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SALT LAKE CITY — The Utah Supreme Court ruled that Utah lawmakers overstepped the people's authority to alter government when they changed a voter initiative that established an independent redistricting commission.
Utah's top two legislators decried the ruling, calling it "one of the worse outcomes we've ever seen" from the high court, adding it creates chaos and strikes "at the very heart of our republic." House Speaker Mike Schultz, R-Hooper, says the Legislature is already considering a constitutional amendment or other legislative paths to undoing the ruling.
The unanimous decision in League of Women Voters of Utah v. Utah State Legislature, made public Thursday, overturned a district court decision dismissing one of the counts of the original lawsuit against the Legislature but returned the case to a lower court for reconsideration, meaning the case will be subject to further litigation.
What the decision says
The court's ruling comes one year to the day after it heard oral arguments in the case over the recently enacted congressional redistricting maps. Plaintiffs — including the League of Women Voters of Utah, Mormon Women for Ethical Government and several individuals — argued lawmakers undermined Utahns' constitutional rights to participate in free elections by ignoring voting maps recommended by the independent commission.
Voters approved Proposition 4 in 2018 to establish the commission to draw maps every 10 years, but lawmakers later watered down the commission's role to an advisory one with SB200 in 2020 and then adopted their own maps during the redistricting cycle in 2021.
Plaintiffs argued that the watering down of the ballot initiative went against the Utah Constitution, which gives "the people of the state of Utah" equal legislative power to lawmakers.
In her opinion, Justice Paige Petersen rejected the arguments from the Legislature that lawmakers can amend or repeal citizen initiatives.
"On that basis, the district court dismissed Count V (of the lawsuit)," Petersen wrote. "But a close look at the original public meaning of the Alter or Reform Clause and the Initiative Provision reveals that Utahns' exercise of these constitutional rights is protected from undue government infringement. Thus, these constitutional provisions limit the Legislature's authority to amend or repeal an initiative that reforms the government."
She later added that the Alter or Reform Clause of the Utah Constitution "demonstrates that the people's exercise of their right to reform the government through an initiative is constitutionally protected from government infringement, including legislative amendment or repeal that impairs the intended reform."
The opinion said courts should apply strict scrutiny to issues "where the people's right to directly reform the government through their initiative power is at issue," and said if the plaintiffs can establish that argument in a lower court, "the burden will shift to defendants to show that SB200 was narrowly tailored to advance a compelling government interest."
The ruling doesn't apply that level of scrutiny to every citizen initiative passed, only those that are related to direct reform of government, as protected by the state Constitution. The decision represents a significant change in understanding about ballot initiatives and could result in changes to Utah's redistricting process.
Lawmakers react harshly
Better Boundaries, the group behind the Proposition 4 initiative, celebrated the ruling Thursday as a "major victory," saying the court "affirms our constitutional right to reform our government."
But Schultz and Utah Senate President Stuart Adams, R-Layton, issued a scathing rebuke of the ruling as "one of the worst outcomes we've ever seen from the Utah Supreme Court."
"Rather than reaching the self-evident answer, today the court punted and made a new law about the initiative power, creating chaos and striking at the very heart of our republic," the joint statement said. "This ruling will have profound and lasting ripple consequences that could negatively impact the state's future. It mirrors how states like California are governed — by big money and outside interest groups that run initiatives to alter the government and push their own agendas."
The pair said Utah's ruling "has gone a step further by creating 'supreme laws' that could be tied up in lengthy disputes for years. This decision strips away the ability of state, county, and municipal authorities to enact policies and expose them to prolonged legal battles. As the (litigation) continues in the lower court, we believe the Utah Constitution's text shows that the Legislature should ultimately prevail."
Schultz told KSL.com lawmakers are already considering a constitutional amendment to undo the decision and other legislative efforts aimed at blunting its impact. The speaker said he believes the court's ruling leaves unclear what can be considered a reform of government, and said the ruling could be used to prevent lawmakers from amending other types of initiatives, as they did with initiatives legalizing medical cannabis and expanding Medicaid.
