A judge decided the future of Utah’s proposed constitutional amendment

A Utah judge decided Amendment D is declared void. The amendment will remain on the ballot, but the Lieutenant Governor’s Office has been ordered not to count the votes.
The decision came on Thursday, in response to a lawsuit filed by League of Women Voters of Utah and Mormon Women for Ethical Government that alleged the ballot language of a constitutional amendment was “deceptive.” Utah Senate President Stuart Adams and House Speaker Mike Schultz, who wrote the language, said the language was “straightforward.”
The matter was expedited because the printing of ballots needs to begin by Thursday to ensure ballots are mailed out in a timely manner.
“We are extremely disappointed by the lower court’s policymaking action from the bench. It’s disheartening that the courts – not the 1.9 million Utah voters – will determine the future policies of our state. This underscores our concerns about governance by initiative as an out-of-state interest group from Washington, DC, with seemingly unlimited funds, blocked Utah voters from voicing their opinions at the ballot box. The people who claim to advocate for greater voter engagement are the same ones who obstructed Utahns from having the opportunity to vote on this important matter,” said Adams and Schultz in a statement.
The statement continued, “The court’s actions have introduced significant uncertainty into the electoral process, raising concerns about the impartiality and timing of judicial interventions. Such interference during an ongoing election undermines public confidence in the integrity of the process. The court is denying the right of the people to vote and should not be exerting undue influence on this election.”
“We will not stop fighting for Utahns. It’s critical we find a path forward that safeguards our state from external influence and keeps Utah’s future in Utah’s hands,” said Adams and Schultz. ”We will continue to exhaust all options to prevent foreign entities from altering our state and clarify the over a century-long constitutional practice, including our appeal to the Utah Supreme Court. We urge them to undo this wrong and preserve the voices of Utahns.”
“Today, the court has ruled the legislature’s bait-and-switch has failed,” said Katharine Biele, League of Women Voters of Utah president in a statement. “Make no mistake, this rush to amend the constitution was unnecessary, and we hope lawmakers reconsider their tactics. Citizens voted them into office in good faith, a faith that they would respect their constituents and work transparently. We believe in representative government and the principles that make our democracy work. The court agrees.”
“It has been inspiring to see the outpouring of interest and support from a cross-partisan group of Utahns over the past few weeks as we worked together to advocate for fidelity to the constitution,” said Emma Petty Addams, Co-Executive Director of Mormon Women for Ethical Government in a statement. “This ruling represents a positive and empowering outcome for the people of Utah.”
“Amendment D was a deceptive power grab written by two leaders of the legislature. We applaud the Court’s decision and interpretation of the Utah Constitution to void Amendment D on the November ballot,” said Ryan Bell, Better Boundaries board member. “Amending our founding document should never be shrouded with misleading language and rushed in this fashion. Utahn’s overwhelmingly want and deserve a proper balance of power in our state government and the Court agreed.”
“The people of Utah are entitled to an accurate summary of any proposed constitutional amendment that impacts their fundamental rights and they are entitled to the constitutionally required notice, by publication in a newspaper two months before the election,” said Judge Dianna Gibson in the order. “These requirements are fundamental to the integrity of our democracy.”
The order said the ballots can be printed as certified, but the Lieutenant Governor’s Office is responsible for notifying all County Clerks of the injunction. While Utah voters will still the amendment on the ballot, votes will not be counted.
Gibson said the only real knowledge many voters have regarding an issue is the language they read on the ballot.
“This court cannot say that the Amendment D ballot language fairly and accurately summarizes the proposed constitutional amendments for the average voter,” said Gibson, adding, it likely violates the Utah Constitution. The order also said the Utah Legislature did not meet the requirement of causing the proposed amendment to be published in Utah newspapers.
“The injunction promotes the public interest,” said Gibson. “The people of Utah are entitled to an accurate summary of any proposed constitutional amendment that impacts their fundamental rights and they are entitled to the constitutionally required notice, by publication in a newspaper two months before the election. These requirements are fundamental to the integrity of our democracy.”
Utah voters will still see Amendment D on their ballots come November. But votes for it will not be counted.
Even if a Utah voter were to vote yes or no on the proposed amendment, the votes would not be counted because the amendment has been declared void.
Wednesday’s oral arguments started with the attorney for the League of Women Voters of Utah and Mormon Women for Ethical Government, Mark Gaber. He, argued the proposed amendment would remove a constitutional right from voters: the ability to reform the government through the initiative process.
“Amendment D proposes to eliminate that right and allow the government to unilaterally reject Utahns’ reforms for any or no reason at all, compelling, not narrowly tailored otherwise,” said Gaber. “But the language certified by the defendant doesn’t reveal that.”
Scrutiny is required “when what’s happening is a fundamental provision in the declaration of rights that has existed since the Constitution was created in 1895 is at issue,” said Gaber.
Citing a Florida Supreme Court decision, Gaber said “the court needs to extra vigilant in ensuring that the ballot language is not misleading voters into throwing away” a constitutional right.
The attorney for the Utah Legislature, Tyler Green, said, “There are 1.73 million Utahns who expect an election to be run the way it’s always been running fairly, and the relief that plaintiffs are asking for today fundamentally throws that into jeopardy.”
Green said the upcoming election involves a presidential race as well as statewide races — removing the Amendment D from the ballot could impact the way the election is run.
“The equities weigh so heavily in favor of making sure that the election itself can happen and can happen in a way that doesn’t undermine voter confidence and voter integrity,” said Green.
Utah League of Women Voters and Mormon Women for Ethical Government filed a lawsuit to remove the proposed amendment from the ballot.
