Opinionated @ CFE

Utah's Initiative Process is Far From Unconstitutional

May
02

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.

7 Responses to Utah's Initiative Process is Far From Unconstitutional

  1. The section of the Utah Constitution on point reads as follows:

    Article VI, Section 1. [Power vested in Senate, House, and People.]
    (1) The Legislative power of the State shall be vested in:
    (a) a Senate and House of Representatives which shall be designated the Legislature of the State of Utah; and
    (b) the people of the State of Utah as provided in Subsection(2).

    The language of the Constitution strongly implies that the Legislative power is vested in the people of the State as equals to the branches of the Legislature.

    When said Legislature creates onerous and unreasonable statutory barriers to the initiative and referendum process thereby depriving the citizens of the State of Utah their constitutional right to participate as equals in the Legislative process, then those statutes violate the spirit if not the letter of the Constitution.

    It can be easily argued that to meet the requirement of getting the signatures of 10% of those who voted in the last gubernatorial election in 26 out of 29 counties in a state with the geographical expanse of Utah is an overly burdensome requirement. That is just to get the issue on the ballot so that the voters have a choice to vote the issue up or down.

  2. Point of order: it’s 26 of 29 senate districts, not counties. If it were counties, yes, the threshold would be too high. Since it’s senate districts which no longer follow county boundaries, it’s actually easier since the vast majority of senate districts will be clustered around populous areas.

    My point is that Nevada has substantively similar requirements and yet manages to qualify initiative petitions on a pretty regular basis. I don’t think the requirements are the problem, but rather the electorate. No amount of tinkering with state statutes can “fix” that.

  3. Here are the requirements of the states that have a distribution votes requirement for initiatives. Notice that Utah has one of the most stringent requirements.

    A comparison to Nevada is unrealistic since there are a total of only 3 congressional districts whose population centers respectively are the cities of Las Vegas, Henderson, and Reno.

    * Alaska. Signatures from each of 30 districts to be at least equal to seven percent of the voters who voted in each of these districts in the last general election.

    * Arkansas. 5% in 15 of 75 counties.

    * Florida. 8% in 12 of 23 congressional districts.

    * Maryland. No more than half of required signatures may be from any one county or Baltimore City.

    * Massachusetts. No more than one-quarter of the certified signatures may come from any one county.

    * Mississippi. 20% from each congressional district.

    * Missouri. Sponsors must collect a minimum threshold of signatures in 6 out of Missouri’s 9 U.S. congressional districts.

    * Montana. For a statute, 5% in 34 of 50 legislative districts. For an amendment, 10% in 40 out of the 50 state legislative districts.

    * Nebraska. In Nebraska, signatures over a given threshold must be collected in a minimum of 40% (or 38) of Nebraska’s 93 counties.

    * Nevada. In 2009, the legislature passed a requirement that circulators must collect the signatures of 10 percent in each of the state’s Congressional districts.

    * Ohio. In Ohio, signatures for both amendments and statutes must be obtained from at least 44 of the 88 counties of the state.

    * Utah. For direct initiatives, proponents must gather 10% of the vote cast in at least 26 of Utah’s 29 senate districts..

    * Wyoming. 15% of total votes cast in the last election from at least 2/3 of the counties.

  4. Some of those states are pretty similar to Utah. And again, while Utah may be one of the more difficult states, that is hardly reason alone to consider the current laws unconstitutional (even if they are bad policy). The Utah Supreme Court has already said as much.

  5. Look at it this way. 18 of the 29 Senate Districts are along the Wasatch front. The remaining 11 are in the outlying, mostly rural areas of the state that have the least population. These outlying rural areas are also mostly very conservative. No initiative can fail in more than 3 of these outlying conservative areas and get on the ballot. When you add the highly conservative Utah County area to the mix you realize that the Legislature has effectively blocked any type of initiative or referendum that does not have the blessing of the far right conservatives in the state.

    In essence the moderate and liberal citizens in the state have had their constitutional right to legislate blocked by the ultra conservatives in the legislature. This is just another form of gerrymandering which they are so good at since they have had so much practice.

  6. In essence the moderate and liberal citizens in the state have had their constitutional right to legislate blocked by the ultra conservatives in the legislature

    So you’re angry that the minority can’t attempt to legislate the majority? That’s kind of a bold statement to make, isn’t it? In essence, you’re arguing that the tyranny of the minority is better than the tyranny of the majority. I can’t get behind that at all.

    The initiative process is a check on the legislature in case they get too far disconnected from public opinion. As much as I liked the Fair Boundaries initiative, apparently not that many Utahns feel that it is important enough of an issue to have a vote on it. When it came to vouchers, enough Utahns felt strongly enough about the issue that it came to a vote. If you can’t rally enough passion around your issue to bring it to a vote, stop blaming the process and figure out how other groups made it happen. It’s a lot less work than throwing bombs at the legislature and a lot less likely to draw retaliatory legislation.

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