California-style laws and foreign influence: Why the Legislature is rushing to amend the Utah Constitution

08/20/2024 07:13 PM

Utah lawmakers are scheduled to meet Wednesday afternoon when a Republican supermajority is expected to approve a constitutional amendment undoing a recent Utah Supreme Court ruling that limited the Legislature's ability to amend or repeal citizen ballot initiatives.

The amendment, which had not been published as of Tuesday evening but was obtained by The Salt Lake Tribune, would add language to the Utah Constitution that clarifies that "the people's exercise of their legislative power … does not limit or preclude the exercise of legislative power, including through amending, enacting or repealing a law, by the Legislature or a law making body of a county, city or town, on behalf of the people whom they are elected to represent."

If it passes and is approved by a majority of voters in November, it would give the Legislature the power to significantly rewrite voter-approved ballot initiatives — as they did with two 2018 ballot initiatives legalizing medical marijuana and another expanding health coverage to low-income Utahns through Medicaid — or undo the intent of the voters, as they did with an initiative aimed at prohibiting partisan gerrymandering.

In 2018, a majority of Utah voters approved Proposition 4, a ballot initiative that created an independent redistricting commission and prohibited partisan gerrymandering. Then, in the 2020 legislative session, lawmakers passed SB200, which changed the law and stripped out the ban on partisan gerrymandering. Lawmakers later passed congressional maps that split Salt Lake County — the most liberal part of the state — into four congressional districts.

The League of Women Voters, Mormon Women for Ethical Government and several individuals impacted by the maps sued, saying that splitting the county diluted the liberal vote, effectively denying them a voice in Congress.

Additionally, plaintiffs argued that the passage of SB200 effectively usurped the will of the people and deprived voters of their right to pass laws by ballot initiative.

The justices agreed, basing their decision on language in the Utah Constitution that states, "All political power is inherent in the people … and they have the right to alter or reform their government as the public welfare may require."

Their ruling was unanimous, with all five Republican-appointed justices agreeing that voter initiatives that reform government are entitled to deference from the Legislature.

Now, lawmakers, upset at the court's decision, are using their emergency powers to call a special legislative session to amend the Utah Constitution to undo the Utah Supreme Court's ruling.

In their proclamation calling the special session, legislative leaders cite the need to address a decision "upending over 100 years of representative democracy" and "leaving the state vulnerable to laws advanced by foreign interests through ballot propositions" that cannot be amended.

In a statement Tuesday, House Democrats accused Republican leaders of "keeping everyone in the dark" and using the pretense of an emergency to "once again disregard the will of the people."

"Let's be clear: this is not an emergency — it's a blatant power grab following the Utah Supreme Court's ruling that the Legislature overstepped," the Democratic leaders said.

Better Boundaries, the group that ran the anti-gerrymandering ballot initiative, sent a letter to Gov. Spencer Cox and legislative leaders expressing their concern. The letter was signed by dozens of community groups and political leaders, including former Utah Supreme Court Justice Christine Durham.

"The right of citizens to propose and enact laws through ballot initiatives is not a threat," the letter reads. "It's a vital expression of our shared values of self-governance and civic engagement. We stand ready to work with you to protect and enhance these democratic principles that make Utah strong."

What does the proposed amendment actually do?

In 1900, four years after gaining statehood, Utah became the second state to adopt a process whereby voters can change or enact laws through an initiative process — although the Legislature didn't actually establish a process for how citizens could put an initiative on the ballot until 1916.

Since then, there have been successful ballot initiatives to prohibit the fluoridation of water, making English the state's official language, legalizing medical marijuana and prohibiting partisan gerrymandering, among others.

In many instances, the Legislature changes the law after the initiative passes — like changing how the state's medical marijuana program is administered.

But the Utah Supreme Court's ruling put limits on the extent to which legislators are able to tinker with initiatives passed by voters who seek to "reform their government." This was hailed as a win by initiative backers, who no longer would have to put vast amounts of time, and in some cases millions of dollars, into passing an initiative, only to see their work undone.

Legislative leaders, however, chafed at the courts restricting their authority. In a joint statement after the Supreme Court ruling, House Speaker Mike Schultz, R-Hooper and Senate President Stuart Adams, R-Layton, called it "one of the worst outcomes we've ever seen from the Utah Supreme Court," adding it "made a new law about the initiative power, creating chaos and striking at the very heart of our republic."

Adams contends that the amendment does not change the initiative process.

"You can gather signatures and do one initiative or 100 initiatives before what we do tomorrow," Adams said in an interview on Tuesday. "Same thing after. No change to the initiative process."

The amendment will, however, make Utah's Constitution explicit that the Legislature has the right to change or repeal any ballot initiative it sees fit, wiping out the protections the justices said in their ruling exist for government-reform initiatives.

Why is the Legislature convening now?

In 2018, lawmakers put a constitutional amendment on the ballot that was approved by voters that allows legislative leaders — with a two-thirds vote from the body — to call itself into special session in instances of a "persistent fiscal crisis, war, natural disaster, or emergency in the affairs of the state."

Before that passed, only the governor could convene a special session.

The term "emergency" is not defined, and lawmakers used the power twice during the COVID pandemic to adjust budgets, change various laws and restrict the emergency powers of the governor.

Adams says the reason to do it now is that constitutional amendments have to be voted up or down by voters in a general election and he wants the initiative amendment in place this year. The reason, he said, is that he has heard there is a "boatload" of initiatives preparing for the 2026 ballot and the ground rules should be clear going into that effort.

