Amendment D still void: Utah Supreme Court upholds district court decision

Attorney Taylor Meehan speaks to the court as Mormon Women for Ethical Government and The League of Womens voters oppose the Utah State Legislature during oral arguments at The Supreme Court of Utah in Salt Lake City on Wednesday, Sept. 25, 2024. (Pool photo by Jeffrey D. Allred/Deseret News)

In a third check from the courts on the Utah Legislature’s attempt to assert its power over ballot initiatives, the Utah Supreme Court on Wednesday sided with anti-gerrymandering groups in what is likely the final nail in Amendment D’s coffin — at least this year.

The evening after the Utah Supreme Court spent more than three hours listening to oral arguments in state attorneys’ appeal to restore Amendment D, all five of the court’s justices issued a unanimous opinion upholding a district court judge’s decision earlier this month to void it from the Nov. 5 ballot.

“The district court correctly ruled that neither constitutional prerequisite was met with respect to Amendment D,” the Utah Supreme Court wrote in the ruling. “The Legislature did not cause the amendment to be published in newspapers throughout the state for two months, and the description that will appear on the ballot does not submit the amendment to voters ‘with such clarity as to enable the voters to express their will.’”

Had Amendment D stayed on the ballot and had voters approved it, it would have effectively sidestepped the Utah Supreme Court’s recent interpretation of the Utah Constitution that limited the Legislature’s powers to repeal and replace government-reform ballot initiatives and instead rewrite the constitution to cement lawmakers’ power to override any voter-approved ballot initiative.

However, the Nov. 5 ballot language posing the question to voters — 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.” 

Amendment D’s opponents also claimed state officials failed to meet publication requirements laid out in the Utah Constitution, which explicitly states 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.” 

On Sept. 12, a district court judge agreed on both counts, and she voided the question while allowing it to stay on the ballot since the decision came so close to ballot printing deadlines. 

State attorneys then appealed the decision to the Utah Supreme Court, which agreed to hear the case. 

“Although voters should have the opportunity to decide whether Amendment D strikes the correct balance between the people’s direct legislative power and that of their elected representatives, the public interest requires that constitutional amendments be submitted to voters in the way mandated by the supreme law of the state embodied in the Utah Constitution,” the Supreme Court wrote.

The swift decision comes after state officials urged the court to make a timely decision to dispel a “cloud” of uncertainty over the fate of the ballot question and the election before ballots begin hitting most Utahns’ mailboxes in mid-October.

Ryan Bell, a board member of Better Boundaries, the anti-gerrymandering group that sought the initial 2018 voter initiative to enact an independent redistricting commission that the Utah Legislature repealed and replaced (the constitutionality of which is currently being litigated), issued a statement applauding the Utah Supreme Court’s decision.

“The Court has now issued two unanimous decisions upholding the right of the people to pass initiatives without intrusion or correction by the legislature,” Bell said. “Today’s decision goes further, holding that the ballot language authored by legislative leadership seeking to push through its hasty amendment was too confusing to even place before Utah’s voters.”

Bell urged the Legislature to now “accept a clear reality – that its attempts to subvert the right of the people to reform their government must stop.”

“We are grateful that our balanced system of government has worked, and look forward to the implementation of the reforms the people voted for in 2018,” Bell said.

Justices grill state attorneys on accuracy of Amendment D’s ballot language

Two main questions drove the Utah Supreme Court’s line of questioning during Wednesday’s three-hour hearing, two of which were spent grilling state attorneys:

• Did the Utah Legislature meet its constitutional requirements to publish the full text of the amendment in newspapers across the state two months leading up to the election? 
• Is Amendment D’s ballot language so “inaccurate” or “counterfactual” in its representation of the proposed constitutional change to voters that it should remain void?

