Scarcely three months have passed since the Utah Supreme Court issued its decision in League of Women Voters v. Utah State Legislature. Over the course of that short period, many divergent opinions have been shared on the subject, the most forceful coming directly from the Legislature in the form of Amendment D, which was recently voided by the courts for failing to comply with the Utah Constitution.
One such recent opinion bemoaned that the ongoing public debate had seemingly sacrificed “important constitutional considerations” in the name of “less weighty, more headline-grabbing political questions.” Certainly the role of the judiciary and ballot initiatives in our state’s constitutional structure should be considered high priority and subject to vigorous debate. However, it would be a mistake to categorize the debate on fundamental rights held by Utahns as “less weighty.” Indeed, what is more weighty than the very sovereign power the people have granted to the state?
The Utah Constitution and its national counterpart both establish republican forms of government—the process through which the people primarily exercise their sovereign power through elected representatives. It is vitally important to remember, though, that ultimate sovereignty remains within the people of Utah themselves, not in the Legislature, the governor, or the judiciary that the people created.
This principle of popular sovereignty was of such importance that the framers of our state constitution specifically included it in a “Declaration of Rights,” stating that “[a]ll 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 Utah Supreme Court called it a part of the “foundational principle of popular sovereignty, which is the ‘very essence’ of our republican form of government.”
While the framers of the United States Constitution in 1787 may have skeptically viewed forms of direct democracy such as ballot initiatives, views of American democracy had shifted substantially by Utah’s statehood and the framers of our state constitution viewed direct democracy far differently. By 1900, only four years after the ratification of the Utah Constitution, the voters of the state approved an amendment that clawed back some of their power, splitting legislative power between the Legislature and “the people of the State of Utah.” For over 100 years, Utahns have had the ability to exercise their sovereign power by proposing and voting on ballot initiatives. This power retained by Utahns was meant to serve as “a check on the Legislature in times of disagreement.”
It was during such a disagreement between Utahns and the Legislature that the Utah Supreme Court was recently asked to step in. The focus of the Utah Supreme Court’s decision in July in League of Women Voters concerned Utahns’ fundamental right to “alter or reform their government” through the power they retained to pass laws by ballot initiative. The justices unanimously held “that when Utahns exercise their right to reform the government through a citizen initiative, their exercise of these rights is protected from government infringement.”
Despite what has been said by some regarding this ruling, the justices did not elevate ballot initiatives to some protected status that can never be touched by the Legislature. They held that the Legislature can make as many changes as they like to further the intent of any ballot initiative. But in those cases where Utahns are specifically acting to “alter or reform their government,” the Legislature must have a compelling reason to change it in a way that impairs the voters’ intent.
This reasonable clarification of the extent of their power is what catalyzed the Legislature to abuse their “emergency” power to call themselves into special session this August and propose a rushed constitutional amendment for the ballot. This is what the Speaker of the House and President of the Senate were concealing behind a ballot description that was so “false and misleading” that it did not survive constitutional scrutiny. They wanted to claw back a fundamental right based on the sovereign power of the people, such that the Legislature, not the people that elected them, would have the ultimate say in the form of our government.
In the face of a legislative supermajority that has grown increasingly vindictive toward those who dare stand in their way, the justices and judges of the state judiciary should be commended for admirably fulfilling their role to faithfully interpret the Utah Constitution and protect the rights of Utahns from being infringed. To label their exhaustive search to understand and discern such constitutional rights as so-called judicial activism says more about the opinions and preferences of the accusers than the accused.
Although Amendment D is void, it would be a mistake to assume the issue is dead. Utahns should be protective of the power that they hold to alter or reform government as they see fit, for we have seen over the past few months how desperately some lawmakers covet that power. Luckily, voters have the opportunity to hold those lawmakers accountable as ballots are delivered to mailboxes in just a couple of weeks.