"It's not fair to let people move forward on this initiative process thinking that they can't be changed," he said. "If we're going to do this, we need to do it now before people move forward with the anticipation [that] one policy is in place when it's not."

Lawmakers are already going to have to change the deadlines to get an amendment on the ballot in order for it to make the initiative amendment eligible for the November election.

"It's now or never," Adams said.

Are initiatives now "super laws" that can never be altered?

One of the main arguments for the amendment is that the court's ruling has tied the Legislature's hands and made it impossible for them to fix or change what have been called "super laws," or "supreme laws."

On Tuesday, Adams said not being able to revise future initiatives would be devastating to Utah.

"How can you function as a government without being able to change your statute?" he said. "When those initiatives are passed, they become part of our statute. They aren't an initiative anymore. To not be able to change the law is absolutely unconscionable. And the Supreme Court didn't define what they meant by general government… It doesn't make sense."

Here's what justices said of their ruling last month:

First, the ruling was narrow. It only applied to ballot initiatives in which citizens "reform their government." It's not clear from the ruling if the other 2018 ballot initiatives — legalizing medical marijuana and expanding health care access to low-income Utahns through Medicaid — would fall into that category. The ruling was silent on those issues.

Second, the justices were explicit that the Legislature can pass laws and change initiatives to help implement what voters expressed that they wanted in a ballot initiative. Passing laws that improve access to medical marijuana, for example, may fall into that category.

"This does not mean that the Legislature cannot amend a government-reform initiative at all," the justices wrote. "Rather, legislative changes that facilitate or support the reform, or at least do not impair the reform enacted by the people, would not implicate the people's rights under the Alter or Reform Clause."

It's when the Legislature passes laws that undo what voters wanted — allowing partisan gerrymandering when voters wanted to prohibit it — that problems are raised, the court said. The justices did not explicitly prohibit such acts, and only said that type of legislation would be held to strict scrutiny — meaning the state has to show there is a compelling state interest in changing the law and that it was as narrowly tailored as possible, so as not to infringe on the public's right to reform government.

In the gerrymandering case, it will be up to a trial court to decide if the state can meet that legal burden.

Lawmakers say Utah is at risk of becoming like California.

Legislative leaders have said that the court's ruling protecting initiatives from being changed opens the door for a California-style system of government, where "big money and outside interest groups … run initiatives to alter the government and push their own agendas."

California is frequently pointed to as a dystopian, democracy-run-amok state by lawmakers.

Like Utah, California has both an initiative and a referendum law. A referendum is like an initiative but allows citizens to gather signatures to try to overturn all or part of a law passed by the legislature.

Since California residents got the right to an initiative and referendum in 1912, there have been 401 initiatives and 54 referenda that have made it onto the ballot. Of those, 138 of the initiatives and 22 of the referenda passed.

In Utah, it has been a different story.

In the 124 years since Utahns gained access to the ballot initiative and referendum, 23 initiatives have made it to the ballot, according to the National Conference of State Legislatures. Just seven initiatives have passed, including the last three that passed in 2018. At least two referenda have also passed — one in 2007, when voters overturned a school voucher bill, the other 30 years earlier.

One reason for the difference is Utah has a much higher threshold for initiatives and referenda to qualify for the ballot. In California, voters only need to gather signatures totaling 5% of the total ballots cast in the previous election. Currently, the target is 546,651 out of more than 22 million registered voters.

In Utah, the percentage is double California's — currently 134,298 out of fewer than 2 million voters. Moreover, supporters have to get those signatures proportionally in at least 26 of the state's 29 counties — meaning if they fail to reach the 10% threshold in four counties, the initiative doesn't qualify.

Utah also has a law that allows opponents of the initiative to contact voters who signed petitions and try to convince them to remove their names and keep an initiative off the ballot.

Are foreign interests dumping money into Utah initiatives?

The short answer is: No.

State and federal law already prohibits foreign entities from donating money to candidates. It does not, however, prohibit foreign entities from spending money to promote or oppose a ballot initiative.

Adams said Tuesday that he does not know of any examples where foreign interests have spent money on Utah initiatives, but said the state wants to cut off the possibility before Utah sees something similar to what happened with an initiative in Maine.

"I think most people believe that … Utahns need to decide what we do in Utah, and it shouldn't be decided by people with foreign interests," he said.

Maine officials were pursuing a $1 billion electricity transmission project in the western part of the state that was opposed by Hydro-Quebec, the company that produced the power to be shipped, Maine Public reported. Maine legislators tried to ban spending by entities owned by foreign governments, but the state's governor vetoed it over constitutional concerns. Hydro-Quebec, which is owned by the Canadian government, spent $22.3 million urging voters to oppose it and voters ended up rejecting the project.

Last year, 86% of Maine voters backed a ballot initiative that bans electioneering by foreign governments or entities that are at least 5% controlled by a foreign government.

States like Colorado, Minnesota and Alaska have passed statutes that ban foreign nationals or companies from spending money on ballot measures, according to Reuters. Similar bills have been considered in Hawaii, Massachusetts, New York, Virginia, Washington and Connecticut. There is some question as to whether such bans violate the First Amendment.

Utah law does not prohibit foreign entities from lobbying Utah legislators.

Last year, The Associated Press published an investigation about the effectiveness of efforts by the Chinese government to lobby the Utah Legislature. State lawmakers have frequently visited China, and after a senator introduced a resolution in 2020 supporting China during the coronavirus pandemic, he was interviewed by FBI agents.

Adams has also traveled internationally, including a trip to Qatar in 2022 to watch the World Cup soccer tournament with his grandchildren.