Better Boundaries to lawmakers ahead of special session: Respect Utah Supreme Court ruling

As Utah lawmakers gear up for a special session on Wednesday to consider asking Utah voters to sidestep a recent Utah Supreme Court ruling on ballot initiatives that angered Republicans, the group that sought the ballot initiative at the heart of the court case is urging Utah’s leaders to respect the judicial branch’s decision. 

Better Boundaries — the anti-gerrymandering group that successfully sought a ballot initiative that voters approved to create an independent commission to create maps in Utah’s redistricting process — on Tuesday sent a letter to Utah Gov. Spencer Cox, Senate President Stuart Adams, and Speaker Mike Schultz expressing “deep concern” about the special session. 

“We urge you to respect the Court’s unanimous decision and the constitutional rights it upholds,” the letter states. “Rather than rushing to amend our constitution, we call on you to embrace this ruling as an opportunity to strengthen our democratic processes, and encourage you to work collaboratively with citizens and grassroots organizations through existing channels, and to focus on improving governmental transparency and accountability, which will reduce the need for citizen initiatives.” 

More than 2,500 people had signed onto the letter in less than 48 hours, according to Better Boundaries. The signees included more than a dozen current or former Republican delegates and party leaders, as well as Christine Durham, former chief justice of the Utah Supreme Court. 

Utah Legislature to call itself into special session to ask voters to sidestep Utah Supreme Court

Along with signatures from Democratic organizations and individuals, the letter also included signatures from local organizations that have a bipartisan track record, including Mormon Women for Ethical Government, among others. 

Utah’s Republican-supermajority Legislature is expected to consider placing a constitutional amendment on the Nov. 5 ballot to make clear in the Utah Constitution that lawmakers can repeal and replace voter initiatives that seek to reform government — at odds with the Utah Supreme Court’s unanimous opinion issued last month, which affirmed that while the Legislature can alter the implementation of ballot initiatives, it can’t fundamentally undermine them.

Adams and Schultz argue the proposed amendment wouldn’t change the current initiative process, but rather “restore the over 100-year-old effect of citizen initiatives.” The day of the Utah Supreme Court’s ruling, the Senate president and House speaker issued a scathing statement calling it “one of the worst outcomes” to ever come out of the Utah Supreme Court. They said the ruling effectively made a “new law about the initiative power, creating chaos and striking at the very heart of our Republic.” 

“The Utah Supreme Court’s recent decision (upended) over 100 years of representative democracy in Utah without the voice of the people, leaving the state vulnerable to laws advanced by foreign interests through ballot propositions that citizens cannot amend through elected representatives,” states a special session proclamation issued by Schultz and Adams on Monday. 

The Utah Supreme Court rarely issues public statements outside of their written opinions. In response to a request for comment, a spokesperson for the court said it didn’t plan to issue one in this case.

Why are lawmakers at odds with the Utah Supreme Court?

The unanimous Utah Supreme Court opinion that’s causing such a stir came on July 11. It remanded a lawsuit over Utah’s redistricting process back to district court. 

All five of Utah’s justices ruled that a district court “erred” when it dismissed a claim that the Utah Legislature violated the Utah Constitution in 2021 when it repealed and replaced Better Boundaries’ voter-approved initiative that would have enacted an independent commission to draw Utah’s new political districts in its redistricting process. That litigation now continues. 

Leading up to Monday’s special session call, the Utah Republican Party and dozens of other signees, as well as the conservative think tank Sutherland Institute, both issued letters urging Utah lawmakers to “correct” the Utah Supreme Court’s ruling, expressing concerns that the opinion effectively allowed ballot initiatives to become “super laws” that can’t be changed by the Legislature. 

It’s worth noting that that’s not necessarily what the Utah Supreme Court ruling said, though it does leave a question over how other ballot initiatives could be litigated. The court’s opinion was targeted at initiatives specifically dealing with “government reform,” and it makes clear the Legislature’s powers to amend government-reform initiatives have limits — but it doesn’t say the Legislature can’t amend all government-reform initiatives. 