Representing the Utah Legislature, attorney Taylor Meehan fielded rapid-fire questions from the Utah Supreme Court’s five justices. While she agreed “you cannot rewind the clock” for the Utah Legislature, she argued lawmakers can still “substantially comply” with constitutional publishing requirements if the court were to order “continuous” publication of the amendment’s text in newspapers across the state for the next six weeks. 

Meehan argued the meaning of today’s “newspaper” should encompass online publications, and not just hard-copy newspapers that “no one reads anymore.” However, she also argued the Legislature met the publishing requirement by directing the lieutenant governor to publish the text of the amendment on the state’s website and by later purchasing ad space in 35 newspapers across the state. 

Justice Jill Pohlman wrestled with that argument, questioning “how we take the word ‘newspaper’” spelled out in the Utah Constitution and “turn it into a principle?” She said the constitution seems to give “precise” instructions on what the Legislature must do before putting a proposed constitutional amendment on the ballot. 

Justice John Pearce had a similar concern, questioning how the court would draw a line for “substantial compliance” but not open the door to other questions on other constitutional requirements — like perhaps whether an elected official lives slightly outside his or her district. 

“We’re in uncharted territory here,” Meehan said, adding “this is the first time” that a constitutional amendment has been “taken away from the voters,” and she urged the court to let voters decide the matter. 

The Amendment D question that voters will see on their ballots but that won’t be counted reads:

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.

However, 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. 

On the matter of whether Amendment D’s ballot language was “misleading” enough to disqualify it, Justice Paige Petersen, as well as Pearce and Pohlman, asked several questions about how the proposed change was characterized in its ballot language. 

Petersen said the effect of Amendment D seems clear, that it would give the Utah Legislature constitutional authority to alter or repeal any ballot initiative on an “unfettered basis,” and the Utah Constitution will no longer protect certain government-reform initiatives from being overridden by the Legislature without a compelling government interest. 

“Where does the ballot summary tell people that?” Petersen questioned. 

Meehan argued the ballot summary “does not have to talk about the effects of the amendment because the effects are uncertain.” She also argued it “does alert people to a change” that “clarifies” the Legislature’s ability to amend ballot initiatives. 

Petersen countered, saying she’s not “speculating” about its effects.

“That’s what the amendment does,” she said. “How will citizens be told that?”

Petersen’s question stabbed at the heart of the Utah Supreme Court’s interpretation of the Utah Constitution outlined in a unanimous July 11 opinion, when all five justices made clear that the Legislature’s power to amend government reform initiatives has limits. That ruling, siding with anti-gerrymandering groups, dismayed the Utah Legislature’s Republican supermajority, and prompted them to call an “emergency” special session to place Amendment D on the ballot in the first place. 

Pearce specifically questioned whether the definition of “clarify” was accurate. He said he read many different dictionary definitions for the word in the days leading up to Wednesday’s hearing, and he said it’s clear that “clarify” doesn’t mean “substantive” changes, but rather making an existing provision easier to understand. 

After a back-and-forth with Meehan, Pearce concluded the state “does agree there is some limitation” to ballot language. “It can’t be counterfactual,” he said, and has to “adequately inform” voters on what they’re voting on. 

Pohlman questioned whether the Legislature can “put its thumb on the scale” by crafting ballot language that sides with one argument over another. She pointed to the characterization that it  would “strengthen” the ballot initiative process, noting that’s a viewpoint held by supporters but not opponents. 

Meehan argued the ballot language isn’t “contrary to the amendment itself,” and that’s the question the court should be weighing. 

Pohlman also questioned how Amendment D would “clarify” voters’ ability to seek ballot initiatives when it’s clearly focused on legislative power. Meehand initially fumbled over an answer. That prompted Pohlman to say, “If you can’t give me your side … if you can’t even identify for me where it possibly does that, then I’m not sure there is even a debate.” 

Meehan said she’d address the issue later in her rebuttal. Near the end of the hearing, she argued voters are inherently part of the ballot initiative process because voters elect — or vote out — the legislators that ultimately have the power to alter or repeal ballot initiatives. 

