League of Women Voters v. Utah State Legislature ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 21IN THE
SUPREME COURT OF THE STATE OF UTAH
LEAGUE OF WOMEN VOTERS OF UTAH, et al.,*
Appellees & Cross-Appellants,
v.
UTAH STATE LEGISLATURE, et al.,*
Appellants & Cross-Appellees.
No. 20220991
Heard July 11, 2023
Supplemental Briefing Received August 1, 2023
Filed July 11, 2024
On Consolidated Appeal of Interlocutory Order
Third Judicial District, Salt Lake County
The Honorable Dianna M. Gibson
No. 220901712
Attorneys*:
Troy L. Booher, J. Frederic Voros, Jr., Caroline A. Olsen,
David C. Reymann, Kade N. Olsen, Salt Lake City, Mark P. Gaber,
__________________________________________________________

Additional Appellees/Cross-Appellants: Mormon Women
for Ethical Government, Stephanie Condie, Malcolm Reid, Victoria
Reid, Wendy Martin, Eleanor Sundwall, and Jack Markman.
Additional Appellants/Cross-Appellees: Utah Legislative
Redistricting Committee, Senator Scott Sandall, former
Representative Brad Wilson, and Senator J. Stuart Adams. Lt.
Governor Deidre Henderson is named as a defendant in this case,
but did not participate in this appeal.
Additional attorneys for amicus curiae, in support of
Appellees/Cross-Appellants: John Mejia, Salt Lake City, for
American Civil Liberties Union of Utah; Jonathan Topaz, Dayton
(continued . . .)
LWVU v. LEGISLATURE
Opinion of the Court
Aseem Mulji, Washington, D.C., Annabelle Harless, Chicago, Ill.,
for appellees and cross-appellants
Victoria Ashby, Robert H. Rees, Eric N. Weeks, Tyler R. Green,
Salt Lake City, Taylor A.R. Meehan, Frank H. Chang,
Arlington, Va., for appellants and cross-appellees
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE HAGEN, and JUSTICE POHLMAN joined.
__________________________________________________________
Campbell-Harris, Casey Smith, Adriel I. Cepeda Derieux, N.Y.C.,
N.Y., for American Civil Liberties Union Foundation; Lisa Watts
Baskin, Salt Lake City, Joseph E. Sandler, Washington, D.C., for
Ballot Initiative Strategy Center; Alan L. Smith, Salt Lake City,
Derek S. Clinger, Madison, WI, for Professor Bertrall Ross; David
R. Irvine, Bountiful, Dax Goldstein, L.A., Cal., Zack Goldberg,
N.Y.C., N.Y., for Bipartisan Former Governors Michael F. Easley,
William Weld, and Christine Todd Whitman; Joshua Cutler, Salt
Lake City, Michael C. Li, Yurij Rudensky, Douglas E. Keith, N.Y.C.,
N.Y., for the Brennan Center for Justice at N.Y.U. School of Law;
Janet I. Jenson, Salt Lake City, Theresa J. Lee, Cambridge, Mass., for
Professor Charles Fried; Christine Durham, Salt Lake City, for
Common Cause; Nathan D. Thomas, Elizabeth M. Butler, Salt Lake
City, for Jennifer Wilson; J. Tayler Fox, Salt Lake City, Robert A.
Atkins, Pietro Signoracci, Jonathan Hurwitz, Melina Meneguin
Layerenza, Jeremy Allen-Arney, Arielle McTootle, N.Y.C., N.Y., for
Political Science Professors; Julie J. Nelson, Skylar Walker,
Millcreek, for Rural Utah Project, Ann Leppanen, Steve Cox, Shaun
Dustin, and Kenneth Maryboy.
Additional attorneys for amicus curiae, in support of
Appellants/Cross-Appellees: Dallin B. Holt, Phx., Ariz., for the
Honest Elections Project; Matthew Petersen, Haymarket, Va., for
Representatives Blake Moore, Chris Stewart, John Curtis, and
Burgess Owens; Stanford E. Purser, Solic. Gen., Daniel R.S.
O’Bannon, Salt Lake City, for Governor Spencer J. Cox.
Additional attorneys for amicus curiae, in support of neither
party: Darcy M. Goddard, S. Spencer Brown, Salt Lake City, for
Utah Association of Counties.
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JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 This case presents a question of first impression involving
the interpretation of two provisions of the Utah Constitution.
¶2 The first constitutional provision involved in this appeal is
the Initiative Provision of article VI, subsections 1(1)(b) and (2),
which vests in the voters of Utah the power to pass legislation
through the initiative process. Under our state constitution, the
people’s legislative power is equal to the Legislature’s. The
Legislature exercises its power by passing laws during legislative
sessions. The people exercise their power by voting during
elections on initiatives that have qualified for the ballot. If the
people approve a proposed initiative, it becomes a statute in the
Utah Code.
¶3 The second provision is the Alter or Reform Clause of
article I, section 2, which establishes that the people of Utah have
the right to “alter or reform their government as the public welfare
may require.”
¶4 The novel question before us asks: what happens when
Utahns use their initiative power to exercise their “right to alter or
reform their government” by passing an initiative that contains
government reforms, and the Legislature repeals it and replaces it
with another law that eliminates the reforms the people voted for?
¶5 Plaintiffs answer that this is an unconstitutional violation
of the people’s right to reform their government1 through a citizen
initiative. And they allege that this happened when the Legislature
repealed and replaced an initiative called “Better Boundaries” or
“Proposition 4,” which the people passed during the 2018 election.
Proposition 4 sought to reform the process of drawing Utah’s
electoral districts (redistricting) by prohibiting a practice called
“partisan gerrymandering.” In general, partisan gerrymandering
refers to efforts by incumbent politicians to draw electoral
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1 Throughout this opinion, we refer to the right established in
the Alter or Reform Clause variously as the people’s “right to alter
or reform their government,” “right to reform their government,”
and their “reform right.” When we use shorthand, we do so only
for ease of reference. We intend to refer to the right established in
the Alter or Reform Clause of article I, section 2 in its entirety.
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boundaries that benefit themselves and their political party by
diluting the votes of citizens they predict will vote for candidates
of other parties.2 Utah voters approved Proposition 4 at the ballot
box. But the Legislature repealed the initiative before the next
redistricting cycle.3 The Legislature then replaced Proposition 4
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2 See Rucho v. Common Cause, 588 U.S. 684, 693 (2019)
(describing the methods of partisan gerrymandering as dividing
disfavored voters among districts “so that they fall short of a
majority in each” (cracking), or highly concentrating disfavored
voters in a district “so they win that district by a large margin,
wasting many votes that would improve their chances in others”
(packing) (cleaned up)); Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 576 U.S. 787, 791 (2015) (describing partisan
gerrymandering as “the drawing of legislative district lines to
subordinate adherents of one political party and entrench a rival
party in power”).
3 The parties disagree as to whether the Legislature repealed
Proposition 4 or merely amended it. But as we will discuss further,
the question of constitutional significance goes beyond whether the
Legislature amends or repeals a government-reform initiative as a
technical matter, to whether the Legislature’s changes to the
initiative impair the reform it codifies. See infra ¶¶ 73, 162.
Accordingly, when we use the terms “amend” or “repeal” in this
opinion, we do not necessarily describe the extent to which the
initiative was substantively changed. Rather, we often use these
terms merely to describe actions taken during the legislative
process. To determine the constitutional significance of these
legislative actions, the question is whether they impaired the
reforms contained in the initiative, and therefore infringed upon
the people’s right to reform their government.
We also clarify our use of the terms “initiative,”
“Proposition 4,” and “S.B. 200.” During the 2020 General Session,
the Legislature passed Senate Bill 200, which did two things. First,
it repealed the initiative enacted by the voters, which was formally
titled the “Utah Independent Redistricting Commission and
Standards Act,” and was codified at Title 20A, Chapter 19 of the
Utah Code. Instead of referring to the initiative by its formal name
or code number, we call it the “initiative” or “Proposition 4.”
Second, S.B. 200 replaced the initiative with a new law found at
Title 20A, Chapter 20. We refer to both the bill and the new law as
(continued . . .)
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with another law, Senate Bill 200, which did not prohibit partisan
gerrymandering. Plaintiffs assert that when it came time for
redistricting—with Proposition 4’s requirements out of the way—
Defendants drew new electoral districts that were the result of
“extreme” partisan gerrymandering.
¶6 Defendants answer the question differently. They argue
that the Legislature’s repeal and replacement of Proposition 4 did
not offend the constitution at all. They contend that because the
Legislature is authorized to amend or repeal any statute, and a
citizen initiative is a statute, the Legislature is permitted to repeal
initiatives without any constitutional limitation.
¶7 We answer the question before us as follows:
¶8 The people’s constitutional right to alter or reform their
government is protected from government infringement. We could
not hold otherwise, as the Declaration of Rights of the Utah
Constitution states explicitly that:
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.
UTAH CONST. art. I, § 2 (emphasis added).
¶9 Like all constitutional provisions, the Alter or Reform
Clause must be read in harmony with the rest of the constitution
and exercised within the bounds of the constitution itself. Thus, it
does not establish a right to reform the government in disregard of
the constitution, nor in a manner that violates other provisions of
the constitution.
¶10 One way for Utahns to exercise their reform right within
the bounds of the constitution is through a citizen initiative, as
established in the Initiative Provision of article VI of the Utah
Constitution. The initiative power gives Utahns a mechanism to
pass legislation that contains their desired government-reform
measures. Thus, the Initiative Provision empowers Utahns to
__________________________________________________________
S.B. 200. We also refer to the enactment of S.B. 200 and its repeal
and replacement of Proposition 4, collectively, as “legislative
action.”
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directly exercise their right to reform their government by enacting
statutory government reforms.4
¶11 Therefore, we hold that when Utahns exercise their right
to reform the government through a citizen initiative, their exercise
of these rights is protected from government infringement. This
means that government-reform initiatives are constitutionally
protected from unfettered legislative amendment, repeal, or
replacement. Although the Legislature has authority to amend or
repeal statutes, it is well settled that legislative action cannot
unduly infringe or restrain the exercise of constitutional rights.
Consequently, when Utahns exercise their right to reform the
government through an initiative, this limits the Legislature’s
authority to amend or repeal the initiative. This does not mean that
the Legislature cannot amend a government-reform initiative at all.
Rather, legislative changes that facilitate or support the reform, or
at least do not impair the reform enacted by the people, would not
implicate the people’s rights under the Alter or Reform Clause.
Legislative changes that do impair the reforms enacted by the
people could also survive a constitutional challenge, if the
Legislature shows that they were narrowly tailored to advance a
compelling government interest.
¶12 In this case, Plaintiffs claim in Count V of their Complaint
that Utahns used their initiative power as a means of exercising
their right to reform the government when they passed
Proposition 4. And they claim that the Legislature violated those
rights when it enacted S.B. 200, which repealed Proposition 4 and
replaced it with a new law that nullified Proposition 4’s key
provisions. The Legislature’s general legislative power to amend,
repeal, and enact statutes does not defeat this claim as a matter of
law.
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4 We emphasize that reforms enacted through the initiative
process must be statutory—in other words, capable of being
accomplished through legislation. This is because an initiative, like
all statutes, cannot amend the Utah Constitution. So if the people
wanted to reform the government in a way that would require a
change to the constitution, they would have to follow the
constitutional amendment process, not the initiative process.
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¶13 Accordingly, we reverse the district court’s dismissal of
Count V. And we remand this case, with Count V intact, to the
district court for further proceedings consistent with this opinion.5
BACKGROUND
¶14 We now provide the factual background of this appeal,
beginning with an explanation of the redistricting process, then
moving to the facts that gave rise to Plaintiffs’ lawsuit, and finally
discussing the litigation that has taken place so far in the district
court. We emphasize that our recitation of the facts underlying
Plaintiffs’ lawsuit is based on the allegations in their Complaint.
Because this appeal involves Defendants’ motion to dismiss
Plaintiffs’ claims, we must assume all the factual allegations in the
Complaint are true and determine whether the claims fail as a
matter of law.6
The Ten-Year Cycle of the National Census and Electoral Redistricting
¶15 Every ten years, the federal government conducts a census
to count our nation’s population. U.S. CONST. art. I, § 2, cl. 3. One
purpose of collecting this census data, which shows population
growth and decline across the country, is to adjust the
apportionment of the 435 seats in the U.S. House of Representatives
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5 For reasons that we discuss below, we retain jurisdiction
over Defendants’ appeal of the district court’s denial of their
motion to dismiss Counts I through IV. See infra Section II.B.
Accordingly, those claims are stayed for the time being. This is
because the resolution of Count V may render Counts I through IV
moot. If the adjudication of Count V does not moot or otherwise
resolve Counts I through IV, we will resolve Defendants’ appeal of
those claims.
6 Defendants moved to dismiss on two grounds: “lack of
jurisdiction over the subject matter” and “failure to state a claim
upon which relief can be granted.” UTAH R. CIV. P. 12(b)(1), (6).
Defendants’ arguments on the first ground amounted to a “facial
challenge”—in the sense that they did not “attack[] the factual
allegations underlying [Plaintiffs’] assertion of jurisdiction.” See
Salt Lake County v. State, 2020 UT 27, ¶ 26, 466 P.3d 158 (cleaned up).
So with respect to both grounds for dismissal, “we must accept . . .
[Plaintiffs’] factual allegations as true.” Hudgens v. Prosper, Inc.,
2010 UT 68, ¶ 2, 243 P.3d 1275; see also Salt Lake County, 2020 UT 27,
¶ 26.
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among the fifty states. See id. After the census data is released, every
state, including Utah, re-draws its electoral districts to account for
the addition or loss of congressional seats and population changes
within the state. This process is called redistricting.
¶16 After Utah receives the results of the decennial census, the
Utah Constitution requires the Legislature to “divide the state into
congressional, legislative, and other districts accordingly,” no later
than the next general legislative session. UTAH CONST. art. IX, § 1.
Each district of the same type must contain approximately the same
number of people.7
¶17 The 2010 census showed significant growth in Utah’s
population, and as a result Utah gained an additional congressional
seat, bringing the total number to four.8
¶18 The most recent census was conducted in 2020. It shows
that from 2010 to 2020, Utah was the fastest growing state in the
nation by percentage.9 But this population growth was not equally
distributed across the state. The bulk of Utah’s new residents
settled in urban areas in Salt Lake County and Utah County. And
80% of the total population lived in urban centers along the
Wasatch Front. During the same period, other parts of the state lost
population.
¶19 Despite Utah’s rapid growth over the last decade, we did
not gain any additional seats in Congress after the 2020 census. So
Utah still has four seats in the U.S. House of Representatives, and
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7 The U.S. Constitution requires states to “design both
congressional and state-legislative [voting] districts with equal
populations.” Evenwel v. Abbott, 578 U.S. 54, 59 (2016) (citing
Wesberry v. Sanders, 376 U.S. 1 (1964), and Reynolds v. Sims, 377
U.S. 533 (1964)).
8 See Guide to 2010 State & Local Census Geography: Utah, U.S.
CENSUS BUREAU (Oct. 8, 2021), https://www.census.gov
/geographies/reference-files/2010/geo/state-local-geo-guides-
2010/utah.html#:~:text=For%20the%20111th%20Congress,based
%20on%20the%202010%20Census.
9 See Utah Was Fastest-Growing State From 2010 to 2020, U.S.
CENSUS BUREAU (Aug. 25, 2021), https://www.census.gov
/library/stories/state-by-state/utah-population-change-between-
census-decade.html.
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each congressional district must contain an equal number of
people.
Partisan Gerrymandering
¶20 Plaintiffs allege that partisan gerrymandering “has been a
consistent problem and contentious issue in Utah’s history” of
redistricting. As described above, partisan gerrymandering refers
to efforts by incumbent politicians to draw district boundaries that
benefit themselves and their political party, by diluting the votes of
citizens they disfavor because they predict those citizens will vote
for candidates of other parties. See Ariz. State Legislature v. Ariz.
Indep. Redistricting Comm’n, 576 U.S. 787, 791 (2015) (describing
partisan gerrymandering as “the drawing of legislative district
lines to subordinate adherents of one political party and entrench a
rival party in power”). Partisan gerrymandering can be achieved
by “cracking” or “packing” districts. A “cracked” district is one in
which politicians from one political party divide their disfavored
voters—disfavored because they are likely to vote for other parties’
candidates—“among multiple districts, so that they fall short of a
majority in each;” a “packed” district is one in which politicians
highly concentrate disfavored voters, “so they win that district by
a large margin, ‘wasting’ many votes that would improve their
chances in others.” Rucho v. Common Cause, 588 U.S. 684, 693 (2019)
(discussing Gill v. Whitford, 585 U.S. 48 (2018)).
¶21 Plaintiffs contend that the majority party in the Legislature
has a history of cracking Salt Lake City and Salt Lake County,
where a concentration of voters they disfavor resides. They allege
that Proposition 4 was a response to the Utah Legislature’s “history
of drawing electoral maps that dilute the voting strength of some
voters based on their party affiliation.” Plaintiffs state that after the
2000 census, “the Wall Street Journal Editorial Board . . . described
Utah’s congressional map for that decade as a blatant partisan
gerrymander that was a ‘scam’ to unseat Democratic
Representative Jim Matheson by cracking his Salt Lake City-based
seat.”10
¶22 And Plaintiffs claim that ten years later, after the 2010
census, “the Legislature conducted its mapmaking behind closed
__________________________________________________________
10 Citing Editorial, The Gerrymander Scandal, WALL ST. J.,
(Nov. 7, 2001), https://www.wsj.com/articles/SB10050978282586
86800.
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doors to devise a map that would increase Republican advantage
in the State’s now-four districts.” While “public polling at the time[]
[showed that] both Democrats and Republicans supported
drawing a district that would keep urban voters together in a single
district covering Salt Lake City,” “the Legislature divided Salt Lake
County into three narrow urban slices that were then combined
with large tracts of the rest of Utah.” The reason the Legislature
gave for drawing these boundaries was that it “sought to achieve a
mix of urban and rural areas in all four districts.” But Plaintiffs
allege that “the 2011 congressional map again targeted Democratic
Representative Matheson’s Salt Lake City-centered district,”
“split[ting] Matheson’s former district three ways and forc[ing]
him to shift to the newly created 4th Congressional District.”
¶23 Plaintiffs allege that today, technological advancements
make gerrymandering efforts even more precise than in the past.
The Citizen Initiative to Reform Redistricting and Prohibit Partisan
Gerrymandering: “Better Boundaries” or “Proposition 4”
¶24 In the 2018 election—a couple of years before the 2020
census would trigger a new round of redistricting—a citizen
initiative aimed at ending partisan gerrymandering qualified to be
placed on the ballot for consideration by Utah voters. The proposed
initiative garnered nearly 200,000 signatures from Utahns across
the state, clearing the required signature threshold. See UTAH CODE
§ 20A-7-201(1)(a).
¶25 The official name of the initiative was “The Utah
Independent Redistricting Commission and Standards Act.” But it
was colloquially referred to as “Better Boundaries” or
“Proposition 4.” In proposing this initiative, the sponsors invoked
the people’s rights under article I, section 2 of the Utah
Constitution, “inform[ing] voters that Proposition 4 was a
government reform measure invoking the people’s constitutional
lawmaking authority, and it was designed to ‘return[] power to the
voters and put[] people first in our political system.’” (Quoting
Proposition 4, in UTAH VOTER INFORMATION PAMPHLET 74, 76
(Sept. 3, 2018) [hereinafter Voter Pamphlet],
https://vote.utah.gov/wp-content/uploads/sites/42/2023/09
/2018-VIP.pdf.)
¶26 In the Voter Pamphlet, initiative proponents argued that
gerrymandering had “gotten out of control,” and had made
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politicians less accountable to the people. Voter Pamphlet at 76. The
Voter Pamphlet further stated:
Voters should choose their representatives, not vice
versa. Yet under current law, Utah politicians can
choose their voters. Legislators draw their own
legislative districts with minimal transparency,
oversight, or checks on inherent conflicts of interest.
As a result, politicians wield unbridled power to
design districts to ensure their own re-election.
Id. Proponents argued that the current system “empower[s]
politicians, not voters.” Id.¶27 Proposition 4’s proponents called upon Utah voters to fix
the problem of partisan gerrymandering themselves, arguing: “To
be fair, we can’t expect legislators to fix the system. It benefits them.
