UPDATE (9/26/24): On Wednesday, September 25, the Utah Supreme Court issued a unanimous decision upholding the lower court’s ruling that Amendment D is void. The justices of the Supreme Court held that the language of Amendment D did not accurately describe the proposed constitutional amendment when the ballot summary was written by the Speaker Mike Schultz and President Stuart Adams, and that the Legislature did not comply with the constitutional requirements to publish the text of the amendment in newspapers for two months prior to the election. Because ballots for the election have already been printed, Amendment D will appear on every ballot, but the votes will not be counted.
TLDR:
- UPDATE: Amendment D is officially VOID as of 9/25/2024. However the power grabs aren’t going to go away and we can learn a lot from the last 7 years that lead us to Amendment D.
- Amendment D is bad, and born of a desire to protect Republican power in gerrymandered districts.
- The language written to summarize the Amendment on the ballot by Senate President Stuart Adams and Speaker of the House Mike Schulz was deceptive and misleading.
There are less than two months until Election Day and only a few weeks until Utahns start receiving their ballots in the mail. The race for the presidency and state officers are obviously taking up a lot of attention in political discourse, but at the bottom of the ballot past all the candidates and judges will be a series of proposed constitutional amendments that are just as important, if not more so.
The innocuous-sounding Constitutional Amendment D is anything but. It’s only been a few weeks since the Utah Legislature rushed this proposed amendment onto the ballot, alarming ethical government advocates across the state not only for the process, but also for the ramifications of the amendment’s contents.
So what is Constitutional Amendment D? How did we get here and why does it matter? And most importantly, what can you do about it?
How Did We Get Here?
Over the past decade, there has been a growing movement across the country against partisan gerrymandering, or the practice of drawing political boundaries to maximize party advantage. The U.S. Supreme Court has stated that partisan gerrymandering is “incompatible with democratic principles,” but still held in 2019 that federal courts have no jurisdiction over partisan gerrymandering claims, leaving such questions to the states.
What that has resulted in for Utah, particularly in Salt Lake, is communities being carved up in illogical ways that are designed to silence their full voice. Instead of following boundaries like county lines or “communities of interest” such as school districts, this gerrymandering creates strategically drawn election districts that hurt citizens’ ability to have fair representation. Often, this has the most negative impact on communities of color and, in Utah at least, more liberal neighborhoods. In Millcreek alone, there are four different state House districts. As you can see by the map below, Salt Lake was essentially split into four senate districts.
Luckily, an effort to rid Utah of partisan gerrymandering has already been underway. In 2018, Utah voters approved Proposition 4, a ballot initiative championed by the bipartisan group Better Boundaries. The new law created an independent redistricting commission that would draw maps according to a set of standards that prohibited gerrymandering and focused on those already-existing boundaries and “communities of interest”. That way, the people of Utah could have representation that better reflected their actual desires & needs, and the people who have a vested interest in maintaining power – legislators, wouldn’t have sole control over the maps.
The independent commission wouldn’t have full control; the Legislature would still be able to approve or reject the commission maps. However, if it rejected the maps, lawmakers would be required to provide an explanation for doing so and still use the fair redistricting standards contained in Proposition 4 while drawing their own maps.
But the Utah legislature didn’t like having a limit on its power. During the 2020 General Session, the Legislature passed S.B. 200, a bill that repealed Proposition 4 and replaced it with a version that retained the independent redistricting commission but stripped it off its true power; making it purely advisory by removing the requirement that lawmakers explain why they were rejecting a map drawn by the independent commission. More importantly, it removed the prohibition on partisan gerrymandering. So it probably comes as no surprise that in 2021 the Legislature ignored the Independent Redistricting Commission’s proposed maps and adopted congressional and state boundaries that are widely believed to have been gerrymandered.
The Lawsuit
With support from Better Boundaries, a group of good government nonprofits and concerned citizens decided to fight back. The League of Women Voters of Utah, Mormon Women for Ethical Government, and seven Utah voters sued the Utah Legislature in 2022, claiming that the congressional maps adopted by lawmakers unconstitutionally gerrymandered the state. The lawsuit made its way up to the Utah Supreme Court, which finally issued a decision in July of this year.
While the underlying case was focused on partisan gerrymandering, the decision from the Utah Supreme Court focused on the earlier actions of the Legislature to “repeal and replace” Proposition 4. In the Declaration of Rights, the Utah Constitution states that :
“All political power is inherent in the people [...] and they have the right to alter or reform their government as the public welfare may require.”
The justices unanimously held that this popular right to “alter or reform” government limits the Legislature’s ability to amend or repeal ballot initiatives that have been approved by the voters of the state.