Opponents’ arguments 

Justices spent about an hour grilling Mark Gaber, an attorney with the Campaign Legal Center representing plaintiffs including the League of Women Voters of Utah and others. 

Gaber reiterated the plaintiffs’ arguments — that Amendment D’s ballot language is “misleading and just counterfactual.” He said there is nothing in the amendment’s ballot language that informs voters of its actual effect. 

“The central feature of Amendment D is the Legislature (would have) unfettered power … to repeal any initiative voters pass — any initiative at all,” Gaber said. “You do not see the word repeal anywhere on the ballot summary. But that is the key power the Legislature is transferring to itself, to essentially throw out whatever voters pass.” 

Gaber argued by reading the ballot language, any “reasonably intelligent” voter would think Amendment D would “establish requirements the Legislature respect the intent” of ballot initiatives, but he argued the effect is the opposite. 

He also asserted the Legislature has failed to meet its constitutional publishing requirements, arguing hard-copy newspapers “still exist,” and the Legislature can’t pick and choose which parts of the constitution it adheres to, especially when the requirements are written as clear instructions. 

Pearce and Chief Justice Matthew Durrant also indicated in their lines of questioning that there is still the possibility that the Utah Legislature could try again by putting the question on the 2026 general election ballot rather than this year’s. 

“Certainly, the Legislature can come back and try this again,” Gaber said. “But they just need to follow the constitution when they do it.”  

Utah Supreme Court considers a more ‘tailored’ preliminary injunction 

Durrant asked Gaber whether it would be possible to issue a more “narrowly tailored” preliminary injunction — or “craft some remedy” to satisfy the Legislature’s constitutional publishing requirements, perhaps by requiring the Legislature to “flood the airwaves and newspapers,” both online and in print. 

Gaber argued, bluntly, “no.” 

“I certainly don’t understand how (it could) for two months” leading up to the election, Gaber said. He added that would do nothing to solve the “fundamental problem” that the ballot language is “misleading and inaccurate.” 

“No amount of publication of the text is going to do that,” Gaber said.

Meehan, however, argued the court could in some way preserve Utahns’ ability to weigh in on the question. 

“We would comply with any order” to meet constitutional publishing requirements, she said, while also arguing Amendment D’s ballot language is sufficiently accurate.

She urged the court to swiftly remove “any cloud over the election.”

“I do think there’s a way to allow the election on Amendment D to continue,” Meehan said, asking the court to vacate the preliminary injunction voiding the question, or “at least narrow it” to allow Utahns to cast their votes on Amendment D. 

Another constitutional amendment likely now doomed

With the Utah Supreme Court’s decision on Amendment D, it’s possible another controversial constitutional amendment is headed for the same fate.

As part of their lawsuit challenging the constitutionality of the state’s new “school choice” voucher program, the Utah Education Association and other plaintiffs last week asked a judge to void Amendment A, using the same arguments that doomed Amendment D: that the state failed to meet constitutional publishing requirements and that its language was misleading.

Utah teacher union asks judge to void Amendment A, launches campaign to vote ‘no’

If approved, the constitutional amendment would nix the state’s nearly 100-year-old constitutional earmark governing the use of income tax revenue (which currently reserves that money for public and higher education and some services for children or people with disabilities) and allow income tax dollars to fund other state needs. 

The change would also specify in the Utah Constitution that the state can only use those dollars for other priorities after it uses a portion of revenue growth for “changes in student enrollment and long-term inflation” — something that’s already in state statute but would be codified in the constitution.

Third District Court Judge Laura Scott on Wednesday held a scheduling conference to set a date to hear arguments for that motion. She scheduled it for Oct. 15, but noted that the Utah Supreme Court’s ruling on Amendment D would likely impact the outcome of Amendment A. 

“Hopefully we’ll know where we’re going,” Scott said, “sooner rather than later.”