A judge voided Amendment D and lawmakers appealed. The Utah Supreme Court hears arguments

The Utah Supreme Court heard oral arguments Wednesday to determine if it will leave intact or overturn a decision from a district court judge to not count votes on Amendment D.
Justices on the state’s top court appeared skeptical the Utah State Legislature fulfilled the requirement to publish the proposed amendment in newspapers in every county across the state. There were also questions around the accuracy of the ballot language. While Justice Diana Hagan seemed open to the state’s argument for a remedy on the publication issue, calling it “a very good argument,” she raised questions about the accuracy of the ballot language.
Associate Chief Justice John A. Pearce said, speaking only for himself, “I think it’s better if everyone votes on this.” He continued by raising the question of what should happen if there was a constitutional problem with the process of this proposed amendment.
While the initial discussion focused on the publication requirement, soon the discussion turned to the accuracy of the ballot summary. Hagan asked if the court were to agree the ballot summary was misleading, what would the remedy be?
It was only two months ago the Utah Supreme Court issued a ruling on a redistricting case that was followed by a proposal of a constitutional amendment — Amendment D.
The battle over constitutional amendment initiatives started five years ago. In 2018, Utah citizens passed an initiative to give powers of drawing political boundaries to an independent redistricting commission. The Utah Legislature amended the initiative to allow lawmakers the final say over the maps. Instead of going with the maps from the commission, lawmakers went with their own.
Mormon Women for Ethical Government and League of Women Voters of Utah sued over that action, and the case ended up with the Utah Supreme Court. In a ruling allowing litigation from the two groups to move forward, the state’s top court said when citizens use initiatives to alter or reform the government, the Utah Legislature needs to show a compelling government interest if it makes changes to the initiatives.
After calls from the Utah GOP, the Sutherland Institute and other groups and individuals across the state, lawmakers met in a special session to put Amendment D on the ballot. When the ballot language (a summary voters will see on their ballot) was released, Mormon Women for Ethical Government and the League of Women Voters of Utah filed a complaint again, saying the language used was misleading.
3rd District Judge Dianna Gibson heard the expedited case on Sept. 12. Gibson issued a ruling saying the ballot language for Amendment D did not accurately represent the amendment to voters. The ruling also said the Utah Legislature did not fulfill the requirement of causing newspapers to publish the full text of the amendment. While the proposed amendment will still appear on Utah voters’ ballots, votes will not be counted, the judge ruled.
The Utah Legislature then appealed the ruling and the parties appeared before the Utah Supreme Court.
Mark Gaber, an attorney with Campaign Legal Center representing the two organizations, made the groups’ case. He said Utah voters should be informed that any initiative they pass could ultimately be tossed by the Legislature and the ballot language does not inform them of that.
Arguing the case for the Utah Legislature, Taylor Meehan said it should be up to the voters to decide if they approve or disapprove of Amendment D.
The amendment would “extinguished the constitutional protection that the same government that the voters sought to reform could not veto the reform passed by the voters,” said Gaber. “Now, there is nothing in the ballot language that informs the voters that that is the fact.”
The word “repeal” does not appear anywhere on the ballot summary, said Gaber. “But that is the key power that the Legislature is transferring to itself.”
Under the Utah Constitution, if this amendment passes, Gaber said the Legislature could make changes or totally repeal any initiative passed by the citizens.
“No one looking at this ballot language would understand that to be the operative effect of the amendment,” he said.
If the Legislature wanted to amend the Utah Constitution, it could propose the amendment in the future, said Gaber, explaining that in terms of the balancing of equities, the Legislature could come back and engage in a slower, deliberative process. He does not think a tailored injunction requiring the Legislature to fulfill the publication requirement because he does not think it would comply with the state constitution.
When asked what a judicially manageable standard for assessing ballot summaries should be, Gaber said he thinks voters need to be able to understand the operative effect of the amendment would be depending on their vote.
“There should be no deference to mislead,” he said. “There should be deference to accurately describe it.”
Pearce asked Gaber what the court should do if there was a good faith argument for accuracy on both sides for the ballot summary. Gaber said to look to the Florida court. He reiterated his argument about where the deference should go.
From a policy standpoint, Gaber said he thinks the Legislature does have the clear power to propose amendments to the Utah Constitution. While he said he would not support the proposed amendment, but he believes they need to follow the constitutional requirements to do so.
