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

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 Republican-controlled Utah Legislature on Wednesday called itself into an “emergency” special session to place a proposed constitutional amendment on the Nov. 5 ballot, asking voters to skirt a recent Utah Supreme Court ruling that Republicans worry will handcuff their power to alter or repeal ballot initiatives.

The proposed constitutional amendment passed in the Senate 20-8 and in the House 54-21, with most Republicans voting in favor and Democrats against. A handful of Republicans (Sens. Wayne Harper, and Daniel Thatcher; and Reps. Steve Eliason, James Cobb, Ray Ward, Jim Dunnigan, Matt MacPherson, Marsha Judkins and Anthony Loubet), crossed party lines to vote against. 

The debate pitted people with preferences for two democratic ideals against each other: those in favor of allowing more direct democracy (through ballot initiatives) in Utah and those wanting to protect representative democracy (through the Legislature). 

Republicans argued the constitutional amendment is needed because the Utah Supreme Court’s ruling paved the way for invincible “super laws” enacted by ballot initiatives that the Utah Legislature would have no way of changing and invite California-style governance to the Beehive State. 

But Democrats, some Republicans that voted against, and other opponents, including anti-gerrymandering groups, argued that fear of “super laws” were unfounded, and that’s not what the Supreme Court’s decision necessarily said.

Though the constitutional amendment comes in direct reaction to a recent Utah Supreme Court decision in lawsuit over a ballot initiative attempting to alter Utah’s redistricting process, one of the proposal’s sponsors, Rep. Jordan Teuscher, said on the House floor it’s “so much bigger” than redistricting.

“We’re not bringing forth this constitutional amendment because the Legislature is butthurt that maybe we might have to redraw a map. It has nothing to do with that,” Teuscher, R-South Jordan, said. 

Rather, he argued it’s meant to address a Utah Supreme Court decision that he and other conservatives have interpreted as one that could have a “devastating” impact on Utah’s governance for “generations” and “completely change our state.” 

He said under previous assumptions of the Utah Constitution’s meaning, there has been a “balance” between ballot initiative power and the Legislature, but the Utah Supreme Court’s recent ruling disrupted it. 

The decision, Teuscher continued, opens the door to “outside interest groups to pour millions of dollars into our state pushing their agendas through initiatives that, if passed, could be nearly impossible to change.” 

Thatcher argued most of his fellow Republicans were going too far in their interpretation of the Utah Supreme Court ruling.  

“The language from the Supreme Court ruling, verbatim, says, ‘This does not mean that the Legislature cannot amend a government reform initiative at all,’” Thatcher, R-West Valley City, said on the Senate floor, quoting directly from the court’s opinion, before he voted against the proposed constitutional amendment. “‘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.’”

To that argument, Republican legislative leaders including Senate President Stuart Adams, R-Layton, said at best the Supreme Court decision only invites more litigation because, he argued, the opinion did not clearly define what “government reform” means.  

Thatcher predicted Utahns will see through the Legislature’s arguments and that it will fail during the November election. What it will do, however, is “give us the biggest black eye we’ve ever had in the Legislature.” 

Opponents also accused Utah’s Republican supermajority of a “power grab,” looking to assert their legislative power by asking voters to give up some of their power by weakening the might of ballot initiatives — even though the Utah Supreme Court, the body tasked with interpreting the state constitution, came to a different conclusion. 

Republicans, on the other hand, argued they weren’t looking to take away ballot initiative power, but preserve it as they’ve understood for nearly 100 years, in balance with legislative powers. 

In a media scrum after Wednesday’s special session, reporters pressed Adams and Teuscher, and the constitutional amendment’s Senate sponsor, Senate Majority Whip Kirk Cullimore, R-Sandy, on how Utah’s five Supreme Court justices could have gotten an interpretation so wrong (in GOP lawmakers’ minds) in a unanimous decision, when it’s the court’s job to interpret the constitution. 

“I don’t know if I’m capable of answering that, maybe you ought to ask them that,” Adams said, though he added their ruling “doesn’t work” for the Legislature by leaving too many unanswered legal questions. 

“Quite honestly, at this point, I don’t think it really matters whether they got it wrong or they got it right,” Teuscher said. “What we’re doing here is asking (voters) the question, ‘What should it be? What ought it to be?’ And the Supreme Court’s job isn’t to decide what policy should be. Their job is to interpret the law. We disagree with their interpretation, and we have a constitutional amendment now that allows the people to decide what they want that power to be.” 

During the special session, the Utah Legislature passed four pieces of legislation: 

• SJR 401, a resolution to put a question on the Nov. 5 ballot to ask voters whether to amend the Utah Constitution to make clear the Utah Legislature has the ultimate power to amend, enact or repeal a law adopted by a ballot initiative, as well as ban “foreign individuals, entities or governments” from influencing an initiative or referendum. 
• SB4002, a bill to establish an expedited timeline and process to place the above constitutional amendment question on the Nov. 5 ballot. 
• SB4003, a bill that would be “contingent on the passage” of the constitutional amendment at the polls, that 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 can 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 also allows lawmakers to amend the law in any manner if lawmakers determine it necessary to “mitigate an adverse fiscal impact.” 
• SB4001, a bill unrelated to the debate over the Utah Supreme Court ruling to fix an oversight in a bill passed earlier this year, SB180, that led to justice court backlogs. 

What spurred the special session and proposed constitutional amendment? 

At the heart of the issue is a court case over Utah’s redistricting process after the anti-gerrymandering group Better Boundaries successfully sought and voters approved a 2018 ballot initiative to create an independent commission to draw political boundaries Utah’s redistricting process. 

