If constitutional amendment passes, will Utah lawmakers respect the intent of initiatives?

If Utah voters this November pass a constitutional amendment giving the Utah Legislature the ability to amend or repeal initiatives, will state lawmakers be able to just toss out laws that started out as citizen initiatives?

Not exactly.

A bill passed on Wednesday night, contingent on Utah voters approving the amendment, essentially says lawmakers will not repeal initiatives when making changes, said Derek Monson, chief growth officer at the Sutherland Institute.

“I think what the Legislature wanted to do is just clarify that intent,” said Monson. “And that going forward, this is the policy of the state or the way of the state, when it comes to ballot initiatives, that we’re going to respect the will of the people and try to forward the underlying goals of the ballot initiatives.”

Utah Gov. Spencer Cox signed the bill Thursday that statutorily requires lawmakers to amend initiatives in a way that “leaves intact the general purpose of the initiative.”

The bill has broader language about amendments to offset financial impacts of initiatives, which Monson said was likely due to another constitutional responsibility lawmakers have.

“They’re constitutionally required to keep a balanced budget,” said Monson. He referred back to changes made to the Medicaid expansion initiative. After analysis of this initiative, lawmakers amended it because the cost would rise without revenue being able to keep it.

Monson suggested looking back at the history of amendments made to initiatives.

“There should not be any concern based on actual evidence that wholesale repeal about initiatives will happen because it’s never happened in the recent history,” he said, adding the bill passed alongside the resolution to put the amendment on the ballot shows they intend to leave initiatives intact.

So, why is the word repeal still in the amendment if the Utah Legislature does not plan on overriding initiatives?

Amend vs. repeal

The language of the law has to be more technical than we use everyday.

Rep. Jordan Teuscher, R-South Jordan, addressed this very issue on the Utah House floor on Wednesday. He pointed to footnote 3 in the Utah Supreme Court decision which said, “When we use the terms ‘amend’ or ‘repeal’ in this opinion, we do not necessarily describe the extent to which the initiative was substantively changed. Rather, we often use these terms merely to describe actions taken during the legislative process.”

“Essentially, they say that you can use these words interchangeably,” said Teuscher, explaining amendments that do not add to the text of a law essentially are repealing some portion of the law.

“What we don’t want to do is set up more loopholes where the court could come in and find some other part that’s going to cause more litigation,” he said.

Here is a hypothetical example. Say citizens led an effort to pass an initiative aimed at requiring all state parks to supply visitors with bottles of water upon request and ensure there are drinking fountains every three miles. But the initiative also had one line about how state parks need to also supply peppermints upon request.

The general intent of the initiative is to ensure visitors at state parks have access to water. The part about peppermints does not necessarily meet the threshold of “general intent.” If the Legislature were to remove the line in the initiative about supplying peppermints while keeping intact the provisions about providing water to park attendees, then they would be repealing a line from a bill.

In this hypothetical example, an amendment could also be considered a repeal of a provision of law.

Is there ever a need to amend initiatives?

Like other laws, there may be circumstances where initiatives need to be amended for a variety of reasons.

When the Utah Legislature rejected the maps of the independent redistricting commission, many were upset and felt like they hadn’t listened to voters. But there was a time when the Utah Legislature and Better Boundaries were able to compromise in a way that both parties felt was productive at the time.

Utah Senate President Stuart J. Adams said in the case of Proposition 4, the initiative creating an independent redistricting commission, there was a need to amend it so it could be considered constitutional.

“They came to us and asked us to change it,” said Adams, R-Layton, who explained the group Better Boundaries worked with members of the Legislature to address changes to preserve what is already in the Utah Constitution and to keep the spirit of the initiative.

“Better Boundaries had a vision and a goal they wanted to accomplish,” Sen. Curtis Bramble, R-Provo, the bill’s sponsor, said in a press conference when the changes were made. “The Legislature had a constitutional prerogative that we wanted to protect. How we came together is really what America is about.”

The executive director for Better Boundaries at the time, Rebecca Chavez-Houck, reportedly told media the compromise protected the core concept of the initiative and the results were “much more rigorous and accountable on the commission than anything she’d hoped for.”

“We’ve tried to be prudent because we have to go back to the people the elect us and we have to represent them,” said Adams, adding he believed changes to initiatives have made them better.

“They haven’t completely repealed any ballot initiative,” said Monson. “They’ve amended a number of them, and most of the time, the legislators have worked with the creators of the initiative on reforms.”

Monson said this does not mean the creators of the initiatives have always agreed with every change that has been made, but he thinks the Legislature has shown it will try to forward the goals of ballot initiatives.

Rep. Ken Ivory, R-West Jordan, said he has been in the Legislature since 2010 and does not know one time a bill came through the process exactly the same as when it started “because most of what we spend our time doing here is altering and amending and refining and changing legislation.”

Ivory said initiatives do not go through the same process as the legislators’ bills — which are heard in committee meetings. Opponents of the amendment are asking us to suppose an “initiative that didn’t go through the process fits perfectly with the code, fits perfectly with the Constitution, fits perfectly with the budget,” he said.

Do the amendment and accompanying bills impact people’s ability to pass initiatives?

No. The amendment primarily deals with legislative powers.

The process for citizen initiatives was unchanged by both the resolution to put the amendment on the ballot and the accompanying legislation. If Utah voters approve the amendment, then the Utah Constitution would say laws that started as initiatives can be amended by state lawmakers, as happens with other laws on the books.

There was a change to the referenda process, which is contingent on the amendment being passed by Utah voters.

Referenda are designed to appeal laws. Initiatives create laws. For citizens to repeal laws through passing a referenda, they need to collect signatures. The Legislature increased the time period to gather signatures from 40 days to 60 days.

Without the amendment, can legislators make changes to initiatives?

Yes, but there is uncertainty about what changes could be made. In some ways, this is at the core of the disagreement between those in favor of the amendment and those opposed to the amendment.

The Utah Supreme Court said government-reform initiatives are protected from “unfettered legislative amendment, repeal, or replacement.” But lawmakers said there is not clarity about what qualifies as a government-reform initiative.

Sen. Kirk A. Cullimore, R-Draper, said on Wednesday that a case could be made that any initiative qualifies as altering or reforming government, and so, there is potential for litigation to arise over changes to any initiative.

The ruling from the state’s highest court also said if the Legislature can show changes it made to a law are narrowly tailored to address a compelling government interest, then it could survive a constitutional challenge.

This legal test is known as strict scrutiny.

Cullimore said there are questions around what it means to alter or reform the government as well as what sorts of defenses the Legislature could make to meet the strict scrutiny standard. He said these would likely have to become questions for the court.

The question Teuscher said lawmakers are asking with the amendment and accompanying bills is what ought the Utah Constitution say about initiatives.

“The Supreme Court’s job isn’t to decide what policy should be, their job is to interpret the law,” said Teuscher. “We disagree with their interpretation and we have a constitutional amendment now that allows the people to decide what they want that power to be.”

Those opposed to the amendment, like Better Boundaries, think the Utah Supreme Court got it right with the ruling.

“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,” said the group in an open letter.