He said lawmakers are likely to try define what it means to alter or reform government in state code.
"Ultimately, we may be looking at another constitutional amendment to deal with some of these things, because what appears to be presented today ... appears to be really problematic," he said. "It's not good for the long term, because then it could create laws that we can't change."
Any such constitutional amendment would need to be created by lawmakers, then approved by voters. The earliest the question would be put to the voters is during the November 2028 general election, Schultz said.
Schultz said he believes lawmakers are the only ones with constitutional power over redistricting, and said the Legislature could nix the redistricting commission altogether because "it's completely unconstitutional."
When asked how he would respond to the majority of voters who approved the redistricting commission, Schultz said: "Well, there's always things that we all want that we can't have because they are unconstitutional. And so I would say to that, the pathway forward is to change the Constitution."
"The power is still, and always will be, with the people," he said. "I think that needs to be clear."
A statement from the Utah Senate Democrats called the ruling a "landmark decision."
"The court's ruling underscores the fundamental principle that the power to alter or reform our government is inherent in the people of Utah and must be safeguarded against undue legislative interference," the statement says. "The Senate Democrats applaud the court's recognition of these constitutional processes."
Legislative power vs. people's power
Utah Gov. Spencer Cox issued a statement saying that while he disagrees "with some of the court's analysis and determinations, I respect the role of the court in our system of government." Cox was serving as lieutenant governor when SB200 was passed, and he signed off on the Legislature's political maps as governor in November 2021.
"The issues addressed in today's opinion by the Utah Supreme Court are significant — so significant that I filed an amicus brief with the court last year," Cox stated. "Ultimately, what matters is that we craft policy that keeps Utah the No. 1 state in the nation to work, live, and raise a family. We look forward to continuing Utah's pattern of careful and deliberate policymaking with the best interests of Utahns as the top priority."
Cox filed his amicus brief on Aug. 31, 2023, arguing to the court that the legislative branch is the only branch of government with power to enact redistricting maps, not citizens.
"Using its own legislative power, the Legislature had the authority to amend the people's initiative, Proposition 4, and enact new congressional districts under Article IX," the brief states. "This is what the governor defends — the Legislature's ability to use its constitutionally delegated power as part of our republican system of government."
When it comes to overturning voter-led initiatives, the brief later argues that the Legislature can amend or overturn those initiatives because the Constitution states that the power of "the Legislature" and "the people" are "co-equal, coextensive, concurrent, and share equal dignity."
"Because the Legislature, or the people by initiative, can amend the Legislature's enactments, it follows under the equal-dignity principle that the Legislature can amend or repeal laws enacted through the initiative process too," the brief states.
In arguments before the court last year, attorneys for the state described the power of the Legislature and the power of the people as "ping-ponging" back and forth between initiatives and legislation. Petersen addressed that characterization in her ruling, stating that "in light of the requirements that initiative proponents must meet before an initiative is placed on the ballot, this would not be a very competitive ping-pong match."
Before an initiative can be placed in front of voters, proponents need to collect signatures from 8% of active voters in the state, with at least 8% of voters in at least 26 state Senate districts signing. Petersen said the barriers make it difficult for voters to reenact initiatives after they have been altered by lawmakers.
"If the people wanted to hit the ball back by reenacting the reform, they would need to repeat the process of gathering signatures, qualifying the initiative for the ballot, and winning the vote again during the next election," she wrote. "But there would be no reason the second initiative would not suffer the same fate as the first one. Under defendants' theory, the Legislature could simply repeal it again and again. And this would render illusory the right to reform the government through an initiative."
The court didn't rule on four other counts of the lawsuit. The district court had denied a request from the Legislature to dismiss those counts, and the defendants had appealed the rejections to the Supreme Court.
Petersen said the court would tackle those issues "pending resolution of Count V. We will resolve the appeal if the resolution of Count V in the district court does not render it moot."
