Portraits of all five of the Utah Supreme Court’s justices hang outside the court’s chambers at the Scott M. Matheson Courthouse in Salt Lake City on Aug. 9, 2024. (Katie McKellar / Utah News Dispatch)
There’s a chance the controversial constitutional Amendment D on Utah’s Nov. 5 ballot — voided last week by a district court judge — may come back from the dead.
Over the weekend, the Utah Supreme Court agreed to hear the Utah Legislature’s appeal. In an order issued Saturday, the court scheduled a hearing for oral arguments Sept. 25.
Judge voids controversial constitutional amendment on Utah’s Nov. 5 ballot
Amendment D would ask voters to sidestep the Utah Supreme Court’s interpretation of the Utah Constitution that limited the Legislature’s powers to repeal and replace government-reform initiatives and instead rewrite it to enshrine lawmakers’ power to override any voter-approved ballot initiative.
However, the ballot language posing the question to voters — which was 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.” Last week, a district court judge agreed, and she voided the question while allowing it to stay on the ballot since the decision came so close to ballot printing deadlines.
Ironically, legislative attorneys will be arguing their case in front of a court that just two months ago issued a ruling in an anti-gerrymandering lawsuit that dismayed the Legislature’s Republican supermajority and prompted them to call an “emergency” special session to place Amendment D on the ballot in the first place.
On Friday, one day after the judge’s decision, attorneys for the Utah Legislature filed a petition with the Utah Supreme Court to appeal, arguing “people decide elections; courts don’t.”
“A handful of plaintiffs and special interest groups want to squelch that precious right,” the Legislature’s attorneys wrote in the petition. “They went to court to stop all Utahns from voting on a proposed constitutional amendment, rather than fight their cause at the ballot box. And the court obliged.”
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Later that same day, plaintiffs — the League of Women Voters of Utah, Mormon Women for Ethical Government, and individuals from Salt Lake County who claim they’ve been disenfranchised by gerrymandering — filed a response, arguing the state’s appeal is “fruitless because the district court’s decision was correct on the merits and was compelled” by the Utah Supreme Court’s previous interpretations of the Utah Constitution.
“It also follows inexorably from the basic constitutional principle that voters should be able to know what it is they are actually voting on,” plaintiffs wrote.
The debate over whether Amendment D should be revived or not is the latest development in a yearslong legal battle between Utah lawmakers and anti-gerrymandering groups, who sued after the Republican-controlled Legislature repealed and replaced Better Boundaries’ 2018 voter-approved ballot initiative that would have required lawmakers use an independent redistricting commission to draw Utah’s political boundaries every 10 years.
In 2020, the Utah Legislature repealed and replaced that voter initiative with a watered-down version of the law, turning the independent commission into an advisory panel, allowing the Utah Legislature to ignore the independent commission and draw their own version of the maps, which is ultimately what lawmakers did in 2021.
Those 2021 maps cracked Democratic strongholds in the red state of Utah, including a congressional map that sliced Utah’s most populated county, Salt Lake County, into four districts. The League of Women Voters of Utah, along with the other plaintiffs, sued. They claimed the Utah Legislature overstepped when it repealed and replaced the independent redistricting commission ballot initiative.
On July 11, the Utah Supreme Court issued a ruling that said the legislature’s power to amend government-reform initiatives has limits, but added “this does not mean that the Legislature cannot amend a government-reform initiative at all.”
The decision sent shockwaves across Utah, prompting giddy celebration from Democrats and anti-gerrymandering groups — and dismay from Republican legislative leaders, who characterized the ruling as one that opened the door to “super laws” enacted by ballot initiatives that would be immune to legislative changes. They criticized the unanimous ruling as an “error” that upset a 100-year “balance” in the powers they’ve long assumed the Utah Constitution granted the Legislature.
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. It said lawmakers could potentially justify “legislative changes that facilitate or support the reform, or at least do not impair the reform enacted by the people.” 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.”
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Rather than letting the Utah Supreme Court’s interpretation of the constitution stand, Utah lawmakers opted to instead ask voters to rewrite the constitution to enshrine lawmakers’ power to change ballot initiatives. If Amendment D is restored and if voters approve it, it will effectively render the Utah Supreme Court’s latest interpretation moot.
Meanwhile, the legal battle over Utah’s redistricting process (from which the fight over Amendment D stemmed from) is still playing out, after the Utah Supreme Court’s July 11 ruling sent it back to district court. That court will decide whether the Legislature indeed violated the constitution when it repealed and replaced Better Boundaries’ 2018 voter initiative.
That question will largely hinge on the results of Amendment D. Will the Utah Supreme Court’s interpretation of the Utah Constitution stand? Or will Amendment D be restored to the ballot and will voters decide whether to re-write it in favor of the Legislature’s interpretation?
We’ll know more on Sept. 25.
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