Legislatures vs. Citizen-Initiated Ballot Measures: Utah Supreme Court Weighs In

Recently, the Utah Supreme Court added the latest chapter to the ongoing battle between legislatures and voters over the power of citizen-initiated ballot measures. Currently, 22 states allow their citizens to place statutes or constitutional amendments before the voters, bypassing the legislature. But proponents of this route have learned that not much stops lawmakers from significantly amending or even repealing citizen-initiated statutes passed by the voters. That’s why most of the initiatives we see on the ballot these days amend the state constitution, which is much tougher for lawmakers to repeal and would necessitate another vote by the people. 

We’ve chronicled examples of state lawmakers employing this strategy in the past, but the most egregious example might be the South Dakota legislature’s repeal of a voter-approved ethics law. South Dakotans narrowly approved the ballot measure in 2016, which revised lobbying rules, set limits on gifts to lawmakers, and created an independent state ethics commission. But when lawmakers returned to Pierre the following January, they simply repealed the statute enacted by the ballot measure. Lawmakers were careful to include an emergency declaration clause in the repeal legislation, which required a two-thirds supermajority vote for approval and, importantly, also blocked voters from challenging the repeal law with a citizens-referendum campaign.

Utah is one of 5 of the 22 initiative states that only allow statutory initiatives and does not provide an ability for citizens to place constitutional amendments onto the ballot. In 2018, voters narrowly passed a ballot measure, Proposition 4, to establish an independent redistricting commission. But in 2020, as they began to contemplate the legislative maps for this decade, state lawmakers enacted a law (UT SB 200) repealing much of Prop. 4 including the ballot measure’s prohibition against “partisan gerrymandering.” Subsequently, state lawmakers enacted new legislative maps that critics argue are “extreme” gerrymanders, but since there was no longer any law against “partisan gerrymandering” lawmakers could claim these maps were perfectly legal. 

The state supreme court came to a different conclusion. Earlier this month, the Court ruled unanimously “that when Utahns exercise their right to reform the government through a citizen initiative, their exercise of these rights is protected from government infringement.” The Court relied on a provision of the Utah Constitution giving the people of Utah the right to “alter or reform their government as the public welfare may require.” When lawmakers stripped out key provisions of Prop. 4, they denied the people’s right to “reform their government.” 

While the decision is an important pushback against lawmakers, the Court was careful to keep the ruling relatively narrow. It only applies to citizen initiatives that are related to “government reform.” The Justices also provided an exception when the state’s action is “narrowly tailored to advance a compelling government interest.” Finally, the Court failed to even reach a decision on the merits of the case, sending it back to a lower court to decide whether the facts of the case are enough to invalidate the legislature’s current maps. Which means that the current maps drawn by lawmakers after repealing the people’s prohibition against “partisan gerrymandering” will remain in place for the elections this November. 

As lawmakers aggressively push back against citizen-led initiatives, especially ballot measures directly challenging the power of the legislative branch, the judiciary will need to step in and make important decisions regarding this unique aspect of state policymaking. States have already certified 132 statewide ballot measures this year, 22 of which were initiated by citizens — a number likely to grow in the coming weeks as proponents finish gathering signatures and submit measures for certification.

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This article appeared in our Morning MultiState newsletter on July 23, 2024. For more timely insights like this, be sure to sign up for our Morning MultiState weekly morning tipsheet. We created Morning MultiState with state government affairs professionals in mind — sign up to receive the latest from our experts in your inbox every Tuesday morning. Click here to sign up.