Utah Supreme Court upholds lower court ruling to void Amendment D

SALT LAKE CITY — The Utah Supreme Court upheld a lower court decision to void proposed constitutional Amendment D, saying the Legislature failed to follow constitutional requirements for amendments.

The court issued the ruling in a short decision Wednesday evening after it heard oral arguments in the case that morning. A full opinion detailing the court's reasoning is expected at a later date.

The justices agreed with a lower court's ruling to void the amendment because lawmakers did not publish the text of the amendment in newspapers across the state two months prior to the election, as required by the state Constitution. Plaintiffs had argued the text of the ballot question was misleading and therefore deprived voters of their right to a free and fair election.

"The district court correctly ruled that neither constitutional prerequisite was met with respect to Amendment D," the court's order reads. "The Legislature did not cause the amendment to be published in newspapers throughout the state for two months, and the description that will appear on the ballot does not submit the amendment to voters 'with such clarity as to enable the voters to express their will.'"

Justices said the district court "acted within its discretion" in issuing a preliminary injunction to void the question altogether. Under that decision, ballots will be printed with the question, but the votes for Amendment D will not be counted. The decision could also impact the validity of Amendment A, which has also been challenged in court.

"Although the voters should have the opportunity to decide whether Amendment D strikes the correct balance between the people's direct legislative power and that of their elected representatives, the public interest requires that constitutional amendments be submitted to voters in the way mandated by the supreme law of the state embodied in the Utah Constitution," the justices wrote.

The arguments

A lawsuit challenging the constitutionality of the Legislature's process to put the proposal on the November ballot has quickly moved through the courts this month, and a 3rd District Court judge issued a preliminary injunction to void the amendment on Sept. 12. Judge Dianna M. Gibson agreed with plaintiffs that legislative leaders failed to accurately describe the "subject matter" in the text of the ballot question on Amendment D and failed to publish the text of the amendment in newspapers across the state.

Attorneys for the state quickly appealed that ruling to the state's high court and on Wednesday argued the Legislature was in "substantial compliance" with a constitutional provision requiring that lawmakers "cause" the text of the proposed amendment to be printed in newspapers in each county for two months preceding the election.

Taylor Meehan argued provision can be interpreted to mean the Legislature needs to print the text of the amendment in newspapers in the two months prior to November, not for 60 days prior to the election. She said lawmakers bought ad space through a press association on Sept. 11 — less than 60 days before the Nov. 5 election — and argued that news articles linking to the resolution text on the legislative website also bring the state in compliance with the Constitution.

"I think it's highly relevant that when the newspapers began talking about Amendment D — as early as August — they're hyperlinking to the online bill file," Meehan said.

When it comes to the text of the ballot question, which describes the proposed amendment, Meehan argued that the text of the question being put to the voters is not counterfactual to the actual amendment. She said the text on the ballot doesn't need to precisely describe every aspect of the proposal but is designed instead to alert voters to the general subject of the amendment.

Justices grilled attorneys for the state for well over an hour to start the hearing and appeared skeptical of several arguments — especially those related to the publishing of the amendment text in newspapers across the state. Although Meehan argued publishing the text on the lieutenant governor's website and the legislative website meets the requirements given technological changes since the ratification of the state Constitution in the late 1800s, several justices pointed out the constitutional text explicitly singles out newspapers as the vehicle for informing the public of the amendment.

On the other side, attorney Mark Gaber reaffirmed arguments made before the lower court judge that lawmakers failed to publicize the text of the amendment in a timely fashion, and Gaber said the "misleading" wording of the ballot question would deprive voters of the right to a free and fair election. He asked the Supreme Court to uphold the preliminary injunction put in place by Gibson.

He said most voters would have no reason to believe that the wording on their ballot might be misleading. Previous constitutional amendment questions were written by nonpartisan legislative attorneys, but lawmakers changed that earlier this year, giving top leaders in the House and Senate the power to craft the language.

Gaber said the lawmakers essentially put "campaign language" on the ballot, which he argues makes it not a "free election."

All parties appeared to agree that it's too late to rewrite the wording on the ballot, given that some ballots have already been sent out to voters overseas. They also agreed that a preliminary injunction would likely become a de facto "permanent injunction" because of the quickly approaching election, but attorneys for both sides preferred to get an answer on the injunction before the election rather than litigating the constitutionality of the amendment process after it had already been voted on.

Chief Justice Matthew B. Durrant adjourned the hearing Wednesday afternoon without giving a time line for when an opinion will be issued.

What the ballot language says

The text of the ballot question prompted criticism when it was released earlier this month, with opponents claiming it leaves out key ways in which the amendment would limit citizens' constitutional rights to alter or reform their government through initiatives. Those rights were outlined in an earlier Supreme Court ruling this summer, which said lawmakers overstepped their authority when changing a 2018 ballot initiative on drawing political redistricting maps.

Although that lawsuit has been remanded to a lower court, the ruling panicked many Republican lawmakers, who called themselves into a special session in August to craft the amendment in an effort to sidestep the court's ruling.

After that resolution passed on mostly partisan lines, House Speaker Mike Schultz and Senate President Stuart Adams wrote the language of the question that will appear on the ballot, which 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."

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