We the People must fix it.” Id.¶28 Utah voters agreed, passing Proposition 4 in
November 2018 and thereby enacting the Utah Independent
Redistricting Commission and Standards Act. See UTAH CODE
§§ 20A-19-101 to -301 (2018). The new law sought to eliminate
partisan gerrymandering by explicitly prohibiting the practice of
“divid[ing] districts in a manner that purposefully or unduly favors
or disfavors any incumbent elected official, candidate or
prospective candidate for elective office, or any political party.” See
id. § 20A-19-103(3) (2018).
¶29 Proposition 4 required that district boundaries be drawn
according to neutral redistricting standards, including:
• “minimizing the division of municipalities and counties
across multiple districts”;
• “creating districts that are geographically compact,”
“contiguous,” and “allow for the ease of transportation
throughout the district”;
• “preserving traditional neighborhoods and local
communities of interest”;
• following “natural and geographic features, boundaries,
and barriers”; and
• “maximizing boundary agreement among different types of
districts.”
See id. § 20A-19-103(2) (2018).
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¶30 And Proposition 4 created the Utah Independent
Redistricting Commission (Independent Commission or
Commission), see id. § 20A-19-201(1) (2018), which would “draw
district boundaries through an open and independent process and
then submit recommended redistricting plans to the Legislature.”
Statement of Intent & Subject Matter, UTAH INDEPENDENT
REDISTRICTING COMMISSION & STANDARDS ACT 1 (2018);11 see also
UTAH CODE § 20A-19-204(1)(a) (2018). Proposition 4 required the
Commission to hold numerous open meetings throughout the state
and increase opportunities for public participation and comment.
See UTAH CODE § 20A-19-202(5)(b), (7), (9) (2018).
¶31 The initiative provided that once the Independent
Commission selected redistricting plans that complied with
Proposition 4’s requirements, it was to submit them to the
Legislature for consideration. Id. § 20A-19-204(1)(a) (2018).
¶32 Proposition 4 then required the Legislature to vote on the
Independent Commission’s recommended redistricting plans and
either enact them “without change or amendment,” or reject them
and propose its own maps. Id. § 20A-19-204(2)(a) (2018). If the
Legislature rejected the Commission’s maps and drew its own,
Proposition 4 required the Legislature to follow Proposition 4’s
requirements—specifically, it prohibited the Legislature from
engaging in partisan gerrymandering and required the Legislature
to follow the initiative’s neutral redistricting standards. Id. § 20A-
19-103(2)–(6) (2018). Further, the Legislature was required to
explain to the public its “reasons for rejecting” the Independent
Commission’s plans and why the Legislature’s plans “better
satisfie[d]” the neutral “redistricting standards and requirements”
of Proposition 4. Id. § 20A-19-204(5)(a) (2018).
¶33 Finally, Proposition 4 contained an enforcement
mechanism. It gave Utah residents a private right of action to
challenge any redistricting plans enacted by the Legislature that
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11 The full text of Proposition 4, including the Statement of
Intent and Subject Matter, can be found online. See Utah Independent
Redistricting Commission and Standards Act Combined Files,
UTAH.GOV 8, https://vote.utah.gov/wp-content/uploads/sites
/42/2023/09/Utah-Independent-Redistricting-Commission-And-
Standards-Act-Combined-Files.pdf (last visited July 5, 2024).
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did not conform to Proposition 4’s requirements. Id. § 20A-19-301
(2018).
The Legislature’s Enactment of Senate Bill 200, Which Repealed and
Replaced Proposition 4
¶34 But before the 2020 redistricting cycle began, the
Legislature enacted S.B. 200, which repealed Proposition 4 and
replaced it with a new law.12 Senate Bill 200 incorporates some of
the features of Proposition 4, but Plaintiffs allege that it “rescind[s]
critical Proposition 4 reforms and enact[s] watered-down versions
of others.” Specifically, Plaintiffs allege that under S.B. 200:
• the ban on partisan gerrymandering and the mandatory
neutral redistricting criteria no longer apply to maps the
Legislature creates;
• the Independent Commission still exists, but its role is
weakened because the Legislature “may, but is not required
to, vote on or adopt a map submitted . . . by the
Commission,” see UTAH CODE § 20A-20-303(5);
• if the Legislature does choose to vote on the Commission’s
recommended maps, it can “reject [them] for any reason or
no reason at all and with no explanation”;
• “transparency and public accountability safeguards” are
eliminated; and
• the enforcement mechanism is eliminated.
¶35 Plaintiffs also allege that “[e]ven after [S.B. 200] repealed
Proposition 4, many legislators represented that the Legislature
would still honor the people’s lawmaking decision to reform
redistricting.” For example, “the chief sponsor of [S.B. 200] said he
was ‘committed to respecting the voice of the people and
maintaining an independent commission.’” And the Senate
Majority Leader at the time “vowed that [S.B. 200] would still ‘meet
the will of the voters’ and that the Legislature would ‘reinstate in
[S.B. 200] almost everything they’ve asked for.’” Further, some
representatives in the Utah House indicated that while portions of
Proposition 4 would be “tweaked,” the Legislature would leave the
anti-gerrymandering provisions largely intact and would “make
__________________________________________________________
12 Redistricting Amendments, S.B. 200, 63d Leg., 2020 Gen.
Sess. (Utah 2020), https://le.utah.gov/~2020/bills/static
/SB0200.html; UTAH CODE §§ 20A-20-101 to -303.
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sure that we have an open and fair process when it comes time for
redistricting.”
The Redistricting Process Begins
¶36 Plaintiffs allege that despite these assurances, the
Legislature’s Congressional Map for the 2022 election was the
product of extreme partisan gerrymandering, with little public
participation or transparency. After Utah received the results of the
2020 census, the Legislature and the Independent Commission, as
modified by S.B. 200, began work on their respective redistricting
plans.
¶37 In April 2021, the Legislature formed a twenty-member
Legislative Redistricting Committee (LRC), made up of fifteen
Republicans and five Democrats. Plaintiffs allege that the LRC’s
process “was designed to achieve—and did in fact achieve—an
extreme partisan gerrymander.” The LRC “conducted its map-
drawing and decision-making processes almost entirely behind
closed doors.” The LRC would not commit to avoiding unduly
favoring or disfavoring any political party. And the only
redistricting standards it agreed to follow related to “population
parity among districts, contiguity, and reasonable compactness.”
¶38 Meanwhile, the Independent Commission performed its
duties under S.B. 200, even though the new law had weakened its
role in the process. Senate Bill 200 required the Commission to
“define and adopt redistricting standards” to govern its map
drawing process that mirrored the seven traditional, neutral
redistricting criteria from Proposition 4. UTAH CODE § 20A-20-
302(5). But the new law did not forbid the Commission from using
partisan political data in its map drawing, instead providing that
the Commission “may adopt a standard” prohibiting the use of
such data. Id. § 20A-20-302(6).
¶39 According to the Complaint, the Independent
Commission adopted all the neutral redistricting standards of
Proposition 4. And to ensure it avoided partisan redistricting, the
Commission drew maps “blind to partisan data of any sort.” The
Commission’s process was open to the public and involved
significant public input. The Commission met thirty-two times and
“spent hundreds of hours traveling the State to hear Utahns’
opinions on the redistricting process.” It held fifteen public
meetings throughout the state, and it supplemented the hearings
with “additional outreach over social and other media.” It
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livestreamed all of its public meetings and hearings, and then
posted recordings online. And it solicited and received significant
public input.
¶40 Ultimately, the Commission unanimously approved three
congressional maps and presented them to the LRC on
November 1, 2021. See Appendix. The proposed maps included a
detailed explanation of the non-partisan process the Commission
used in preparing the maps.
¶41 But Plaintiffs allege that almost immediately after the
Commission submitted its proposed maps to the LRC, the LRC
adopted its own Congressional Map and ignored the Commission’s
proposals. They allege that “[t]he timing and content of the
Legislature’s final redistricting plan reveal[] that the Legislature
decided to adopt its own partisan gerrymandered maps and
prescreened them with Republican party leaders long before the
Commission even reached the deadline for completing its work.”
The LRC publicly released its Congressional Map around 10:00 PM
on Friday, November 5, 2021—giving the public only two weekend
days to review the map before a scheduled public hearing the
following Monday.
This shows the Legislative Redistricting Committee’s Congressional
Map.
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The highlighted area shows Salt Lake County, divided in four pieces.
¶42 The LRC’s Congressional Map divided Salt Lake County—
which Plaintiffs describe as having Utah’s largest concentration of
people who vote for candidates from minority parties—into four
pieces, with each slice placed in a different congressional district.
District 1 “emanates from the northeast quadrant of Salt Lake
County and extends to cover the entire northern part of the State
up to the Utah-Idaho border.” “District 2 covers the northwest
quadrant of Salt Lake County and extends over 300 miles south and
west to reach most of Utah’s borders with Nevada and Arizona
. . . .” “District 3 encompasses the southeast section of Salt Lake
County and then widens to include Utah’s entire eastern border[,]
as well as part of the northern border in Summit and Daggett
Counties and part of the Southern border in San Juan County.” And
finally, “District 4 takes the southwest quadrant of Salt Lake
County and combines it with a central Utah district ending at the
bottom of Sanpete County.”
¶43 The four districts converge in Millcreek, a growing city in
Salt Lake County where a majority of voters traditionally support
minority party candidates. So residents of one city, Millcreek, are
divided among the First, Second, Third, and Fourth Congressional
Districts.
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The highlighted area is Millcreek, divided among the four congressional
districts.
¶44 In a statement accompanying the Congressional Map, the
LRC explained that each district includes urban and rural parts of
the state because “[w]e are one Utah[] and believe both urban and
rural interests should be represented in Washington, D.C. by the
entire federal delegation.”13
¶45 Plaintiffs allege that, despite the short timeframe before
the public meeting, there was an outpouring of public opposition
to the Congressional Map. “So many Utahns . . . submit[ted] their
online statements opposing the LRC’s proposed electoral
boundaries that they crashed the LRC’s public comment website.”
“A group of eighty-four prominent Utah business and community
leaders” held a press conference at the Capitol “condemn[ing] the
LRC’s map as a partisan gerrymander.” Utahns “gathered in large
numbers on the steps of the state Capitol to protest the LRC’s map.”
And while the Legislature received eleven emails supporting the
Congressional Map, it received 930 emails criticizing it as a partisan
gerrymander and urging it to use one of the Commission’s neutral
maps.
¶46 At a public hearing three days later, “an overwhelming
majority of the hundreds of Utahns who attended . . . expressed
their outrage about the LRC overriding the Commission and the
__________________________________________________________
13 Katie McKellar, Utah Lawmakers Released Their Proposed
Redistricting Maps. Accusations of Gerrymandering Swiftly Followed,
DESERET NEWS (Nov. 6, 2021, 9:50 AM), https://www.deseret.com
/2021/11/6/22766845/utah-lawmakers-released-their-proposed-
redistricting-maps-accusations-of-gerrymandering-salt-lake
(quoting statement of Senator Scott Sandall).
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public will.” Citizens “urged the LRC to abandon its proposed
partisan gerrymander.” One speaker said, “please listen to the
independent commission’s recommendations and stop playing
politics.”
¶47 At the conclusion of the hearing, the LRC voted along
party lines to approve the Congressional Map. Over the next week,
the Legislature voted to approve the Map. Governor Spencer Cox
then signed it into law. Plaintiffs note that Governor Cox
“acknowledged there was ‘certainly a partisan bend’ in the
Legislature’s redistricting process.”
Plaintiffs’ Lawsuit
¶48 In response to the Legislature’s repeal and replacement of
Proposition 4 and the resulting Congressional Map, Plaintiffs filed
this case in the district court. Their claims fall into two categories.
¶49 First, they challenge the Legislature’s repeal of
Proposition 4. They assert that when the voters of Utah enacted
Proposition 4, they exercised two rights protected by the Utah
Constitution: (1) the people’s right to directly initiate legislation
under the Initiative Provision of article VI, section 1; and (2) the
people’s right to alter or reform their government under the Alter
or Reform Clause of article I, section 2. Plaintiffs assert that when
the Legislature repealed Proposition 4 and replaced it with S.B. 200,
the Legislature effectively nullified the redistricting reform enacted
by the people, and in doing so, violated both of these constitutional
rights. This claim is found in Count V of Plaintiffs’ Complaint.
¶50 Second, Plaintiffs claim that the Legislature’s
Congressional Map is the product of extreme partisan
gerrymandering. They allege that the Map violates Utahns’ rights
under the Utah Constitution to free elections, to vote, to free speech
and association, and to the uniform operation of laws. These claims
are found in Counts I through IV of Plaintiffs’ Complaint.
Defendants’ Motion to Dismiss
¶51 In the district court, Defendants moved to dismiss all of
Plaintiffs’ claims. With respect to Count V, which challenges the
Legislature’s repeal and replacement of Proposition 4, Defendants
argued that the Legislature did not violate the people’s right to
initiate legislation or their right to alter or reform their government
because the Legislature has unlimited authority to amend or repeal
any statute, including those enacted by initiative. Therefore,
because initiatives, including Proposition 4, are statutes, the
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Legislature argued it had unfettered power to amend or repeal
Proposition 4 without running afoul of the constitution. The district
court agreed and dismissed Count V of the Complaint.
¶52 With respect to Counts I through IV, which allege that the
Congressional Map itself violates the Utah Constitution,
Defendants argued that the courts could not intervene because
these claims involve “nonjusticiable political questions.”
Specifically, Defendants contended that article IX, section 1 of the
Utah Constitution grants redistricting power solely to the
Legislature, so “[a]bsent an express constitutional limitation . . . the
Court does not have jurisdiction to opine on the political decision
of the political branch regarding where to draw district lines and
the resulting effect on the potential success of a given political
party’s efforts to gain political power.” Defendants further argued
that there are no judicially discoverable or manageable standards
for assessing Plaintiffs’ partisan gerrymandering claims. In making
this argument, Defendants relied upon federal caselaw premised
on the view that some amount of partisan gerrymandering is
permissible. See Rucho, 588 U.S. at 701 (“[A] jurisdiction may
engage in constitutional political gerrymandering.” (cleaned up)).
So, Defendants reasoned, the “central problem” for the courts is
“determining when political gerrymandering has gone too far.”
(Quoting id. at 685.)
¶53 In the alternative, Defendants argued that the state
constitutional rights invoked by Plaintiffs—the right to free
elections, to vote, to free speech and association, and to the uniform
operation of laws—do not prohibit partisan gerrymandering.
¶54 The district court rejected these arguments and denied
Defendants’ motion to dismiss Plaintiffs’ challenges to the
constitutionality of the Congressional Map. The district court first
concluded that these claims were justiciable. It reasoned that the
constitutional questions presented in the litigation were not
political questions, but legal ones with existing “judicially
discoverable and manageable standards” to review them.
Accordingly, the court determined it had jurisdiction to answer
those legal questions.
¶55 And ultimately, the district court disagreed with
Defendants’ contention that each of Plaintiffs’ challenges failed to
state a claim for which the court could grant relief. Before
addressing each claim, the district court reiterated that at the
motion to dismiss stage, it could grant the motion only if “the
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allegations of the complaint clearly demonstrate[d] that . . .
[Plaintiffs] [did] not have a claim.” (Quoting Pioneer Home Owners
Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 19, 457 P.3d 393 (cleaned
up).)
¶56 Addressing each constitutional claim, the district court
concluded that Plaintiffs had sufficiently alleged that the
Congressional Map:
• violates the Free Elections Clause because it was “enacted
for partisan advantage” and “had the effect of substantially
diminishing or diluting the votes” of citizens who were
unlikely to vote for the majority party;
• violates the Uniform Operation of Laws Clause because it
classifies voters based on their political views and
geographic location and treats similarly situated voters
disparately without adequate justification;
• violates some Utahns’ rights to free speech and free
association because it discriminates and retaliates against
citizens based on their political views and past voting
records and burdens those citizens’ ability to express their
political views and effectively associate with others of the
same viewpoint; and
• violates some Utahns’ right to vote because, although they
are able to engage in the act of voting, “[t]heir disfavored
vote is meaningless, diluted, impaired[,] and infringed due
to the intentional partisan gerrymandering” with no
legitimate justification.
Accordingly, the district court denied Defendants’ motion to
dismiss Plaintiffs’ constitutional challenges to the Congressional
Map.
The Petitions for Interlocutory Appeal
¶57 Defendants petitioned for permission to appeal the district
court’s denial of their motion to dismiss Plaintiffs’ constitutional
challenges to the Congressional Map (Counts I through IV of the
Complaint). And Plaintiffs petitioned for permission to appeal the
court’s dismissal of their Proposition 4 claim (Count V). We granted
both petitions.
¶58 We have jurisdiction over interlocutory appeals under
Utah Code subsection 78A-3-102(3)(j).
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STANDARD OF REVIEW
¶59 We review the grant or denial of a rule 12(b)(6) motion to
dismiss “for correctness, giving no deference to the district court’s
determination.” Christiansen v. Harrison W. Constr. Corp.,
2021 UT 65, ¶ 10, 500 P.3d 825. A district court should grant a
12(b)(6) motion to dismiss “only if assuming the truth of the
allegations in the complaint and drawing all reasonable inferences
therefrom in the light most favorable to the plaintiff, it is clear that
the plaintiff is not entitled to relief.” Castro v. Lemus, 2019 UT 71,
¶ 11, 456 P.3d 750 (cleaned up). Put another way, “[t]he district
court’s ruling should be affirmed only if it clearly appears that the
plaintiff can prove no set of facts in support of [the plaintiff’s]
claim.” Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 7, 342
P.3d 224 (cleaned up). And “[u]nder a rule 12(b)(6) dismissal, our
inquiry is concerned solely with the sufficiency of the pleadings,
and not the underlying merits of the case.” Oakwood Vill. LLC v.
Albertsons, Inc., 2004 UT 101, ¶ 8, 104 P.3d 1226 (cleaned up).14
ANALYSIS
¶60 This case presents two sets of issues for our review:
(1) Plaintiffs’ appeal of the district court’s dismissal of Count V,
which contains Plaintiffs’ claim that the Legislature nullified the
redistricting reform enacted by the people in Proposition 4 and, in
doing so, violated the people’s constitutional right to reform the
government through a citizen initiative; and (2) Defendants’ appeal
of the district court’s denial of their motion to dismiss Counts I
through IV of the Complaint, which contain Plaintiffs’ claims that
the Congressional Map is an extreme partisan gerrymander that
violates numerous provisions of the Utah Constitution.
¶61 The issues raised by the parties present questions of first
impression involving the interpretation of numerous provisions of
the Utah Constitution. We first address the district court’s
dismissal of Count V because it is the broadest claim, encompassing
both matters at issue in this case: Plaintiffs’ challenge to the
redistricting process that led to the Congressional Map and their
__________________________________________________________
14 We likewise review the grant or denial of a facial rule
12(b)(1) challenge for correctness. See Granite Sch. Dist. v. Young,
2023 UT 21, ¶ 15, 537 P.3d 225. But as explained, we do not reach
Defendants’ arguments that the district court should have granted
their motion under rule 12(b)(1). See infra Section II.B.
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challenge to the Congressional Map itself. Specifically, Count V
involves the parties’ dispute over whether the citizen reform
initiative, Proposition 4, or the Legislature’s replacement of the
initiative, S.B. 200, should govern the redistricting process. And
consequently, it also encompasses the constitutionality of the
Congressional Map that resulted from S.B. 200 and was not subject
to Proposition 4’s requirements. In contrast, Counts I through IV
each involve a discrete constitutional challenge to the
Congressional Map alone.
¶62 Turning to Count V, we conclude that the district court
erred in dismissing this claim. Plaintiffs allege that Defendants
violated Utahns’ right to alter or reform their government through
an initiative by enacting S.B. 200, which repealed and replaced
Proposition 4. Defendants argued in the district court that no
constitutional violation occurred, because the Legislature is
authorized to amend or repeal any statute, including a citizen
initiative. On that basis, the district court dismissed Count V. But a
close look at the original public meaning of the Alter or Reform
Clause and the Initiative Provision reveals that Utahns’ exercise of
these constitutional rights is protected from undue government
infringement. Thus, these constitutional provisions limit the
Legislature’s authority to amend or repeal an initiative that reforms
the government. For this reason, Count V cannot be dismissed as a
matter of law on the basis of the Legislature’s authority to amend
or repeal laws generally.
¶63 Accordingly, we reverse the dismissal of Count V.15
__________________________________________________________
15 We appreciate the perspective and insight that we received
from the numerous amicus briefs submitted in this case. They were
thoughtful and well researched, and we appreciate the effort that
went into them. While we cannot respond to the points raised in
each brief individually, we take a moment to respond to two
amicus briefs that focused directly on the holding we reach today.