The suit was filed in Salt Lake County’s 3rd Judicial District Court. The two plaintiffs mentioned are also the groups that sued the Utah Legislature over redistricting. After a ballot initiative was passed by Utah voters, it was amended. The changes meant the Utah Legislature could select its own maps over the independent redistricting commission’s proposed maps.
The Utah Legislature ended up doing so, and the plaintiffs sued. Litigation for that case is ongoing. This more recent lawsuit was filed because the plaintiffs say the language that would be on the ballot is deceiving.
“We filed this suit because the ballot language of Constitutional Amendment D is deceptive and misleading,” Emma Petty Addams, co-executive director of Mormon Women for Ethical Government told the Deseret News. “It does not accurately represent the impact of the amendment and is therefore unconstitutional.”
Mark Gaber, Campaign Legal Center attorney who worked on the suit, said, “The language that they use is the exact opposite of what would happen if the amendment went into effect. In fact, it was designed to weaken the initiative process so that the legislature could, with unfettered power, repeal any initiative of the voters for any or no reason at all.”
Arguments for removing the proposed amendment from the ballot.
“The certified ballot summary for Amendment D flagrantly fails to disclose the effect of the Amendment and misleads and deceives voters,” said the attorneys for the plaintiffs. “Indeed, the ballot summary voters deceptively asks vote(r)s to surrender a fundamental constitutional right they have possessed since 1895 by encouraging them to vote ‘yes’ in order to supposedly strengthen their initiative rights.”
The attorneys said the proposed amendment would eliminate a constitutional right and fails to mention it would do that. Then, the attorneys also said the amendment would not strengthen the ability for citizens to pass initiatives and does not reflect the proposed amendment’s “sweeping language.”
“This Constitution-free zone created by the Amendment’s text is a far cry from the existing constitutional provision, which strictly limits the Legislature’s power to impair voter-initiated government reforms,” said the attorneys.
The attorneys argued the ballot language violated the right to vote clause because it would “unduly influence and distort the election outcome.”
“Because of the deceptive nature of the ballot summary, Utah voters cannot cast their ballots freely according to their own conscience, but rather would be deceived into surrendering existing constitutional rights by language that says they are protecting those rights,” said the attorneys. “Such an election is not free.”
Attorneys for the Legislature asked the court to allow Amendment D to remain on the ballot. In court documents, these attorneys said asking to remove the amendment from the ballot is a “suppression tactic.”
“The alternative — an order to remove Amendment D — would inject confusion and potential catastrophic errors into the nearly final ballot-printing process,” said the attorneys. “Such an order would also almost certainly preclude appellate review.”
In its argument to the court, the attorneys said Proposition 4 was funded by out-of-state special-interest groups and labor unions. Pointing to publicly available disclosures, they said the biggest donor was Action Now Initiative, a Texas based group founded by John and Lauren Arnold.
The attorneys said voters approved of the initiative in a vote with a 0.6% margin — 6,944 votes. Then, the attorneys ran through the timeline: the changes the Legislature made to the initiative, how the Legislature redistricted and then how they were sued over it. After receiving a letter from several different organizations and local officials across the state, the attorneys said the Legislature convened a special session to put the proposed amendment on the ballot.
This proposed amendment is already certified by the Lieutenant Governor’s Office, said the attorneys. Afterward, it is up to Utah’s 29 counties to proceed with printing and mailing ballots.
Arguments against removing the proposed amendment from the ballot.
“Plantiffs demean the state and its voters by suggesting that they are incapable of considering the amendment. Plaintiffs also say, paradoxically, that the ballot is a ‘suppression tactic.’ The only suppression tactic is plaintiffs’ demand to deny 1.73 million Utahns the right to vote,” attorneys for the Utah Legislature argued.
The attorneys also pointed toward the potential violation of further laws if the amendment was removed from the ballot. “Removing Amendment D would require coordination among all of the counties and their separate printers, cost the State ‘up to $3 million,’ risk serious violations of federal law, and otherwise ‘jeopardiz(e) the orderly election for all candidates and issues, not just Amendment D.’”
In addition, the attorneys said the plaintiffs do not meet the requirements for an injunction that would disrupt the election process. “Plaintiffs do not grapple with Utah law, nor with analogous federal Purcell principles, which the Utah Supreme Court has relied upon.”
The attorneys argued removing the proposed amendment from the ballot would deprive 1.73 million Utah voters from further review. “One ballot printing begins tomorrow, returning Amendment D to the ballot would entail up to $3 million in costs and risk violating federal law.”
Addressing the claim the ballot language was deceptive, the attorneys said, “Plaintiffs’ subjective view that Amendment D ‘eliminates’ a right is not grounds for removing or voiding the amendment.”
The attorneys said the critique around the word “strengthen,” they said this critique “ignores that, if approved, Amendment D will necessarily strengthen the initiative process by prohibiting” foreign influences on the process. As for the word “clarify,” the attorneys said it is “more accurate than describing the amendment to ‘eliminate’ any right.”
The full text of the proposed amendment has been covered by statewide media outlets, argued the attorneys, adding it will be available in a voter information pamphlet and at precincts.
Here is the full text of the ballot language in question:
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.
Here is the text the Legislature proposed adding to the Utah Constitution:
(3) (a) Foreign individuals, entities, or governments may not, directly or indirectly, influence support, or oppose an initiative or a referendum.”
(b) The Legislature may provide, by statute, definitions, scope, and enforcement of the prohibition under Subsection (3) (a).
(4) Notwithstanding any other provision of the Constitution, the people’s exercise of their Legislative power as provided in Subsection (2) does not limit or preclude the exercise of Legislative power, including through amending, enacting, or repealing a law, by the Legislature, or by a law making body of a county, city, or town, on behalf of the people whom they are elected to