the question is problematic,” Escamilla said. 

Romero said McCay’s post was “snarky” and “disrespectful” to Utahns, and “this is why more than ever people need to vote against Amendment D to show (lawmakers) that the Utah Legislature is here to serve the people of Utah.” 

A Republican makes the case against

Rep. Ray Ward, R-Bountiful, was among nine Republicans (two in the Senate, seven in the House) who voted against putting the proposed constitutional amendment on the ballot. 

He told Utah News Dispatch in an interview Wednesday that the ballot language for Amendment D “is deceptive — period.” 

“It incorrectly claims that the effect of the amendment is to strengthen the initiative process,” Ward said, “when in fact the main change that is proposed will seriously weaken the initiative process.” 

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He said that part of the proposed constitutional amendment “gives the Legislature clear constitutional power to change or completely repeal any citizen initiative, at any point. And that’s just put right in the Constitution. And the very first line of the language even gives that line of the Constitution precedence over any other line in the Constitution.” 

Ward said the second bullet point of the Amendment D question — “clarifying the voters and legislative bodies’ ability to amend laws” — is also “misleading” because it does not clearly communicate how the balance of voter initiative power and legislative power would change. While ballot initiatives require “thousands of hours of work” and donor money to gather signatures to even make it on the ballot, he said the Legislature will have the power to overturn it in “one day, in a special session.” 

Ward said he worries that if the constitutional amendment passes, it will have long-term negative impacts on Utah governance. 

“Having ballot initiatives don’t happen often, but they are an important check, and they are an important balance of power,” Ward said. “I believe if we lose that balance, which we could on this vote, that long-term Utah will not be as good as a place if we lose that little bit of balance of power.”