We asked the parties for supplemental briefing on the legal
standard applicable to Plaintiffs’ claim that the nullification of
Proposition 4 violated the people’s right to reform their
government through a citizen initiative. In addition to the parties’
supplemental briefs, we received amicus briefs from Governor
Spencer Cox and the Utah Association of Counties (Counties) on
(continued . . .)
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__________________________________________________________
this point. We thank the Governor and the Counties for sharing
their views and concerns with us.
We are cognizant that when we decide a case, our holding
will apply in future cases raising the same legal issue. For this
reason, we do our best to avoid unintended consequences from
rulings that sweep too broadly. So we appreciate the Governor and
the Counties flagging potential unintended consequences that,
from their perspective, might flow from a holding that the Alter or
Reform Clause establishes a constitutional right of the people to
reform their government. As we explain in this opinion, we
conclude that the original public understanding of the Alter or
Reform Clause was that it enshrined a constitutional right of the
people of Utah to reform their government. We have endeavored
to describe the scope of this right, consistent with its original public
meaning, in a manner that is clear, accurate, and precise.
Throughout the opinion, we have addressed many of the concerns
raised by the Governor and the Counties. And we list the relevant
sections here for ease of reference.
With respect to the Governor’s amicus brief, please see infra
¶¶ 73, 162 (explaining that amendments to government-reform
initiatives that do not impair the reform would not implicate the
Alter or Reform Clause), infra ¶¶ 122–26, 134–36, 161 (explaining
that the people’s right to reform the government must be exercised
within the bounds of the constitution itself, so the people must
exercise the right through a constitutionally-recognized
mechanism—like the constitutional amendment process or the
initiative power—and when they use their initiative power, the
initiative can accomplish only those reforms that can be achieved
by statute and cannot violate other constitutional provisions), infra
¶¶ 164–71 (explaining why the argument that government-reform
initiatives are subject to unlimited legislative repeal conflicts with
the original public meaning of article I, section 2 and the Initiative
Provision), and infra ¶¶ 195–98 (addressing the concern that
Proposition 4 violated article IX of the constitution). We also note
the Governor’s concern that limiting the Legislature’s ability to
repeal government-reform initiatives would tip the balance of
power toward direct democracy and away from our republican
form of government. When the amendment to give Utahns direct
legislative power was placed before voters in 1900, this was a key
point of debate. See infra ¶¶ 148–53. Despite this concern, however,
(continued . . .)
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I. COUNT V
¶64 We now analyze Plaintiffs’ argument that the district court
erred in dismissing Count V of their Complaint. Because Plaintiffs’
claim involves legal issues of first impression, we first elucidate the
law that applies to Count V. Two rights are at issue in this claim:
the right to alter or reform the government, found in the Alter or
Reform Clause of article I, section 2 of the Utah Constitution, and
the right to initiate legislation, found in the Initiative Provision in
article VI, subsections 1(1)(b) and 1(2).
¶65 Article I, section 2 states: “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.”
¶66 Article VI, subsection 1(1) provides that “[t]he 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
__________________________________________________________
Utahns in 1900 decided to retain for themselves the power to
legislate directly. And we must interpret this right consistent with
Utahns’ understanding of it in 1900. As we have emphasized,
“when we interpret our constitution, we are not simply shopping
for interpretations that we might like” or for one that, in our view,
“best serve[s] the people of Utah.” Randolph v. State, 2022 UT 34,
¶ 69, 515 P.3d 444. Rather, we “try[] to understand what the
language meant” to the public at the time “and we go from there.”
Id.With respect to the Counties’ amicus brief, please see infra
¶ 72 (explaining that our holding today applies only to initiatives
that advance government reforms within the meaning of the Alter
or Reform Clause, not those that have no reform element), infra
¶¶ 73, 162 (explaining that amendments to government-reform
initiatives that do not impair the reform would not implicate the
Alter or Reform Clause), and infra ¶¶ 122–26, 134–36, 161
(explaining that the right to reform the government must be
exercised within the bounds of the constitution). We also observe
that local initiatives can only establish laws applicable to the local
jurisdiction. They cannot change state laws that apply to all local
governments. See Carter v. Lehi City, 2012 UT 2, ¶¶ 28, 31, 269
P.3d 141.
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Subsection (2).” Subsection (2) then sets out how the people may
“initiate any desired legislation” or referendum.
¶67 We have long recognized the connection between article I,
section 2 and the Initiative Provision. Article I, section 2 makes
plain that the people are the font of political power in a
constitutional republic. See Carter v. Lehi City, 2012 UT 2, ¶ 21, 269
P.3d 141. At the time of Utah’s founding, Utahns exercised their
inherent political power to create the Utah Constitution and, in it,
to “allocate governmental power” among the three branches of
state government. Id. ¶¶ 21–22. Through this same sovereign
authority, the people amended the constitution to add the Initiative
Provision, in which they took back an equal measure of legislative
power, which they could exercise directly. See id. ¶ 22; see also Sevier
Power Co. v. Bd. of Sevier Cnty. Comm’rs, 2008 UT 72, ¶ 7, 196
P.3d 583; Utah Power & Light Co. v. Provo City, 74 P.2d 1191, 1204–05
(Utah 1937) (Larson, J., concurring). Thus, it was through their own
sovereign authority that Utahns retained for themselves the power
of direct legislation.
¶68 But the link between these two rights does not end there.
In article I, section 2, the people retained for themselves “the right
to alter or reform their government as the public welfare may
require.” As we will explain further, see infra ¶¶ 122–26, 134–36,
161, the people’s right to alter or reform the government must be
exercised within the bounds of the Utah Constitution.16 And when
__________________________________________________________
16 In his amicus brief, Governor Cox expressed a concern that
deeming the Alter or Reform Clause to establish an enforceable
constitutional right could sanction government reform through
“civil war, terrorism, political assassinations, disrupting normal
government operations and proceedings, or the ability to
essentially amend the constitution by initiative.” But as we will
explain, we do not read the Alter or Reform Clause to sanction such
conduct. When properly construed according to its original public
meaning, this Clause permits the people to reform the government
only within the bounds of the constitution, not “in disregard and
independently of it.” Koehler v. Hill, 15 N.W. 609, 615 (Iowa 1881);
See infra ¶¶ 122–26, 134–36. So, the people can use their
constitutional initiative power to exercise their reform right. But in
doing so, they can accomplish only statutory government reforms.
And an initiative cannot violate other provisions of the
constitution. See infra ¶ 161.
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Utahns added the Initiative Provision to the constitution, they gave
themselves a constitutional, direct means of exercising their reform
right through citizen-enacted legislation.17
¶69 Count V alleges that the right to reform the government
and the initiative right were exercised in tandem. Specifically,
Plaintiffs allege that Utahns used their initiative power as a means
of exercising their right to reform the government—in other words,
by enacting Proposition 4, the people reformed the redistricting
process in a manner that Plaintiffs argue constitutes government
reform within the meaning of article I, section 2.
¶70 Accordingly, to analyze Count V, we consider the two
rights together. This is not to say that these provisions cannot form
the basis of stand-alone claims. See, e.g., Count My Vote, Inc. v. Cox,
2019 UT 60, 452 P.3d 1109; Utah Safe to Learn-Safe to Worship Coal.,
Inc. v. State, 2004 UT 32, 94 P.3d 217. But we clarify that in this
opinion, our analysis and holdings are specific to situations where
the people are alleged to have used their initiative power as a
means to exercise their right to reform the government. While we
discuss Plaintiffs’ stand-alone Initiative Provision claim, we do not
resolve it, leaving that issue for another day.
A. Elements Applicable to Plaintiffs’ Claim
¶71 Because this is the first time we have considered this
specific constitutional claim, we set out the elements that should be
used to analyze the claim. At a general level, to establish that the
government has violated a constitutional right, a plaintiff must
establish first that the plaintiff’s claim actually implicates the right
in question, and second that the government has done something
that violates the right. See, e.g., Am. Bush v. City of South Salt Lake,
2006 UT 40, ¶ 8, 140 P.3d 1235 (explaining that we first determine
__________________________________________________________
17 In its amicus brief, the Utah Association of Counties
expressed a concern that protecting the right to reform the
government through a citizen initiative would inevitably apply to
all citizen initiatives, including those that have no government
reform element. We want to be clear that this opinion applies only
to initiatives that seek to alter or reform the government under the
Alter or Reform Clause. We expressly leave open the question of
whether the constitution limits the Legislature’s authority to
amend laws created by initiative that do not implicate the Alter or
Reform Clause.
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whether the freedom of speech clauses were at issue, then whether
the government had infringed the right); Tindley v. Salt Lake City
Sch. Dist., 2005 UT 30, ¶ 17, 116 P.3d 295 (explaining that under our
Open Courts Clause, we first decide whether the rights under that
provision are at issue, then turn to whether the government
violated those rights).
¶72 Here, Plaintiffs must first show that their claim implicates
both the people’s right to initiate legislation and their right to
reform the government. They can make this showing by
establishing that the people exercised their initiative power in
passing Proposition 4, and that Proposition 4 contained
government reforms or alterations within the meaning of the Alter
or Reform Clause. If Plaintiffs cannot show that Proposition 4
involved government reform, then article I, section 2 is not
implicated.
¶73 Second, Plaintiffs must establish that the challenged
legislative action infringed the exercise of these rights. Here,
Plaintiffs allege that the Legislature violated the people’s right to
reform the government through an initiative by enacting S.B. 200,
which repealed Proposition 4 and replaced it with a law that
“nullified” Proposition 4’s redistricting reforms. To demonstrate
that these legislative actions violated the exercise of these rights,
Plaintiffs will need to show that S.B. 200 impaired the reform
contained in Proposition 4. Generally, amendments to a
government-reform initiative that support or facilitate the reform—
such as grammatical corrections, helpful renumbering, or technical
fixes necessary for the effective operation of the initiative—would
not satisfy this second element.
¶74 To summarize these elements in more general terms, to
prove that legislative action has violated the people’s right to
reform the government through an initiative, a plaintiff must
establish two elements:
(1) that the people exercised, or attempted to exercise,
their initiative power, and the subject matter of the
initiative contained government reforms or
alterations within the meaning of the Alter or Reform
Clause; and
(2) the Legislature infringed the exercise of these
rights because it amended, repealed, or replaced the
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initiative in a manner that impaired the reform
contained in the initiative.
¶75 As we will explain more later, see infra Subsection II.A, if a
plaintiff can establish these elements, then the legislative action that
impairs the reform is unconstitutional unless the defendant shows
that it is narrowly tailored to advance a compelling government
interest, see In re Adoption of K.T.B., 2020 UT 51, ¶ 40, 472 P.3d 843.
B. Analysis of Count V and the District Court’s Order
¶76 Turning now to the instant case, we use the framework
outlined above to address the parties’ arguments and the district
court’s order. To be clear, because we have introduced this
formulation for the first time in this opinion, we do not expect the
parties or the district court to have used this particular framework
when setting out, responding to, or analyzing Plaintiffs’ claims,
respectively. But the elements we have outlined above are not
intended to depart from the usual way in which we analyze a
constitutional claim—determining whether the claim implicates
the right or rights in question and whether the defendant violated
those rights. So the elements we introduce above merely provide a
way of ordering the substantive legal analysis that the parties have
presented and that the district court conducted in its rulings.
1. Plaintiffs Have Alleged that Utahns Exercised Their Initiative
Power by Passing Proposition 4, and that the Subject Matter of
Proposition 4 Included Government Reforms Within the
Meaning of the Alter or Reform Clause
¶77 With respect to whether the Initiative Provision is
implicated by the allegations in Count V, Plaintiffs argue that
“[t]here is no dispute in this case that Prop 4 was a validly enacted
initiative.” Indeed, Defendants have not argued that Count V fails
because Proposition 4 was not enacted through a citizen initiative.
So this issue is not in dispute in this appeal.
¶78 With respect to whether Count V implicates the Alter or
Reform Clause, Plaintiffs argue that Proposition 4 “fit[s] squarely
within” the people’s article I, section 2 power to reform the
government through legislation. They assert that by enacting
Proposition 4, “Utahns intended to exercise their article I, section 2
powers to prevent” the “antidemocratic distortions” of partisan
gerrymandering “and to ensure that Utah voters can choose their
legislators, not the other way around.” Plaintiffs argue that
Proposition 4 did this in several ways.
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¶79 They first note that “Prop 4’s proponents explicitly
invoked the people’s rights to secure their popular sovereignty and
to reform their government when they presented the initiative to
the voters.” Proposition 4’s “Statement of Intent and Subject
Matter” explained:
The Utah Constitution provides that “all political
power is inherent in the people.” Yet, our current
redistricting process undermines this fundamental
Utah value, because it empowers incumbent
politicians to select the people who vote for them and
. . . manipulate the redistricting process for their own
personal and political gain.
Statement of Intent & Subject Matter, UTAH INDEPENDENT
REDISTRICTING COMMISSION & STANDARDS ACT 1 (2018).
¶80 Next, in the Voter Pamphlet, initiative proponents argued
that the current system of drawing electoral districts was broken
and needed to be reformed by the people. The Pamphlet asserted
that gerrymandering had “gotten out of control,” and had made
politicians less accountable to the people in violation of article I,
section 2’s core principles. Voter Pamphlet at 76. Proposition 4’s
proponents called upon Utah voters to “fix” the problem of
gerrymandering themselves, arguing: “To be fair, we can’t expect
legislators to fix the system. It benefits them. We the People must
fix it.” Id.¶81 Further, Plaintiffs argue that the “fix” enacted in
Proposition 4 “restructured legislative authority” over redistricting
by giving the Independent Commission an important role in the
process. Before Proposition 4, the Legislature had exclusive control
over redistricting. But Proposition 4 required the Legislature to
consider the Independent Commission’s proposed maps and to
vote on the maps. And if the Legislature rejected the maps, it had
to issue a written report explaining its decision.
¶82 And finally, Proposition 4 imposed requirements on the
redistricting process where the Legislature had previously
exercised discretion. Plaintiffs point out that, whether or not the
Legislature selected one of the Independent Commission’s maps,
Proposition 4 imposed requirements on the Legislature’s ultimate
redistricting plan. Specifically, the plan would be subject to the
“prohibition on partisan gerrymandering, the imposition of neutral
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redistricting principles, and a statutory cause of action to enforce
those enacted provisions in the judiciary.”
¶83 On appeal, Defendants do not challenge Plaintiffs’
argument that Proposition 4 sought to alter or reform the
government as contemplated by article I, section 2. Accordingly, we
assume for purposes of this appeal that Count V implicates the
Alter or Reform Clause.
¶84 In sum, with respect to the first step of the analysis,
Plaintiffs argue that Count V implicates both the Initiative
Provision and the Alter or Reform Clause. And Defendants have
not argued otherwise on appeal. Thus, for purposes of this appeal,
we assume without deciding that Count V implicates the exercise
of both rights—specifically, the people’s right to reform the
government through a citizen initiative. We now move to the
second step of the analysis.
2. Plaintiffs Have Alleged a Violation of the People’s Right to
Reform the Government Through a Citizen Initiative
¶85 The issue before us on appeal centers on the second step of
the analysis, whether Plaintiffs have alleged a cognizable claim that
Defendants violated the constitutional rights implicated in
Count V. We initially note that neither the district court’s dismissal
nor Defendants’ arguments on appeal are premised on the question
of whether S.B. 200 in fact impaired Proposition 4’s reforms. Rather,
Defendants argued in the district court, and the district court
agreed, that the Legislature’s nullification of a government-reform
initiative does not present a cognizable constitutional claim as a
matter of law because the Legislature is constitutionally permitted
to amend and even fully repeal any citizen initiative—including
those that reform the government—due to its general power to
amend or repeal any statute. And this is the thrust of Defendants’
argument on appeal as to why we should affirm the district court’s
dismissal of Count V. Accordingly, we must ultimately decide
whether the Legislature’s amendment, repeal, or replacement of a
government-reform initiative is constitutionally permitted as a
matter of law, or whether the Initiative Provision and the Alter or
Reform Clause limit the Legislature’s power in this context.
¶86 But before proceeding to this issue of constitutional
interpretation, we discuss Plaintiffs’ arguments as to how
Defendants impaired the government reforms contained in
Proposition 4. Plaintiffs argue that the Legislature nullified
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Proposition 4’s reforms because S.B. 200 completely repealed it and
did not “restore[] Prop 4, either in letter or in spirit.” Plaintiffs
argue that S.B. 200 nullified the redistricting reform contained in
Proposition 4 because it
lacked the initiative’s core prohibition on partisan
gerrymandering; its mandatory, neutral redistricting
standards; and the private cause of action it created
to empower the judiciary to enforce these
requirements. And the substituted bill rendered the
independent commission toothless, replacing it with
a process that, in the end, represented an empty
gesture that the Legislature spurned when it enacted
its own partisan map.
Plaintiffs assert that “[b]y any standard, the Legislature nullified
Prop 4 and thereby violated Utahns’ constitutional rights.”
¶87 As discussed, Defendants contend that S.B. 200 did not
violate either the Initiative Provision or the Alter or Reform Clause
—but not by arguing that S.B. 200 did not eliminate key provisions
of Proposition 4, or that the legislative redistricting process
established by S.B. 200 effectively complies with the substance of
the initiative. While they do describe S.B. 200 as a compromise
measure between the Legislature and the sponsors of Proposition 4,
designed to “address constitutional concerns with Proposition 4”
while maintaining the spirit of the initiative, they do not dispute as
a legal matter that S.B. 200 eliminated the prohibition of partisan
gerrymandering, the mandatory neutral redistricting criteria, and
the enforcement mechanism, or that it allowed the Legislature to
reject the Independent Commission’s maps without explanation.
Thus, in this appeal, Defendants have not challenged Plaintiffs’
contentions as to how S.B. 200 impaired the reforms in
Proposition 4.
3. The District Court Concluded that Count V Did Not Allege a
Legally Cognizable Violation of the Initiative Provision or the
Alter or Reform Clause
¶88 Although there has been no dispute about the effect of
S.B. 200 on Proposition 4, the district court concluded that this
second element was not met based on the legislative power in
general. In other words, the court concluded that the Legislature’s
repeal and replacement of Proposition 4 did not violate the
Initiative Provision or the Alter or Reform Clause because the
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Legislature is empowered to amend or repeal any statute,
including an initiative.
¶89 In ruling on Defendants’ motion to dismiss Count V, the
district court was faced with questions of first impression that we
have never directly analyzed. Looking to our precedent, the district
court noted that we have said “[t]he initiative power of the people
is . . . parallel and coextensive with the power of the legislature.”
(Emphasis omitted.) (Quoting Carter, 2012 UT 2, ¶ 22.) And the
court reasoned that although the Utah Constitution “unequivocally
recognizes the importance of . . . citizens’ right to initiate legislation
to alter or reform their government,” it also vests the Legislature
with power to “amend and repeal legislation enacted by citizen
initiative, without limitation.” So “even accepting [Plaintiffs’]
factual allegations as true,” the court concluded that “the
Legislature did not act unconstitutionally by either substantially
amending or effectively repealing Proposition 4.” On this basis, the
court concluded that the Legislature’s repeal and replacement of
Proposition 4 violated neither the Initiative Provision nor the Alter
or Reform Clause as a matter of law. Accordingly, it dismissed
Count V for failure to state a claim on which relief could be granted.
¶90 Defendants argue that the district court’s analysis was
correct. They assert that “when the people legislate through the
Initiative [Provision], they are exercising a particular form of
legislative power that can later be amended or repealed through
another exercise of legislative power.” For this reason, Defendants
argue that the Legislature can repeal or amend any statute without
limitation, including a citizen initiative—regardless of whether the
citizen initiative reforms the government.
¶91 Plaintiffs urge us to reverse the district court’s conclusion.
They assert that the text, structure, and history of the relevant
constitutional provisions make clear that the Legislature cannot
nullify a citizen initiative. And because S.B. 200 repealed
Proposition 4, Plaintiffs argue that Count V makes out a cognizable
claim for relief under the Initiative Provision. Plaintiffs argue
further that, “Even were the Legislature empowered to modify
some types of citizen-enacted legislation, that power does not
extend to citizen-enacted legislation that alters or reforms
governmental structures, as Prop 4 indisputably did.” On this
basis, they argue that S.B. 200 also violates the Alter or Reform
Clause.
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¶92 In Plaintiffs’ view, the text and history of article I, section 2
show that it protects the people’s right, as sovereigns, to alter or
reform their government within the bounds of the constitution.
