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 Utah Supreme Court’s ruling this week keeping Amendment D void wasn’t necessarily surprising given it had already made it clear in an earlier ruling the Utah Legislature’s powers do, in fact, have limits.
However, the ruling does have significant implications for a host of reasons.
The ruling affirming a district court judge’s decision to void Amendment D is unprecedented. Never before has a question been disqualified from already-printed ballots (Amendment D will remain on paper, but votes won’t be counted and the constitutional change won’t take effect).
While the ruling shuts the door on Amendment D this year, it’s possible the Utah Legislature could try again to ask voters to enshrine its authority to repeal and replace any ballot initiative, even if it reforms the government.
It’s a debate that may surface during the Legislature’s 2025 general session starting in January, to possibly put another iteration of the proposed amendment on the next general election ballot in 2026. But the Utah Supreme Court made clear that constitutional amendments must not only adhere to publication requirements, but be characterized in ballot language that’s not “misleading.”
Amendment D still void: Utah Supreme Court upholds district court decision
It remains to be seen what lawmakers will do, if anything. Utah House Speaker Mike Schultz, R-Hooper, and Senate President Stuart Adams, R-Layton, weren’t available for an interview on Thursday, according to their staff. However, the two top Republican legislative leaders issued a joint statement Wednesday night after the Supreme Court issued its ruling. They called it “unprecedented and troubling.”
“The Legislature offered the Court a way to preserve the voting rights of all Utahns, but instead, the Court took the chance to vote on Amendment D out of the voters’ hands,” Schultz and Adams said. “It’s a sad day for Utah and voters, whether for or against the constitutional amendments.”
Anti-gerrymandering groups and Democrats, who have long struggled to contend with Utah’s Republican supermajority, celebrated the ruling as one that demonstrated appropriate checks and balances between Utah’s branches of government.
House Minority Leader Angela Romero, D-Salt Lake City, said Amendment D was the result of a “rushed and misleading process” that “wasted time and betrayed the trust of Utahns.” She referred to the GOP-controlled Legislature hurriedly calling itself into an “emergency” special session last month to place Amendment D on the ballot in the first place.
“The court’s decision didn’t take away voters’ rights – it protected them from a ballot summary that failed to clearly explain the amendment,” Romero said, in response to Adams and Schultz’ statement.
Last month’s special session came in direct reaction to the Utah Supreme Court’s unanimous July 11 opinion remanding a lawsuit over Utah’s redistricting process back to district court. 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 initiative. That measure, Proposition 4, would have enacted an independent redistricting commission to redraw congressional and legislative boundaries after every decennial Census.
That ruling dismayed Utah’s Republican legislative leaders, who have long believed the Utah Constitution gave lawmakers the ultimate authority to repeal and replace any ballot initiative. Acting under that belief, the Utah Legislature replaced Proposition 4 in 2020 with a watered-down version of the new redistricting process. That allowed Utah Lawmakers to ignore independently-drawn maps and adopt their own versions, which is ultimately what Republican lawmakers did in 2021 when it came time to set Utah’s new political districts for the next 10 years.
Utah Supreme Court hands big win to plaintiffs in anti-gerrymandering lawsuit
However, the Utah Supreme Court’s July 11 ruling in the redistricting lawsuit made clear 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.
“The Utah Supreme Court upheld a fundamental principle that never should have been in doubt — the government must honestly present the questions voters are asked to decide,” Mark Gaber, an attorney with the Campaign Legal Center, which represented the League of Women Voters and other plaintiffs in the case challenging Amendment D. “The Utah Legislature failed at every step in this process, and voters will now see their constitutional rights affirmed.”
Emma Petty Addams, co-executive director for Mormon Women for Ethical Government, another plaintiff in the case, called Wednesday’s ruling a “tremendous victory” that “affirms the right of the people to ethical and transparent government.”
“We’re grateful for the clear message this decision sends: constitutional checks and balances exist for a reason and everyone must follow the constitution,” Addams said.
Katharine Biele, president of the League of Women Voters of Utah, said she hopes the ruling will open the door to a “new day” for Utahns.
“I hope the Legislature understands they represent us,” she said. “We look forward to working with them in the future on the issues that affect all Utahns.”
But will the Supreme Court ruling actually push the Utah Legislature to work better with anti-gerrymandering groups in the future?
And given now two Utah Supreme Court rulings have strengthened plaintiffs’ arguments in ongoing litigation challenging the constitutionality of the Legislature’s repeal and replacement of Better Boundaries’ 2018 ballot initiative — which would have required lawmakers to use an independent redistricting commission to draw Utah’s next set of political boundaries — what comes next in that case?
What’s next for Utah’s redistricting process
Ryan Bell, a board member of Better Boundaries, said it’s difficult to predict with certainty what will happen with the League of Women Voters of Utah’s ongoing case against the Utah Legislature’s repeal and replacement of the 2018 independent redistricting commission.
However, he said the Utah Supreme Court’s July 11 ruling and the invalidation of Amendment D — which would have effectively rendered the court’s interpretation of the Utah Constitution moot — strengthens their chances in court.
Bell said he knows “there’s so many different ways that a lawsuit can end up going.” Plaintiffs now must prove their facts. That could mean the case will go to trial, or he said it’s possible all parties see the writing on the wall and decide to reach a resolution where “everyone agrees.”
