What the Utah Supreme Court’s step into politics means for the state

By Renae Cowley & Frank Pignanelli

The Utah Supreme Court is the sleepy third branch of government and is rarely the topic of political discussions. That changed when the state’s top five jurists handed down controversial rulings. We discuss some of their impacts.

The court ruled that the state legislature inappropriately violated Utahns’ rights by altering the “Better Boundaries” initiative with a law that nullified key provisions. The court also ordered that future legislative changes to initiatives must be “narrowly tailored to advance a compelling government interest.” What does this mean for future initiatives?

Cowley: In rodeo, nobody notices judges until they disqualify a cowboy — then, they are almost always booed. The court just delivered a rodeo-judge ruling.

Utah does not want to be California, which is governed by initiatives. There are 11 qualified for their ballot this fall. Initiatives are expensive and require a sophisticated campaign effort. Some start with well-meaning citizens, but behind every ballot initiative are big donors and professional campaign experts. Strategist Karl Rove pioneered the use of initiatives as a tactic to increase 2004 Republican turnout. Democrats are doing the same with abortion initiatives on the ballot in Arizona and Florida.

The legislative process is deliberative where changes to policy can be proposed. Initiatives don’t allow for compromise once ballot language is certified. The court ruling created a new super-set of laws that can then only be amended by another initiative. The legislature should not fear initiatives, but it is unrealistic to think they will never need adjustments.

Grassroots activists are encouraging a special session to put this issue on the ballot. The legislature needs to strike the right balance of honoring citizens’ right to initiative and the reality that times change and laws must change along with it. Rightly so, voters will have the final say on this.

Pignanelli: “Politics cuts both ways. Every time you make a choice, it has unintended consequences.” — Stone Gossard

As someone who was engaged with promoting and defeating initiatives, I believe this constitutional right can serve good public policy. The mere threat of it has spurred legislative action. But the approach does not enjoy the advantages of the legislative process.

In 2018, three initiatives were on the ballot: Medicaid expansion, medical marijuana and the redistricting commission. All were altered by the Legislature within months of passage. Special interest groups placed language into the first two propositions that posed considerable negative consequences to the state. Fortunately, lawmakers mitigated these dangers.

National special interest organizations — right and left — once feared sponsoring initiatives in Utah because of the prior legislative prerogative. The court’s ruling will restore that temptation. We learned from congressional antics that alterations in legislative processes impact both sides of the political spectrum. So those cheering today may be crying tomorrow.

The court delivered one heckuva wake-up call.

This week, the court heard arguments over whether late ballots in the 2nd Congressional District should be counted. Jenkins did not prevail, but what does this argument mean for future elections?

Cowley: Jenkins has vastly different margins in counties with disputed ballots (28% in Beaver, 58% in Washington). Even if these ballots were counted, it’s unlikely it would reverse the election outcome. This postal faux pas will spur renewed appeals to return to in-person voting; however, voting by mail is here to stay.

Clerks have discretion to release the cure list (ballots that need additional verification). I have personally called voters from a cure list and it impacted the outcome of that election. Yes, my candidate won. I can’t understand why, when election security is a concern for many, that the clerk would err on the side of less transparency. The legislature should make the cure list a public record, increase drop box locations and provide information to voters about postmarking. Every legal vote should count.

Pignanelli: An old procrastinator, I always mail my ballot the morning before Election Day with confidence it will be timely postmarked but probably not counted for several days. This rational belief is shared by many Utahns. Thus, citizens were shocked to learn that many ballots collected in Utah are processed in Nevada. Lawmakers may respond to this dilemma.

Since Jenkins did not prevail, this will apply intense pressure on future campaigns to push supporters to the mailboxes long before Election Day. But this requires bending the current trend of voters holding on to their ballots until the deadlines.

Will the court’s unusual step into politics have ramifications at the legislature or in elections?

Cowley: If a question is placed on the ballot this fall, it will be on par with the Biden/Harris swap in terms of political intrigue and truncated timelines. The legislature will have to make the case for why amending the initiative process is in the best interest of voters. Special interest groups will also be quickly organizing campaign efforts to oppose anything that undermines the court’s ruling.

Pignanelli: Judicial appointments are likely to become an election issue for legislative candidates. The legislature may consider other measures. Also, Utah has avoided the contentious judicial retention elections witnessed in other states. Those days are over.