Utah Supreme Court crushes constitutional amendment deemed 'counterfactual' by lower court

SALT LAKE CITY — Utah voters will not decide this November on a constitutional amendment asking voters to cede power over ballot measures to lawmakers after the Utah Supreme Court on Wednesday upheld a lower court decision voiding the amendment.

The five-justice panel grilled attorneys for the Legislature earlier Wednesday before siding with opponents of the amendment who argued it would have been presented to voters in a misleading manner. Republican legislative leaders, who penned the ballot question, had asked the high court to overturn a district judge's ruling and put Amendment D back before the public.

The amendment would have given lawmakers constitutional authority to rewrite voter-approved ballot measures or repeal them entirely. Lawmakers also could have applied their new power to initiatives from past election cycles.

But the summary that voters would have seen on their ballots only asked if the state constitution should be changed to “strengthen the initiative process” and to clarify the roles of legislators and voters.

“The description does not submit the amendment to voters ‘with such clarity as to enable the voters to express their will,'" the high court wrote in its opinion.

The justices said District Judge Dianna Gibson ruled correctly in mid-September when she ordered that any votes cast for or against the amendment should not count. She ruled that the ballot question language was “counterfactual” and did not disclose to voters the unfettered power they would be handing to state lawmakers.

The state Supreme Court also agreed with Gibson's assessment that the Legislature had failed to publish the ballot question in newspapers across the state during the required time frame.

Because of ballot-printing deadlines, the amendment text will still appear on Utah ballots this November, but votes will not be counted.

Utah Democrats were quick to celebrate the ruling, which blocked a ballot question that state party chair Diane Lewis called “intentionally deceitful.”

“Today’s Supreme Court decision ensures that voters can make their voices heard, despite all the Republican supermajority’s attempts to trick Utahns into giving away their power,” Lewis said.

In a joint statement, Senate President Stuart Adams and House Speaker Mike Schultz called the ruling troubling and said it was a sad day for the state.

Their next opportunity to place a similar proposal on the ballot will be in 2026.

“The Legislature offered the court a way to preserve the voting rights of all Utahns, but instead, the court took the chance to vote on Amendment D out of the voters' hands," the Republican legislative leaders said.

Republican Gov. Spencer Cox said last week during his monthly televised news conference at KUED-TV that he thought Gibson's lower court opinion was “compelling,” but he declined to say whether he thought the ballot question was misleading.

“It is important that the language is clear and conveys what the actual changes will do,” Cox said. “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.”

Justices agreed that voters should eventually have an opportunity to decide if they want to give lawmakers greater power to change citizen-approved initiatives, but only if the question is presented in a way that complies with the state constitution.

The amendment marked lawmakers’ first attempt to circumvent another Utah Supreme Court ruling from July, which found that the Legislature has 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 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.

Taylor Meehan, an attorney for the Legislature, defended the proposal before the state Supreme Court earlier Wednesday, arguing that a reasonably intelligent voter would be able to understand the intent of the ballot question. She said the summary that appears on the ballot is not required to educate voters about the effects of the amendment and is meant to point people to the full text to learn more.

Mark Gaber, an attorney for the League of Women Voters, argued voters would not assume a ballot summary was false and should not be expected to go searching for accurate information.