Judge blocks constitutional Amendment D, says Legislature didn't accurately describe it

SALT LAKE CITY — A judge has blocked Utah's proposed constitutional Amendment D, agreeing with plaintiffs that legislative leaders failed to accurately describe the "subject matter" in the text of the ballot question and failed to publish the text of the amendment in newspapers across the state.

Judge Dianna M. Gibson took the case under advisement after a hearing Wednesday in Utah's 3rd District Court and issued her decision early Thursday after attorneys for the state said county clerks were awaiting a ruling before printing ballots for the swift-approaching Nov. 5 general election.

Lawmakers reacted with disappointment to the ruling Thursday morning, while attorneys for the plaintiffs celebrated it as "a win for Utah's citizens."

Gibson ultimately granted plaintiffs a preliminary injunction to stop the printing of a ballot question that they say misrepresents the actual meaning of the proposed constitutional amendment — which was crafted in response to a Utah Supreme Court ruling on redistricting. But, instead of preventing ballots from being printed with the proposed amendment, she allowed clerks to print Amendment D on the ballot, but said the proposal "is void and shall be given no effect."

She wrote: "While the Legislature has every right to request the amendment, it has the duty and the obligation to accurately communicate the 'subject matter' of the proposed amendment to voters and to publish the text of the amendment in a newspaper in each county two months before the election. It has failed to do both."

Her ruling states that the summary of the proposed amendment that legislative leaders wrote "does not fairly and accurately 'summarize' the issue to be decided to assure a free, intelligent and informed vote by the average citizen." She said the summary omits any reference to the actual text of the amendment that allows lawmakers to overrule or amend any ballot initiative passed by the people — including those that amend or reform the government, which the state Supreme Court recently ruled is a clear constitutional right afforded Utahns.

"The omission entirely eliminates the voter's fundamental constitutional right," Gibson wrote.

Utah House Speaker Mike Schultz and Senate President Stuart Adams — who wrote the ballot summary for Amendment D — said in a joint statement they were "extremely disappointed by the lower court's policymaking action from the bench."

"It's disheartening that the courts — not the 1.9 million Utah voters — will determine the future policies of our state," the pair said. "This underscores our concerns about governance by initiative as an out-of-state interest group from Washington, D.C., with seemingly unlimited funds, blocked Utah voters from voicing their opinions at the ballot box. The people who claim to advocate for greater voter engagement are the same ones who obstructed Utahns from having the opportunity to vote on this important matter.

They went on to say that the ruling creates "significant uncertainty into the electoral process," and promised to "not stop fighting for Utahns" by appealing the decision to the state Supreme Court.

Advocates who have opposed the Legislature's actions on ballot initiatives celebrated Thursday morning. Katharine Biele, the president of the League of Women Voters of Utah — one of the original plaintiffs in the lawsuit — said the Legislature's "rush to amend the Constitution was unnecessary."

"We believe in representative government and the principles that make our democracy work," she said. "The court agrees."

What the lawsuit said

Plaintiffs in the case have alleged that the language of the ballot question being put before voters is "a flagrantly misleading" representation of the actual amendment and have asked the courts for a preliminary injunction to strike the question from this year's ballot. The language of the ballot question — which was written by top legislative leaders — prompted backlash when it was released, as many advocates say it runs counter to what the amendment would change.

The ballot question reads:

SJR401, the resolution proposing the amendment, would amend Article VI, Section 1, of the Utah Constitution to include text that reads: "Notwithstanding any other provision of this Constitution, the people's exercise of their Legislative power as provided in Subsection (2) does not limit or preclude the exercise of Legislative power, including through amending, enacting, or repealing a law, by the Legislature, or by a law making body of a county, city, or town, on behalf of the people whom they are elected to represent."

The same amended section would also state that "foreign individuals, entities, or governments may not, directly or indirectly, influence, support, or oppose an initiative or a referendum."

Plaintiffs also alleged that the Legislature failed to follow constitutional requirements that mandate the government publish the proposed amendment in newspapers across the state at least two months in advance of the election.

Attorneys for the state had asked the judge to reject the request for an injunction, according to court filings obtained by KSL, which argue that removing the question from the ballot would cause serious disruption to the election. The state also argued that the plaintiffs were wrong to sue the lieutenant governor because she cannot order the 29 individual county clerks — who print and count the ballots — to remove the question from the ballots.

As for not posting notices in the press, the state said it "(made) the amendment text widely accessible on its website and (directed) the lieutenant governor to submit the proposed amendment to the voters 'in the manner provided by law.'"

"Plaintiffs cannot seriously maintain that a proposed amendment is 'void' unless the Legislature insists that it be reprinted for two continuous months in hard-copy newspapers that no longer exist," the state's filing states. "Nor can plaintiffs seriously maintain that the proposed amendment is a state secret when it has been widely published in newspapers and online since the August special session."

When it comes to the merits of the lawsuit, the state argues that the ballot summary is not counterfactual and says it "identifies Amendment D's 'chief features.'" Their filing states that they are not required to say the amendment would "eliminate any right" for voters and say the change would indeed strengthen initiatives "by prohibiting 'foreign individuals, entities, or governments' from 'influenc(ing), support(ing), or oppos(ing) an initiative or a referendum."

Contributing: Lindsay Aerts

Correction: An earlier version of this article contained a photo caption that incorrectly stated Tyler Green represents the Lieutenant Governor's Office. Green argued on behalf of the Utah Legislature.

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