And they argue that the people’s exercise of this right cannot be
negated based on the Legislature’s general power to amend and
repeal statutes. The alternative would “subjugate the people to the
unchecked whims of the Legislature,” “effectively nullify the
people’s article VI, section 1 power by giving the Legislature a veto
over citizen initiatives,” and “negate article I, section 2, which
grants the people the primary governmental power and protects
their prerogative to alter or reform their government.” Plaintiffs
therefore contend that were we to uphold the district court’s
dismissal of Count V, we would render these constitutional
guarantees “a dead letter.”
¶93 Plaintiffs argue that both the Initiative Provision and the
Alter or Reform Clause restrict legislative action when it is in
tension with these constitutional rights. First, Plaintiffs argue that
the Initiative Provision, on its own, requires reversal of the district
court’s dismissal of Count V. They assert that because the Initiative
Provision does not contain language allowing the Legislature to
repeal a citizen initiative, the Legislature violates that provision if
it does so in a manner that nullifies the substance of the initiative
in question.
¶94 Whether the Initiative Provision, standing alone, prohibits
the Legislature from repealing a citizen initiative is a question of
first impression. We have addressed circumstances in which
initiative proponents have challenged the Legislature’s regulation
of the process of getting an initiative on the ballot. See, e.g., Gallivan
v. Walker, 2002 UT 89, ¶¶ 28, 64, 54 P.3d 1069 (holding that the
Legislature may not “pass laws that unduly burden or diminish the
people’s right to initiate legislation” and concluding that a law that
contained a multi-county signature requirement for placing an
initiative on the ballot was unconstitutional). We have also held
that the Legislature cannot substantively restrict the scope of the
initiative right. See Sevier Power, 2008 UT 72, ¶¶ 9–11 (holding that
the Legislature did not have constitutional authority to limit the
scope of what laws could be introduced by initiative). But we have
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never opined on the constitutionality of the Legislature repealing
or amending an initiative that has been enacted by the voters.18
¶95 Similarly, we have never been presented with the second
argument advanced by Plaintiffs: whether, at a minimum, the
constitution prohibits the Legislature from impairing a
government-reform initiative by amending, repealing, or replacing
it.
¶96 Based on our determination that the two rights are
interconnected in this case, we focus our analysis on Plaintiffs’
second argument. But we also do so as a matter of constitutional
avoidance. The second argument presents a constitutional question
that is narrower in scope. And because we conclude that this
argument requires us to reverse, we do not reach the broader
question of whether the Initiative Provision alone prohibits the
repeal and/or substantive amendment of all citizen initiatives,
whether they reform the government or not. See Lyon v. Burton,
2000 UT 19, ¶ 10, 5 P.3d 616 (“[T]his Court should avoid addressing
constitutional issues unless required to do so.” (cleaned up)).
¶97 As an initial matter, we agree with Defendants that
legislative power generally includes the power to amend and
repeal existing statutes. See Legislative Power, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“The power to make laws and to alter
them; a legislative body’s exclusive authority to make, amend, and
repeal laws.”); see also 16 C.J.S. Constitutional Law § 383 (2024)
(“Generally speaking, legislative power is the power to make,
amend, or repeal laws, while executive power is the power to
enforce the laws, and judicial power is the power to interpret and
apply the laws to actual controversies.”). And, of course, a citizen
initiative, if approved by a majority of voters, becomes a statute.
When Utah voters approved Proposition 4, the result was the “Utah
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18 In Grant v. Herbert, the petitioners sought extraordinary
relief after the Legislature replaced, during a special session, an
initiative that legalized medical cannabis. 2019 UT 42, ¶¶ 1–2, 449
P.3d 122. However, in that case we did not address the question
presented here. There, the petitioners argued that the governor had
effectively vetoed the initiative when he called a special session of
the Legislature. Id. ¶ 21. We rejected that claim and did not opine
on the Legislature’s constitutional authority to amend or repeal
laws passed by initiative. Id. ¶ 35.
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Independent Redistricting Commission and Standards Act,” found
in Utah Code sections 20A-19-101 to -301 (2018).
¶98 But this is not dispositive of Count V. Plaintiffs allege that
in enacting Proposition 4, Utah voters did more than just pass a
law. They exercised constitutional rights. Specifically, Plaintiffs
allege that Utahns used their constitutional right to initiate
legislation to exercise another constitutional right—their right to
alter or reform the government. And Plaintiffs allege that
Defendants did more than just repeal a law. They allege that in
replacing Proposition 4 with S.B. 200, Defendants violated the
people’s exercise of those rights.
¶99 While the Legislature has authority to amend and repeal
statutes, it does not necessarily follow that it can do so in a manner
that unduly treads upon constitutional rights. We reiterated this
principle in the context of the Open Courts Clause, explaining:
We are simply not at liberty to eviscerate a
mandatory provision of our Declaration of Rights by
limiting our analysis to [the legislative power] alone.
That kind of analysis would result in the legislative
power prevailing in every case, and would deprive
the constitutional rights embraced in [article I,]
section 11 of any meaningful content or force. If we
are free to refuse to give substance and meaning to
section 11 because it stands in tension with the power
of the Legislature to adjust conflicting interests and
values in society, we could as well emasculate every
provision in the Declaration of Rights by the same
method of analysis. We decline to do that.
Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 678–79 (Utah
1985) (discussing UTAH CONST. art. I, § 11).19
__________________________________________________________
19 We have since repudiated applications of the Open Courts
Clause that did not give due deference to the Legislature’s
prerogative to set policy. See Judd v. Drezga, 2004 UT 91, ¶ 15, 103
P.3d 135. But the point we made in Berry remains true: in cases
involving a claim that legislation infringes a constitutional right,
we would debilitate that right by limiting our analysis to the scope
of legislative power alone. See Berry ex rel. Berry v. Beech Aircraft
Corp., 717 P.2d 670, 679 (Utah 1985).
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¶100 To determine whether Plaintiffs have alleged a cognizable
claim that Defendants violated the people’s right to reform the
government through a citizen initiative, we interpret article I,
section 2, which enshrines the people’s sovereign power and
contains the Alter or Reform Clause, and the Initiative Provision,
which is found in article VI, subsections 1(1)(b) and (2). We must
determine whether these provisions—taken together—place any
constitutional limits on the Legislature’s power to amend, repeal,
or replace a citizen initiative that reforms the government. We
conclude that they do.
C. The Original Public Meaning of Article I, Section 2 and the Initiative
Provision
¶101 “When we interpret constitutional language, we start
with the meaning of the text as understood when it was adopted.”
South Salt Lake City v. Maese, 2019 UT 58, ¶ 18, 450 P.3d 1092. “[O]ur
focus is on the objective original public meaning of the text, not the
intent of those who wrote it.” Id. ¶ 19 n.6. Although evidence of the
framers’ intent can help with this endeavor, when we use such
material—for example, transcripts from the constitutional
convention on a particular topic—we have clarified that this is
“only a means to this end, not an end in itself.” Id. So, we “interpret
the [c]onstitution according to how the words of the document
would have been understood by a competent and reasonable
speaker of the language at the time of the document’s enactment.”
Id. (cleaned up). And we have clarified that when we interpret
language from early statehood, we do so according to the “general
public understanding” at the time. Id. ¶ 21 n.7.
¶102 In this case, the parties do not argue about the original
public meaning of particular words in either of the provisions at
issue—at least, not in linguistic terms. Rather, their debate centers
on how Utahns would have understood the scope of the rights
enshrined in the Initiative Provision and the Alter or Reform
Clause, and specifically how those rights retained by the people
would interact with the powers they had assigned to the
Legislature.
¶103 Given the parties’ arguments here, we turn directly to the
historical record. See id. ¶ 23 (“Where doubt exists about the
constitution’s meaning, we can and should consider all relevant
materials.”); Am. Bush, 2006 UT 40, ¶ 10 (“[W]e recognize that
constitutional language is to be read not as barren words found in
a dictionary but as symbols of historic experience illumined by the
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presuppositions of those who employed them.” (cleaned up)). We
take the disputed constitutional provisions in turn, assess the
historical context in which they were ratified, and determine what
they would have meant to Utahns at the time.
¶104 We begin chronologically, with article I, section 2. We
conclude that the Alter or Reform Clause enshrined a fundamental
right of the people to alter or reform their government within the
bounds of the constitution as a whole. We then turn to the Initiative
Provision in article VI, subsections 1(1)(b) and (2), which was
added to the constitution through an amendment four years after
Utah’s founding. We conclude that the initiative power was
understood as an important means of directly enacting the people’s
will on specific issues, particularly when the people felt their
elected representatives were not doing what the people wanted
with respect to those issues. Analyzing the two rights together, we
conclude that the Initiative Provision provides the people with a
direct, legislative means of exercising their right to reform the
government, which they had retained in article I, section 2. When
these two constitutional provisions are exercised in this manner—
within the bounds of the constitution and the legislative power—
we conclude that they are constitutionally protected from
government infringement, including legislative action that impairs
the government reform contained in an initiative, and that they
therefore establish a legally cognizable claim for their violation.
1. In Article I, Section 2, Utahns Enshrined Their Sovereign
Authority and Retained for Themselves a Constitutionally
Protected Right to Alter or Reform Their Government
¶105 Article I, section 2 has been in our state constitution, in the
same form, since Utah became a state in 1896. That provision says:
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.
UTAH CONST. art. I, § 2.
¶106 Article I, section 2 is one sentence containing three
clauses. The first clause, “All political power is inherent in the
people,” enshrines the principle that the people hold the power of
the sovereign in a constitutional republic. Id. The second clause
states that “all free governments are founded on [the people’s]
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authority for their equal protection and benefit.” Id. This describes
the nature of “free governments,” which, as we discuss, stands in
contrast to monarchical, despotic, or tyrannical governments. The
third clause—the Alter or Reform Clause—provides that the people
“have the right to alter or reform their government as the public
welfare may require.” Id.
¶107 While the Alter or Reform Clause is at the heart of the
issue before us, we analyze the historical public understanding of
all three clauses of article I, section 2. The first two clauses provide
important context to the Alter or Reform Clause. They are the
foundation on which the Alter or Reform Clause is built. Without
the people’s inherent sovereign authority, they would not have had
the power to retain for themselves the right to reform their
government. For that reason, an understanding of the Alter or
Reform Clause would be incomplete without an appreciation of
article I, section 2 as a whole.
¶108 Our task is to uncover Utahns’ understanding, at the time
of our state’s founding, of the principles at play in article I,
section 2, including specifically the Alter or Reform Clause. In
conducting this analysis, we first track the development and
evolution of the concepts underlying article I, section 2 leading up
to that point. See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89,
¶¶ 96–98, 416 P.3d 663 (explaining that an original public meaning
analysis requires “deep immersion in the shared linguistic,
political, and legal presuppositions and understandings of the
ratification era”).
¶109 As we will discuss in more depth, by the time of Utah’s
founding, the principles embodied in article I, section 2 already had
a long history. So first, we briefly discuss the development of these
ideas during the Enlightenment period in Europe, before they
crossed the Atlantic and inspired our nation’s founders.
¶110 We then discuss the role these concepts played during the
American Revolution. Then we move on to the post-revolutionary
period in America, after Americans won their independence from
Britain and the new nation and the states within it adopted their
own constitutions.
¶111 We ultimately arrive at the time of Utah’s founding. By
that point, much of the language of article I, section 2 could be
found, in one form or another, in almost all the state constitutions
that preceded Utah’s. Thus, in drafting article I, section 2, the
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framers of our constitution were drawing upon familiar terms. And
when a body, such as the 1895 constitutional convention, uses
language from other sources, we at times assume “they intended to
not only adopt that language, but to import the ‘cluster of ideas’
that surrounds that language.” Maese, 2019 UT 58, ¶ 27 n.10
(cleaned up). As we will explain, by 1896, as the people of the
United States and the increasing number of states within it lived
under constitutions founded on the sovereign authority of the
people, article I, section 2, and specifically the Alter or Reform
Clause, became synonymous with the people’s right to reform their
government through constitutional means. This was the public
understanding of the right to alter or reform the government at the
time of Utah’s founding. And our analysis of the original public
meaning of the Alter or Reform Clause of article I, section 2
persuades us that it was understood to be a fundamental right,
enforceable against the government, when exercised by the people
within the bounds of the Utah Constitution.
The Meaning of Article I, Section 2 in Historical Context:
The Enlightenment
¶112 In various forms and to different degrees, the
philosophical underpinnings of article I, section 2 can be traced
back at least to Ancient Greece.20 These ideas were then refined in
the seventeenth and eighteenth centuries by political philosophers
such as John Locke and Jean-Jacques Rousseau,21 before being re-
invigorated and implemented by the founders of our nation.
¶113 The concept of governments being founded on the
inherent authority of the people grew out of what Enlightenment
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20 See, e.g., PLATO, Crito, in THE FOUR SOCRATIC DIALOGUES OF
PLATO 112 (Benjamin Jowett trans., Oxford Univ. Press 1903) (c. 360
B.C.E.); PLATO, THE REPUBLIC OF PLATO bk. II, at 66–67 (Alexander
Kerr trans., Charles H. Kerr & Co. 1918) (c. 375 B.C.E.); DIOGENES
LAERTIUS, Epicurus, in LIVES OF EMINENT PHILOSOPHERS 528, 675
(R.D. Hicks trans., G.P. Putnam’s Sons 1925) (principal doctrines
32–33); R.D. HICKS, STOIC AND EPICUREAN 177–78 (Charles Scribner’s
Sons 1910) (describing relevant aspects of Epicurean philosophy).
21 See generally JOHN LOCKE, Second Treatise, in TWO TREATISES
ON CIVIL GOVERNMENT 191–320 (George Routledge & Sons 1884)
(1689); JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 59–62
(Maurice Cranston trans., Penguin Books 1968) (1762).
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philosophers described as individuals’ transition from a “state of
nature”—a social fiction where individuals largely reside outside
any political order and are governed primarily by natural laws of
self-preservation—into a formal political society.22 To Locke, in a
state of nature, and in line with theories of natural law,23 people
were born with “perfect freedom and an uncontrolled enjoyment
of all the rights and privileges of the law of Nature,” including “a
power not only to preserve [their] property—that is, [their] life,
liberty, and estate . . . , but to judge of and punish the breaches of
that law in others.” JOHN LOCKE, Second Treatise, in TWO TREATISES
ON CIVIL GOVERNMENT 191, 234 § 87 (George Routledge & Sons
1884) (1689). While political philosophers had their own ideas
about what the state of nature entailed, they generally agreed on
the purpose behind a peoples’ shift toward collective society under
civil government—that the formation of a society and government
among a group of people was sought to provide greater protection
and justice for both the individual and the community as a whole,
as well as to facilitate an increasing interdependence among one
another, which an anarchical state of nature could less adequately
provide.24
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22 See ROUSSEAU, supra note 21, at 59 (“I assume that men reach
a point where the obstacles to their preservation in a state of nature
prove greater than the strength that each man has to preserve
himself in that state. Beyond this point, the primitive condition
cannot endure, for then the human race will perish if it does not
change its mode of existence.”).
23 See David C. Williams, The Constitutional Right to
“Conservative” Revolution, 32 HARV. C.R.-C.L. L. REV. 413, 419 (1997)
(“In contrast to constitutional rights, within the Enlightenment
tradition in general and social contract theory in particular, natural
rights are those rights that belong to all individuals at all times and
places by virtue of being human.”).
24 See ROUSSEAU, supra note 21, at 59–60, 62 (“[T]he only way in
which [people] can preserve themselves is by uniting their separate
powers in a combination strong enough to overcome any
resistance, uniting them so that their powers are directed by a
single motive and act in concert. . . . Those who are associated in [a
society] take collectively the name of a people, and call themselves
individually citizens, in so far as they share in the sovereign power,
(continued . . .)
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¶114 Locke stressed the need for voluntary consent from the
people in legitimizing any civil government under which they
might form a society, which would require greater cooperation and
obedience to the society’s laws. In his 1689 TWO TREATISES ON CIVIL
GOVERNMENT, Locke penned:
Men being . . . all free, equal, and independent, no
one can be put out of this estate and subjected to the
political power of another without his own consent,
which is done by agreeing with other men, to join and
unite into a community for their comfortable, safe,
and peaceable living, one amongst another, in a
secure enjoyment of their properties, and a greater
security against any that are not of it. . . . When any
number of men have so consented to make one
community or government, they are thereby
presently incorporated, and make one body politic,
wherein the majority have a right to act and conclude
the rest.
Id. at 240–41, § 95.
¶115 “Government in a Lockean society is the product of a
compact among people.” Donald L. Doernberg, “We the People”:
John Locke, Collective Constitutional Rights, and Standing to Challenge
Government Action, 73 CAL. L. REV. 52, 60 (1985). But while
“[g]overnment is [indeed] the creation of such a compact, . . . it is
not a party to the compact.” Id. at 60–61. Rather, while
“contractually related to each other, the people are not
contractually obliged to government, and governors benefit from
governing only as fellow members of the [body politic]. They are
merely deputies for the people, trustees who can be discarded if
they fail in their trust.” Peter Laslett, Introduction to JOHN LOCKE,
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and subjects, in so far as they put themselves under the laws of the
state.”); A. John Simmons, Locke’s State of Nature, 17 POL. THEORY
449, 458 (1989) (“[For Locke,] [w]here there is no common judge
with authority, men may be partial or vengeful in exercising their
natural executive rights, possibly leading to feuds, conflicts, and
war . . . . This kind of social problem plagues all forms of the state
of nature, and the insecurity it causes is the primary reason for
seeking the protection of a (properly limited) civil government
. . . .”).
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TWO TREATISES OF GOVERNMENT 113 (Cambridge Univ. Press 1963)
(1689).
¶116 Thus, for Enlightenment thinkers, the concept of popular
sovereignty was associated with the idea that through their
collective agreement, the people had the inherent authority to
establish a government, and consequently, to abolish it and
reinstitute an improved one if the government strayed beyond the
bounds set by the people.
The American Revolution
¶117 Almost a century later, these principles inspired the
American colonists’ revolution against British rule. Our nation’s
Declaration of Independence states:
Governments are instituted among Men, deriving
their just powers from the consent of the governed, —
That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People
to alter or to abolish it, and to institute new
Government, laying its foundation on such principles
and organizing its powers in such form, as to them
shall seem most likely to effect their Safety and
Happiness.
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
¶118 Prior to this, “[t]he traditional model of government that
Americans inherited . . . rested on a hypothetical bargain” where
“the people were protected by the monarch in exchange for the
people giving the king allegiance.” CHRISTIAN G. FRITZ, AMERICAN
SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL
TRADITION BEFORE THE CIVIL WAR 13 (2008). And in our founders’
view, King George III had “breach[ed] his implied duty of
protection under that contract, thereby releasing the people in the
colonies from their allegiance,” giving “rise to the subjects’ right of
revolution.” Id. Indeed, “[o]n the eve of the Revolution, Alexander
Hamilton justified American resistance as an expression of ‘the law
of nature’ redressing violations of ‘the first principles of civil
society’ and invasions of ‘the rights of a whole people.’” Id. The
Declaration of Independence “was the last-ditch effort of an
oppressed people” and “demonstrated that Americans were
justified in exercising the natural law right of revolution.” Id.
¶119 This “theory of popular sovereignty” later “established a
basic premise in American political life: that political legitimacy
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ultimately rested with the consent of the people.” Christian G. Fritz,
Popular Sovereignty, Vigilantism, and the Constitutional Right of
Revolution, 63 PAC. HIST. REV. 39, 44 (1993).
State Constitution-Making
¶120 These sentiments were front and center in the eighteenth
and nineteenth centuries, after Americans had won their
independence from England and the people in numerous states
went about forming their own governments by drafting and
ratifying state constitutions. State constitution writers of the time
“freely used Lockean rhetoric regarding nature, consent, and
limited government to explain their allegiance to popular
sovereignty.” Laura J. Scalia, The Many Faces of Locke in America’s
Early Nineteenth-Century Democratic Philosophy, 49 POL. RSCH. Q.
807, 809 (1996). Indeed, “all of the original constitutions [adopted
in the eighteenth century] declared that the people were sovereign
and the source of government power.” Jessica Bulman-Pozen &
Miriam Seifter, The Democracy Principle in State Constitutions, 119
MICH. L. REV. 859, 881 (2021).