Moving onto the second half of the ballot language, Gaber said he thought it was “almost more problematic” than the first. The second half says the Legislature has established requirements for it to follow the intent of a ballot initiative.
“Now, the current Constitution has requirements for the Legislature to follow the intent of government reform initiatives,” said Gaber. “And the amendment eliminates that requirement.”
Gaber said he thinks a reasonably intelligent voter would read the ballot language and think the amendment includes a deference provision. The provision is not in the amendment, but instead, it is in an accompanying bill, said Gaber, which he said was misleading.
Replying to Gaber, Durrant said he thinks the Legislature made a “careful” distinction between the amendment and the state law in the ballot language. Gaber said he thinks voters could still conflate state law with the amendment.
“Plaintiffs could have opposed Amendment D at the ballot, but instead they went to court,” said Meehan, counsel for the Utah State Legislature. Meehan said the question before the court is not if Amendment D is a good amendment, it is whether or not voters should have the opportunity to vote up or down on the amendment.
Meehan argued Amendment D was submitted to the voters as Article 23 requires.
“The ballot summary does not change,” she said. “It is not contrary to the amendment itself, and no reasonable voter would think that it is given all surrounding circumstances.”
After Meehan said the Utah State Legislature “shall cause the same to be published in at least one newspaper in every county of the state, where a newspaper is published, for two months” before voters decide up or down on a proposed amendment, she was asked if that was the case. The justices asked Meehan questions for well over an hour about both the publication of the proposed amendment and the accuracy of the ballot language.
Chief Justice Matthew B. Durrant and justices Jill M. Pohlman and Paige Petersen questioned whether the Utah Legislature met that requirement. In response, Meehan argued ads in physical newspaper are not the only way the Legislature could comply with the requirement.
“I take plaintiffs’ arguments that the framers never could have anticipated instead of a formal legal advertisement on the front page of a newspaper that no one ever reads anymore is different than hyperlinking the full bill page of the article,” said Meehan.
Since online newspapers were hyperlinking to the bill file with the proposed amendment as early as August, Meehan said this fulfilled the requirement in addition to the Utah Lieutenant Governor’s Office publishing public notice of the proposed amendment. Pohlman seemed skeptical newspaper articles compared to a notice put forward by the newspaper would satisfy that requirement.
Meehan argued the district court’s ruling was overly broad and said the Utah Supreme Court could order the Legislature to cause notice of the proposed amendment to be published.
When asked about the accuracy of the ballot summary, Meehan said the problem with accuracy is it’s subjective. She said there could be ballot summaries that are contrafactual, but she did not think that was the case with the Amendment D ballot language.
For over a hundred years, the Utah Constitution has given Utahns the right to reform the government, said Pohlman. But, she said, the proposed amendment would no longer protect Utahns’ right to alter or reform the government. Pohlman asked where in the ballot summary does it say that?
“The ballot summary does not have to talk about the effects of the amendment because the effects of the amendment are uncertain,” said Meehan.
Pearce asked Meehan about the word “clarifies” used in the ballot summary. He said he read a number of dictionary definitions of that word and described the theme of those definitions as making something more understandable. Meehan responded by saying the word “clarifies” does not exclude the possibility of substantive change and she does not think the proposed amendment could be invalidated because disagreement on that word.
“As a voter, shouldn’t you be able to trust that the ballot is straight?” asked Pohlman.
Meehan said there are voters who may think the ballot language is impartial and others may think it is not. She said the voter information packet contains arguments for and against the proposed amendment.
“Whether Amendment D ultimately succeeds or fails should be left in the hands of Utah voters who can read for themselves, think for themselves, and ultimately, cast a considered vote,” said Meehan.
The Utah Supreme Court could either rule to uphold the district judge’s decision or overrule it.
If the decision was upheld, nothing practically speaking would change. The proposed amendment would still appear on voters’ ballots, but any votes for it will still not be counted.
But say the Utah Supreme Court overturns the district judge’s decision. This would likely mean the court would order the votes on the proposed amendment be counted.
When adjourning the court, Durrant gave no timeline for the court’s decision.
After the arguments, Ryan Bell, board member with Better Boundaries, told the Deseret News in a statement, “The arguments today just confirm the shakiness of the Legislature’s approach to Constitutional Amendment D. They continue to argue that they shouldn’t have to follow constitutional requirements for amending the constitution, and they continue to argue that their misleading ballot language is just fine.”