Utah voters will see a new constitutional amendment on the November ballot, and not all Republicans are happy about it. Nine joined with all Democrats in voting against giving lawmakers the power to revise or repeal citizen-led ballot initiatives.
The vote in the Senate was 20-8, and the House cleared the resolution 54-21. The majority of Republicans that voted no are in competitive districts within Salt Lake County — the bluest area in Utah.
“I feel like this is taking power away from the people that is fairly well defined in Utah’s constitution,” Republican Rep. Marsha Judkins, one of the nays and who is not running for reelection, told KUER.
“This is being rushed way too fast, and we need more time to really examine this issue if it’s even going to be a problem.”
The Republican supermajority wants the ability to freely repeal or alter citizen-led initiatives passed by voters. They called the special session after a July Utah Supreme Court ruling that said lawmakers overstepped their authority when they altered a voter-approved initiative on redistricting.
Legislative leadership called it “one of the worst outcomes” they’ve ever seen from the court.
Despite the reaction to the ruling, House sponsor Rep. Jordan Teuscher insisted in his closing remarks before the vote that this “has nothing to do with redistricting.”
“We’re not bringing forth this constitutional amendment because the Legislature is butthurt that maybe we might have to redraw maps.”
What the resolution says
Lawmakers published the proposed resolution language roughly 24 hours before they convened.
The resolution, if approved in November, proposes to give the Legislature the ability to amend or repeal ballot initiatives passed by voters. It would also prohibit “foreign individuals, entities, or governments” from “directly or indirectly” influencing, supporting, or opposing an initiative or a referendum. Another aspect would allow lawmakers to act “retrospectively,” meaning they would have the power to alter or repeal previously passed initiatives.
Republican Sen. Lincoln Fillmore said that ability is necessary, especially on past initiatives like medical marijuana which is expected to be reclassified on the federal level. Additionally, Fillmore said “unelected judges cannot be the final arbiter of what goes on in Utah,” even though all the justices appointed to the Utah Supreme Court were done so by a Republican governor and confirmed by a Republican supermajority.
“We’ve got different interpretations of what provisions in the constitution mean and we’re asking the people to decide, which is their right,” he said. “Our constitution gives them the right to decide. So let’s give Utah that choice.”
The ability to act “retrospectively” would allow lawmakers to parry the state supreme court’s July 11 decision. The case centered on the Legislature’s actions to amend Proposition 4, the 2018 citizen-passed initiative for an independent redistricting commission to handle the state’s once-a-decade redistricting. The Legislature voted to make the commission purely advisory and went on to approve their own maps in 2021.
The court did not rule on the constitutionality of the maps, but affirmed that “the people’s right to alter or reform the government through an initiative is constitutionally protected from government infringement, including legislative amendment, repeal or replacement of the initiative in a manner that impairs the reform enacted by the people.” The underlying case was sent back to a lower court for further deliberation.
The Republican’s interpretation is that the ruling creates what they call “super laws” that cannot be altered by the Legislature. In fact, the court’s decision said the Legislature is well within its right to alter a citizen’s initiative, as long as they do not “impair the reform enacted by the people.”
Rather than bar any action, the court established a stricter standard that needs to be met. Justice Paige Petersen wrote lawmakers could still alter an initiative and survive a court challenge “if the Legislature shows that they were narrowly tailored to advance a compelling government interest.”
In a committee hearing preceding the vote on the resolution, Sen. Kirk Cullimore, an attorney by profession, countered that rationale.
“I would contend, though, that nowhere in law or case law do we have a definition of what it means to alter or reform government,” he said. “If I’m somebody pushing an initiative, and you have a good attorney worth their salt, any good attorney is going to make a pretty compelling argument that their particular initiative alters and reforms government.”
Cullimore interprets the Utah Constitution to say that the Legislature and the people are co-equals, therefore lawmakers should have the power to change initiatives. It’s a similar argument the state made during oral arguments in front of the Supreme Court. From his perspective, the special session resolution will “let the people decide and [let] the people interpret what their constitution says.”
Sen. Daniel Thatcher, one of two GOP senators to vote against the resolution, doesn’t believe the Legislature’s power to amend initiatives is at risk. Rather, the public’s respect for the Legislature is.
“I don’t think that the public will come around on this. And I think this is unlikely to pass in November, but it is likely to give us the biggest black eye we’ve ever had as a Legislature.”
Democratic Sen. Kathleen Riebe believed the special session was called under “false pretenses” that further erodes trust with Utahns.
“Right now, we are experiencing an unprecedented high level of mistrust in politics, and I don’t believe that this is helping.”
Her perception of how Utahns are responding to actions from election officials aligns with a recent survey from the Utah Foundation. The non-partisan organization found that the number two issue with Utahns was “politicians listening to voters,” and number four was “government overreach.”
Public comments at the earlier hearing were heavily opposed to the proposal. Jeff Baker served on the independent redistricting commission and questioned the speed at which this constitutional amendment was drafted.
“How often is quality legislation and amendment language put together in just a few weeks or days?” he said. “I’ll answer that for you, it doesn’t come together in a healthy, proper, good manner. The proposed amendment is also not founded in the voice of the people. I encourage each of you to vote down the proposed amendment.”
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