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SALT LAKE CITY — The Utah Legislature is asking the Utah Supreme Court to review and reverse the decision keeping Amendment D, the proposal to amend the Utah Constitution related to citizen-led ballot initiatives, off the ballot.
In a filing Friday afternoon with the Utah Court of Appeals, the Legislature's legal team decried Thursday's ruling from 3rd District Judge Dianna Gibson granting a preliminary injunction that effectively blocks the proposed question from the Nov. 5 ballot.
"Time is of the essence. The district court's order has cast a shadow over the election — in particular, whether Utahns should be learning about, campaigning for and voting on Amendment D," reads the filing by attorney Tyler Green, representing the state.
He argues that Gibson's preliminary injunction should be vacated so the ballot question can go to voters and asks the Supreme Court to take up the matter next week given the tight time frame before elections. "People decide elections; courts don't," reads the first sentence of the filing.
The attorney for the plaintiffs, which include Mormon Women for Ethical Government and the League of Women Voters of Utah, meantime, said Gibson got it right.
"The district court's decision was correct," Mark Gaber said in a statement. "In their rush to transfer power from the people to themselves, the legislative leadership wrote deceptive ballot language and simply ignored the Constitution's publication requirement. If the Supreme Court decides to hear the appeal, I am confident they too will enforce the Constitution."
The Utah Legislature voted late last month to put a ballot question to voters, Amendment D, asking them to affirm the right of lawmakers to tweak, change and even repeal citizen-led ballot initiatives. Critics see the proposal as a power grab by the GOP-dominated Legislature and they argued that the language of the ballot question was misleading, leading to the preliminary injunction issued by Gibson.
In Thursday's ruling, Gibson — who heard arguments on Wednesday in the quick-moving case — had sided with plaintiffs who maintained that the Amendment D language, crafted by the Legislature, failed to accurately describe the essence of the proposed change to the Utah Constitution. Gibson also noted that the text of the proposed ballot question hadn't been published in newspapers, as required by law, also figuring in her ruling.
"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," Gibson wrote.
County clerks have been awaiting a decision so they can print ballots for the Nov. 5 election, factoring in the quick action of the courts. But instead of preventing ballots from being printed with the proposed amendment, Gibson allowed clerks to print Amendment D on the ballot with the caveat that the proposal "is void and shall be given no effect." Now with Friday's appeal, if it's heard and upheld, voters would be able to sound off on the question.
The Legislature, in Friday's filing, asks that plaintiffs be required to respond by Tuesday and that the court make a ruling by Sept. 24.
At the heart of the red-hot issue is the ability of Utahns to put ballot questions on public policy to the vote of the public free from excessive subsequent involvement of Utah lawmakers.
Lawmakers voted to move forward with the ballot question now the focus of debate during an Aug. 21 special session, aiming to affirm their authority to tweak or even reverse initiatives passed at the ballot box. A July 11 Utah Supreme Court ruling on Proposition 4, a 2018 ballot initiative related to the drawing of legislative and other political districts, had thrown that authority into question, proponents argued. Maintaining authority on ballot initiatives, they said, is vital in checking the ability of special interest groups to push ballot proposals meant to benefit them that could be detrimental to Utah.
Critics of SJR401, the measure authorizing the ballot question, had charged that the Republican majority in the Legislature was moving to consolidate more power at the expense of the public. Then last week, after the Amendment D language was publicly released, they argued that the wording was misleading, filing the suit on Sept. 6 to keep the measure off the ballot, the current focus of deliberation.
One particular objection of critics was Amendment D wording asking voters if the Utah Constitution should be changed "to strengthen the (ballot) initiative process" via the provision codifying the power of lawmakers to tweak proposals approved by voters. The critics see that sort of change as weakening the process, not strengthening it.
Lawyers for the state countered, saying the language "identifies Amendment D's 'chief features.'" In Friday's filing, Green, the lawyer for the state, now argues that the right of the public to sound off at the ballot box is threatened by Gibson's decision.
"Without this court's review, more than 1 million Utahns' votes will not be counted on Amendment D," reads Friday's appellate filing. "Until yesterday, campaigns for and against Amendment D were underway. The district court has cast a shadow over those efforts. Voters do not know if their votes will count for Amendment D, or whether their First Amendment protected conduct is worth it."
Moreover, the state questions whether objections over the wording of Amendment D are sufficient to merit moves to halt the vote on the proposal.
"The question here is not whether Utah courts or Amendment D opponents or anyone else would have written a different ballot summary, or whether Amendment D's text alters other rights in the constitution," reads the filing. "The question is whether the ballot summary violates an actual constitutional right or statute in such a way that the amendment itself must be declared void. It does not."
The state further noted the wide attention Amendment D has received, rebuffing what it views as the presumption behind Thursday's ruling that the only information a voter may get on the proposal is the description on the ballot.
"This court should not make the same demeaning assumptions about Utahns. Utah voters read, think and vote for themselves. Amendment D is no state secret. Its text has been widely published and will be reproduced in full in voter information pamphlets and at polling places. And its effect has already been widely debated," reads Friday's filing.
Contributor: Lindsay Aerts
