SALT LAKE CITY — The Utah Supreme Court will decide if Amendment D will be on the November ballot.
But based on questions the justices asked during a hearing on Wednesday, they were skeptical about the legislature's arguments that it should be reinstated. They grilled an attorney for the Utah State Legislature about whether lawmakers rushed to put the proposed constitutional amendment on the ballot, violating the Utah Constitution's requirements about official legal publication and if the ballot language itself is misleading to voters.
"Whether Amendment D ultimately succeeds or fails, should be left in the hands of Utah voters who can read for themselves, think for themselves and cast a considered vote," argued Taylor Meehan, representing the legislature in its appeal.
The legislature is appealing a lower court judge's decision earlier this month to void Amendment D. She sided with the League of Women Voters of Utah and Mormon Women for Ethical Government, who challenged the ballot language as misleading to voters. The judge allowed Amendment D to be kept on the ballot, but any votes cast for it simply would not be counted.
Wednesday's hearing was a return trip to the same Utah Supreme Court that sparked the initial ruling that led to the proposed constitutional amendment. The state's top court unanimously ruled in July that the legislature overstepped its powers when it overrode a citizen ballot initiative on independent redistricting. Alarmed by the impact of the ruling — Republican legislative leaders have argued that Utah could become "like California" with a flood of citizen initiatives fueled by out-of-state money and that their hands could be tied to fix any problems with initiatives that do pass — the legislature called itself into an emergency special session to put Amendment D on the ballot.
Opponents of Amendment D call it a legislative "power grab."
The League of Women Voters and Mormon Women for Ethical Government argue that the language appearing before voters is misleading. While it does prohibit foreign spending and extend the length of time to gather signatures for an initiative or referendum, it glosses over the fact that it overrules the Utah Supreme Court's ruling.
That did not escape the justices.
"Citizen ballot initiatives that reform the government will now be subject to a legislative veto. Where does the ballot summary tell people that?" Justice Page Petersen asked during Wednesday's hearing.
"I don’t agree that the effect of the [amendment] will subject citizens' initiatives to a veto," Meehan countered.
The justices also scrutinized language in the Utah Constitution that requires publication in a newspaper two months before the election. They deliberated what a newspaper even is in the 21st century.
"I'm not sure we can just overlook this language where we still have newspapers and the legislature in fact is still today putting into statute notice requirements that they go into newspapers," said Justice Jill Pohlman.
"We agree newspapers still exist," Meehan replied. "The question I think the court has to answer is it OK if it’s going in the e-edition of The Salt Lake Tribune instead of the weekly or bi-weekly edition."
Meehan argued that online publication and a flood of local news coverage also provided ample notice to voters of what's being considered.
"There’s no question that the legislature did not cause it to be published in the newspapers two months before the election," Justice Diana Hagen pushed back. "Unless we buy your other argument that just passing a newsworthy amendment is enough."
Associate Chief Justice John Pearce was more blunt when he declared: "Either you complied or you didn't."
Mark Gaber, the attorney for the League of Women Voters and Mormon Women for Ethical Government argued that the ballot language written by legislative leaders is "false and misleading in a number of ways." But he faced pushback from Chief Justice Matthew Durrant, who looked to see if there was a remedy.
"If we were to require the legislature basically flood the airwaves and the newspapers both online and hard copy why wouldn’t that serve the constitutional objective?" he asked Gaber.
"The fundamental problem is it does nothing to remedy the misleading and inaccurate ballot language. And no amount of publication is going to do that," Gaber replied.
In court to watch the arguments were some of the original plaintiffs in the lawsuit against the legislature over redistricting.
"I think it had to be very difficult for the legislative attorney to try to represent her client while not lying to the public," Katharine Biele, the president of the League of Women Voters of Utah, told FOX 13 News.
Melarie Wheat, the Utah chapter coordinator for Mormon Women for Ethical Government, said she was optimistic.
"I have trust in the Utah Supreme Court to make a good decision here," she said.
Senate President J. Stuart Adams, R-Layton, said in a statement he hoped to see Amendment D back before voters.
"It is disappointing to see anything taken off a ballot. I’m glad the Utah Supreme Court heard the appeal. I still firmly believe Utah voters should have a chance to clarify and determine what the Utah Constitution says," he said.
The Utah Republican Party, Utah Eagle Forum, Pro-Life Utah, Utah Parents United and a number of other groups have urged the courts to put it before voters to decide. House Speaker Mike Schultz, R-Hooper, who has suggested there will be bills on electing judges and term limits following the Utah Supreme Court's original ruling, also expressed hope in the ruling.
“We appreciate the Court for their consideration on this issue and look forward to their decision," he said in a statement.
The justices took the case under advisement. There is no timeline for a ruling, but ballots begin to be mailed to Utah voters in mid-October. But opponents of Amendment D said they will continue to campaign against it, just in case.
"Because this is too important to leave to time and last minute," said Katie Wright, the executive director of Better Boundaries, which sponsored Prop. 4 and opposes Amendment D. "Certainly we will continue to advocate that Utahns vote against Amendment D that is on their ballots."
