Panel discusses Utah’s Amendment D and what’s next

It was fitting that a discussion about a state constitutional amendment on Tuesday at Utah Valley University would be held in Utah on the same day 237 years ago that delegates to the Constitutional Convention signed the U.S. Constitution in Philadelphia.

Amendment D would change the Utah Constitution to explicitly say the Legislature has the power to amend laws that started as citizen initiatives. It would also prohibit foreign influence (out-of-country) on the initiative process. But at this point, it is unclear if voters will have their votes counted on the amendment.

A district judge in Salt Lake City ruled the proposed amendment was void because she said the ballot language was inaccurate and the Utah Legislature did not publish the amendment language in newspapers in every county 60 days before the election.

The decision to try to amend the state constitution came after Better Boundaries passed an anti-gerrymandering initiative in 2018 and Utah lawmakers were sued after making amendments to that law. Instead of using the maps from the independent redistricting committee as the initiative aimed to accomplish, lawmakers changed the law and adopted their own maps.

Matthew Brogdon, director of Utah Valley University’s Center for Constitutional Studies, moderated Tuesday’s discussion between Ryan Bell, a Better Boundaries board member, Savannah Eccles Johnston, a Salt Lake Community College political science professor and Derek Monson, chief growth officer at the Sutherland Institute.

Recalling the Constitutional Convention back in 1787, Brogdon raised a question: what if there was a representative process for drafting an initiative?

Or in other words, should Utah have an Initiative Convention?

“There’s a real upside to that,” said Bell. He explained the current process for drafting initiatives — after an initiative is drafted, it is sent to the Lieutenant Governor’s Office, who can reject the initiative if it is unconstitutional or covers more than one subject. Then, there are public hearings, he said, and the initiative can be changed at that point.

Johnston said it was “a great idea, but only if you buy into the idea that, in fact, direct democratic methods are bad for the country.” She said it was fine if people believe that, but she did not think it reflected the context the Utah Constitution was written in.

The biggest concern Monson said he has about initiatives was the lack of deliberation that goes into what ultimately ends up on the ballot. When lawmakers draft a bill, legislative attorneys are involved in the process. Monson said he thinks a more representative process could potentially help resolve the discrepancy between initiatives and bills lawmakers advance.

Direct democracy or representative government?

Bell said direct democracy is necessary for a handful of different reasons. He said since primary candidates are chosen via delegates rather than a popular vote, representatives are less answerable to the people at large. He also said legislative power is consolidated through the drawing of legislative districts, and lawmakers need to follow leadership to get their bills through. Then, he said, money influences politicians.

“And one good fix is to place a check on that legislature through direct democracy,” said Bell, adding the Utah Supreme Court did not prevent the Legislature from amending all initiatives.

Monson said the Utah Supreme Court decision seemed to create some limits, but it was not clear where those limits were — he said those who seek to pass initiatives will now try to couch them in terms of reforming the government.

Only lawyers would look at two initiatives, like one on decriminalizing marijuana or one that is anti-gerrymandering, and not be able to see the difference between them, said Johnston. She thought there were some edge cases, but there were lines between initiatives that alter and reform the government, and initiatives that do not.

What’s next for Utah?

The judge voided the amendment and ordered the Lieutenant Governor’s Office to ensure the votes on the amendment are not counted, said Bell. But the Utah Legislature appealed the judge’s decision and a ruling could come within the next month.

“And so should the Supreme Court decide to overturn or reverse this district court decision, we’re all going to go vote on the Amendment,” said Bell. He added he thinks there is a “strong chance” the Utah Supreme Court would uphold the district court’s decision to void the amendment.

Brogdon asked if Utah voters ended up voting on the amendment and approving it, would the amendment return Utah to a previous status quo or would it give the Utah Legislature authority it did not have before?

On that point, Johnston and Bell disagreed with Monson.

“It increases the legislators’ authority by significantly decreasing the independence of the initiative process,” said Johnston. She added the Utah Constitution allots power to both the people and the Legislature. The change would result in “heavily” favoring the Utah Legislature as “the final arbiter of all law in the State of Utah.” Bell cited the Utah Supreme Court decision and said at the time, it was understood “that when the people spoke through an initiative, they would have the final say on the matter at issue, due to the people’s inherent sovereign authority.”

But Monson said it would bring Utah back to the way it was before. He said the normal process was the Utah Legislature would work with people who passed initiatives to make amendments to them. He said he thinks the Utah Legislature tried to signal that it would continue that process through passing a law requiring them to keep the general intent of initiatives intact when making decisions.