SALT LAKE CITY (AP) — The Utah Supreme Court is about to decide whether a proposed constitutional amendment asking voters to give lawmakers the power to decide ballot measures is clearly written and should be considered on the November ballot.
Legislative lawyers and a coalition of voting rights advocacy groups argued before the state Supreme Court on Wednesday after a lower court ruled earlier this month that voters should not decide the crucial ballot question this year.
Republican lawmakers are urging the five-judge panel to overturn District Judge Dianna Gibson’s ruling and resubmit Amendment D to the public. But opponents of the measure warn that it is worded in a way that could trick voters into giving up their power to pass meaningful legislation.
If the amendment is taken up again this fall and approved by a majority of Utah voters, it would give lawmakers the constitutional authority to rewrite or repeal ballot initiatives passed by voters. Lawmakers could also apply their novel power to initiatives passed in previous legislative sessions.
The summary that voters see on their ballots simply asks whether the state constitution should be amended to “strengthen the initiative process” and more clearly define the roles of legislators and voters.
Gibson ruled in early September that the wording of the ballot question crafted by Republican lawmakers was “counterfactual” and did not convey to voters the unfettered power they would give to state lawmakers. She also said the legislature failed to publish the ballot question in the state’s newspapers within the required time limit.
Taylor Meehan, a lawyer for the legislature, defended the amendment before the Utah Supreme Court on Wednesday, arguing that a reasonably smart voter would be able to understand the intent of the ballot question.
Judge Paige Petersen said the amendment would remove constitutional protections for Utah’s current ballot initiative process. She asked Meehan to point out where in the ballot question voters are informed that they are waiving those protections.
Meehan said the summary that will appear on the ballot does not have to inform voters of the impact of the amendment. The summary should simply lend a hand the voter identify the amendment and direct them to the full text, she said, agreeing with Justice John Pearce that the wording cannot be counterfactual.
Mark Gaber, an attorney for the League of Women Voters, argued that voters would not assume the ballot summary was false and that they could not be expected to seek true information. He argued that the language omits significant details and is counterfactual because it purports to strengthen the initiative process while actually eliminating voters’ ability to pass legislation without interference from the legislature.
The justices did not provide a timetable for when they would rule on the viability of the ballot question.
Because of ballot printing deadlines, the amendment will appear on Utah’s ballot in November regardless of the Supreme Court’s ruling. However, the votes may or may not be counted.
The change in the law is intended to circumvent another ruling by the Utah Supreme Court in July, which said the legislature’s power to change laws passed through citizen initiatives is very confined.
Frustrated by that decision, legislative leaders used their broad emergency powers in August to call a special session, in which both chambers quickly agreed to put an amendment on the November ballot. Democrats denounced the decision as a “power grab,” while many Republicans argued it would be perilous to have certain laws on the books that could not be significantly changed.
Republican Gov. Spencer Cox said last week during his monthly televised news conference on KUED-TV that he found the lower court’s opinion “compelling.” He declined to say whether he thought the ballot question was misleading and said he would leave the decision to the high court.
“It’s important that the language is clear and conveys what the actual changes are going to do,” Cox told reporters. “I hope that ultimately the people of Utah get a chance to voice their opinion and decide one way or the other how this is going to proceed. I think that’s very important, but it’s important that we get it right.”