¶121 As the years passed and more states joined the Union,
almost every state constitution included “an express commitment
to popular sovereignty,” often formulated by declaring “that ‘all
political power is inherent in the people,’” “or that government
‘originates with the people’ or derives its power ‘from the consent
of the governed.’” Id. at 869–70. And critically, the “idea of popular
sovereignty [was] linked not only to the people’s initial creation of
state constitutions but also to their ongoing right to change them:
most state constitutions expressly refer to the right of the people to
‘alter’ . . . the very constitutions and governments they create.” Id.
at 870.
¶122 This concept of the right of the people to “alter” their
government through constitutional mechanisms was a departure
from older ideas about the natural right to revolt against tyranny—
as the right to “alter or abolish” a despotic government had meant
to our nation’s founders. And this made sense, given that “[t]he
constitutional logic of recognizing the people, not a king, as the
sovereign implied the irrelevance of a right of revolution in
America.” FRITZ, supra ¶ 118, at 24. Instead, “[t]he alter or abolish
provisions of the first state constitutions reflected an American
understanding that the people in a republic, like a king in a
monarchy, exercised plenary authority as the sovereign.” Id. at 27.
In other words, state constitutional provisions establishing the
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people’s right to alter, abolish, or reform their government no
longer embodied the natural right of revolution against tyranny,
because the people had no need to revolt against themselves.
Rather, these provisions expressed the new reality in post-
revolutionary America that “as the collective sovereign, Americans
. . . possessed the inherent right to revise their constitutions.” Id.
at 28.
¶123 Consider how courts interpreted these provisions near
the time of Utah’s founding. In Wells v. Bain, the Supreme Court of
Pennsylvania interpreted “the second section of the declaration of
rights of the Constitution of Pennsylvania, which affirms that the
people ‘have at all times an inalienable and indefeasible right to
alter, reform or abolish their government in such manner as they
may think proper.’” 75 Pa. 39, 46 (1873). The court explained that
this provision enshrined the “axiom of the American people, that
all just government is founded in the consent of the people,” and
that “an existing lawful government of the people cannot be altered
or abolished unless by the consent of the same people.” Id. The alter
or reform language further encompassed the people’s right to alter
the government using “[t]he mode provided in the existing
constitution . . . or by passing a law to call a convention.” Id. at 47.
And these were the “only means through which an authorized
consent of the whole people, the entire state, [could] be lawfully
obtained in a state of peace.” Id.¶124 The Iowa Supreme Court reached similar conclusions. In
Koehler v. Hill, the court considered Iowa’s alter or reform
provision: “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 at all times to alter or reform the
same, whenever the public good may require.” 15 N.W. 609, 614–15
(Iowa 1883) (quoting IOWA CONST. art. I, § 2). As the court said,
These principles are older than constitutions and
older than governments. The people did not derive
the rights referred to from the constitution, and, in
their nature, they are such that the people cannot
surrender them. . . . But let us consider how these
rights are to be exercised in an organized
government. The people of this state have adopted a
constitution which specifically designates the modes
for its own amendment.
Id. at 615.
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¶125 The court then presented a useful hypothetical. “Suppose,
however, a part of the people conclude that the public good
requires an alteration or reformation in the government, and they
set about the adoption of a new constitution in a manner not
authorized in the old one.” Id. While the court acknowledged that
the new order would technically “alter or reform” the government
to the extent the changes were maintainable, it observed that the
effort would have been “exercised not under the constitution, but
in disregard and independently of it.” Id. And “[n]o heresy has ever
been taught in this country so fraught with evil as the doctrine that
the people have a constitutional right to disregard the
constitution.” Id. So, as the Iowa Supreme Court saw it, the alter or
reform provision found within the Iowa Constitution no longer
corresponded to a natural right of revolt. We could not agree more.
¶126 Thomas Cooley, “the preeminent authority of the late
nineteenth century on state constitutional matters,” Am. Bush,
2006 UT 40, ¶ 13, also viewed the people’s right to “alter,”
“reform,” or “abolish” their government as being bounded by the
constitutions ratified by the people themselves. He wrote in 1868,
[T]he power to amend or revise [state] constitutions
resides in the great body of the people as an
organized body politic, who, being vested with
ultimate sovereignty, and the source of all State
authority, have power to control and alter the law
which they have made at their will.
...
But the will of the people to this end can only be
expressed in the legitimate modes by which such a
body politic can act, and which must either be
prescribed by the constitution whose revision or
amendment is sought, or by an act of the legislative
department of the State, which alone would be
authorized to speak for the people upon this subject,
and to point out a mode for the expression of their
will in the absence of any provision for amendment
or revision contained in the constitution itself.
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE
STATES OF THE AMERICAN UNION 31 (Little, Brown, & Co. 1868).
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Utah’s Founding
¶127 So foundational and familiar were the concepts of
popular sovereignty, the necessity of the consent of the governed,
and the people’s right to reform their government, that each was
included in the first Constitution of the State of Deseret25 in 1849. It
read in relevant part:
All political power is inherent in the people, and all
free governments are founded in their authority, and
instituted for their benefit; therefore, they have an
inalienable and indefeasible right to institute
government, and to alter, reform, and totally change
the same when their safety, happiness, and the public
good shall require it.
CONST. OF THE STATE OF DESERET art. VIII, § 2 (1849).
¶128 During another attempt at statehood in 1887, the
president of that constitutional convention, John T. Caine, stated
the following:
Our authority to act in these most important matters
comes from the people. Under the institutions of this
republic, the people are the source of all political
power. This principle of popular sovereignty is
fundamental to the system of government under
which we live. It is the very essence of true
republicanism, the vital breath of pure democracy. In
the United States[,] the men who occupy the position
__________________________________________________________
25 When the first members of the Church of Jesus Christ of
Latter-day Saints settled in Utah in 1847, the land was part of
Mexican territory. JEAN BICKMORE WHITE, CHARTER FOR
STATEHOOD: THE STORY OF UTAH’S STATE CONSTITUTION 19 (1996).
This changed the next year when the Mexican-American War
ended and the area was ceded from Mexico to the United States
under the Treaty of Guadalupe Hidalgo. Id. In 1849, church leaders
sought statehood for the region. Id. at 20. They submitted the
Constitution of the State of Deseret to Congress, along with a
memorial requesting statehood. Id. Congress ultimately rejected
the request in 1850, instead granting territorial status to the “Utah
Territory.” Id. at 21. In the interim, the provisional State of Deseret
had functioned under the Constitution of the State of Deseret from
December 1849 until it was dissolved in March 1851. Id. at 19–22.
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of rulers are but the servants of the sovereign people.
They govern in that capacity and therefore the people
are really self-governed.
The Constitutional Convention: The Body Organizes and Begins Work,
DESERET NEWS, July 6, 1887, at 4.
¶129 And in Utah’s final, successful attempt at statehood in
1895,26 these same principles were enshrined in article I, section 2
of our constitution’s Declaration of Rights, providing that: “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.” UTAH CONST. art. I, § 2.
¶130 Placing this article in the Declaration of Rights was a
conscious choice. One delegate argued against its inclusion in the
Declaration of Rights because it was “simply affirming and
reaffirming a principle that there is no necessity of.” PROCEEDINGS
& DEBATES OF THE CONVENTION ASSEMBLED TO ADOPT A
CONSTITUTION FOR THE STATE OF UTAH, DAY 17, at 230,
https://le.utah.gov/documents/conconv/17.htm (statement of
Mr. Varian). But this view did not prevail. Heber Wells, the
Chairman of the Committee on the Preamble and Declaration of
Rights during the 1895 convention, presented this provision on the
convention floor and argued, “I think when it comes to a matter of
a declaration of rights, that it is very pertinent to provide that all
political power is inherent in the people.” Id. (statement of Mr.
Wells). Chairman Wells’s view won out.
The Public Meaning of Article I, Section 2 at the Time of Utah’s
Founding
¶131 With this historical context, we can draw the following
conclusions about the understanding of the principles enshrined in
article I, section 2 when it was placed in our state constitution. By
1895, when our constitution was ratified, it was widely understood
that “the people are the source of all political power,” and that the
__________________________________________________________
26 The constitutional convention that finally resulted in
statehood for Utah was held in 1895. See Maren Peterson, Utah’s
Road to Statehood: 125 Years, UTAH DIV. ARCHIVES & RECS. SERV.
(Jan. 4, 2021), https://archivesnews.utah.gov/2021/01/04/utahs-
road-to-statehood-125-years/. Utah was granted statehood in 1896.
Id.
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individuals “who occupy the position of rulers are but the servants
of the sovereign people.” The Constitutional Convention: The Body
Organizes and Begins Work, DESERET NEWS, July 6, 1887, at 4 (quoting
statement of John T. Caine, president of Utah’s 1887 constitutional
convention). This was viewed as “the very essence of true
republicanism.” Id. And the very legitimacy of a “free government”
rested upon the consent of the governed.
¶132 Our caselaw has emphasized these principles over the
years. Justice Larson recognized in 1937 that “the people
themselves are not creatures or creations of the Legislature. They
are the father of the Legislature, its creator, and in the act [of]
creating the Legislature the people provided that its voice should
never silence or control the voice of the people in whom is inherent
all political power.” Utah Power & Light Co. v. Provo City, 74
P.2d 1191, 1205 (Utah 1937) (Larson, J., concurring). He observed
further that “the Legislature, the child of the people, cannot limit or
control its parent, its creator, the source of all power.” Id.¶133 Justice Larson echoed these sentiments a year later in Utah
Power & Light Co. v. Ogden City, stating:
[The people] declared in no uncertain terms that “all
political power is inherent in the people,” that
“governments derive their powers from the consent
of the governed,” and that a frequent recurrence to
these fundamental principles is essential to the
perpetuity of free government. These declarations are
not mere metaphors, sounding brass and tinkling
cymbals pleasing to the ear, but a vital princip[le]
adhered to in the formation of the government of this
state. . . . The people set up the state as their agent or
servant through which they might for convenience
express their sovereign will. They created the state;
the state did not create the people. . . . The people are
sovereign; the state is merely their instrument
through which they exercise part of their sovereign
will. Confusion results if we fail to distinguish
between sovereignty itself and that force which
stands as the representative of the sovereign
power. . . . The right of self-government should be
carefully guarded and every infraction or evasion
thereof condemned.
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79 P.2d 61, 74 (Utah 1938) (Larson, J., concurring in part and
dissenting in part) (cleaned up) (quoting UTAH CONST. art. I, § 2).
See generally id. at 72–77. And while Justice Larson’s observations
appeared in separate opinions, we have cited them favorably over
the years in majority opinions. See, e.g., Carter, 2012 UT 2, ¶¶ 21 n.9,
22 n.10, 27; Gallivan, 2002 UT 89, ¶ 23.
¶134 It was also understood at the time of our state’s founding
that hand in hand with the people’s sovereign power came the
people’s right to alter or reform the government they had created.
This idea had a long history, beginning as the philosophical
underpinning of the right to revolt against tyrants and despots. See
supra ¶¶ 112–19. But after the American Revolution, as Americans
lived under national and state republican governments in which
the people, rather than a monarch, were sovereign, this right came
to mean that the people had the authority to reform or change their
governments at any time—whether preceded by tyranny and
oppression or not, within the bounds of their existing state
constitutions.
¶135 The drafters of the Utah Constitution made a conscious
choice to include these principles in the Declaration of Rights. Far
from “simply affirming and reaffirming a principle that there is no
necessity of,” PROCEEDINGS & DEBATES OF THE CONVENTION
ASSEMBLED TO ADOPT A CONSTITUTION FOR THE STATE OF UTAH,
DAY 17, supra ¶ 130, at 230, (statement of Mr. Varian), article I of
our constitution is “a declaration of those rights felt by the drafters
of the document to be of such importance that they be separately
described,” Sevier Power, 2008 UT 72, ¶ 5. But given that the people
themselves had framed and ratified the constitution, the right to
alter or reform the government enshrined within it was to be read
in harmony with the document as a whole.
¶136 Thus, the founding generation of Utahns would have
understood that the Alter or Reform Clause established a
constitutional right to reform their government, within
constitutional bounds. At the time of our state’s founding, this
meant that the people could either amend the constitution as
provided in article XXIII, section 1, or vote to call a constitutional
convention under article XXIII, section 2 to make more significant
revisions to the constitution (including adopting an entirely new
constitution). Notably, both provisions required that proposed
constitutional amendments or constitutional conventions originate
in the Legislature before being voted on by the people. See UTAH
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CONST. art. XXIII, § 1 (“Any amendment or amendments to this
Constitution may be proposed in either house of the Legislature,
and if two-thirds of all the members elected to each of the two
houses, shall vote in favor thereof . . . said amendment or
amendments shall be submitted to the electors of the state for their
approval or rejection . . . .); id. art. XXIII, § 2 (“Whenever two-thirds
of the members, elected to each branch of the Legislature, shall
deem it necessary to call a convention to revise or amend this
Constitution, they shall recommend to the electors to vote . . . for or
against a convention . . . .”).27
¶137 Soon thereafter, however, Utahns amended the
constitution to explicitly retain for themselves a direct means of
exercising their sovereign authority and their reform right through
legislation.
2. Article VI, Section 1 Provides Direct Legislative Power to the
People, Which They Intended to Be Meaningful and Effective
¶138 In 1900, four years after Utah obtained statehood, the
people of Utah ratified an amendment to article VI, section 1 of the
constitution. It reads, in relevant part,
(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).
And subsection 1(2), in turn, dictates how the people can exercise
their power to “initiate any desired legislation and cause it to be
submitted to the people for adoption upon a majority vote,” or to
__________________________________________________________
27 The people could also vindicate the principles of article I,
section 2 in court. See UTAH CONST. art. VIII, § 2 (“The court shall
not declare any law unconstitutional under this constitution or the
Constitution of the United States, except on the concurrence of a
majority of all justices of the Supreme Court.”); Richards v. Cox,
2019 UT 57, ¶ 40, 450 P.3d 1074 (“We do not abrogate our duty to
interpret and apply the mandates of the constitution.”).
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“require any law passed by the Legislature . . . to be submitted to
the voters” before it takes effect.28
¶139 As with the Alter or Reform Clause, Utahns’
understanding of the Initiative Provision is informed by the context
in which it was enacted. So we again study the historical record for
evidence of original public meaning. And we conclude that when
Utahns amended the constitution four years after statehood to add
the Initiative Provision, they understood that their direct legislative
power would be meaningful and effective, and that it would
provide the people with a check on the Legislature in times of
disagreement.
¶140 At the time of our nation’s founding, the proper role of
the people in governance was a subject of debate. The founders of
the United States held competing concerns. “Having fought a
revolution against monarchy, they were committed to the principle
that all legitimate power flows from the people . . . .” KENNETH P.
MILLER, DIRECT DEMOCRACY AND THE COURTS 19 (2009). But the
founders also “feared unchecked popular rule.” Id. at 20 (citing THE
FEDERALIST NO. 49 (Alexander Hamilton or James Madison)).
Alexander Hamilton described the conundrum as follows: “Give
all power to the many, and they will oppress the few,” but “[g]ive
all power to the few, and they will oppress the many.” Alexander
Hamilton, Speech in the Federal Convention (June 18, 1787), in
1 THE WORKS OF ALEXANDER HAMILTON 381, 389 (Henry Cabot
Lodge ed., G.P. Putnam’s Sons 1904). In structuring the federal
government, the founders gave greater weight to the protection of
the few from the many by settling on a “republican” form of
government, which, in some founders’ minds, meant the “total
exclusion of the people, in their collective capacity, from any share”
in governmental administration. THE FEDERALIST NO. 63 (James
Madison). In this representative form of government, the people
still exercised their inherent power, but only indirectly through
their representatives.
__________________________________________________________
28 Article VI, section 1 has changed very little since its
enactment in 1900. Besides non-substantive amendments, the
Initiative Provision was amended in 1998 to require a two-thirds
vote for initiatives regarding “the taking of wildlife or the season
for or method of taking wildlife.” UTAH CONST. art. VI, § 1(2)(a)(ii)
(1998).
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¶141 But a century later, during what was referred to as the
“Progressive Era,” which spanned roughly from the early 1890s
into the 1920s, many states saw the pendulum swing in the
direction of greater direct control for the people over their
government. It was a time when public distrust of elected
representatives ran high, and many believed that “unreformed
state legislatures and political parties were corrupt, beholden to
moneyed interests and trusts.” SHAUN BOWLER ET AL., CITIZENS AS
LEGISLATORS: DIRECT DEMOCRACY IN THE UNITED STATES 2 (1998)
(cleaned up). The Progressive movement was “based on the
premise that only free, unorganized individuals could be trusted
and that any intermediary body such as politicians, political parties
and legislative bodies were inherently corrupt and distorted the
public interest.” Carter, 2012 UT 2, ¶ 23 (cleaned up).
¶142 In response to these concerns, people in twenty-four
states adopted constitutional provisions allowing for citizen
initiatives and referenda. See id. Broadly speaking, initiatives allow
the people to enact legislation directly rather than through their
elected representatives. And a referendum gives the people power
to repeal a law passed by the Legislature.29 As we recounted in
Carter,
The thrust of the initiative movement was a
sentiment that the people should flex the muscles of
their organic governmental power and reserve for
themselves the legislative power that had previously
been vested solely in the state legislatures. Only by
wielding the legislative power could the people
__________________________________________________________
29 See UTAH CONST. art. VI, § 1(2)(a)(i) (providing that the
people may “initiate any desired legislation and cause it to be
submitted to the people for adoption upon a majority vote of those
voting on the legislation, as provided by statute,” and that the
people may “require any law passed by the Legislature, except
those laws passed by a two-thirds vote of the members . . . to be
submitted to the voters of the State, as provided by statute, before
the law may take effect”); see also Carter v. Lehi City, 2012 UT 2, ¶ 30,
269 P.3d 141 (“[A] referendum or initiative cannot be characterized
as a delegation of power. And in exercising the initiative [or
referendum] power, the people do not act under the authority of
the legislature.” (cleaned up)).
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govern themselves in a democracy unfettered by the
distortions of representative legislatures.
Id. (cleaned up).
¶143 In 1898, South Dakota was the first state in the Union to
adopt constitutional provisions providing its citizens with
initiative and referendum power. The relevant provision in South
Dakota’s constitution, which has remained unchanged since its
adoption, reads as follows:
[T]he people expressly reserve to themselves the right
to propose measures, which shall be submitted to a
vote of the electors of the state, and also the right to
require that any laws which the Legislature may have
enacted shall be submitted to a vote of the electors of
the state before going into effect . . . . This section
shall not be construed so as to deprive the Legislature
or any member thereof of the right to propose any
measure.
S.D. CONST. art. III, § 1.
¶144 Utah was next. See BOWLER ET AL., supra ¶ 141, at 29. In
1900, Utah voters ratified an amendment to the legislative article of
the Utah Constitution that extended legislative power to the people
of the state. The amended provision provided, “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).” UTAH CONST. art. VI, § 1(1). By dividing the
legislative power in this way, the people of Utah kept the
representative form of government advanced by Hamilton and
Madison but also retained for themselves a greater role in
governing than may have been envisioned by the more skeptical
Federalists.
¶145 Subsection (2) of this provision then described the
contours of the people’s legislative power, providing as follows:
The legal voters of the State of Utah, in the numbers,
under the conditions, in the manner, and within the
time provided by statute, may: (A) initiate any
desired legislation and cause it to be submitted to the
people for adoption upon a majority vote of those
voting on the legislation, as provided by statute; or
(B) require any law passed by the Legislature, except
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those laws passed by a two-thirds vote of the
members elected to each house of the Legislature, to
be submitted to the voters of the State, as provided by
statute, before the law may take effect.
Id. art. VI, § 1(2)(a)(i).
¶146 As the second state in the nation to adopt a constitutional
amendment providing for citizen initiatives and referenda, Utahns
had only the provision enacted by South Dakota as a domestic
example, which provided that “[t]his section shall not be construed
so as to deprive the Legislature or any member thereof of the right
to propose any measure.”30 S.D. CONST. art. III, § 1.
¶147 But Utahns did not include similar language in our
constitution. Compare UTAH CONST. art. VI, § 1, with S.D. CONST.
art. III, § 1. This is significant. If the people of Utah had wanted to
make explicit that the Legislature was free to override any citizen
initiative, they had a prime example of how to do so.
¶148 This choice reflects not only the principles underlying the
Progressive Era, but also the view of contemporary Utahns that the
initiative right was intended to give the people a check on the
Legislature. Beginning in 1895, people such as Theodore Brandley,
once the mayor of Richfield and a member of Sevier County’s
delegation to Utah’s 1895 constitutional convention,31 advocated
for the adoption of the initiative and referendum power into our
constitution, which was still in the drafting stage at the time.