“Although the Legislature has authority to amend or repeal statutes, it is well settled that legislative action cannot unduly infringe or restrain the exercise of constitutional rights. Consequently, when Utahns exercise their right to reform the government through an initiative, this limits the Legislature’s authority to amend or repeal the initiative,” the opinion states. “This does not mean that the Legislature cannot amend a government-reform initiative at all. Rather, legislative changes that facilitate or support the reform, or at least do not impair the reform enacted by the people, would not implicate the people’s rights under the Alter or Reform Clause.”

The opinion also says “legislative changes that do impair the reforms enacted by the people could also survive a constitutional challenge, if the Legislature shows that they were narrowly tailored to advance a compelling government interest.”

What will the proposed constitutional amendment, other special session legislation do?

The legislative language for the proposed constitutional amendment was not yet made public as of Tuesday afternoon, so it’s not yet clear exactly what it will say. But the special session proclamation said lawmakers would consider legislation to propose a constitutional amendment that “restores the traditional effect of citizen initiatives and referenda on Utah laws by ensuring that voters, their elected representatives, and local bodies retain the ability to amend or repeal legislation.” 

That constitutional amendment, according to the special session proclamation, would also include another prong — one that “protects the initiative and referendum process from foreign funding interference.” 

To sweeten the deal for voters, lawmakers are also set to consider SB4003, legislation that would be “contingent on the passage” of the constitutional amendment. The bill could make it slightly easier to successfully place a voter referendum (a petition to refer an existing law to voters for approval or rejection) on the ballot by increasing the window of time referendum sponsors can gather signatures, extending it from 40 days to 60 days. 

Additionally, Utah lawmakers will consider SB4002, legislation to make changes to the administration of the 2024 general election “only to the extent necessary to accommodate” placing the proposed constitutional amendment on the ballot, according to the special season proclamation.

In Tuesday’s letter, Better Boundaries defended the Utah Supreme Court’s unanimous decision as one that “upholds fundamental democratic principles essential to our state’s governance, affirming that our government is truly ‘for the people, by the people.’”

“The ability for citizens to form our government is a cornerstone of our democracy, providing a crucial check on legislative power and ensuring that the voice of the people remains central to our governance,” the letter states. “Attempts to circumvent this ruling through hasty constitutional amendments would severely undermine the balance of power between the legislative, executive, and judicial branches that our founders wisely established.”

Democrats’ frustration

Utah Democratic Party Chair Diane Lewis issued a statement Tuesday accusing Utah’s Republican supermajority of “going to extreme lengths to seize power for themselves because they know that Utah is changing.” 

“As the fastest growing state and the youngest state in The Union, Utah is positioned to become a swing state in a decade — but rather than allow the voters to decide Utah’s future for themselves, power-hungry politicians are dead-set on propping themselves up,” Lewis said.

The timing of the special session also came at a frustrating time for Democrats, House Minority Leader Angela Romero, D-Salt Lake City, told Utah News Dispatch on Tuesday, calling from the Democratic National Convention in Chicago. 

“I’m a little frustrated because this is a special time for Democrats in Utah,” said Romero, who won’t be able to attend Wednesday’s special session in person because she was attending the DNC. She expected to tune in to the special session remotely and vote from the convention, however.  Rep. Brian King, D-Salt Lake City, who is also running as the Democratic candidate for governor, was also in Chicago, but flew back to Salt Lake to attend the special session in person. 

Romero also expressed frustration at not having access to the proposed constitutional amendment’s language yet. If the amendment makes it to the Nov. 5 ballot, Romero called on Utahns to vote it down as one that would grant more power to Utah’s legislative branch and reduce voter initiative power. 

To Republican legislative leaders’ arguments that the constitutional amendment will “restore the traditional effect” of ballot initiatives before the Utah Supreme Court’s ruling, Romero said she disagreed with that interpretation. 

“It’s easy to wordsmith something, but there’s a reason why the Utah Supreme Court made the ruling they did,” she said. “I don’t see the ruling from the Supreme Court as problematic. I think it was a wake up call for us saying, ‘Hey, there’s a reason why we have these checks and balances and how do we move forward as a state?’”

Correction: An earlier version of this story stated Rep. Brian King wouldn’t be able to attend the special session in person. He flew back from Chicago to Salt Lake to be there on Wednesday.