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SALT LAKE CITY — On Sept. 17, 1787, delegates to the Constitutional Convention signed the U.S. Constitution in Philadelphia. Now more than 200 years later, the day is still commemorated across the country. And in Utah, panelists discussed Amendment D — a proposed constitutional amendment that has caused a stir for the last few weeks.
Amendment D, if votes were to be counted and it was approved by Utah voters, would change the Utah Constitution to explicitly say the Legislature has the power to amend laws that started as citizen initiatives. It would have also prohibited foreign influence on the initiative process.
A district judge in Salt Lake City ruled the proposed amendment was void because she said the ballot language was inaccurate and the Utah Legislature did not cause the proposed constitutional amendment to be published in newspapers in every county 60 days before the election. The proposition of the constitutional amendment came after Better Boundaries passed an anti-gerrymandering initiative in 2018, and Utah lawmakers were sued after making amendments to that law. Instead of using the maps from the independent redistricting committee as the initiative aimed to accomplish, lawmakers changed the law and adopted their own maps.
It was how Utah got to this point, where Utah was going and the lines between direct democracy and representative government that was the subject of the panel. Matthew Brogdon, director of Utah Valley University's Center for Constitutional Studies, moderated Tuesday's discussion between Ryan Bell, Better Boundaries board member, Savannah Eccles Johnston, Salt Lake Community College political science professor, and Derek Monson, chief growth officer a the Sutherland Institute.
Recalling the Constitutional Convention back in 1787, Brogdon raised a question: What if there was a representative process for drafting an initiative?
Or in other words, should Utah have an initiative convention?
"There's a real upside to that," said Bell. He explained the current process of drafting initiatives has a couple check-in points. After the initiative is drafted, then it is sent to the Lieutenant Governor's Office, which can reject the initiative if it is unconstitutional or covers more than one subject. Then, there are public hearings, he said, and the initiative can be changed at that point.
Johnston said it was "a great idea, but only if you buy into the idea that, in fact, direct democratic methods are bad for the country." She said it was fine if people believe that, but she did not think it reflected the context in which the Utah Constitution was written.
The biggest concern Monson said he had about initiatives was the lack of deliberation that goes into what ultimately ends up at the ball. He said legislative attorneys draft the bills while lawmakers are in charge of the bill. He thinks a more representative process could potentially help resolve the discrepancy between initiatives and bills lawmakers advance in terms of how much deliberation occurs.
Direct democracy or representative government?
Bell said direct democracy is necessary for a handful of different reasons. He said since primary candidates are chosen via delegates rather than a popular vote, representatives are less answerable to the people at large. He also said legislative power is consolidated by one party through a gerrymander, and lawmakers need to follow the leadership to get their bills through. Then, he said, money influences politicians.
"And one good fix is to place a check on that legislature through direct democracy," said Bell, adding the Utah Supreme Court did not prevent the Legislature from amending all initiatives.
Monson said the Utah Supreme Court decision seemed to create some limits, but it was not clear where those limits were — he said those who seek to pass initiatives will now try to couch them in terms of reforming the government.
Only lawyers would look at two initiatives, like one on decriminalizing marijuana or one that is anti-gerrymandering, and not be able to see the difference between them, said Johnston. She thought there were some edge cases, but there were lines between initiatives that alter and reform the government and initiatives that do not.
What's next for Utah?
The judge voided the amendment and ordered the Lieutenant Governor's Office to ensure the votes on the amendment are not counted, said Bell. But the Utah Legislature appealed the judge's decision, and a ruling could come within the next month.
"And so should the Supreme Court decide to overturn or reverse this district court decision, we're all going to go vote on amendment," said Bell. He added he thinks there is a "strong chance" the Utah Supreme Court would uphold the district court's decision to void the amendment.
Brogdon asked if Utah voters ended up voting on the amendment and approving it, would the amendment return Utah to a previous status quo or would it give the Utah Legislature authority it did not have before?
On that point, Johnston and Bell disagreed with Monson.
"It increases the legislators' authority by significantly decreasing the independence of the initiative process," said Johnston. She added the Utah Constitution allots power to both the people and the Legislature. The change would result in "heavily" favoring the Utah Legislature as "the final arbiter of all law in the State of Utah." Bell cited the Utah Supreme Court decision and said at the time, it was understood "that when the people spoke through an initiative, they would have the final say on the matter at issue, due to the people's inherent sovereign authority."
Whereas Monson said it would bring Utah back to the way it was before. He said the normal process was the Utah Legislature would work with people who passed initiatives to make amendments to them. He said he thinks the Utah Legislature tried to signal that it would continue that process through passing a law requiring them to keep the general intent of initiatives intact when making decisions.