Brandley stated that “[i]t is more apparent every day that a closer
union between the legislative bodies and the people whom they
represent should in some way be affected in order that the will of
the people may be more fully respected by those whom they have
chosen to serve them.” Theodore Brandley, Letter to the Editor, The
Referendum, DESERET WEEKLY, Mar. 23, 1895, at 28. On the initiative
right in particular, Brandley favorably quoted a historian who had
__________________________________________________________
30South Dakota’s provision has been interpreted by that state’s
supreme court to allow its legislature to amend or repeal legislation
enacted through citizen initiatives without limitation. See State v.
Whisman, 154 N.W. 707, 709–10 (S.D. 1915).
31 See Theodore Brandley, SALT LAKE HERALD REPUBLICAN,
Apr. 30, 1895, at 3; The Convention, DESERET WEEKLY, Feb. 2, 1895,
at 21.
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studied the Swiss system,32 stating that “[t]he right of the initiative,
it must be remembered, is not only the privilege of petition enjoyed
by the inhabitants of every state which makes any pretensions
whatever to political liberty. It is a constitutional demand, not an
irregular request.” Id.¶149 In the lead-up to the vote on the amendment to article VI,
section 1 in 1900, the prominent populist figure Henry W.
Lawrence wrote in a local publication that “[d]irect legislation . . .
enables the voters to deal with laws themselves, not merely with
law makers. It saves the legislator from making mistakes as to the
will of the people on any question.” Henry W. Lawrence, Direct
Legislation, SALT LAKE HERALD REPUBLICAN, July 1, 1900, at 12. So to
Lawrence, direct legislation would “kill the lobby in legislative and
city council halls, because there will be no money in making deals
when the people hold the final verdict in their own hands.” Id.(emphasis added). And those behind the Populist Party movement
in Utah had a similar view of direct legislation, stating that the
party advocated for “direct legislation—local and national—
through the initiative and referendum and imperative mandate,
that the will of the people may be supreme as to the laws that shall
govern them.” Pops Decided to Wait, SALT LAKE TRIB., Mar. 2, 1900,
at 5.
¶150 Such sentiments were also echoed by some members of
the Utah Federation of Women’s Clubs.33 At its annual conference,
__________________________________________________________
32 Brandley was quoting W.D. McCracken, who authored an
article titled “Swiss Solutions of American Problems.” The Swiss
model of the initiative and referendum powers was studied and
invoked often at the time Utahns were debating the initiative and
referendum provision in the Utah Constitution. See, e.g., Henry W.
Lawrence, Direct Legislation, SALT LAKE HERALD REPUBLICAN,
May 20, 1900, at 12; Henry W. Lawrence, Direct Legislation, SALT
LAKE HERALD REPUBLICAN, July 8, 1900, at 12.
33 Women’s clubs were the result of an “American women’s
social movement founded in the mid-19th century to provide
women an independent avenue for education and active
community service.” Club Movement, ENCYCLOPEDIA BRITANNICA,
https://www.britannica.com/event/club-movement (last visited
June 22, 2024). According to “[h]istorians, sociologists, and political
scientists[,] . . . women’s associations were remarkable sources of
(continued . . .)
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Kate S. Hilliard presented a paper on the initiative and referendum
power. During her presentation, Hilliard noted that, in her view,
the adoption of the initiative and referendum power “was the most
important subject before the people of Utah today, because it meant
that by its adoption the people of the State would be rulers of the
State, which they were not now.” Afternoon Session, SALT LAKE TRIB.,
Oct. 28, 1900, at 11. She continued, arguing that “direct legislation
would remove temptation from office-holders by placing the
power in the hands of the people; that if it were adopted, the people
would be the masters of the City Council and office-holders[,]
instead of the reverse, as is at present true.” Id.¶151 Even publications opposing the 1900 amendment
understood the adoption of direct legislation to be of consequence
to the legislative power. In explaining the amendment, the Deseret
Evening News noted that while “[t]he legislative branch of our
system of government is entrusted with the lawmaking power,” the
initiative and referendum amendment would “take away the vital
part of that power, and thus cause a great departure from our
legislative system.” To the Voters of Utah, DESERET EVENING NEWS,
Nov. 3, 1900, at 4.
¶152 Some common themes run through these sources. First,
around the time the Initiative Provision was added to the Utah
Constitution, the public understood that the initiative and
referendum powers would provide the people with a check on the
Legislature when the people and the Legislature were not in accord
on a particular issue. If their elected representatives did not enact a
law that a sufficient number of people wanted, the people could do
it themselves through an initiative. If the Legislature passed a law
that enough people did not like, the people could undo it through
a referendum. Support for the amendment was the product of a
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popular power and public leverage in American democracy.”
Christine Woyshner, Teaching the Women’s Club Movement in United
States History, 93 SOC. STUD. 11, 17 (2002) (cleaned up). The Utah
Federation of Women’s Clubs was founded in 1893, and speakers
at their “annual conventions encouraged . . . women in their
intellectual endeavors” and “debated questions of women’s status
and rights,” among other things. Suzanne M. Stauffer, A Good Social
Work: Women’s Clubs, Libraries, and the Construction of a Secular
Society in Utah, 1890–1920, 46 LIBRS. & CULTURAL REC. 135, 142
(2011).
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contemporary wave of distrust of elected representatives. And
fundamentally, the initiative and referendum were tools that the
people could use directly, especially when they were at odds in
some respect with their elected representatives.
¶153 Second, at that time, people took as a given 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, as enshrined in article I, section 2. Such sentiment is
demonstrated in statements that direct legislation would empower
the people to “hold the final verdict in their own hands,” Lawrence,
supra ¶ 149, at 12 (emphasis added), and that “by its adoption the
people of the State would be rulers of the State, which they were
not now,” Afternoon Session, supra ¶ 150, at 11.
¶154 This historical analysis comports with how we have
discussed the initiative right in our caselaw. In Gallivan, although
we noted that “[t]he power of the legislature and the power of the
people to legislate through initiative and referenda are coequal,
coextensive, and concurrent and share equal dignity,” we
nonetheless concluded that “[t]he reserved right and power of
initiative is a fundamental right.” 2002 UT 89, ¶¶ 23–24 (cleaned
up). And “[b]ecause the people’s right to directly legislate through
initiative and referenda is sacrosanct and a fundamental right, Utah
courts must defend it against encroachment and maintain it
inviolate.” Id. ¶ 27. In all, we concluded that “[b]ecause of the
fundamental nature of the right of initiative and its significance to
the political power of registered voters of the state, the vitality of
ensuring that the right is not effectively abrogated, severely
limited, or unduly burdened by the procedures enacted to enable
the right and to place initiatives on the ballot is of paramount
importance.” Id.
¶155 And in Sevier Power, we held that the Legislature could
not restrict the scope of the initiative power by statute. 2008 UT 72.
In concluding that the Legislature was prohibited from restricting
the topics a citizen initiative could address, we explained that
“[w]ere we to accept the position . . . that . . . article VI, section 1
embraces the power [of the Legislature] to foreclose any subject
from initiative action, we would be forced to conclude that the
[L]egislature could foreclose all subjects just as easily from initiative
action.” Id. ¶ 10. We rejected such a notion, stating that “[t]o do so
would require us to conclude that the constitutional reservation of
the initiative power by the people was intended to be, and in fact
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is, illusory.” Id. “To the contrary,” we determined that “we are
obligated to conclude the opposite: that the reservation of the right
to initiate legislation directly was intended to be effective.” Id.
(emphasis added).
¶156 Defendants offer no contrary historical evidence
suggesting that ratification-era Utahns understood the Initiative
Provision to be subject to unfettered legislative veto. At most, they
point to constitutional provisions from other states that expressly
limit their legislatures’ ability to subsequently amend or repeal a
citizen initiative, and they observe that our Initiative Provision
does not include such express limitations.34 Each of these other
states’ provisions, however, came after ours. See BOWLER ET AL.,
supra ¶ 141, at 29. So we cannot simply conclude what Defendants
ask us to—that had the people of Utah intended to prevent the
Legislature from changing a citizen initiative after voter approval,
they would have followed the example of these other states. When
Utahns added the Initiative Provision to our constitution, these
examples did not exist. Further, “it will almost always be true” in
questions of interpretation that the drafter “could have more
clearly repudiated one party’s preferred construction.” In re Estate
of Hannifin, 2013 UT 46, ¶ 25, 311 P.3d 1016. And here, just as the
people of Utah could have more explicitly prevented the
Legislature from amending or repealing a citizen initiative, “the
converse is [also] true,”—they could have expressly endorsed the
Legislature’s authority to do so, like other states have done.35 See id.We are left then with what the historical record tells us about the
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34 See, e.g., ALASKA CONST. art. XI, § 6 (“An initiated law . . .
may not be repealed by the Legislature within two years of its
effective date. It may be amended at any time.”); NEV. CONST.
art. XIX, § 2(3) (“An initiative measure so approved by the voters
shall not be amended, annulled, repealed, set aside or suspended
by the Legislature within 3 years from the date it takes effect.”);
NEB. CONST. art. III, § 2 (“The Legislature shall not amend, repeal,
modify, or impair a law enacted by the people by initiative . . .
except upon a vote of at least two-thirds of all the members of the
Legislature.”).
35 See S.D. CONST. art. III, § 1 (“This section shall not be
construed so as to deprive the Legislature or any member thereof
of the right to propose any measure.”); see also MO. CONST. art. III,
§ 52(b); OR. CONST. art. IV, § 1 (1902).
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“general public understanding” at the time the Initiative Provision
was ratified. Maese, 2019 UT 58, ¶ 21 n.7. And as explained, that
evidence cuts against Defendants’ preferred interpretation.
3. The Alter or Reform Clause and the Initiative Provision
Protect the People’s Right to Reform Their Government
Through a Citizen Initiative
¶157 We now draw some conclusions about the original public
understanding of the scope of the two rights operating together,
with the initiative power providing a means for the people to
directly exercise their right to alter or reform their government. At
the time of our state’s founding, the people of Utah understood that
they had a constitutional right to alter or reform their government
within the bounds of the constitution. It was well understood that
this right stemmed from the people’s sovereign authority, or
inherent political power, and the fact that the people founded the
government “pursuant to the people’s organic authority to govern
themselves.” Carter, 2012 UT 2, ¶ 21 (cleaned up). This
constitutional right, however, was not the same as the natural right
“to alter or to abolish” a tyrannical government that had animated
the Declaration of Independence and inspired the American
Revolution. Rather, this constitutional right was to be exercised in
harmony with the rest of the constitution. That meant the people
could exercise this right only within the bounds of the constitution
itself.
¶158 Four years after statehood, the people amended the
constitution to retain for themselves the power of direct legislation.
The original public understanding of the right was that it would be
meaningful and effective and would provide the people with their
own legislative power, which was especially important in times of
disagreement with the Legislature on particular issues.
¶159 In connection with article I, section 2, the Initiative
Provision provided the people with a constitutional mechanism
through which they could directly exercise their right to reform
their government through legislation. And the historical record
convinces us that the public at the time would have rejected the
notion that the Legislature could effectively veto government
reforms enacted through an initiative by repealing or amending
them without limit.
¶160 Accordingly, we conclude that the Alter or Reform Clause
and the Initiative Provision place limits on the legislative power to
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amend or repeal initiatives that contain government reforms. The
Alter or Reform Clause establishes a constitutional right,
enumerated in the Declaration of Rights, of the people to alter or
reform their government within the bounds of the constitution.
And when the people alter or reform their government by passing
an initiative, the exercise of these constitutional rights is protected
from government infringement.
¶161 It is important to be clear about the scope of the
constitutional protection afforded by these rights, and what our
holding does not mean. As we have explained, these rights must be
exercised in harmony with the rest of the constitution. Accordingly,
the people cannot use an initiative to amend the Utah Constitution.
See UTAH CONST. art. XXIII (establishing the procedures by which
the Utah Constitution can be revised). Initiatives, including those
that reform the government, are limited to enacting “legislation.”
Id. art. VI, § 1(2)(a)(i)(A); see also Carter, 2012 UT 2, ¶¶ 20–53; Sevier
Power, 2008 UT 72, ¶ 10 (“[T]he people have reserved the right to
initiate ‘any desired legislation’ and submit it to the voters for
approval or rejection. This reservation must be read to mean . . . any
legislative act, unless otherwise forbidden by the constitution.”
(cleaned up)). And an initiative cannot violate any other provision
of the constitution. Sevier Power, 2008 UT 72, ¶ 10.
¶162 Our holding also does not give initiatives special status,
as Defendants argue. The legislative power to amend or repeal
government-reform initiatives is limited not because such
initiatives are accorded a higher status than other statutes, but
because they embody the people’s exercise of constitutional rights.
And because we must not render constitutional rights “illusory,”
id., we must afford the exercise of these rights constitutional
protection. We clarify, however, that this constitutional protection
does not prevent the Legislature from amending a government-
reform initiative. As explained above, the Legislature could amend
a government-reform initiative in a way that does not infringe the
people’s reform right—for example, if the amendment furthered or
facilitated the reform, or at least did not impair it. Further, as we
will explain below, see infra Subsection II.A, even if the Legislature
were to amend an initiative in a way that impaired the government
reform, those changes would not be unconstitutional if the
Legislature showed they were “narrowly tailored to protect a
compelling governmental interest,” In re K.T.B., 2020 UT 51, ¶ 40
(cleaned up).
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D. Reinstatement of Count V
¶163 With the original public meaning of these provisions in
mind, we return to the question at hand: whether the district court
correctly dismissed Count V. The district court concluded that
Count V did not state a violation of the constitutional rights in
question because the Utah Constitution does not expressly restrict
the Legislature’s power to amend or repeal citizen initiatives.
Having determined that there was no constitutional impediment to
repealing Proposition 4, the court concluded that Plaintiffs failed to
state a claim upon which relief could be granted, and it dismissed
Count V.
¶164 In support of the district court’s ruling, Defendants point
out that the Legislature has authority to amend or repeal any
statute, and a successful initiative becomes a statute. The
Defendants argue that because the Initiative Provision does not
explicitly say otherwise, it follows that the Legislature can amend
or repeal citizen initiatives—even those that reform the
government—without limitation. At oral argument, Defendants
described the people’s initiative and referendum power as
allowing for a “ping ponging” back and forth between the people
and the Legislature. See, e.g., Oral Argument at 00:30:18–34, League
of Women Voters v. Utah State Legislature, No. 20220991 (July 11,
2023), https://www.youtube.com/watch?v=NKjXEu4t38s
(“Within constitutional parameters, I think it’s just a function of our
messy democracy . . . that the people and the Legislature might go
back and forth and that they are a check on one another.”); id. at
00:31:34–43 (articulating the “ping ponging” as follows: “So there’s
an initiative, there’s an amendment, there’s a referendum, there’s a
legislative enactment, there’s an initiative.”).
¶165 But in light of the requirements that initiative proponents
must meet before an initiative is placed on the ballot, this would
not be a very competitive ping-pong match. Before citizens can
serve the ball and pass a government-reform initiative in the first
instance, they must comply with the requirements of getting an
initiative on the ballot—by obtaining “legal signatures equal to 8%
of the number of active voters in the state on January 1 immediately
following the last regular general election” and, “from at least 26
Utah State Senate districts, legal signatures equal to 8% of the
number of active voters in that district on January 1 immediately
following the last regular general election,” UTAH CODE § 20A-7-
201(2)(a)—and then win a majority of the popular vote in the next
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election. Under Defendants’ theory, the Legislature could then
return the ball by repealing the government reform the next time it
was in session. If the people wanted to hit the ball back by
reenacting the reform, they would need to repeat the process of
gathering signatures, qualifying the initiative for the ballot, and
winning the vote again during the next election. But there would
be no reason the second initiative would not suffer the same fate as
the first one. Under Defendants’ theory, the Legislature could
simply repeal it again and again. And this would render illusory
the right to reform the government through an initiative.
¶166 That is not to say that the people of Utah could not have
constitutionalized the system Defendants describe. There is just no
evidence that they did. We must interpret article I, section 2 and the
Initiative Provision in accord with the original public
understanding of those provisions. And the view that the
legislative power provides the Legislature with an unlimited veto
of government-reform initiatives is in stark contrast to the original
public understanding of the right to reform the government and
the initiative right. To adopt this view would require us to conclude
that these constitutional reservations of power by the people
“w[ere] intended to be, and in fact [are], illusory. To the contrary,
we are obligated to conclude the opposite: that the reservation of
[these rights] was intended to be effective.” Sevier Power,
2008 UT 72, ¶ 10.
¶167 As to the Initiative Provision, we see nothing in the
historical record before us that supports Defendants’ interpretation
that the provision was intended to create a potentially never-
ending dialogue between the people and the Legislature. As
described at length above, supra Subsection I.C.2, our review of the
historical material convinces us that the Initiative Provision was
ratified to give the people the power to legislate for themselves,
especially when they were at odds with the Legislature on a
particular issue.
¶168 And as to the Alter or Reform Clause, the historical record
also does not support the contention that the people’s proper
exercise of their right to reform the government they created enjoys
no constitutional protection from override by that very
government.
¶169 We recognize that in analyzing Count V, the district court
relied, in part, on Carter v. Lehi City, 2012 UT 2. In that case, we were
asked to decide whether two initiatives were legislative or
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administrative in nature, as “[a]n initiative is appropriate if it is
legislative, but ultra vires if it is administrative.” Id. ¶¶ 16–17
(cleaned up). We explained that “the question courts should ask in
evaluating the propriety of a proposed initiative is whether the
initiative would be a proper exercise of legislative power if enacted
by the state legislature.” Id. ¶ 20. And we explained that the
“initiative power of the people is . . . parallel and coextensive with
the power of the legislature.” Id. ¶ 22. In making this point, we
quoted a statement by the Oregon Supreme Court that laws
enacted by initiative “may be amended or repealed by the
Legislature at will.” Id. ¶ 27 (quoting Kadderly v. City of Portland, 74
P. 710, 720 (Or. 1903)). We understand why the district court relied
on what we quoted in Carter, particularly given the lack of our own
caselaw on this point. The district court was presented with a
constitutional question of first impression on which there was no
direct Utah precedent.
¶170 But our quotation of the Oregon Supreme Court in Carter
was dicta. As explained, the issue in Carter was whether the subject
matter of two initiatives was legislative in nature. The question of
whether the Legislature could repeal a citizen initiative was not
before us. Accordingly, our quotation of the Oregon Supreme
Court on that point was not necessary to our holding in that case,
and we repudiate it. See State v. Hummel, 2017 UT 19, ¶ 38, 393
P.3d 314 (distinguishing between holdings and dicta for purposes
of stare decisis). Further, our explanation that the “initiative power
of the people is . . . parallel and coextensive with the power of the
legislature,” Carter, 2012 UT 2, ¶ 22, must be viewed in the context
of the issue before us in that case. In analyzing the appropriate
subject matter of an initiative, it is correct that if an “initiative
would be a proper exercise of legislative power if enacted by the
state legislature,” then it is also a proper exercise of legislative
power by the people. Id. ¶ 20. But that does not answer the question
before us here.
¶171 Having now been squarely presented with the issue of the
Legislature’s authority to amend or repeal a citizen initiative, we
cannot conclude that the Legislature has unlimited authority to
amend or repeal citizen initiatives that alter or reform the
government. Such a conclusion would contravene the original
public understanding of these important rights. Accordingly, this
does not provide a basis to dismiss Count V as a matter of law.
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¶172 We now address three additional grounds for affirmance
advanced by Defendants. They argue, for various reasons, that
article I, section 2 does not establish a constitutional right that is
protected from government infringement and enforceable in court.
We explain why we disagree with each ground in turn.
E. Defendants’ Alternative Grounds for Affirmance
¶173 Defendants have advanced several alternative grounds to
affirm, which focus on the justiciability of a claim arising under
article I, section 2. “[I]t is well established that an appellate court
may affirm the judgment appealed from if it is sustainable on any
legal ground or theory apparent on the record, even if it differs
from that stated by the trial court.” Am. W. Bank Members, L.C. v.
State, 2014 UT 49, ¶ 7, 342 P.3d 224 (cleaned up).
