Utah Supreme Court to decide viability of a ballot question deemed ‘counterfactual’ by lower court

SALT LAKE CITY (AP) — The Utah Supreme Court is poised to decide whether a proposed constitutional amendment that asks voters to cede power to lawmakers over ballot measures is written clearly and should be counted on the November ballot.

Attorneys for the Legislature and a coalition of voting rights groups argued Wednesday before the state Supreme Court after a lower court ruled earlier this month that voters should not decide on the consequential ballot question this year.

Republican legislative leaders are asking the five-justice panel to overturn District Judge Dianna Gibson’s ruling and put Amendment D back before the public. But opponents of the measure warn that it is written in a way that could trick voters into giving up their power to pass meaningful legislation.

If the amendment is revived and approved this fall by a majority of Utah voters, it would give lawmakers constitutional authority to rewrite voter-approved ballot measures or repeal them entirely. Lawmakers also could apply their new power to initiatives from past election cycles.

The summary that voters will see on their ballots only asks if the state constitution should be changed to “strengthen the initiative process” and to clarify the roles of legislators and voters.

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Gibson ruled in early September that the language of the ballot question, penned by Republican legislative leaders, was “counterfactual” and did not disclose to voters the unfettered power they would be handing to state lawmakers. She also said the Legislature had failed to publish the ballot question in newspapers across the state during the required time frame.

Taylor Meehan, an attorney for the Legislature, defended the proposed amendment before the Utah Supreme Court on Wednesday, arguing that a reasonably intelligent voter would be able to understand the intent of the ballot question.

Justice Paige Petersen said the amendment would remove constitutional protections for Utah’s current ballot initiative process, and she asked Meehan to point out where in the ballot question voters are informed that they will be giving up those protections.

Meehan said the summary that will appear on the ballot does not have to educate voters about the effects of the amendment. The summary is only meant to help the voter identify the amendment and point them to the full text, she said, agreeing with Justice John Pearce that the phrasing cannot be counterfactual.

Mark Gaber, an attorney for the League of Women Voters, argued voters would not assume the ballot summary is false and cannot be expected to go searching for accurate information. He argued the language omits key details and is counterfactual because it claims to strengthen the initiative process when it actually eliminates voters’ ability to pass laws without legislative interference.

Justices did not provide a timeline for when they would rule on the ballot question’s viability.

Because of ballot-printing deadlines, the proposed amendment will appear on Utah ballots in November regardless of the Supreme Court ruling, but votes may or may not be counted.

The amendment seeks to circumvent another Utah Supreme Court ruling from July, which found that lawmakers have very limited authority to change laws approved through citizen initiatives.

Frustrated by that decision, legislative leaders in August used their broadly worded emergency powers to call a special session in which both chambers swiftly approved placing an amendment on the November ballot. Democrats decried the decision as a “power grab,” while many Republicans argued it would be dangerous to have certain laws on the books that could not be substantially changed.

Republican Gov. Spencer Cox said last week during his monthly televised news conference at KUED-TV that he thought the lower court opinion was “compelling.” He declined to say whether he thought the ballot question was misleading and said he would let the high court decide.

“It is important that the language is clear and conveys what the actual changes will do,” Cox told reporters. “I do hope that, eventually, the people of Utah will get a chance to weigh in and decide one way or another how this is going to go. I think that’s very important, but it is important that we get it right.”