Utah's Initiative Process is Far From Unconstitutional
Curtis Haring at Blue in Red Zion recently expressed his dismay at the failure to collect enough signatures to get the Fair Boundaries initiative onto November’s ballot. I supported this initiative because of the way that neighborhoods were often divided amongst several legislative districts. Examples of this include Tooele being split four ways and the Avenues being cut in half. Basically, the boundaries of many districts looked like the boundaries of many African nations, drawn not with consideration to who lived there, but to who wanted to control the land. Curtis says that the failure to get Fair Boundaries on the ballot means that the initiative process in Utah is blatantly unconstitutional. Despite my support of the initiative, I doubt I could disagree more.
For starters, Curtis claims that the bar for initiatives is set far too high and cites the nonpartisan group Citizens in Charge for evidence. Utah currently requires signatures from 10% of registered voters who participated in the last gubernatorial election in 26 of the 29 State Senate districts. Nevada, our western neighbor, has very similar requirements: 10% of registered voters need to offer up their John Hancock in 13 of the 17 counties in the state. Utah actually has it a bit easier than the Silver State because we go by senate districts rather than counties and many of these senate districts are in densely-populated urbanized areas. So why then would Citizens in Charge given Utah a C- and Nevada a B+ when it comes to initiatives? Probably because Nevada allows initiatives for changes to the state constitution and we do not.
Even with so few differences between initiative petition requirements, Nevada can often have 6 or more initiative-driven statewide ballot questions every two years. One year, I had nine questions to vote on. The question we should be asking is why, with similar requirements, can Nevada do what Utah can’t. I would propose that it has to do with Nevada being a swing state with libertarian tendencies whereas Utah is pretty solidly conservative. It’s a lot easier to find people upset with the legislature when they are not backed with a very clear majority of voters.
Curtis then continues to claim that the issues with electronic signatures are another reason for protest. As much as I endorse the idea of electronic signatures for petitions and wholly agree that we should work toward accepting them, The Senate Site has rightfully said that this is unexplored territory. There are simply no laws governing electronic signatures for initiative petitions and while they are accepted for some government business, they are hardly universal. E-signature standards do not exist in the technical world either with competing vendors all trying to push their solution as the right one. With the waters so murky, it’s only right to reject e-signatures until there are laws and standards in place governing their use. Without that, you will, as Curtis notes, get inconsistent results depending on which county clerk’s office you work with.
The final point to address is that of the recently-passed signature removal bill. I agree with the legislature that giving people a chance to change their mind is a good thing. I don’t agree that they need a month after the close of signature collection to be lobbied to do so. It’s not just bad policy, it’s stacking the deck in highly questionable ways in an effort to exert some more control over the process and makes a de facto change to how many signatures initiatives must have in order to qualify for the ballot. Now you have to take a guess as to how many people will be talked out of it and get enough signatures to compensate. A close initiative could be disqualified by talking to voters in only one close senate district until the 26 of 29 threshold is no longer met. That small part, the window after the end of signature collection, could be presented as unconstitutional for moving the bar without an amendment, but it doesn’t mesh with Curtis’ thesis.
That thesis is that all of these laws combined are unconstitutional because they run counter to Article I, Section 2 of the Utah Constitution:
All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.
That’s an interesting theory, but Nevada, which already has very similar ballot qualification requirements, has, unsurprisingly, a very similar part of its own constitution:
All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it.
Based on the strong similarities between these two states and the relative ease with which Nevada can get initiatives to a vote, I would have to dismiss Curtis’ allegations of unconstitutionality as sour grapes. There are much better arguments to be had for making changes to the initiative process and using such weak ones only hurts future efforts to reform or amend the process.