‘Unprecedented’ lawsuit to void Utah constitutional Amendment D will be heard Wednesday
Former Utah Supreme Court justice Christine Durham urges 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)
The lawsuit urging a judge to throw out the ballot language of a proposed constitutional amendment to cement the Utah Legislature’s authority to change or repeal any ballot initiative could cause an unprecedented wrinkle ahead of the Nov. 5 election.
It could also place state and local elected officials in a tough spot as they face fast-approaching deadlines to begin submitting ballot proofs for printing as soon as this week.
In a scheduling conference held Monday afternoon while trying to navigate those tight deadlines, 3rd District Court Judge Diana Gibson scheduled an expedited hearing for Wednesday at 3 p.m. to consider arguments on whether or not the court should grant a motion for a preliminary injunction to block Amendment D from appearing on the ballot.
Anti-gerrymandering groups have asked a judge to toss out Amendment D, alleging its language written by Utah’s top Republican legislative leaders is false and misleading. The plaintiffs also allege state officials failed to provide notice of the proposed amendment by publication as strictly required under the Utah Constitution.
If, however, the judge decides to keep the question on the ballot, they have asked that she declare it as void.
‘Unprecedented’ situation
Attorneys defending the Utah Legislature and Lt. Gov. Deidre Henderson on Monday told the judge local election officials are under the wire, set to submit ballot proofs to third-party printing vendors beginning Monday, the same day as the hearing. Federal law also requires election officials to send absentee ballots to military service members and other U.S. citizens residing outside the U.S. early — by Sept. 20 — so they argued time is running extremely short to get ballots proofed, printed and mailed before that deadline.
Utah expects to print 4,451 of those initial overseas ballots, according to the lieutenant governor’s office.
“The absolute drop dead date for getting proofs to the printer is this Thursday,” attorney David Wolf with the Utah Attorney General’s Office, representing Henderson, told the judge.
Mark Gaber, an attorney for the Campaign Legal Center representing the plaintiffs (the League of Women Voters of Utah, Mormon Women for Ethical Government, and individual Salt Lake County residents who claim they have been disenfranchised by unlawful gerrymandering), argued that if the judge determines that Amendment D’s language is illegally placed on the ballot, it should not be printed.
“It seems to us that the most prudent step is to prepare two proofs,” Gaber said, one that has the question and one that does not. And “if necessary, print two sets” of overseas absentee ballots.
However, Wolf argued “the idea of two proofs is costly and runs the risk of confusion for counties.”
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When Gibson asked for alternative solutions, state attorneys said county clerks would need a ruling by Wednesday to give them time to adjust their ballots, if need be.
“Otherwise, we just move forward, they’re printed, and then we’ll figure out how to deal with that after the fact — if the court rules in favor of the plaintiffs?” the judge asked.
State attorneys said it is possible to print the ballots with the question, and if the judge were to decide to void Amendment D, Utah election law allows a process to not count ballots for candidates that drop out after the printing deadline.
“That type of process exists. I think logistically that could be used for Amendment D,” Wolf said. “But I haven’t thought through other implications of doing that, whether that could create confusion for counties … or confusion for voters. But logistically it’s possible.”
It’s not yet clear what the judge will do regarding the preliminary injunction — though on Monday she granted the motion to expedite proceedings, signaling she’s open to hearing the plaintiff’s case. Gibson urged state officials to file a response to the plaintiff’s arguments by 10:30 a.m. Wednesday so she can consider them before the 3 p.m. hearing.
Attorney Tyler Green, representing the Utah Legislature in the case, told the judge state attorneys were already racing to respond, but they could meet that deadline.
“All of our cylinders are firing as quickly as they can fire. We’ve had people working on this around the clock since (the lawsuit) came in,” Green said, pointing to the large scope of the lawsuit. “We’re trying to make sure we get it right … to get the court the right answer to resolve this.”
Green added what the plaintiffs are seeking is “unprecedented in this state.”
How did we get here?
It’s the latest development in a long saga — after the anti-gerrymandering group Better Boundaries successfully pursued and voters approved a 2018 voter initiative to create an independent redistricting commission to draw Utah’s new political boundaries in its redistricting process that occurs 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 role, but 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 congressional districts.
That’s when 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 group Better Boundaries’ voter-approved initiative.
That case ended up before the Utah Supreme Court, which remanded the lawsuit over back to district court in a unanimous opinion issued July 11, 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 initiative. That litigation now continues.
That ruling upset the Utah Legislature’s Republican supermajority — with most GOP lawmakers fearing it handcuffed 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.
That spurred the Utah Legislature to call itself into an “emergency” special session, in which it passed a resolution to place the proposed constitutional amendment on the ballot. Rather than let the Utah Supreme Court’s interpretation of the Constitution stand, lawmakers opted instead to refer the question to voters. If Amendment D passes, it will effectively render the Utah Supreme Court’s latest interpretation moot.
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 lawmaking 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.
When drafting the language that will appear before voters, Utah Senate President Stuart Adams, R-Layton, and House Speaker Mike Schultz, R-Hooper, characterized Amendment D’s as follows:
Constitutional Amendment D
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.
When that ballot language was published last week, anti-gerrymandering groups, Democrats and some Republicans who voted against placing the constitutional amendment on the ballot decried the language as “deceptive.” Soon after, League of Women Voters and the other plaintiffs filed the lawsuit to get the question removed altogether.
Adams and Schultz in series of statements last week defended Amendment D’s language as “clear and straightforward,” and criticized the plaintiffs, accusing them of being hypocritical.
“It’s ironic that the very people who claim to advocate for greater voter engagement are the same ones trying to obstruct Utahns from having the opportunity to vote on this important matter,” Adams and Schultz said. “The plaintiffs are clearly concerned about leaving it to voters to decide. Before initiatives overwhelm and significantly alter our state, Utahns should have the opportunity to voice their opinions.”
Where will this saga go next? We’ll know more Wednesday.