¶174 Defendants first argue that article I, section 2 does not
provide a basis for a judicially enforceable claim at all, because this
provision is not self-executing. They then argue that Plaintiffs’
claims under the Initiative Provision and Alter or Reform Clause
are not justiciable. And finally, Defendants posit that when the
Legislature enacted S.B. 200, it was essentially the people exercising
their right to alter or reform their government through their
representatives. Consequently, they assert that the Legislature was
acting in accord with, rather than violating, article I, section 2 when
it repealed Proposition 4. We conclude that none of these
arguments provide an alternative ground to dismiss Count V as a
matter of law.
1. Defendants’ Argument that Article I, Section 2 Is Not Self-
Executing Does Not Provide an Alternative Ground for
Affirmance
¶175 Defendants argue that “Plaintiffs’ reliance on Article I,
[section] 2 is misplaced” because it is not self-executing and is
therefore unenforceable. We disagree.
¶176 We have explained that a constitutional provision is not
self-executing where it “furnishes no rule for its own enforcement,
or where it expressly or impliedly requires legislative action to give
effect to the purposes contemplated.” Mercur Gold Mining & Milling
Co. v. Spry, 52 P. 382, 384 (Utah 1898) (cleaned up). On the other
hand, a constitutional provision is self-executing if the right it sets
out is both “judicially definable and enforceable absent enabling
legislation.” See Spackman ex rel. Spackman v. Bd. of Educ.,
2000 UT 87, ¶ 16, 16 P.3d 533. And like other questions of
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constitutional interpretation, we judge this based “in large part” on
the original public meaning of the provision at issue. See
Zimmerman v. Univ. of Utah, 2018 UT 1, ¶ 18, 417 P.3d 78.
¶177 Defendants contend that article I, section 2 is not self-
executing because it (1) “states a high-level premise of the
government” that is too general for courts to apply, and (2) “does
not provide the means of its own enforcement.” We address these
arguments in turn. But as an initial matter, we note that
Defendants’ arguments seem to focus on the first two clauses of
article I, section 2, and they frame the issue as whether article I,
section 2 is self-executing, taken as a whole.
¶178 However, the constitutional violation Plaintiffs allege in
Count V is specific to the Alter or Reform Clause (along with the
Initiative Provision). Certainly, the first two clauses of article I,
section 2 are relevant to the analysis of Plaintiffs’ claim. Plaintiffs
mention the first two clauses in their analysis, for example, when
they observe that “Prop 4’s proponents explicitly invoked the
people’s rights to secure their popular sovereignty and to reform
their government when they presented the initiative to the voters.”
And we have explained that the first two clauses bear upon the
meaning of the Alter or Reform Clause. See supra ¶¶ 105–07. But
although these clauses may be relevant here, we do not understand
Count V to assert that S.B. 200 violated the people’s inherent
political power, or the mandate that “all free governments are
founded on [the people’s] authority.” Nor do Plaintiffs seek a
remedy under either of these clauses. Accordingly, we confine our
analysis to the question of whether the Alter or Reform Clause is
self-executing. See, e.g., Tesla Motors UT, Inc. v. Utah Tax Comm’n,
2017 UT 18, ¶¶ 51–54, 398 P.3d 55 (assessing only whether the Free
Market Clause of article XII, section 20 is self-executing);
Zimmerman, 2018 UT 1, ¶ 17 (framing the issue as whether the Free
Speech Clause in article I, section 15 is self-executing, without
respect to other parts of section 15 regarding free press and criminal
libel).
¶179 And while the other clauses of article I, section 2 certainly
inform the original public meaning of the Alter or Reform Clause,
when it comes to the self-execution doctrine, we think the Alter or
Reform Clause speaks for itself. Put another way, to the extent the
Alter or Reform Clause sets out a clearly defined rule, we decline
to ignore that mandate, regardless of whether the first two clauses
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do or do not. (And needless to say, we express no opinion as to
whether the first two clauses are self-executing.)
¶180 With that clarification, we conclude that Defendants’ first
argument is a non-starter. They argue that article I, section 2—
again, taken as a whole—simply “restates the ‘basic premise[] upon
which all our government is built’” and that “[s]uch a general
statement of principle is not sufficient to be self-executing.”
(Quoting Carter, 2012 UT 2, ¶ 21.) But the question here is whether
the Alter or Reform Clause “furnishes [a] rule for its own
enforcement.” Mercur Gold, 52 P. at 384 (cleaned up). And
Defendants do not engage with the text of the Alter or Reform
Clause to explain how it is “stated at so high a level of generality or
aspiration” that it lacks a justiciable standard. Tesla Motors,
2017 UT 18, ¶ 52.
¶181 Looking at it for ourselves, we conclude that the Alter or
Reform Clause is not so general or aspirational to be unenforceable.
While we have not identified how much “generality” is too much,
our cases provide a good measuring stick. We held in Tesla Motors,
for instance, that the Free Market Clause is “too vague . . . to sustain
a justiciable constitutional standard” because it merely states that
our “state government is in favor of a ‘free market’”—and not much
else. Id. ¶¶ 53–54; see UTAH CONST. art. XII, § 20 (“It is the policy of
the state of Utah that a free market system shall govern trade and
commerce in this state to promote the dispersion of economic and
political power and the general welfare of all the people.”). But we
have also held that several other constitutional provisions do
articulate a sufficiently definable rule, including ones with difficult
to pin down phrases like “due process,”36 “cruel and unusual
punishments,”37 and “unreasonable searches and seizures.”38
These phrases are certainly “general” in the sense that entire
textbooks could be dedicated to explaining them. And yet we have
never shied away from interpreting them. So when deciding
whether a constitutional provision articulates a judicially definable
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36 Spackman ex rel. Spackman v. Bd. of Educ., 2000 UT 87,
¶¶ 10–13, 16 P.3d 533.
37 Bott v. DeLand, 922 P.2d 732, 737–38 (Utah 1996), abrogated on
other grounds by Spackman, 2000 UT 87, ¶ 20 n.5.
38 Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶¶ 63–64, 250
P.3d 465.
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rule, the question simply cannot be whether the rule is difficult to
apply or whether we might wish for a clearer one. We look instead
for whether the provision sets out a rule at all; if it does, we do our
best to apply it.
¶182 The Alter or Reform Clause states a judicially definable
rule. It provides that the people “have the right to alter or reform
their government as the public welfare may require.” UTAH CONST.
art. I, § 2. Unlike the Free Market Clause in Tesla Motors, the Alter
or Reform Clause does more than simply articulate a policy or
aspiration. Rather, like many other constitutional provisions, it
plainly identifies a right—one that we presume, and know from
historical context, see supra ¶¶ 120–36, that ratification-era Utahns
understood they had reserved for themselves as they allocated
power to their representatives in the government they had formed.
And although the text does not explicitly detail what it means to
“alter or reform [the] government,” courts are well-equipped to
determine the original public meaning of these terms and how the
principles they embody apply to a given set of facts today.
Accordingly, the Alter or Reform Clause is not too general to be
judicially enforced.
¶183 Defendants next argue that article I, section 2 is not self-
executing because it “does not supply the means of its own
enforcement.” This argument suggests that this provision “requires
legislative action to give effect to the purposes contemplated.”
Mercur Gold, 52 P. at 384 (cleaned up). Again, Defendants’ analysis
does not address the Alter or Reform Clause specifically.
¶184 Sometimes a constitutional provision is not self-executing
because it expressly leaves it to the Legislature to implement the
means of enforcing it. For instance, we have held that article XVI,
section 7 of our constitution “is not self-executing” because it
“states that ‘the Legislature . . . shall provide for the enforcement of
the provisions of this article.’” Harvey v. Ute Indian Tribe of Uintah &
Ouray Rsrv., 2017 UT 75, ¶ 77, 416 P.3d 401 (cleaned up) (quoting
UTAH CONST. art. XVI, § 7). And we have also stated that a
constitutional provision is not self-executing if it “impliedly
requires legislative action,” even if the text does not expressly call
for it. Mercur Gold, 52 P. at 384 (cleaned up) (analyzing article XIII,
section 4 of the Utah Constitution, regarding the taxation of the
proceeds of mines and mining claims). This undoubtedly “turns . . .
on an originalist inquiry” and whether we can say that Utahns at
the time of ratification would have understood that the provision
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“requir[ed] a legislative act to put it into effect.” Zimmerman,
2018 UT 1, ¶ 18 (cleaned up).
¶185 We note that the Alter or Reform Clause appears in our
constitution’s Declaration of Rights—where we find “those rights
felt by the drafters of the document to be of such importance that
they be separately described.” Sevier Power, 2008 UT 72, ¶ 5. As
Justice Stewart explained, this is especially so because, at the time
of enactment, “none of the specific provisions in the federal Bill of
Rights [were] deemed binding on the states.” State v. Anderson, 910
P.2d 1229, 1240 (Utah 1996) (Stewart, J., concurring). Utahns
therefore “viewed their own state constitutional provisions as the
sole source of constitutional protection” against the state
government, and they “necessarily intended that this Court should
be . . . the ultimate and final arbiter of the meaning of the provisions
in the Utah Declaration of Rights.” Id.¶186 So as a general matter, we are loath to say that a provision
in our Declaration of Rights, which functions as a set of restraints
on government action, depends on the government to be
enforceable, unless explicitly indicated.39 As we stated in Berry,
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39 We are unaware of any case where we have held that a
provision in our Declaration of Rights is not self-executing for lack
of enabling legislation. In Spackman, we said in a footnote that we
had previously concluded that article I, section 17 was not self-
executing. See 2000 UT 87, ¶ 9 n.3. But we cited Anderson v. Cook,
130 P.2d 278 (Utah 1942) (per curiam), for that proposition, and it
is unclear whether Anderson said this. Anderson involved a statute
that segregated primary votes a candidate received from their own
party from any write-in votes the candidate happened to receive in
other parties’ primaries. See id. at 285. We rejected a candidate’s
argument that the statute violated article I, section 17: “All elections
shall be free, and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suffrage.” Id.
(quoting UTAH CONST. art. I, § 17). Along the way, we stated that
article I, section 17 was not “self-executing” in the sense that the
Legislature was free “to provide by law for the conduct of elections,
and the means of voting, and the methods of selecting nominees.”
Id. And because the statute was part of that “machinery,” we
concluded that it did not violate article I, section 17. Id. Although
we used the term “self-executing,” it appears we meant only that
(continued . . .)
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with respect to the Open Courts Clause, “The very assertion that
section 11 is only a ‘philosophical statement’ is necessarily
inconsistent with the premise of a written constitution which was
intended to be, and is, a statement of positive law that limits the
powers of government.” 717 P.2d at 676. Focusing on article I,
section 26, we explained that this provision “rivets” all “rights in
the Declaration of Rights[] into the fundamental law of the State
and makes them enforceable in a court of law.” Id.
¶187 We need not decide whether the Alter or Reform Clause
is a rare exception to this general rule, however, because the
Initiative Provision clearly provides the people with a direct
method of exercising their right to reform the government. And
that is what Plaintiffs allege happened in this case. Accordingly, we
reject the argument that the Alter or Reform Clause is ineffective
without further action by the Legislature.
¶188 In sum, Defendants’ contention that article I, section 2 is
not self-executing does not provide an alternative basis to affirm
the dismissal of Count V.
2. The Constitutional Claim Alleged Here Is Justiciable
¶189 Defendants next argue that claims under article I,
section 2 are not justiciable. They posit that the United States
Supreme Court “has long held that cases involving competing
claims of legitimate governmental acts are non-justiciable.” On this
basis, Defendants argue that courts “lack[] judicial tools to assess
whether an act of the legislature (like S.B. 200) or an initiative (like
Proposition 4) reflects the true will of the people.” But a review of
the authority cited dispels the breadth of this proposition.
Defendants cite Luther v. Borden, 48 U.S. (7 How.) 1, 12 L. Ed. 581(1849), and Pacific States Telephone & Telegraph Co. v. Oregon,
223 U.S. 118 (1912). Both cases involved the following provision of
__________________________________________________________
article I, section 17 did not answer every question of elections law.
That is different from what the self-execution doctrine asks; we did
not conclude in Anderson that article I, section 17 set out a
nonjusticiable standard or that it required implementing legislation
to have any legal effect. To the contrary, we explained that it
“guarantees the qualified elector the free exercise of his right of
suffrage”—which we probably would not have said if, in the same
breath, we had concluded article I, section 17 was not self-
executing. Id.69
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the U.S. Constitution: “The United States shall guarantee to every
State in this Union a Republican Form of Government.” U.S. CONST.
art. IV, § 4. And both cases dealt with determining which
government or form of government in a state was legitimate. The
Court determined in both cases that such an issue was not
justiciable, as it would require the judiciary to pick and choose
between competing governments or create one government after
undoing another. See Luther, 48 U.S. (7 How.) at 42; Pac. States Tel.
& Tel. Co., 223 U.S. at 149–51. So rather than dealing with competing
“legitimate governmental acts,” these cases only addressed who
should decide, under the United States Constitution, which
government or form of government is legitimate. This is a
fundamentally different question than the one we face here.
¶190 Further, the question before us is not whether
Proposition 4 or S.B. 200 “reflects the true will of the people.” All
we must decide is whether Plaintiffs’ claim that Defendants
violated the people’s right to alter or reform the government
through a citizen initiative is a legally cognizable claim on which
relief can be granted. This is a question courts are capable of
answering through traditional tools of constitutional
interpretation.
3. Senate Bill 200 Was Not an Exercise of the People’s Right to
Alter or Reform the Government
¶191 Lastly, Defendants argue that the repeal of Proposition 4
did not violate the Alter or Reform Clause in article I, section 2
because that provision “permits the people, acting through the
Legislature, to alter the government ‘as the public welfare may
require.’” (Emphasis added.) (Quoting UTAH CONST. art. I, § 2.) So,
Defendants reason, “if Proposition 4 were an exercise of the
people’s [a]rticle I, [section] 2 power, then so was S.B. 200. Acts of
the Legislature, just as much as popular initiatives, exercise the
people’s power delegated via the Constitution.” Defendants argue
that the Legislature was reforming the government, on behalf of the
people, by correcting perceived flaws in Proposition 4.
¶192 We agree with Defendants that one way in which the
people could choose to exercise their right to alter or reform the
government is to petition their representatives to enact legislation
or propose a constitutional amendment or convention. But the right
itself should not be confused with the means through which the
people choose to exercise it. The “right to alter or reform the
government” as articulated in the third clause of article I, section 2
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belongs to the people. To be sure, through the Utah Constitution,
the people of Utah established a republican form of government in
which they “divided their political power, vesting it in the various
branches of government.” Carter, 2012 UT 2, ¶ 22. But as discussed,
the first two clauses of article I, section 2 reference the relationship
between the people and their government and reinforce that “[a]ll
political power is inherent in the people; and all free governments
are founded on their authority.” UTAH CONST. art. I, § 2. And as we
have discussed in depth, in the final clause of article I, section 2, the
people retained for themselves more direct control over the
government they had created. See supra ¶¶ 105–134. The “right to
alter or reform the government” refers to a right retained by the
people themselves to correct the government they created.
¶193 While the people could choose to exercise their reform
right through their representatives, the Initiative Provision gives
the people the power to enact statutory reform directly. See supra
Subsection I.C.2. It would negate the people’s retained right to
reform their government directly, and would misunderstand the
scope of the Alter or Reform Clause, if we were to hold that by
repealing a citizen reform initiative, the Legislature was simply
exercising the same right to reform the government that the people
had retained for themselves.
4. Defendants Suggest that Parts of Proposition 4 Were
Unconstitutional, but They Have Not Raised Such Arguments
for Our Determination or Briefed Them
¶194 We note that as part of their argument that S.B. 200 was
an exercise of the people’s reform right, Defendants assert that the
Legislature repealed Proposition 4, in part, because it viewed some
of its provisions as unconstitutional. But Defendants have not
asked us to decide the constitutionality of any such provisions, nor
have they briefed these issues for our review. Merely asserting that
some of Proposition 4’s provisions were unconstitutional is not
sufficient. Accordingly, we can make no conclusions today as to
whether the Legislature was correct in its assessments. See ASC
Utah, Inc. v. Wolf Mountain Resorts, L.C., 2013 UT 24, ¶ 16, 309
P.3d 201.
¶195 We note that the Governor expressed concerns in his
amicus brief that parts of Proposition 4 were unconstitutional. As
stated, we cannot decide these issues, as they have not been raised
by either party. But we make a few observations in an effort to
address the Governor’s contentions.
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¶196 One of the Governor’s primary concerns is that
Proposition 4 violated article IX, section 1 of the Utah Constitution
by impermissibly intruding on the Legislature’s redistricting
power and providing the Independent Commission with more
than an advisory role in the process. Article IX, section 1 states:
No later than the annual general session next
following the Legislature’s receipt of the results of an
enumeration made by the authority of the United
States, the Legislature shall divide the state into
congressional, legislative, and other districts
accordingly.
UTAH CONST. art. IX, § 1.
¶197 In considering this point, it is important to bear in mind
what Proposition 4 did and did not do. It did not take the authority
to enact electoral maps from the Legislature and give it to the
Independent Commission. Rather, it empowered the Independent
Commission to create proposed maps, which the Legislature was
required to consider. See UTAH CODE § 20A-19-204(2)(a) (2018)
(“The Legislature shall either enact without change or amendment
. . . or reject the Commission’s recommended redistricting plans
submitted to the Legislature . . . .” (emphasis added)). Accordingly,
under Proposition 4, the Legislature could reject the Independent
Commission’s proposed maps. Id. However, if the Legislature
rejected the proposed maps and used its own, the Legislature’s
maps, like the Commission’s, would have to comply with the
initiative’s prohibition on partisan gerrymandering and its neutral
redistricting criteria. Id. § 20A-19-103(1) (2018) (“[E]stablish[ing]
redistricting standards and requirements applicable to the Legislature
and to the Utah Independent Redistricting Commission.”
(emphasis added)). And the Legislature would have had to explain
why its maps met these criteria better than the maps proposed by
the Independent Commission. Id. § 20A-19-204(5)(a) (2018) (stating
that if the Legislature rejected the Commission’s map and adopted
its own, “the Legislature shall issue to the public a detailed written
report setting forth the reasons for rejecting the plan or plans
submitted to the Legislature . . . and a detailed explanation of why
the redistricting plan enacted by the Legislature better satisfies the
redistricting standards and requirements contained in this
chapter”).
¶198 Accordingly, under Proposition 4, the Legislature
retained the ultimate responsibility for “divid[ing] the state into
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congressional, legislative, and other districts.” See UTAH CONST.
art. IX, § 1. So, to establish that Proposition 4 violated the Utah
Constitution, a party would have to show that article IX, section 1
does more than grant the Legislature authority to enact legislation
setting congressional boundaries. They would have to show that
the provision prohibits the people from using their own legislative
power to, for example, enact statutory standards for the
redistricting process, or establish an independent commission to
create proposed maps that the Legislature is required to consider.
***
¶199 In sum, the original public meaning of article I, section 2—
especially the Alter or Reform Clause—and of the Initiative
Provision demonstrates that the people’s exercise of their right to
reform the government through an initiative is constitutionally
protected from government infringement, including legislative
amendment or repeal that impairs the intended reform.
Accordingly, the general legislative power to amend and repeal
statutes is not a basis to dismiss Count V. Further, we are not
persuaded by the additional grounds for affirmance advanced by
Defendants. For these reasons, we reverse the dismissal of Count V.
II. INSTRUCTIONS ON REMAND
¶200 With Count V reinstated, we remand this case back to the
district court for further proceedings consistent with this opinion.
We end with guidance on two points. First, to assist the parties and
the district court as the litigation of this claim proceeds, we
complete our discussion of the legal standards applicable to
Plaintiffs’ Count V claim. We do not intend to suggest what should
transpire next in the district court. We leave that to the court and
the parties. We provide the legal framework for Count V only to
provide guidance when it is ultimately adjudicated, whether that
be through a dispositive motion or at trial. Second, we address
Defendants’ appeal of the district court’s denial of its motion to
dismiss Counts I through IV of the Complaint.
A. The Legal Standard Applicable to Count V
¶201 We have discussed above the elements Plaintiffs will
ultimately need to prove to make out their Count V claim in the
district court. See supra ¶¶ 71–74.
¶202 If Plaintiffs make this showing, then the burden will shift
to Defendants, who will have an opportunity to establish that
S.B. 200 is not unconstitutional because it satisfies strict scrutiny.