The Clapback from the Legislature
Furious that the state Constitution might set a reasonable limit on their unfettered power, lawmakers called themselves into an “emergency” special session the very next month. This resulted in lawmakers proposing a constitutional amendment to overturn the recent Supreme Court decision by adding language that gives not only the state Legislature, but also local legislative bodies, the unrestricted right to amend or repeal initiatives approved by voters: Constitutional Amendment D.
What is Constitutional Amendment D?
Before getting to the language of Constitutional Amendment D as it will appear on ballots, it is important to note that the process for writing the language of proposed constitutional amendments recently changed. Before this year, the nonpartisan staff of the Utah Legislature would write an impartial summary of the proposed amendment that would then appear on the ballot. However, during the 2024 General Session, the supermajority gave the responsibility of writing those summaries to the Speaker of the House and President of the Senate.
Here is what they wrote:
Constitutional Amendment D
Should the Utah Constitution be changed to strengthen the initiative process by:
– Prohibiting foreign influence on ballot initiatives and referendums.
– Clarifying the voters and legislative bodies’ ability to amend laws.
If approved, state law would also be changed to:
– Allow Utah citizens 50% more time to gather signatures for a statewide referendum.
– Establish requirements for the legislature to follow the intent of a ballot initiative.
If your mind immediately catches on the phrase “strengthen the initiative process” in the first line, you are not alone. Opponents of the proposed amendment and even some Republicans slammed the language as “deceptive” and “misleading,” hiding the true intent of weakening the ballot initiative process. A lawsuit was quickly filed by the plaintiffs of the original gerrymandering lawsuit, asking the court to block the proposed amendment from appearing on the ballot because it “fails to accurately submit the Amendment to the voters” as required by the Utah Constitution.
A district court judge agreed, declaring Constitutional Amendment D “void” because it was “false and misleading” and because the Legislature failed to adequately provide notice of the proposed amendment in newspapers for two months as required by the Utah Constitution.
The Utah Supreme Court is scheduled to hear an appeal of this ruling on Wednesday, September 25. If the lower court’s decision is upheld and Constitutional Amendment D is void, the amendment will still appear on the ballot because they’re already being printed but votes for or against the amendment won’t be counted.
As to the rest of the ballot language, Utahns should beware of “ballot candy”—the practice of “pairing a popular idea with a more controversial one in a ballot measure as a way to win over voters.” Although the proposed constitutional amendment does include a prohibition on foreign influence on initiatives and referendums, there has never been an instance of this happening in Utah and is completely unrelated to the underlying purpose of overturning the Supreme Court’s decision on ballot initiatives—lawmakers could propose it separately and expect it to pass easily.
While the Legislature promises certain changes in exchange for approving the amendment, those changes to state law that would go into effect are only statutory, and can thus be changed easily by future legislatures. Future lawmakers can only be bound by language that is in the constitution itself. Additionally, the statutory requirement to follow the intent of ballot initiatives only extends to amending the law during the following general session, allowing more substantive changes past that point. That “deference” also only extends to the Legislature’s determination of the general purpose of the law, not the sponsors or voters.
Why Does it Matter?
Should Utahns have the right to alter or reform their government? Or should Utahns have the right to alter or reform their government, subject to the approval of politicians up on Capitol Hill?
Constitutional Amendment D is a power grab by the Utah Legislature at the expense of the people it is supposed to represent. As the Utah Constitution notes, “all political power is inherent in the people” and we “have the right to alter or reform [our] government.” While we usually exercise that power and right through our elected officials, our state constitution gives the people the ability to act directly through the initiative process—a notoriously difficult process to navigate.
Passing this amendment would weaken the reform process because it would allow legislators to repeal or edit citizen initiatives and referendums at their whim.
In their recent decision, the justices of the Utah Supreme Court unanimously held that when the voters pass an initiative that alters or reforms government—not just changes policy—then the Legislature needs a very important reason to ignore the intent of that initiative. That’s it! Lawmakers remain free to amend, tinker, fix, or otherwise change initiatives, though some measure of restraint may still be advisable, especially when Utahns currently feel that “politicians not listening to voters” is a top concern.
While not used often, the right to alter or reform government found in our state Constitution is a right that Utahns should guard against efforts to take it away. Constitutional Amendment D would dramatically alter that right, taking away Utahns’ ability to serve as a check on the power of the Utah Legislature and other parts of our state government “as the public welfare may require.”
What Can You Do About It?
- Vote against Constitutional Amendment D this November! It’s unclear what will happen with the Utah Supreme Court Case (although we’re optimistic!) but we can still vote against it and show them how we feel about their
- Share this blog post with your friends, family, and networks so that they can learn about Amendment D.
- Get Involved: you can sign up to volunteer with the campaign against here.
- Check Your Legislators Vote: Take a peek below to see how they voted. Not happy with their vote? Hold them accountable by messaging them, voting against them if they’re up for re-election. Get your friends and family involved!