If the courts deem the Legislature’s repeal and replacement unconstitutional, Bell said he’s confident Proposition 4 will be restored as law, and Utah could ultimately get a new, independently-drawn set of redistricting maps. The question, though, is when.
“Is it in a month or two years? It’s hard to say,” Bell said. “But the ultimate result, yes. I really do think Prop. 4 now is going to hold.”
That means Utah could end up with, at some point, independently-drawn maps “that will just make it hard to gerrymander people out of their districts,” Bell said. “And that means there’s going to be a fundamental change in the Legislature.”
It is possible, though, that the Utah Legislature may “take another swing at this” and try to put another version of Amendment D on the ballot in 2026. Whether lawmakers do that or not, Bell said, depends on if they’re still as “fired up” about the issue as they are now.
Bell predicted there won’t be a “wave of initiatives” that Amendment D’s proponents warned of, so he said it will be “harder” for them to make their case before voters. However, he said it’s possible the Legislature could do something no one has even thought of yet.
“There’s always things they can do, and they’ve proven to be both motivated and quite strategic,” he said. “I have found myself to lack the imagination to predict whatever else they might do.”
But ideally, Bell said, lawmakers will take a step back and decide to genuinely work with Better Boundaries rather than continue to fight.
“The wishful thinking is that everybody says, ‘the Supreme Court has made it clear … so we should just stop fighting now and just resolve it,’” Bell said.
Opponents of Utah constitutional amendment on voter initiatives decry ‘deceptive’ ballot language
Romero said she also hopes the ruling on Amendment D serves as a “wake up call” to her Republican counterparts in the Legislature that “there’s a reason why we have three branches of government, and maybe this is a sign that we need to slow down.”
“The judiciary has spoken,” she said. “They were on the side of the law.”
Romero also said she’s “hopeful” for an independent redistricting process at some point in the future, but she said in the meantime Utah voters need to hold their elected officials accountable.
“This is a prime example of what will continue to happen unless the voters say we want change. I heard a lot of people say, ‘I don’t like Amendment D.’ Well, let’s see if they take that to the polls,” she said. “Democrats only need to pick up nine more seats in the House to break the supermajority.”
Romero said another problem that doomed Amendment D was a lack of a “robust process.” The “emergency” special session rammed it through with very little public input. That — alongside another bill passed earlier this year, SB37, that took the responsibility of writing constitutional amendment ballot language away from the nonpartisan legislative general counsel and assigned it to the House speaker and Senate president — caused legal problems for Amendment D, she said.
“We’re in this situation because the majority jumped the gun and they didn’t think about these consequences,” Romero said.
In reaction to what happened with Amendment D, Romero said she and Senate Minority Leader Luz Escamilla, D-Salt Lake City, plan to sponsor a bill to return the duty of writing constitutional amendment language back to nonpartisan legislative general counsel.
Ruling raises questions for other constitutional amendments on 2024 ballot
The ruling voiding Amendment D also raises other questions. It casts uncertainty over the validity of all three of the other constitutional amendments on the Nov. 5 ballot for voters to consider — given none of these proposed constitutional amendments’ texts were printed in newspapers as explicitly required by the Utah Constitution.
That was one of the two reasons why the courts invalidated Amendment D: The constitution says 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 other reason? The district court agreed with — and the Utah Supreme Court’s ruling upheld — Amendment D’s opponents’ claims that its ballot language was “misleading and counterfactual.”
Utah teacher union asks judge to void Amendment A, launches campaign to vote ‘no’
Critics of at least one other proposed amendment, Amendment A, are challenging the ballot question in court for similar reasons, and it remains to be seen whether the courts agree this one was written “with such clarity as to enable the voters to express their will,” as the Utah Supreme Court put it in its ruling Wednesday night.
But it may very well only take one constitutional violation to disqualify a constitutional amendment, and if Amendment D wasn’t published in newspapers as required, neither was Amendment A. Same goes for Amendment B and C.
However, Amendment A — which would nix the state’s nearly 100-year-old constitutional earmark reserving the use of income tax revenue for education and allow income tax dollars to fund other state needs — is the only other one being challenged in court currently. Third District Court Judge Laura Scott is scheduled to hear arguments for and against a preliminary injunction to possibly void it on Oct. 15. She said her decision will likely hinge on what the Utah Supreme Court decided in the Amendment D case, which spells trouble for Amendment A.
It’s unclear, however, whether Amendment B (which would increase the limit on the annual distributions from the State School Fund to public schools from 4% to 5%) and Amendment C (which would enshrine in the constitution that all county sheriffs continue to be elected by Utah voters, as they currently are), will be challenged. Neither are controversial — and certainly not ruffling feathers like amendments A or D.
But House Minority Leader Angela Romero, D-Salt Lake City, told Utah News Dispatch on Thursday she believes all of the proposed constitutional amendments appearing on the Nov. 5 ballot should be voided if they did not meet constitutional publishing requirements.
“That’s a really good question and I think that’s something we all have to look into,” Romero said when asked about whether any of this year’s proposed constitutional amendments were published properly under the Utah Constitution. “If we’re not following the rules, then we need to be held the same standard.”
SUPPORT NEWS YOU TRUST.