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Specifically, they would need to show that S.B. 200—which
repealed and replaced Proposition 4—is narrowly tailored to
advance a compelling government interest. In re Adoption of K.T.B.,
2020 UT 51, ¶ 40, 472 P.3d 843.
¶203 “Whether a statute improperly allows the state to
extinguish or foreclose a protected right depends on the nature of
the right and its attendant standard of review.” Id. ¶ 32. Generally,
if the right at issue is “a right we have deemed fundamental, we
review the statute under our strict scrutiny standard. But if it is not
fundamental, we review it under the deferential, fallback standard
of rationality or arbitrariness.” Id. (cleaned up). Thus, we determine
the applicable standard of scrutiny by looking to the “nature of the
right[s]” at issue. Id.
¶204 Two rights are at issue here: the initiative right, found in
the Initiative Provision of article VI, section 1; and the right to
reform the government, found in the Alter or Reform Clause of
article I, section 2.
¶205 With respect to the initiative right, we have most often
discussed the nature of the right and its attendant standard of
scrutiny in cases involving statutes that regulate the procedures for
qualifying an initiative for the ballot. See, e.g., Gallivan v. Walker,
2002 UT 89, ¶¶ 30–83, 54 P.3d 1069 (multi-county signature
requirement); Utah Safe to Learn-Safe to Worship Coal., Inc. v. State,
2004 UT 32, ¶¶ 23–37, 94 P.3d 217 (senate district requirement,
signature removal provision, and one-year requirement); Count My
Vote, Inc. v. Cox, 2019 UT 60, ¶¶ 24–77, 452 P.3d 1109 (removal
provision and senate district requirement). In these cases, we have
made clear that, “[b]ecause the people’s right to directly legislate
through initiative . . . is sacrosanct and a fundamental right, Utah
courts must defend it against encroachment and maintain it
inviolate.” Gallivan, 2002 UT 89, ¶ 27; see also id. ¶ 24 (“The reserved
right and power of initiative is a fundamental right under
article VI, section 1 of the Utah Constitution.”). For that reason, and
because of “its significance to the political power of registered
voters of the state,” we have concluded that courts must ensure that
the initiative right “is not effectively abrogated, severely limited, or
unduly burdened.” Id. ¶ 27.
¶206 At the same time, we have recognized that the Initiative
Provision itself directs that the “conditions,” “manner,” and “time”
for placing an initiative on the ballot are to be set by statute. UTAH
CONST. art. VI, § 1(2)(a)(i). We review challenges to the
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Legislature’s exercise of that authority under a standard that falls
below strict scrutiny, but is more exacting than rational basis
review. See Safe to Learn, 2004 UT 32, ¶ 37. To determine whether a
statute regulating the condition, manner, and time to qualify an
initiative for the ballot unduly burdens the initiative right, courts
assess “whether the [statute] is reasonable, whether it has a
legitimate legislative purpose, and whether the [statute] reasonably
tends to further that legislative purpose.” Id. ¶ 35.
¶207 But where an initiative-regulating statute is challenged as
violating a right other than the initiative right, we have analyzed
that claim under its own attendant standard of scrutiny—
untempered by our consideration of the Legislature’s authority to
regulate the initiative process. In Gallivan v. Walker, the plaintiffs
claimed that the initiative regulations at issue violated the Uniform
Operation of Laws Provision in article I, section 24—which
proscribes classifications that have a disparate impact on similarly
situated persons—because the statute disfavored Utahns living in
urban counties and favored Utahns living in less populous, rural
counties. See 2002 UT 89, ¶ 34. We determined that the challenged
statute created a classification that “impact[ed] the right of the
people to exercise their reserved legislative power and their right
to vote,” which “are fundamental and critical rights to which the
Utah Constitution has accorded special sanctity.” Id. ¶ 41.
Accordingly, because the law created a classification that
implicated fundamental rights, “we review[ed] the challenged law
with heightened scrutiny.”40 Id. ¶ 42.
¶208 We have not had occasion to analyze the standard of
scrutiny applicable to an alleged violation of the Alter or Reform
Clause. But our analysis of the right to reform the government
makes clear that it is a fundamental right, held by the people of this
state, and guaranteed by the Utah Constitution. It is specifically
enumerated in our constitution’s Declaration of Rights. See UTAH
__________________________________________________________
40 In doing so, we explained that “[A] statutory classification
that discriminates against a person’s constitutionally protected
[fundamental or critical] right is constitutional only if it (1) is
reasonable, (2) has more than a speculative tendency to further the
legislative objective and, in fact, actually and substantially furthers
a valid legislative purpose, and (3) is reasonably necessary to
further a legitimate legislative goal.” Gallivan v. Walker, 2002 UT 89,
¶ 42, 54 P.3d 1069 (cleaned up).
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CONST. art. I, § 2. And as we have explained, “Article I of our
constitution is a declaration of those rights felt by the drafters of the
document to be of such importance that they be separately
described.” Sevier Power Co. v. Bd. of Sevier Cnty. Comm’rs,
2008 UT 72, ¶ 5, 196 P.3d 583. Further, as with other fundamental
rights, it “form[s] an implicit part of the life of a free citizen in a free
society,” Tindley v. Salt Lake City Sch. Dist., 2005 UT 30, ¶ 29, 116
P.3d 295 (cleaned up), corresponding as it does to the foundational
principle of popular sovereignty, which is the “very essence” of our
republican form of government, The Constitutional Convention: The
Body Organizes and Begins Work, DESERET NEWS, July 6, 1887, at 4.
¶209 The appropriate standard of scrutiny for Plaintiffs’ claim
that S.B. 200 violates the people’s right to reform their government
through a citizen initiative is strict scrutiny.41 We have held that
statutes infringing fundamental rights are subject to this level of
review. See, e.g., In re K.T.B., 2020 UT 51, ¶ 32; Jones v. Jones,
2015 UT 84, ¶ 26, 359 P.3d 603; Jensen ex rel. Jensen v. Cunningham,
2011 UT 17, ¶ 72, 250 P.3d 465 (recognizing that “a parent has a due
process right . . . to maintain parental ties to his or her child” and
that “[a] statute that infringes upon this ‘fundamental’ right . . . is
unconstitutional unless it (1) furthers a compelling state interest
and (2) “the means adopted are narrowly tailored to achieve the
basic statutory purpose.” (cleaned up)). And as we have explained,
the rights at issue in this case are unquestionably fundamental.
When Utahns use their initiative power to exercise their right to
reform their government, they are engaging in a constitutionally
preserved avenue for direct government reform. As we have
explained, the reform right must be exercised within the bounds of
the Utah Constitution as a whole. And other methods of reforming
the government require the people to work through their elected
representatives. To reform the government through a
constitutional amendment, the people must follow the
constitutional amendment process, which begins in the Legislature.
See UTAH CONST. art. XXIII, § 2. Another way to accomplish
statutory government reform would be to petition the Legislature
to pass legislation containing the citizen’s desired reforms. But
__________________________________________________________
41 Plaintiffs also claim that S.B. 200 violated the initiative right,
standing alone. However, as we have discussed, we do not resolve
that claim. And we do not opine on its attendant standard of
scrutiny.
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through their initiative power, the people can bring about statutory
government reform directly. If government-reform initiatives are
subject to legislative veto, then the Alter or Reform Clause is
severely diminished because the people will have no way to reform
their government without the government’s agreement and
participation. The constitution requires that this avenue remain
open. Accordingly, legislation that impairs government reform
enacted through an initiative must be subject to strict scrutiny. If
Plaintiffs are able to make out the claim elements we have
established, the burden will shift to Defendants to show that
S.B. 200 is narrowly tailored to advance a compelling state interest.
See In re K.T.B., 2020 UT 51, ¶ 40; Utah Pub. Emps. Ass’n v. State, 610
P.2d 1272, 1273 (Utah 1980) (“Under [strict scrutiny], the state must
bear the . . . burden of establishing the existence of a compelling
state interest which justifies [infringement of the right at issue].”);
cf. Safe to Learn, 2004 UT 32, ¶ 24 (“Under [Gallivan’s heightened
scrutiny] standard, the burden of proof shifts to the State to show
that a challenged provision actually and substantially furthers a
valid legislative purpose and is reasonably necessary to further a
legitimate legislative goal.” (cleaned up)).
¶210 Defendants argue against this standard, and they further
assert that we should not apply any standard of scrutiny to this
claim. Focusing on article I, section 2 in particular, they argue that
we are presented with a “structural question” that we should
resolve by looking only to the text, structure, and history of
article VI—the legislative article—and that we should uphold
S.B. 200 as long as it was a proper exercise of legislative power. The
premise of their argument is that article I, section 2, as a whole, is a
“structural provision.” They refer to our statement in Carter v. Lehi
that, in line with the basic premise of article I, section 2 that “‘[a]ll
political power is inherent in the people; and all free governments
are founded on their authority,’” the people “allocate[d]
governmental power in the bodies they establish[ed]” when they
ratified the Utah Constitution. 2012 UT 2, ¶ 21, 269 P.3d 141(quoting UTAH CONST. art. I, § 2). From this, they reason that
“[w]hat follows in the rest of the Constitution are manifestations of
the people’s sovereign authority to alter or reform their
government.” So, Defendants contend, as long as “the
constitutionally ordained allocation of power has been
maintained,” then article I, section 2 is not offended.
¶211 With respect to the Legislature in particular, Defendants
argue that if the Legislature acts within the bounds of the legislative
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power granted to it by the people in article VI—for example, by
enacting laws that are properly legislative, avoiding bills
containing more than one subject, see UTAH CONST. art. VI, § 22;
passing only general laws, id. art. VI, § 26; and not “author[izing]
any game of chance,” id. art. VI, § 27, then there can be no violation
of article I, section 2. Thus, they argue that the constitutional
question presented here is purely a structural one, which should be
answered based solely on whether the enactment of S.B. 200 was “a
proper exercise of legislative power” under article VI. They
contend that “Article I, [section] 2 is vindicated when the
Legislature . . . abide[s] by the Article VI structure the people first
created (or amended), nothing more and nothing less.”
¶212 But Defendants’ characterization of article I, section 2 as
solely a structural provision, which is fully satisfied by government
entities’ observation of the separation of powers, reads the Alter or
Reform Clause out of the provision. Their characterization focuses
only on the first two clauses of the section. We agree that the first
two clauses express the foundational idea of popular sovereignty,
that free governments must be founded on the authority of the
people. See Carter, 2012 UT 2, ¶ 21. And we agree that the
constitution itself is a manifestation of the people’s authority to
“allocate governmental power in the bodies they establish.” Id. But
Defendants’ argument that this is the sum and substance of
article I, section 2 gives no independent meaning to the Alter or
Reform Clause.
¶213 As we have explained, the Alter or Reform Clause is not
superfluous; it has its own meaning and import. See supra
Subsections I.C.1., I.E.1. It is not about the power to form a
government in the first instance. It is about the people’s reserved
right to make corrections to the government they created, when
necessary for the public welfare.
¶214 Thus, whether S.B. 200 violates the people’s right to
reform the government through an initiative is not a structural
question. Plaintiffs do not claim that S.B. 200 is not properly
legislative, or that it otherwise violates Article VI, or that the
Legislature has somehow violated the separation of powers laid
out in the constitution. They argue that the Alter or Reform Clause
establishes an enforceable right in the people that can be exercised
through the Initiative Provision, and that S.B. 200 violates this right
because it nullified the government reform contained in
Proposition 4. That question cannot be answered by simply looking
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at the text of article VI and determining whether S.B. 200 was
properly legislative. That is not how we analyze claims that
legislation violates a constitutional right. See In re K.T.B.,
2020 UT 51, ¶ 32.
¶215 Defendants misread our precedent when they argue that
we do analyze such claims in this manner, without resort to
standards of scrutiny. Importantly, in the cases on which
Defendants rely, we did not analyze claims that legislation violated
a constitutional right. See Carter, 2012 UT 2, ¶ 16 (analyzing
whether two proposed initiatives were properly legislative or
administrative in nature); Grant v. Herbert, 2019 UT 42, ¶¶ 19, 21–
34, 449 P.3d 122 (analyzing only (1) whether the governor exceeded
his authority by convening a special legislative session, and
(2) whether the lieutenant governor improperly denied an
application for referendum).
¶216 Certainly, when we interpret the scope of a constitutional
right, we analyze the text, structure, and original public meaning
of the right in question—just as we have done in this case. See South
Salt Lake City v. Maese, 2019 UT 58, ¶¶ 18–19, 450 P.3d 1092 (“In
interpreting the Utah Constitution, . . . [we] analyze its text,
historical evidence of the state of the law when it was drafted, and
Utah’s particular traditions at the time of drafting.” (cleaned up));
see also Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶¶ 96–100,
416 P.3d 663 (explaining how we “ascertain the original public
meaning of the constitutional text”). But contrary to Defendants’
suggestion, our analysis does not end there. Once we have
determined the scope of a right, and that legislation infringes it, we
then apply the attendant standard of scrutiny to determine whether
the statute in question must be deemed unconstitutional. See, e.g.,
In re K.T.B., 2020 UT 51, ¶¶ 32, 40–50; Count My Vote, 2019 UT 60,
¶¶ 29–31; Jensen, 2011 UT 17, ¶ 72; Safe to Learn, 2004 UT 32, ¶ 31;
Gallivan, 2002 UT 89, ¶¶ 39–40; Lee v. Gaufin, 867 P.2d 572, 580–83
(Utah 1993).
¶217 Defendants argue that we should not take that step. They
assert that we should eschew levels of scrutiny in our constitutional
analysis altogether. In their view, we should determine the scope
of the right in question based on its text, structure, and history. And
if legislation infringes that right, we should deem it
unconstitutional—without regard for the importance of the
government interest it advances or the precision with which it does
so. This is a surprising argument from the Legislature, because a
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primary reason for employing levels of scrutiny is to avoid tying
the Legislature’s hands while still protecting fundamental rights.
Thus, we have not followed the absolutist approach for which
Defendants advocate.
¶218 We will continue to carry out our “duty to evaluate the
constitutionality of legislative acts,” Moore v. Harper, 600 U.S. 1, 19
(2023), to ensure that constitutional provisions espousing
fundamental rights are not unduly infringed by legislation. In
doing so, we will follow decades of precedent in which we have
employed levels of scrutiny, with the appropriate level dependent
on the nature of the right in question. Where the people’s right to
directly reform the government through their initiative power is at
issue, strict scrutiny is required.
¶219 Accordingly, if Plaintiffs are ultimately able to establish
the elements of their claim in the district court, the burden will shift
to Defendants to show that S.B. 200 was narrowly tailored to
advance a compelling government interest. See In re K.T.B.,
2020 UT 51, ¶ 40. If they cannot do so, S.B. 200 must be deemed
unconstitutional.
B. Counts I Through IV
¶220 Defendants appeal the district court’s denial of their
motion to dismiss Counts I through IV. We decline to reach these
issues, but we retain jurisdiction over Defendants’ appeal pending
resolution of Count V. We will resolve the appeal if the resolution
of Count V in the district court does not render it moot.
¶221 We do this for several reasons. We note, as an initial
matter, that this case comes to us on interlocutory appeal. See UTAH
R. APP. P. 5. So our authority to reach the issues presently before us
is discretionary. See Salt Lake Trib. v. State Recs. Comm., 2019 UT 68,
¶ 11, 456 P.3d 728 (“[Interlocutory appeal] is not an appeal as a
matter of right.” (cleaned up)). Further, while the purpose of
interlocutory review “is to get directly at and dispose of the issues
as quickly as possible,” where the issues raised “may become
moot” or otherwise “abide determination,” our “desired objective
is best served by refusing to entertain” the issue. Manwill v. Oyler,
361 P.2d 177, 178 (Utah 1961); cf. UTAH R. APP. P. 5(g) (“An appeal
from an interlocutory order may be granted only if it appears that
the order involves substantial rights and may materially affect the
final decision or that a determination of the correctness of the order
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before final judgment will better serve the administration and
interests of justice.”).
¶222 Here, resolving Count V may well obviate the need to
address Counts I through IV. In the event Plaintiffs prevail on their
claim that S.B. 200 violates the people’s right to alter or reform their
government via citizen initiative, the act enacted by Proposition 4,
UTAH CODE §§ 20A-19-101 to -301 (2018), would become controlling
law. And under Proposition 4, if the facts alleged by Plaintiffs are
proven true, it is likely that the Congressional Map cannot stand.
Plaintiffs allege that Defendants did not comply with the
procedural requirements of Proposition 4 in various ways. For
instance, they allege that the Legislature did not make its proposed
redistricting plan available to the public “for a period of no less
than 10 calendar days” before being adopted, id. § 20A-19-204(4)
(2018); nor “issue to the public a detailed written report” within
“seven calendar days after its enactment[,] . . . setting forth the
reasons for rejecting” the Commission’s proposed redistricting
plans or “a detailed explanation of why the redistricting plan
enacted . . . better satisfies the redistricting standards and
requirements” in Proposition 4, id. § 20A-19-204(5)(a) (2018). And
the core of Plaintiffs’ Complaint is that the Congressional Map is
the result of partisan gerrymandering, which is prohibited by
Proposition 4. See id. § 20A-19-103(3) (2018). So, if Plaintiffs can
prove that the Congressional Map was influenced by partisan
gerrymandering, that would render the Map invalid as well.
Further, Proposition 4’s procedural requirements and prohibition
on partisan gerrymandering, along with the redistricting criteria
itself, are enforceable through a private right of action—which
Plaintiffs have suggested they may bring as an amended claim on
remand in the event that Count V is reinstated. See id. § 20A-19-301
(2018). In other words, to the extent Plaintiffs can establish their
claim under Count V, there is a strong chance the courts will not
need to address whether the Congressional Map violates the
discrete constitutional provisions set out in Counts I through IV—
which are precisely the type of issues we try to avoid on
interlocutory review. See Manwill, 361 P.2d at 178 (explaining that
interlocutory review is less appropriate where the issues “may
become moot”).
¶223 Also, as a general matter of judicial restraint, we “avoid
addressing a constitutional issue unless required to do so.” State v.
Wood, 648 P.2d 71, 82 (Utah 1982); see also Utah Stream Access Coal.
v. VR Acquisitions, LLC, 2019 UT 7, ¶ 55, 439 P.3d 593.
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¶224 We are further persuaded that we should determine
whether Utahns’ chosen solution to partisan gerrymandering
should be given effect before applying judicial standards to the
Congressional Map. As the U.S. Supreme Court explained in Rucho
v. Common Cause, 588 U.S. 684 (2019), its conclusion that partisan
gerrymandering claims are nonjusticiable in federal court would
not “condemn complaints about districting to echo into a void”
because “[t]he States . . . are actively addressing the issue on a
number of fronts.” Id. at 719. This included state efforts to stop
partisan gerrymandering through constitutional amendments and
legislation. Id. at 719–20 (highlighting Florida’s “Fair Districts
Amendment,” Colorado and Michigan’s “constitutional
amendments creating multimember commissions that will be
responsible in whole or in part for creating and approving district
maps for congressional and state legislative districts,” Missouri’s
creation of a “state demographer” to draw electoral maps, and
legislation in Iowa and Delaware prohibiting partisan
gerrymandering).
¶225 Proposition 4 was one such effort. Utahns used their
legislative power to “actively address[]”partisan gerrymandering
comprehensively, by completely prohibiting the practice,
reforming the redistricting process as a whole, establishing neutral
redistricting criteria, and providing an enforcement mechanism.
And while the constitutional provisions Plaintiffs invoke in Counts
I through IV might impose limitations on partisan gerrymandering,
Proposition 4 completely prohibits the practice, and its method of
doing so is comprehensive and detailed. We owe it to the people of
Utah to determine, first and foremost, whether their selected
method of addressing partisan gerrymandering should set the
governing legal standards.
¶226 Although we do not reach Counts I through IV, we will
retain jurisdiction over them and stay those claims pending
resolution of Count V. If those claims are not mooted, we will
address the Defendants’ appeal of the district court’s rulings on
Counts I through IV. But for the foregoing reasons, we decline to
do so at this time.
CONCLUSION
¶227 We hold that the people’s right to alter or reform the
government through an initiative is constitutionally protected from
government infringement, including legislative amendment,
repeal, or replacement of the initiative in a manner that impairs the
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reform enacted by the people. Thus, an alleged violation of the
people’s exercise of these rights presents a legally cognizable claim
on which relief may be granted. Accordingly, we reverse the
dismissal of Count V. We do not address the district court’s ruling
on Counts I through IV of the Complaint because those claims may
become moot depending on the ultimate resolution of Count V. We
retain jurisdiction over Defendants’ appeal of the district court’s
decision on those claims. And we remand this case, with Count V
intact, to the district court for further proceedings consistent with
this opinion.
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APPENDIX
The Independent Commission’s Proposed Maps
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