Believing the Utah Constitution gave them ultimate authority to repeal and replace ballot initiatives with their own versions of the law, the Utah Legislature adopted 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. 

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. 

Then came a lawsuit. The League of Women Voters of Utah — along with the group Mormon Women for Ethical Government and individual Salt Lake County residents who alleged they were disenfranchised by unlawful gerrymandering — claimed the Utah Legislature overstepped when it repealed and replaced the group Better Boundaries’ voter-approved initiative. 

The Utah Supreme Court’s unanimous decision that upset Utah’s Republican legislative leadership was issued July 11. It remanded that 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 initiative. That litigation now continues. 

Leading up to Monday’s special session call, the Utah Republican Party and dozens of other signees, as well as the conservative think tank Sutherland Institute, issued letters urging Utah lawmakers to “correct” the Utah Supreme Court’s ruling, expressing concerns that the opinion effectively allowed ballot initiatives to become “super laws” that can’t be changed by the Legislature. 

It’s worth noting that 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. The court’s opinion was targeted at initiatives specifically dealing with “government reform,” and it makes clear the Legislature’s powers to amend government-reform initiatives have limits — but it doesn’t say the Legislature can’t amend all government-reform initiatives. 

Debate over ‘super laws’ vs. respecting judicial branch

Cullimore, R-Sandy, an attorney and sponsor of the proposed constitutional amendment, argued that because of the way the court’s decision was written, it “essentially created a new class of laws — super laws, if you will — which had never before been contemplated in this state.” He also said “nowhere in law or case law do we have a definition of what it means to alter or reform government,” and that opens the door to more litigation over past and future ballot initiatives. 

“Therefore it can be reasonably deduced that any initiative that is modified in any way by the Legislature for whatever reason, could be subject to litigation, and ultimately the judgments of the courts as to whether it sufficiently alters and reforms government,” Cullimore said in a committee hearing before the special session while presenting the proposed constitutional amendment. 

“At a minimum, with the current ambiguities, we will have to ask the courts to essentially legislate what that standard is,” he continued. “Additionally, that discretion of what meets a strict scrutiny standard when revising the initiative, for whatever reason, may be subject to judicial determination as well. So even if we determine that these amendments meet the strict scrutiny standard, anybody can challenge that. And now we’re subject to judicial determination.” 

Rather than leave it to the courts — or let the Utah Supreme Court’s interpretation of the Utah Constitution stand — Cullimore said the Legislature should go to voters themselves to ask what they think. 

“Let the people decide and the people interpret what the constitution says,” Cullimore said. 

The potential for “super laws,” he continued, “is not just fear mongering.” 

“This perception is shared by many from all across the political spectrum. We’ve heard from many groups that are concerned about what this elevated initiative process can mean for our state,” Cullimore said, adding he’s “aware of lobbyists and PR firms that have been contacted by numerous groups from outside of Utah that are now motivated to run and significantly fund initiatives in Utah. That’s what this has invited.” 

Utah’s Democratic minority fought to oppose the constitutional amendment in both chambers. On the House floor, Rep. Andrew Stoddard, D-Sandy, described it as an “undermining of the judiciary based on recent Supreme Court decisions.”

“They’re in an equal branch of government. We need to treat them as such,” he said.

Stoddard pointed to a recent Utah Foundation survey, which found Utahns listed “legislators’ overreach” and politicians not listening as top concerns. Stoddard also compared the Legislature’s reaction to the Utah Supreme Court ruling to a child’s “tantrums” when they “don’t like something that happens.

“We haven’t had problems with initiatives, we haven’t had problems with referenda. We should let it play out,” Stoddard said of ongoing litigation over the redistricting ballot initiative that still has yet to play out in district court. 

A rushed public hearing

Wednesday’s special session and the proposed constitutional amendment’s passage came less than 24 hours after the bill’s language was made public, and after a committee hearing that left less than an hour for members of the public to weigh in. 

Katie Wright, executive director of Better Boundaries — the group that successfully sought the 2018 voter initiative to create an independent redistricting commission, only for it be repealed and replaced later by the Utah Legislature — decried that rushed process in an interview with Utah News Dispatch. 

“This is a power grab,” she said. “The people of Utah filled the rooms to help prevent it right now, and this process is too fast, not thoughtful, and not deliberative. What we’ll see, ultimately, that people of Utah will oppose this. They’re making it clear now, and we’ll see it when it comes (to a vote).” 

Utah’s Republican legislative leaders defended the rushed special session as necessary because deadlines to finalize the general election ballot by early September are fast approaching, and they didn’t want to wait until the next opportunity to put a constitutional amendment before voters, in 2026, because by then the state could be facing a flood of ballot initiatives empowered by the Utah Supreme Court’s ruling. 

Wright also said the provision in the proposed constitutional amendment to also 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 referenda in Utah, but legislative leaders argued it’s meant to prevent it from ever happening. 

“Voters see this for what it is. One branch of the government amassing power and very much targeting a constitutional right we have and trying to take it away,” Wright said. “Ultimately, people will vote no because they’ll see the big picture.” 

Now that the proposed constitutional amendment is headed for the Nov. 5 ballot, Wright said Better Boundaries planned to be part of a coalition of groups over the next two and a half months to urge voters to vote it down. 

“We’ve been at this for seven years. We’re not going anywhere,” she said. “The people of Utah are with us. I think everyone will see a lot of us between now and Election Day.” 

Contributing: Alixel Cabrera